If practically anyone can get an annulment
it becomes logical to deduce
that everyone has the right to get one.

The end of
the annulment explosion

by Clarence J. Hettinger

n The annulment explosion is like two little dust devils on the middle of a country road moving toward each other as if by an irresistible attraction. These small packages of energy met at the entrance to our lane between the houseyard and the barnyard, became one, and, changing course, proceeded down the lane. The fence and trees along the north side of the lane offered some resistance to its desired northeasterly path but after perhaps thirty seconds it escaped the restraint and very quickly developed into a small tornado. For the time being, the similitude ends here. For while the small tornado quickly lost its energy, the aftermath of the annulment explosion is still with us. The dust may take quite some time to settle but the comparison will reach its completion in God's own good time.

The two little dust devils are likened to two components of the total annulment context-an initially small pool of potential annullees (along with their parish priests, the personal context) and an initially small pool of annullers (the practical context). The attraction between the two would be a shared annulment mentality (the doctrinal context). The restraint on Catholic potential annullees was their belief in the indissolubility of marriage. Up to the time of the article on divorce in the New Catholic Encyclopedia (1966) fewer Catholics than Protestants were getting divorces.

A Notre Dame University professor of sociology has been researching the annulment situation in the United States. His research1 has established a convincing, empirical picture of how the restraint on the annullers was removed and of what has happened since the removal of the restraint. He has graciously given permission for me to use some of his findings in order to illustrate with scientific authority the genesis of the annulment explosion and the still excessive number of annulments. His research and a recent book on marriage counseling encourage me not only to reiterate the possibility of parish priests contributing to the abatement of the annulment crisis but to stress the urgent necessity of their doing so. This essay, then, will be a cross-disciplinary reprise of my earlier "Too Many Invalid Annulments."2

Perhaps I should clarify at the outset four terms that need to be hedged. Unless the context indicates otherwise annulment is used in the restricted sense of declarations of nullity on the ground of lack of due discretion or lack of due competence since they account for almost all ordinary process (formal case) annulments as opposed to documentary process (informal case) annulments like cases of defect of form, previous bond, or disparity of cult. About the annulment mentality, first, it is at root not a relatively recent phenomenon; the Rota was aware of its existence already in 1940. Second, it arises out of the good intentions of sincere Christians who are motivated, as W. J. Doheny wrote in the foreword to his 1947 edition of Canonical Procedure in Matrimonial Cases, "to save the souls of those who might have otherwise drifted away from God and his Church." However, annulment per se is a good only secundum quid; it is something that helps some individual souls but it is detrimental in the natural order to the stability of the family and in the theological order to the sacramental dignity of marriage. Finally, statistical data are generally satisfactory only for the years following 1983 when a change was made in the manner of reporting the data.

The personal context of the annulment crisis is perhaps the simplest to explain. According to the National Institutes of Mental Health, 25% of the general population of the United States suffer from some sort of mental disorder but only 4.5% of Americans have disorders considered severe. Based on the Statistical Yearbook of the Church figures for 1984-1991, about 95% of the hundreds of thousands of U.S. ordinary process decrees of nullity were derived from canon 1095, 20 and 30. That should mean that at the time marital consent was exchanged one or both spouses lacked due discretion or due competence because of a serious mental disorder. Although we do not know precisely how representative annulled marriages are of all marriages, it seems highly improbable that those who receive them are several times more likely to be mentally disturbed than the general population.

This cannot be true especially in view of the fact that the great majority of marriages annulled by ordinary process were entered under Catholic auspices. As prospective covenanters, the parties underwent at least a prenuptial examination case and some pastoral marriage preparation at the end of which a pastoral minister was morally certain that the parties were capable of entering a valid and licit marriage. In addition, a significant number of cases were subjected also to chancery scrutiny. Thus, the U.S. tribunal system maligns the mental health of Catholics and the intelligence, prudence, and perceptual acuity of parish and chancery officials who several if not many years before an annulment had no founded and probable doubt about the validity and liceity of these annulled marriages.

