Our own experience teaches us that not every human endeavour will be successful. Certainly, when success is hard won it means all the more to us. While we would not wish anyone to fail, it is a fact of life that sometimes our best efforts come up short of the success we had envisaged. Such failure is often the result of unforeseen difficulties, inadequate planning or preparation, the combined pressure of circumstances or just plain bad luck. Very rarely is it the result of a lack of good intention.
When two people decide to marry, it is never done lightly. Most often it is accompanied by the best of intentions and good will. However a divorce rate in Australia that sees some four out of ten marriages fail reminds us that such love and good will may not be enough to guarantee success.
The Church teaches that all weddings correctly performed and consummated create marriages that are presumed to be binding for life. This presumption of validity is the basis from which Church matrimonial courts proceed, just as “presumed innocence” is the basis of our criminal court system. However, not every wedding becomes a true marriage. Like every legal presumption, the presumption that a marriage is binding for life falls away when proof to the contrary is presented to the Church Tribunal.
The Tribunal itself does not annul marriages, any more than a cricket umpire bowls batsmen out. The umpire has no role in the dismissal. He simply adjudges whether the fielding team has dismissed the batsman. When the fielding team appeals the umpire has only two findings open to him, “out” or “not out”. So too when the Tribunal receives a request from one of the parties to the marriage to declare it not to have been binding for life, it then thoroughly investigates the circumstances within which it was contracted. The Tribunal then has only two findings open to it; “proven not binding for life” or “not proven” in which case the marriage continues as presumed to be binding for life.
Roman Catholic Theology teaches that at the wedding the couple marry each other. The officiating clergy is simply the Church’s witness, just as the best man and bridesmaid are the community’s witnesses to the public reality of the ceremony. So too, only the husband or wife can challenge the validity of their marriage and ask the Tribunal for a ruling on its status.
Marriage breakdown is unique among life’s experiences. There is nothing which can prepare or equip a person for the trauma or grief which is involved. The breakdown of marriage is a process which spans years of one’s life and is not just restricted to when the parties actually separate. Separation and divorce are preceded by a history at least as long as the marriage itself. The causes often reach back to the wedding day, to the time of courting, or to the childhood environment of one or both parties. The ending of a marriage is a critical time for all concerned. Both parties may have invested a major part of their lives, their resources, their hopes, their dreams in the relationship.
The Church is aware of the stresses in our modern world associated with marriage breakdown and divorce. The Church endeavours to reach out to the pain and hurt of a divorced person, while upholding the permanence of a valid marriage. By declaring invalid those marriages which fall below the minimum standards set by canon law, the Church protects the dignity of marriage for those couples who have a valid marriage.
The Tribunal is a Church court which makes these declarations. Such a declaration can often help the divorced person who has remarried or is intending another marriage in the Catholic Church. It may also assist a divorced Catholic who is seeking clarification of his/her position for peace of conscience, or for reassurance in developing relationships in the future.
What is an Annulment?
An annulment (decree of nullity) is a declaration by the Church that a marriage is not considered binding for life. This does not mean that the parties are free of the continuing obligations of the union such as the welfare of children. An annulment does not deny that there was a wedding ceremony or erase the relationship that existed. Nor does it make any comment on any moral fault in the parties. Rather, a decree of nullity is a declaration by the Church that, at the time the couple attempted to exchange wedding vows, an essential element was lacking in the consent of at least one of them and thus the union which followed such a consent is not considered to be an obstacle to either party remarrying in the Catholic Church.
What about the Children?
Church law states that the children of an annulled marriage are considered legitimate (canon 1137). An annulment affects only the marital status of the parties themselves and then only according to Church law.
Are there any effects in Civil Law?
In Australia ecclesiastical annulments have no civil effects and a civil divorce decree must be obtained before any formal action to investigate a marriage may be taken at a Catholic Tribunal.
The Process and Requirements
Who may apply?
Any divorced Catholic has the right to ask for an investigation of a previous marriage by the appropriate Tribunal of the Church. Any non-Catholic divorced person remarried to a Catholic, intending to become a Catholic, or intending marriage to a Catholic, has the same right. Only a party to the marriage, however, may apply.
How is the process started?
An application is made by phoning the Tribunal offices (in Melbourne 9287 5542) for an initial interview. A letter of referral from a priest or pastoral worker can be a helpful introduction, but is not necessary.
