Marriage nullity, explained

A finding, not an ending

People often call it a “Catholic divorce.” It isn’t one, and the difference matters for how the whole process feels. A divorce ends something that existed. A declaration of nullity is a judgment that something essential was missing at the moment of consent, so that the bond the law presumes was never actually made. The tribunal is not asked whether the marriage failed, or whose fault that was. It is asked what was true on the wedding day.

The Church starts from a presumption in favour of the marriage: every marriage is held valid until the contrary is proven c. 1060. That presumption follows from the teaching that a consummated marriage between two baptized persons cannot be dissolved by any human power c. 1141. If the Church cannot dissolve a true marriage, the only honest question it can ask is whether this one was true. I explain that teaching, and its few real exceptions, in Indissolubility: what the Church can and cannot dissolve. Nor can the process reach back and supply what was missing: consent makes marriage, and “no human power is able to supply this consent” c. 1057 §1. A tribunal declares; it does not create or undo.

What makes a marriage

Three things have to come together, and the grounds of nullity are simply the catalogue of what can go wrong at each.

• Consent. A free act of the will by which a man and a woman give and accept each other for the whole of life cc. 1055–1057. Most cases turn on this.
• Capable persons. Neither party may be bound by an impediment: a prior bond, a vow, close kinship, holy orders, and so on cc. 1083–1094.
• Canonical form. A Catholic ordinarily marries before an authorised priest or deacon and two witnesses c. 1108, unless the form has been dispensed c. 1127 §2.

The grounds, in plain language

Here are the grounds most tribunals in Canada and the United States see, with the honest caveats a lay reader deserves.

• Lack of sufficient use of reason at the time of the wedding, through illness, intoxication or the like c. 1095, 1°. Rare.
• Grave lack of discretion of judgment about the essential rights and duties of marriage c. 1095, 2°. Not ordinary immaturity or a poor choice of spouse, but a seriously impaired ability to evaluate and choose what marriage is, at the time of choosing it.
• Incapacity to assume the essential obligations for causes of a psychic nature c. 1095, 3°. The person may have understood marriage well and still been unable, not merely unwilling, to live it. The cause must have been present at the wedding, even if it showed itself later. Tribunals usually ask an expert to help c. 1678 §3.
• Ignorance of what marriage basically is c. 1096. Very rare in adults.
• Error about the person, or about a quality of the person that was directly and principally intended c. 1097. Disappointment in a spouse is neither.
• Deceit, where one party deliberately deceived the other, to obtain consent, about a quality that by its nature can seriously disturb married life c. 1098. A concealed addiction is the classic example.
• Error about indissolubility, unity or sacramentality, only when the error actually determined the person’s will c. 1099. Vaguely believing divorce is available does not, by itself, invalidate.
• Simulation. Saying the words while, by a positive act of the will, excluding marriage itself (total simulation) or an essential element or property: children, fidelity, permanence, or the good of the other spouse (partial simulation) c. 1101 §2. The key word is positive: a decision, not a mood.
• A condition attached to consent. A condition about the future invalidates; one about the past or present stands or falls with whether it was fulfilled c. 1102.
• Force or grave fear from outside, so that the person chose marriage to escape it c. 1103. A sense of obligation on its own is usually not enough.
• Defect of form: a Catholic who married outside the Church without a dispensation cc. 1108, 1117.
• An impediment, most commonly a prior bond c. 1085 or marriage to an unbaptized person without a dispensation c. 1086.

In real cases the hard part is seldom naming the ground. It is proving, years later, what was true in two hearts on one day. That is why the law gives the parties’ own declarations real evidential weight c. 1678 §1, and why a case still needs more than one person’s account.

The process since 2015

Pope Francis reformed the process in 2015 with Mitis Iudex Dominus Iesus for the Latin Church and Mitis et misericors Iesus for the Eastern Catholic Churches, whose marriage law is in the Eastern Code (CCEO). The reform left the grounds untouched and changed the procedure.

• The ordinary process. A petition is accepted once the marriage has irreparably failed c. 1675. Both spouses are heard, witnesses are interviewed, experts may be consulted, the evidence is published for the parties to read c. 1598, and a panel of three judges decides c. 1673 §3.
• The briefer process before the bishop. Where both spouses ask, or one asks and the other consents, and the facts make nullity plain, the bishop himself judges after a short investigation cc. 1683–1687. If he is not morally certain, the case goes to the ordinary process.
• The documentary process. Where a document no one contests proves an impediment or a defect of form, a sentence can issue without the full trial c. 1688.
• One affirmative sentence is enough. Before 2015 every affirmative decision had to be reviewed by a second tribunal. Now the first sentence declaring nullity becomes enforceable once the time for appeal has passed c. 1679.
• Appeal. Either party, the defender of the bond or the promoter of justice may appeal c. 1680. An appeal that is plainly a delaying tactic can be dismissed by decree.

Real timelines vary. An ordinary case in a Canadian or American tribunal often takes a year to eighteen months; the briefer process can be a matter of weeks. The slowest part is almost always waiting for witnesses.

Who is in the room. The petitioner asks for the declaration; the respondent is the other spouse. The defender of the bond is a tribunal official whose duty is to put forward everything that can reasonably be said for the validity of the marriage c. 1432, so that the judges hear both sides even when the spouses agree. Either party may have an advocate c. 1481; my own role, when I act, is described on the marriage nullity service page.

A prohibition on remarriage. Sometimes a sentence attaches a vetitum: a prohibition on a new Church marriage until a condition is met, such as counselling c. 1682 §1. It is most common where the ground was incapacity, and it exists to protect the person and any future spouse, not to punish.

Costs. The reform asked bishops’ conferences to make the process free wherever possible, while paying tribunal staff justly. Many tribunals in Canada and the United States now charge nothing; those that do will reduce or waive the fee for anyone who cannot pay c. 1649.

If you are the respondent

Many respondents first hear of a case when a letter arrives. You have the right to be properly notified c. 1508, to be heard, to name witnesses, to read the evidence before the decision c. 1598, to have an advocate, and to appeal. You may support the petition, oppose it, or decline to take part. If you decline, the case continues without you c. 1592, so it is usually wiser to be heard than silent. Opposing a petition is not obstruction: a respondent who honestly believes the marriage was valid is doing exactly what the law expects, and the defender of the bond will be making the same argument. More in Your rights in the Church.

If you feel judged, or fear the result

It is common to feel that a tribunal is sitting in judgment on you, your family, or years of your life. It is not. The judges are asking a narrow question about consent, and they must decide it on evidence, not on who was the better spouse. A negative decision does not mean the Church thinks you should have stayed; it means the evidence did not reach moral certainty on the ground alleged, and a new petition on another ground is sometimes possible, since questions of a person’s status are never finally closed c. 1643. An affirmative decision does not mean your relationship, your children or your love were unreal. It means that what the law calls marriage was not, on the evidence, made that day.

Nothing here is advice on a particular situation. If you want to talk through yours, the first conversation is free. See also the FAQ and When the system feels against you.