In any event, if in fact most U.S. annulments were not annullable that fact would warrant the conclusion that the annulment population finds itself in that most pathetic state of being far less able than the general population to enjoy the one original "blessing not swept away by the Flood." This, of course, is simply not true. For the normal condition of fallen human nature paradoxically includes not only the downside of darkness of intellect, weakness of will, and disturbance of the emotions-three possible sources of consensual incapacity-but also the upside of the ability to live a lifelong faithful and fruitful marriage.

Priestly acceptance of the annulment mentality would be different according to whether they were ordained before or after Vatican Council II. The annulment situation to which older priests were accustomed was vastly different from today's. Since ordinary process marriage cases were quite rare the average pre-Vatican Council II priest might never have been involved in any except the documentary process cases, along with the Pauline and Petrine privilege cases, most of which received a favorable decision. Since the facts to be proved in those cases are empirically verifiable events the parish priest could generally ascertain whether a case was viable or not. With the psychologization of annulments and the sharp upturn of decrees of nullity, however, the priest's prenuptial certainty of validity was severely attenuated. For years now experienced parish priests have come to prefer ten funerals to one wedding. That ratio is almost replicated in U.S. tribunals where nine of ten ordinary process cases result in annulment.

The great multitude of annulments on psychological grounds of the marriages of so many average, generally likable persons has predictably led to the belief that getting an annulment is very much like getting a divorce. Moreover if practically anyone can get an annulment it becomes logical to deduce that everyone has the right to get one. For giving the "correct" answers to a number of set questions designed to bring out personality or character defects practically guarantees entitlement to a Catholic license to remarry. The fact that almost no annulment was denied in so great a multitude of cases proclaims that psychologically based annulments are as "automatic" as the documentary process cases are. Thus, the personal annulment context is not likely to go away until the doctrinal context has undergone a drastic change on the order of a 180 reversal of direction.

According to one plausible hypothesis the doctrinal context is the offspring of the unholy "spirit of Vatican II." Wherever the letter of the Council was defective "the spirit" would supply. No doubt it preexisted the Council but it was conjured up as an angel of light through incantations derived from a very selective reading of the words of good Pope John XXIII. Actually he set the basic agenda or principle of Vatican Council II as suaveness in manner but steadfastness in substance. However, more accurately reading the signs of the times than His Holiness had, the unholy spirit of Vatican II dwelt exclusively on the first, people-pleasing, accidental part of the agenda and tried to bury the second, substantive part in deep silence. It promoted the humane persona of Angelo Giuseppe Roncalli and suppressed his Petrine persona. The case of Pope Vigilius illustrates dramatically the significance of the distinctio personarum in the supreme pontiff. The humane Vigilius gained the papacy through a heretical deal with the monophysite Empress Theodora but after his election the Petrine Vigilius reneged on the deal with rocklike fidelity at the cost of much suffering.

John XXIII clearly stated the Council's agenda at its solemn opening on October 11, 1962. He defined the doctrinal aims of the Council in his Petrine persona: "General Council XXI . . . wills to hand on the integral, not diminished, not distorted Catholic doctrine which, albeit amid difficulties and contentions, has become the common human patrimony. While this is indeed not pleasing to all it is nevertheless offered as a ready, most full treasure to all who are endowed with good will."

The Roncalli persona appeared later in the allocution in empathic and optimistic but less than prophetic words which were more pleasing to fallen human nature. They became the root of a so-called "new pastoralism." He said, "Regarding the present time it pleases Christ's spouse to apply medicine rather than take up the weapons of severity; rather than condemning she thinks that modern needs are to be looked after by a richer explanation of the power of her doctrine. It is not that there are lacking fallacious doctrines, opinions, and dangers to be guarded against and dissipated but that all these so openly conflict with the right principles of rectitude and bear such deadly fruits that men themselves seem to be beginning by themselves to condemn them which, to name them, are excessive confidence placed in the progress of the technical arts and prosperity based solely on the conveniences of life."

The annulment mentality with its potential for harm to the institution and abuse of the sacrament of matrimony was one of those dangers to be guarded against. In its incipient form it had been authoritatively recognized already twenty-one years before the Council opened. Pope Pius XII told the Roman Rota on October 3, 1941, "As regards declarations of the nullity of marriage, everyone knows that the Church is rather wary and disinclined to favor them. Indeed if the tranquillity, stability, and security of human intercourse in general demands that contracts be not lightly set aside this is still more true of a contract of such importance as marriage whose firmness and stability are necessary for the common welfare of human society as well as for the private good of the parties and the children and whose sacramental dignity forbids that it be lightly exposed to the danger of profanation."

