Thursday, September 27, 2007

Church Annulment

Thursday, September 27, 2007

By: James Jennings
Discount Divorce

CLIENTS OFTEN ASK me, what is the difference between a civil annulment (a declaration by a state court that a valid civil marriage never existed) and a church annulment (a declaration that sacramental marriage was never created). This tends to confuse people sometimes. The differences are as night is to day. A superior court judge grants a civil annulment and the Roman Catholic Church grants a church annulment.

The Roman Catholic Church has its own separate system of annulment. The church does not recognize divorce. Nor does it recognize annulments that are granted by civil courts. Having a civil annulment does not automatically lead to a church annulment. In the eyes of the church, the only way to terminate a marriage (other than by death of one of the parties) is by seeking a Petition of nullity in a canon law church court, which declares the marriage "Null ".

Technically, the church does not dissolve the marriage. Rather it makes a judicial finding that a valid sacramental marriage was not created or entered on the wedding day. This will allow a Catholic to remarry in the church, to receive communion, and to participate in all the other sacraments. Full participation is denied a Catholic who remarries without obtaining a church annulment-even if he or she obtained a civil annulment.

The main ground for a church annulment is defective consent, usually due to "Lack of due discretion" or "Lack of due confidence." The primary focus of a church court is whether the parties entered the marriage through a free act of will with the intention to except the essential elements of Marriage: permanence, fidelity, and conjugal love that is open to all. Among the factors that can interfere with this intention and are duress, fraud, conditions to one's consent, and physiological problems such as mental illness. †

To initiated church annulment, the Petitioner pays a processing fee (approximately $500) in order to have a formal hearing presided over by a tribunal judge. An advocate presents the case of the Petitioner seeking the annulment. Also present is a "Defender of the Bond ", who monitors the proceeding to ensure that rights are protected and church law properly observed. The hierarchy in Rome has criticized American bishops for allowing too many church annulments. The 119 dioceses of the United States have granted over 50,000 annulments each year. This constitutes 80 percent of the annulments granted by the church worldwide. ‡

So you can see, church annulments and civil annulments are not related in any way. Moreover, I have seen cases where two people have obtained a civil divorce but have later been granted a church annulment. Since there is a separate and distinct separation of church and state powers as granted in the U.S. Constitution this is possible.

For more information on church annulments and procedures contact your local pastor for more information.

† Rev. Michael Smith Foster, How is a Marriage Declared Null?
(April 20, 1997) (site visited Aug. 22, 2000).

‡ William P. Statsky, Family Law 5th Edition 169 (West Thomson Learning 2002).

Fault Verses No-Fault Divorce

Thursday, September 27, 2007

By James Jennings
Discount Divorce

In order to obtain a divorce that dissolve the marital relationship, specified reasons must exist. These reasons, called grounds, are spelled out in state statutes. The two categories of grounds are no false and fault. The major no fault grounds are as follows:

Living apart
Irreconcilable differences, irremediable breakdown.

In Arizona however, there is only one ground for a no-fault divorce, the marriage is irrevocably broken.

When a divorce is granted on a no-fault ground, material misconduct is, in most respects, irrelevant. The divorce statutes might provide that the "Evidence of specific acts of misconduct shall be improper and inadmissible, except where child custody is in issue and such evidence is relevant." a divorce sought on a no-fault ground, therefore, will not involve cross-examination designed to ferret out a blameworthy party. No fault grounds have made such testimony highly unlikely.

This does not mean, however, that fault grounds have been abolished. They still exist in most states. The ability of no fault grounds, however, and their ease of use have meant that the fault grounds are often not used.

There is one notable exception to the decline in the use of grounds. A number states are experimenting with a new marriage option called covenant marriage. Couples in states like Arizona have a choice between conventional marriage and a covenant marriage. Divorce from conventional marriage is no fault, whereas divorce from a covenant marriage requires proof of material fault such as adultery, physical or sexual abuse, and abandonment. Spouses in a covenant marriage must also make a commitment to obtain counseling before and during the marriage. Reformers hope that the availability of this new option will encourage couples to engage in more serious planning before entering the state of marriage.

For many years, fault grounds were the only grounds for divorce, the premise being that marriage should not be terminated unless there was evidence of serious wrongdoing by one of the spouses-blame had to be established. Many believe that such stringent divorce laws would help prevent the failure of marriage. In colonial America, it was common to deny the guilty party the right of remarriage if the divorce was granted. The payment of alimony was sometimes used to punish the guilty spouse rather than as a way to help the other become reestablished. In short, guilt, wrongdoing, and punishment were predominant themes over divorce laws.

During this period of fault-based divorce, the system was frequently criticized as irrelevant and encouraging fraud. Over 90 percent of divorces were uncontested, meaning that there was no dispute between the parties. Since both spouses wanted the divorce, they rarely spent much time fighting each other about whether adultery, cruelty, or other grounds existed. In fact parties often lied to the courts about the facts of their cases in order to quickly established that fault did exist. While such conclusion was obviously illegal, the parties were seldom caught. Since both sides wanted the divorce, there was little incentive to reveal the truth. The system also encouraged migratory divorce, where one of the parties would migrate or travel to another state solely to take advantage of its more lenient divorce laws.

Not everyone, however, is happy with the shift to no-fault divorce. There are conservatives who regret that marriage is now so easy dissolve. No-fault divorce has also removed an emotional outlet. There are some clients who want and need the opportunity to tell the world about the abuse they have received from their spouse. They become frustrated when they learned that they cannot do so in the divorce court. In this sense, no-fault divorce presents some spouses from obtaining emotional closure through divorce.