Reforming the Annulment Process–Brainstorming Solutions.

Deacon Greg Kandra links an article that encourages overhauling the annulment process.   I think most people would agree that the annulment process is in need of serious improvement.  In fact, one of the factors influencing Pope Francis’ call for an Extraordinary Synod on the Family next November was his concern about the way the Church handles divorce and annulment.  Many of the questions in the survey the Vatican sent to the world’s bishops had to do with seeking input on how to improve the handling of annulments.

But while most people agree that the current way of doing things isn’t working, there is little agreement on what to do about it.  Unfortunately, many people are proposing ideas that have already been determined by the Church as unworkable.  For instance, in the article linked by Deacon Greg, the author, Fr. Peter Daly, suggests two ideas that the Vatican has already overruled.  The first is letting the local pastor handle the annulment.   He argues…

If I were pope, I would leave the decision about annulments and reception of the sacraments entirely up to the parish priest. It should be resolved in the internal forum of the confessional. The emphasis should be on mercy, not law. End of story. Move on.

The Problem with the Internal Forum

The problem is that this option, the so-called “pastoral provision” was already outlawed by the Vatican.  The original idea behind the pastoral provision was to allow people to confess the second marriage and allow the pastor to absolve the penitent of the sin of adultery in the second marriage.  But that really doesn’t make any sense at all.  To receive absolution for something, one has to resolve to try to not do it again.  How do I  confess a second marriage and receive absolution for it if I fully intend to continue sleeping with my second partner when I go home?  It appears to me that the internal forum option not only destroys the integrity of the annulment process, but the integrity of confession as well.  There are additional problems with using an internal forum solution–whether confession or some other process overseen by the pastor–to resolve marriage issues.  For example; marriage isn’t a private institution.  Its a social one.  You can’t deal with a public issue in a secret, private forum without causing more problems.   Another reason I think the internal forum option would cause annulment to lose any integrity at all is that pastors would be under tremendous pressure to grant every petition that came across their desk.  There needs to be some kind of oversight to protect both the pastor from undue pressure and the integrity of the sacrament.

The Problem with the  “Eastern Option”

The second option Fr. Daly proposes is following the Orthodox tradition of simply giving people a pass on the first divorce.  Orthodox Christians essentially get one “get out of marriage free card.”  2nd or 3rd marri

ages require permission from the bishop, but first divorces are merely accepted.  I have read the Orthodox justifications for this position, but honestly, they strike me as lacking coherence.  Regardless, the Vatican has also ruled, several times now, that this option is not consistent with the Catholic understanding of marriage.  For the indissolubility of marriage to mean anything, it needs to be indissoluble.  There can be certain conditions where the person does not intend to enter into marriage as the Church defines it or is incapable of entering into marriage as the Church defines it, but those are exceptions.  They can’t be the rule.  Making them the rule undermines the integrity of the entire Catholic theology of marriage.  Clearly this is non-starter.

That people keep returning to these two failed options strikes me as a stunning lack of creativity.  So what can we do?  I don’t have any comprehensive answers to the question, but in my response to the Vatican survey, I did make some suggestions.

Possible Improvements

1.  Stop Requiring Divorce First.

Currently, people who seek annulments are required to have a civil divorce first.  This is not a matter of canon law, btw. It’s just a policy.   I have asked several canonists why this stipulation exists.  They have told me that, in the first place, it is a way to certify that there is no chance of reconciliation.  Of course this is silly.  I have helped plenty of couples reconcile after civil divorce.  It’s more common than you might think.  Second, I have been told that requiring divorce first prevents the Church from being sued for “alienation of affection or loss of consort”  (i.e, one spouse filing a legal suit alleging that the Church forced the other spouse to stop having sex with him or her).  Really?  Does anyone sue for that?   What court would touch loss of consort for religious reasons with a 10 foot pole?  There are so many constitutional issues wrapped up in that  I can hardly think it would be worth it.

In my opinion, requiring married couples to divorce before seeking an annulment sends the message that the civil authority is the one that counts, not the Church.  That’s a terrible message to send.  Second, it puts Catholics in a terrible bind.  The Church forces the couple to get a divorce before it will rule on the validity of the marriage.  What if the church then finds the marriage valid despite the divorce?  How cruel is that?  This policy puts the Church in the position of finding a reason, any reason, to grant the declaration of nullity so the couple can be spared living in limbo, and it puts other couples who honestly don’t have legitimate grounds for an annulment in the position of being civilly estranged but morally bound to their spouse.  How does this not make the Church complicit in leading people into temptation of contracting an invalid second marriage?

Instead, I propose that the Church require couples to seek a declaration of nullity before seeking a civil divorce–except in cases of physical abuse.  That would allow the Church to adopt a pastoral position.  The Church could counsel the couple on the reasons that it appears that the marriage is valid and make recommendations for healing it.  Or it could state that yes, this is a marriage that is definitely invalid and the couple could proceed to divorce. It would make the annulment process a process of discernment which could be more pastoral than juridical but still have integrity and weight.

2.  Allow Lack of Informed Consent/Formation as a Criteria for Annulment.

Pope Benedict actually floated this idea himself.  The Church currently states that one needs to have free will and be able to give full consent to contract a valid marriage.  The problem is, you can’t freely give full consent if you don’t fully understand what you are choosing or believe in the Catholic vision of marriage. How many people get married in the Church with the express intent to live the Church’s vision of marriage and family life and to be their spouse’s best hope–second only to the saving work of Jesus Christ–of getting each other to heaven?  That, in a nutshell, is what the Church is asking couples who get married in the Church to do.  How many couples either understand that or have been formed to the degree that they are capable of living that out?

If the Church doesn’t do a good job of forming the couples it marries in the first place, it is unjust to hold those couples responsible for the Church’s (or the couple’s parents’) failure.  This option would both challenge the Church (and Catholic parents) to do a better job forming couples on the front end, but it would also recognize the fact that ignorance or incapability are legitimate impediments to free will and full consent.

No doubt there are many other ideas that could work, but I think these two options would do a great deal to make annulments more pastoral and logical while still respecting the integrity of the sacrament and the Catholic theology of marriage.
What do you think?  How could the Church do a better job to make the annulment process more pastoral while still respecting out theology of marriage?  Post your ideas as a comment.  I look forward to your feedback.

For help living the Catholic vision of marriage, check out For Better…FOREVER!  A Catholic Guide to Lifelong Marriage,   Just Married:  The Catholic Guide to Surviving and Thriving in the First 5 Years of Marriage, and Holy Sex!  The Catholic Guide to Toe-Curling, Mind-blowing, Infallible Loving.