When the Council presented its teaching on marriage to all men of good will it was faithful to John XXIII's agenda and stated, "The Council, by placing certain central points of the Church's doctrines into a clearer light, intends to enlighten and strengthen Christians and all men who strive to protect and promote the native dignity of the matrimonial state and its extraordinary value" (Gaudium et spes 47). Although the world at large did not heed the Council's words, one might think that the Church's theologians and tribunal personnel would have taken them to heart. However, fifteen years after Pope Paul VI and the Council Fathers signed Gaudium et spes the annulment mentality was in full vigor and Pope John Paul II found it opportune to repeat verbatim to the Rota on January 24, 1981, the above quoted words of Pius XII's October 3, 1941, address to the Rota.

It seems the unholy spirit of Vatican II drastically reinterpreted the Council's words, which serve as a gloss on Matthew 19:6 and 1917 canon 1014 (current canon 1060): "Hoc vinculum sacrum . . . non ex humano arbitrio pendet" (Gaudium et spes 48). The stark Latin letter of the pastoral Council's only professedly pastoral constitution was surely sterile: it hard-heartedly left no room at all for human activity on the bond. The insertion of a mere three words produced a remarkably meaningful paraphrase suggesting the primacy of human authority: "This sacred bond no longer depends on human decision alone." It is as if until the Council spoke the Lord had nothing to say about the permanence of marriage; human decision had enjoyed exclusive jurisdiction over the bond of marriage but now there is some room for divine activity in the matter. It became evident a few years later that in the U.S. tribunal system any room for God did not include much space for the indissolubility of marriage or the fact stated by the Catechism that divorce is against the natural law. The system had consigned the Church's disinclination to favor annulments to utter oblivion and granted annulments with amazing facility and bemusing alacrity.

Although this catchy but theologically naive slogan for the new juridical matrimonial pastoralism of the U.S. tribunal system had been coined, a catalyst was lacking for the new pastoralism to begin to grow into the proverbial mustard tree with ample room for many birds to find refuge in its branches. The catalyst came less than three years after the close of the Council. Pope Paul VI dared to ignore the democratic process and in 1968 published Humanae vitae, immediately bringing down upon himself open dissent against the papal magisterium. The canonical dissent to the Church's disinclination to give annulments was less blatant than the theological dissent to Humanae vitae had been but scarcely less damaging to faith and morals. At that time the U.S. tribunal system was still a low-key operation but it was beginning to worry about the rise in divorce and remarriage among Catholics and about ways and means to help them.

The ways and means turned to be an assault on indissolubility. It had begun in 1967 with an article in Commonweal and V. J. Pospishl's Divorce and Remarriage: Toward a New Catholic Teaching. Then the year of Humanae vitae saw the beginning of a spate of books and articles implicitly if not explicitly attacking the indissolubility of marriage in one way or another, promoting, for example, the Eastern Orthodox tradition of oikonomia, the "internal forum solution," or the unpublicized effort to bring about the repeal of the presumption of law in favor of marriage. The article on divorce in the first supplement to the New Catholic Encyclopedia (1966-1974)-its actual topic was divorce and remarriage-detailed "a contemporary reexamination of Church discipline on marital indissolubility" and "commended [certain] bishops for taking a creative pastoral stance on this issue." The ultimate in canonical dissent, however, came in the 1976 frontal assault of S. J. Kelleher's Divorce and Remarriage for Catholics? He proposed "(1) to advocate the abolition of all Catholic Church marriage tribunals; (2) to vindicate the right of persons to divorce themselves; (3) to vindicate the right of divorced Catholics and Catholics marrying divorced persons to marry publicly in the Church; (4) to vindicate the right of these Catholics to full membership in the Church and particularly their right to open participation in the Eucharist."