Following this interview, a preliminary assessment is made, after which the applicant is advised whether the case is considered worth further investigation. If grounds are identified, the applicant is requested to present a comprehensive written submission, according to the guidelines provided by the Tribunal. If the case is accepted for hearing, there will be a further formal interview with the applicant.
Is the former spouse contacted?
It is a requirement of canon law that the other party be informed of the investigation and given the opportunity to participate in the investigation in the same manner as the applicant.
Are witnesses necessary?
They are. The persons submitted as witnesses are normally nominated by the parties to the marriage. They must be willing to be interviewed confidentially by the Tribunal about what they know of the marriage. They are not simply character referees; they must have some knowledge of the marriage under scrutiny.
It may also be necessary to ask the applicant’s written permission to obtain relevant medical reports or to request professional evaluation by a psychologist.
Who has access to the information gathered?
The Tribunal must observe relevant reporting and privacy laws of the state and Commonwealth. The parties to the marriage have the opportunity to know the decision and the basis on which it was made.
How is a decision reached?
When it is considered by the Tribunal that there is sufficient evidence for a decision to be reached, the formal sessions of the Tribunal are held. The parties are not required to attend. The Defender of the Marriage Bond is always involved to uphold the ideals of the Church on marriage and its permanence. The decision will be made by judges of the Tribunal, and they will declare either that the marriage is certainly invalid or that the evidence does not prove invalidity and so the presumption remains that the marriage is valid.
What happens after the decision?
The case must be forwarded to a second tribunal for review, which either ratifies the first decision or requests further investigation before a final decision is given.
Is every application successful?
No. The decision rests entirely with the Tribunal after reviewing all the evidence. The fact that evidence is taken should not be interpreted as an indication of a favourable decision.
Even where an affirmative decision has been given, before being permitted to marry in the Church, it is quite possible that the applicant will be required to attend counselling together with the future spouse. Such counselling is a prudent requirement to safeguard the hope that the subsequent union will be successful. In cases where an incapacity for marriage has been proven, there may be a requirement that some form of counselling therapy be proven to have been beneficial before remarriage in the Church is possible.
How long does all this take?
Each application is dealt with individually. Where a person has been married more than once each union needs to be considered separately. Where both parties to a proposed marriage have been previously married each union would need investigation. Due to the number of applications and the varying factors involved in different cases, no time can be specified. Often an applicant is informed of a decision within twelve months of presenting the written submission to the Tribunal office, but the average time for an outcome is between twelve and eighteen months..
Should a date be set for a wedding?
A booking for a Church wedding should not be made until a personal notification that a person is free to marry has been sent to the celebrant. An affirmative decision is never guaranteed until final ratification. Setting a tentative date before a final decision has been given often leads to disappointment since the investigation is a trial of the marriage and, like all trials, the outcome is subject to unforeseen difficulties. Setting a date for a wedding before the final decision is known places the applicant and their proposed partner, not to mention the Tribunal staff, under unreasonable and unnecessary pressure.
What are the fees for annulment?
The Tribunal costs are heavily subsidised by the Archdiocese of Melbourne. However, each applicant is asked to contribute to the cost of investigating their case through a standard fee of $750, paid in instalments through the time of the case. In difficult financial circumstances, allowances are made for an adjustment of the account.
Is it all worthwhile?
For many, seeking a decree of nullity has some very painful and anxious moments. However, it can be a pastoral and therapeutic process as well as a legal procedure. Many applicants find that the process itself, and the sensitive approach of the tribunal staff, can be an experience of healing and an opportunity to face up to debilitating memories of the past.
Moreover, whether a decree of nullity be issued or not, the decision should bring peace of mind to the parties who have been wondering or questioning whether the Church would regard the marriage in question as binding for life or not.
Naturally, decrees of nullity bring many the satisfaction of being able to celebrate a planned remarriage in the Catholic Church, or to have another marriage (already entered) validated and recognised by the Church. But even those who petition unsuccessfully for a decree of nullity can at least make their future plans informed with a clear understanding of their marital status as far as the Church tribunal can determine.
Who can I contact for more information?
The Tribunal of the Catholic Church
Victoria and Tasmania
Melbourne: (03) 9287 5542
PO Box 146
East Melbourne VIC 8002