It seems that, given its support in high places, the doctrinal context is not likely to change substantially in the immediate future. For example, a few years ago a U.S. Catholic diocesan bishop could allow himself to be quoted as saying, "I wonder if the Church should get out of the marriage business. I question whether or not we belong in the business of arbitrating marriages. I'd much rather pray for people and wish them well." One might wonder if the bishop's tribunal, no doubt with intentions as pastoral as his, has not defected from the U.S. tribunal system which at least gives lip service to Rome while eroding indissolubility in a flood of annulments.

This does not bode well for a change in the practical annulment context whose birth quietly took place in the year 1968 simply by chronological coincidence. With its mere 368 annulments, the year of Humanae vitae became the base year of the explosive U.S. annulment escalation. As happens in human development, the escalation must have intensified somewhat gradually but in the next twelve years the annulment assembly line annually set new production records, reaching 63,962 in 1980-173.8 times the 1968 number. The pace decelerated after 1980 but recently the annual average total still exceeds 40,000.

The initial mental health comparison of U.S. general population and the annulment population strongly makes the point that the tribunal system in this country is incredibly too productive to be promoting the true good of the souls of most annullees. However, a comparison of U.S. tribunals and the tribunals of the rest of the world even more sharply points up this fact and the Holy Father's consequent concern expressed in 1981 about the profanation of the sacrament of matrimony through unwarranted annulments. In 1980 the worldwide total of annulments was 89,065, 71.8% of which were given in the U.S. The total U.S. 1984-1991 production was 322,350 annulments while the rest of the world was giving 107,176 declarations of nullity; percentage-wise the 6% of the world's Catholic population in the U.S. received 75% of the world's 429,526 annulments while 94% of the world's Catholic population received 25% of them. Is marriage American style that much different from the marriage style of the rest of the world?

One would hope that the style of their tribunals is. A U.S. canonist's study documents a lack of judiciousness in the U.S. tribunal system. In 1980-1983 the Rota overturned 42 of 47 U.S. annulments (89%); another study reported 20 out of 23 (87%) in 1986-1987. It appears, then, that the U.S. tribunal system is cruising off course by almost 180; its nearly 90% annulment record really should be 10%. Thus, the vast majority of U.S. annulments granted in the last decade or so were themselves null and void due in a completely literal sense to a grave defect of discretion of judgment about essential matrimonial rights and obligations on the part of the judge. Although it would be a serious sin of rash judgment to deny that U.S. tribunal personnel were and are motivated by the best of good intentions, it would not be rash to compare what they are doing with what John Paul II castigated in Veritatis splendor 56 as "an attempt to legitimize so-called 'pastoral' solutions contrary to the teaching of the Magisterium." However, admitting the best of misguided good intentions does not impede but rather supports the inference that most of the few valid annulments were so by pure accident.

Recently John Gottman, Ph.D., who had been trained as a mathematician and psychologist, published Why Marriages Succeed or Fail. It reports the results "of more than twenty years of research with hundreds of couples." The book received a very favorable review in the Chicago Tribune on July 9, 1995. Gottman's system seems to have a good potential for saving troubled marriages, thus reducing the number of potential annullees but also offering food for thought to tribunal personnel. It has some juridical relevance as well. Gottman's peers may have questions about his methodology, especially about the sufficiency of the data supporting the claim of his ability to predict the success or failure of existing marriages. However, the book review suggests that if the causes of marital failure can be predicted most marital failures can be prevented. This confirms the jurisprudence that teaches that psychopathological defect by no means plays the major role in terminal marital difficulties. John Paul II and the Rota recognize the major factors as original sin, failure to cooperate with the grace of state, and the nonuse or misuse of natural remedies.

The book should be a wake-up call for U.S. tribunals because after twenty-one years of study Gottman has identified the early warning signs of marital failure. He calls them "The Four Horsemen of the Apocalypse": "criticism, contempt, defensiveness, and stonewalling." The relevance to our theme lies in his implicit definition of these personality flaws not as psychic causes but as moral defects. "Criticism involves attacking someone's personality or character . . . Contempt . . . is the intention to insult and psychologically abuse . . . . [Defensiveness] is the natural inclination to defend yourself from attack . . . . Stonewalling . . . conveys disapproval, icy distance, and smugness." As moral defects they cannot contribute to a successful case of consensual incapacity. Equally as important, it is impossible to attribute juridical gravity to them because "they comprise only the first of two cascades toward marital dissolution, not the end of the line"; intelligent cooperation in appropriate counseling even at the stage of stonewalling may save a marriage.

The fact that in a recent eight-year period 6% of the world's Catholics received 75% of the world's annulments simply cannot reflect the actual state of affairs in God's real world in regard to nubile maturity. Although the Church discourages unusually youthful marriages in several ways she recognizes as a matter of the natural law that the admittedly low maturity-the natural immaturity if you will-of the normal sixteen-year-old boy and fourteen-year-old girl suffices for marriage validly (cf. canons 1071, 1, 60; 1083). In fact she does not say boy and girl but man and woman. This is not surprising, first, because people can exercise the natural right to marry as soon as they have become adult enough to possess the minimum sufficient psychic and physical maturity for fulfilling the obligations of marriage, something which Mother Nature presumably provides when physical maturity has been attained. Second, the Church considers children at the age of fourteen mature enough to make some important adult decisions: to choose to be baptized in the Latin or another Ritual Church and the decision to revert to the Latin Church (canons 111, 2; 112, 3), to be the plaintiff or defendant in cases involving spiritual matters (cf. canon 1478, 3), and to testify in court (cf. canon 1550, 1). Although such marriages are notoriously fragile they can be viable as well as valid provided the parties faithfully cooperate with the grace of the sacrament. In God's real world difficulties inherent in close interpersonal relationships furnish the tension and the sacrament provides the strength needed for growing out of natural immaturity into ever-growing maturity; they cannot be transmuted into evidence for a no-fault annulment on the ground of lack of due competence because of irretrievable differences.

In view of annulment statistics, the juridical matrimonial pastoralism current for almost thirty years must work on the basis that "it pretty much looks and sounds all right but there must be something wrong with it and given a little time we will find it." Gottman and his associates, however, have considerably narrowed the juridical field of the "something's wrong" inasmuch as they have isolated three types of marriages that, based on their style of combat, can be stable-not only validating but also volatile and avoidant marriages. All three are styles of combat that can operate within a viable marriage.

The mention of viable marriage reminds me of the metaphysical axiom, cited by Msgr. Serrano in a recent Peoria decision, "Ab esse ad posse valet illatio"; it is being utilized without being so called by other Rotal auditors. A valid paraphrase of the axiom would be that any sane individual who observes an object exhibiting duck-like characteristics concludes that the underlying substance is that of a duck. It must be said that no parish priest can make a decision about a marriage tantamount to a negative definitive sentence. However, any parish priest can apply this common-sense axiom to a marriage about which, for example, a would-be petitioner had stated as a fact, "The marriage was great for the first year; we did everything together, etc., but then something happened." There really are some black and white cases and their juridical context is that the marriages were physically and morally consummated. To declare that fact annulled is to grant a divorce.

It is within this total context-the validity of the vast majority of marriages and the Church's disinclination to give annulments-that I vindicate the right and obligation of parish priests to make the subsequent judgment whether a couple has received the sacrament of matrimony as well as his right and clear obligation to make the antecedent judgment whether to admit a couple to the sacrament of matrimony. (Refusal to admit depends on the ordinary's judgment according to canon 1077, 1.) However, even if the priest sees no indication that the sacrament was not received he may not refuse to send a case to the tribunal if his client is insistent. Nevertheless, he has the obligation in charity to try to persuade the would-be petitioner to drop the matter if he sees that there is no hope of a favorable decision. If he is unsuccessful, what would have been simple disappointment at his pastor's words will be anguish at the tribunal's unfavorable decision after a long and difficult procedure. The pain will be even worse for people who fail to get an annulment after being encouraged to go for it and giving it their best effort.

John Paul II and the Rota have laid to rest the myth that Vatican Council II has raised the parameters of marriage beyond the reach of ordinary folks with their psychic warts and wrinkles. Of course, cases of other than psychological grounds may appear. If, however, they do not and no suggestion of a serious psychic disturbance arises from a potential petitioner's report of the personal and interrelational history, a priest can in good conscience say that there are no grounds on which to base a case. And, appealing to authority, if I correctly read Bishop Edward M. Egan's Rota decision of March 29, 1984, on a U.S. case, he would agree that the front-line member of the hierarchy involved in the pre-petition stage of a case is seated outside the tribunal. He wrote, "Cases are coming before ecclesiastical tribunals which from the very outset evidently are without any juridical foundation. This would be avoided if they were not introduced [emphases supplied] at all or if the defender of the bond exercised greater care and diligence . . . . Even judges are obliged to persuade parties not to present a petition if it does not have the smoke of a good right." In the absence of advocates qualified in accordance with canon 1483 I can think of no more appropriate front-line member of the petition-screening team than the parish priest.

I have reached if not passed the point of belaboring the existence of an urgent need to do something about the annulment crisis. It seems to me that the first thing to do about it is to practice charity toward the people who make up the U.S. tribunal system. First of all, they operate with the best of good intentions (sacramenta propter homines) and they have a right to their good name. Second, their annulments are protected by the canonical presumption favoring the validity of juridical acts completed with external correctness. While this presumption can be and has been overthrown by the Rota, challenging the validity of an annulment is the exclusive prerogative of the parties or the promoter of justice acting on behalf of the diocesan bishop. While we may professionally discuss the shortcomings of the system we must preserve fraternal communion with the people operating within it. Otherwise, we may cause the real scandal of loss of trust in one agency of the Church which might be transferred by association to the whole institutional Church.

This leads to the question of spreading the total annulment message outside of clerical circles. It is my opinion that it should not be attempted if the total annulment message necessarily includes the evidence that the vast majority of annulments are invalid. The presenter cannot tell by looking at his audience if any annullees are present but, in view of the hundreds of thousands of annulments already granted, there is a high probability that at least one individual in any moderate-size gathering of Catholics will be an annullee or a friend or relative of one. There is no delicate way to present the message to them. The annullee has been happily enjoying a renewed sacramental status in the Church in perfect good faith and if he or she can escape having a serious doubt about the validity of his or her annulment the annulment most likely was valid because of lack of due discretion. We have no right to diminish the good faith and conscience of the annullee, cause sadness among family and friends, or offer the occasion for uncaring acquaintances to make catty remarks like "You are lucky you got your annulment when you did." We can offer the essential message that the Church is disinclined to give annulments and the reasons for her disinclination without the sensational grim statistics.

Nevertheless, it follows from the invalidity of an annulment that a subsequent remarriage is invalid because of the impediment of previous bond. Scandal or not, if a remarriage should break up, the person who married one of the parties after their annulment may be entitled to petition for a declaration of nullity on the ground of previous bond. The previous bond case itself would be simple enough but the first step is to petition the Rota for a rehearing of the annulment case. There is no guarantee that the Rota will reopen a case but the annulment statistics indicate the reasonableness of looking into the matter. If the Rota reverses the annulment the next step is a petition for a case on the ground of previous bond with the two Rota sentences as the necessary proof.

To end on an upbeat note, I return to the good intentions of U.S. tribunal personnel. One of my colleagues recently had a conversation with judges from two metropolitan tribunals who asked for advice on how to reject a petition and how to give a negative decision. Thus, the good intentions are showing themselves as the Achilles' heel of the apparently monolithic U.S. tribunal system. Contact with graduates of Roman faculties of canon law who are aware of the situation in God's real world is an actual grace and it is working with the good intentions; a reversal of direction back to judicial sanity has begun. We can recognize an additional source of actual grace in the sociological annulment study about to be published. It will point out the great need for a collective examination of conscience by the U.S. tribunal system about its unsophisticated reliance on a psychology uncorrected by that Christian anthropology which the Supreme Pontiff and the Roman Rota have proposed as an essential element of matrimonial jurisprudence. As more such graduates (and officials of the Roman Curia) come back from Rome the trend can only grow. Once again tribunal personnel will recognize that reconciliation is the fruit of the sacrament of penance and that they are guardians of the sacrament of matrimony and only incidentally certifiers of freedom to remarry. n

1Robert H. Vasoli, Tearing Asunder: Annulment American Style, publication by Oxford University Press forthcoming.

2See HPR, December 1993, pp. 23ff.

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