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THE MARRIAGE NULLITY PROCESS
IN THE DIOCESE OF PEMBROKE
I. MARRIAGE
The Catholic Church in its theology and in its law describes marriage as a matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, which is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament. [Code of Canon Law c. 1055 and Gaudium et Spes #48] For this reason the Church views divorce very seriously, a last resort to safeguard rights under secular law. The Church does not accept that the divorce can sever the actual bond of a valid marriage. Church law, in fact, presumes that a marriage is valid once it is entered into, a presumption which remains in force unless and until the contrary is proven (c. 1060). II. DECREE OF NULLITY
The purpose of a nullity proceeding is to determine whether or not an indissoluble marriage bond was created when the parties entered into marriage. A decree of nullity is an official declaration by an ecclesiastical tribunal of the invalidity of the marriage. It implies that the Church did not consider this marriage to have been valid from the beginning on the basis of some canonical reason, such as defective consent. The Church, in its declaration of nullity, states that a valid marriage had not been brought about, as had been presumed. It is not saying that the ceremony never took place or that the husband and wife never had a relationship(c.1061.3). Any children born of this union are not considered illegitimate (cc. 1137 & 1138). A decree of nullity does not deny that a relationship existed, nor does it imply ill will or place blame on one or both parties. It only states that this union was not a binding marriage according to the teachings and beliefs of the Catholic Church.
Frequently many in the church will refer to this decree of nullity as an “annulment”. This is not the best term that one could use. To ‘annul’ something means to abolish or abrogate something that exists. The decree of nullity itself states that the union in question never did exist according to the church’s understanding of the Sacrament of Marriage.
III. INFORMATION CONCERNING MARRIAGE TRIBUNAL PROCEDURES IN THE
DIOCESE OF PEMBROKE
The Diocese of Pembroke Marriage Tribunal is a branch office of the Ottawa Ecclesiastical
Tribunal. What this means in practice, is that cases are investigated and instructed in our diocese and are then sent to Ottawa for judgment. Most often the following steps are taken:
1. Preliminary Contact Stage
Any person who has married previously should make contact with his/her parish priest in order to discuss their case. A determination will be made as to whether or not a ‘formal process’ will be required. This contact with the parish priest should be made long before the point of a planned new marriage, and in fact, many will make such inquiry immediately after having received their legal separation or divorce.
2. Application stage
The second stage of the process involves a preliminary meeting with a member of the Diocesan Tribunal staff. This interview will enable the party involved to review their case and will allow the tribunal the occasion to make a preliminary evaluation as to whether or not there exists sufficient grounds to proceed with a case. If it is determined that such a ground(s) does exist, the person will be supplied with a detailed Questionnaire and will be asked to consider potential witnesses who might be able to provide helpful testimony for their case. Generally 4-6 witnesses will be sufficient.
The plaintiff will also be apprised of the financial costs involved in the process. A note concerning terminology: the individual who presents a case for instruction and petition before the tribunal is known as the plaintiff. The other former spouse is called the respondent.
3. Instruction Stage
When the plaintiff returns the questionnaire, the instruction begins. The tribunal will obtain a copy of the marriage file from the parish where the marriage took place, along with some other pertinent documents. The plaintiff will be interviewed. The tribunal will also then contact the former spouse, (the respondent) and later the witnesses. The plaintiff is always encouraged to contact the witnesses in advance of contact by the tribunal. Witnesses can often be put very much at ease by relating the fact that they would be asked for approximately an hour of their time, in a private interview with a tribunal official. The witnesses used in the instruction of a case can either reside within the Diocese of Pembroke or outside. If witnesses do not live in our area, a request will be sent out by our tribunal to have them interviewed in their own area. As a matter of law, the respondent must be given the opportunity to be involved in this process. It is then up to the respondent to decide as to whether they wish to participate in the process or not. The tribunal may need to contact the plaintiff again at a later date for further information. The plaintiff and respondent have no mutual contact during any stage of the procedure.
4. Transfer Stage
Once all of the witnesses have been interviewed by the tribunal, the Auditor will complete the
instruction of the case and will immediately forward the case file to the Ottawa Ecclesiastical
Tribunal. It is at this point that the Diocesan Tribunal’s role in the case will end. It may happen that the Ottawa Ecclesiastical Tribunal might require further instruction or investigation. The Diocesan branch would naturally assist in this request.
RIGHTS AND RESPONSIBILITIES OF THE PLAINTIFF AND RESPONDENT
Both the plaintiff and the respondent are equal before the law. The tribunal notifies each party by mail as the case progresses. In addition to other members of the tribunal staff, the tribunal will appoint an advocate for each party upon request. This advocate is a trained canonist who will oversee the procedural steps of the case, and ensure that the parties rights are defended. Both parties have the right to have an advocate represent them if they want (at no extra cost). They have other rights as well as responsibilities that the law gives and the tribunal protects. These will be explained in detail when you meet with an official of the tribunal.
CONFIDENTIALITY
The Ottawa Ecclesiastical Tribunal (and its Pembroke Branch Office) are a part of the judicial branch of government in the Diocese. It upholds the canon law of the Catholic Church and promotes the pastoral welfare of the Christian faithful. The tribunal procedures in Canada are purely ecclesiastical in nature and are conducted in accordance with the canon law of the Catholic Church. Church law allows the plaintiff and the respondent access to the acts of the case with certain restrictions. It is the policy of the tribunal to disclose the acts of the case only to duly authorized persons or other ecclesiastical tribunals necessary for the resolution of the case. The confidentiality of the acts of the case is essential for the tribunal to fulfill its responsibilities under the canon law of the Catholic Church. Any materials received by the tribunal become the property of the tribunal.
FEES
A formal case costs a significant amount of money to process. The tribunal asks the plaintiff to pay $1,000.00 of this cost. The diocese subsidizes the remainder of the amount owed. Post-dated cheques are always accepted, even over a year or two. In the case where two annulments are being sought, the total amount requested is still $1000.00. A plaintiff who is unable to contribute this amount to the Diocese can make arrangements with the Tribunal. If you are unable to offer any money towards the costs, please do not let this dissuade you from beginning the process. We do want to be of service to you. All cheques are to be made out to the Diocese of Pembroke Marriage Tribunal.
Some other frequently asked questions:
1. Is there a difference between a divorce and a Declaration of Nullity?
Definitely. A civil divorce is a legal action whereby, the division of property and custody of children having been settled, a civil dissolution of marriage is granted, and husband and wife are declared free by the same civil authority to enter a new marriage with a different partner. Such a civil procedure does not question the validity of a marriage. A procedure for a Declaration of Nullity, on the other hand, questions the validity of the initial consent of that marriage. If satisfied that in Church law and through factual evidence, what was thought to be in all its external appearances a valid marriage, was not, then the Marriage Tribunal declares it null and void. This is a Declaration of Nullity. In other words, a civil divorce declares that a marriage no longer exists while a Declaration of Nullity states that there never was a true valid marriage from the beginning. A civil divorce deals with matters pertaining to a marriage breakdown while a Declaration of Nullity focuses on the beginning of a marital union.
2. If I have a legal divorce do I still have to apply for a Declaration of Nullity?
Yes. In the mind of the Church, you are still considered to be married to your first spouse. The Church does not accept the civil courts as capable of dissolving the bond of marriage. The Church does not impose penalties on those who seek a civil divorce. However, before you could marry in the Catholic Church after obtaining a legal divorce, you would have to have been successful in obtaining a Declaration of Nullity from the church which declares that your previous union was not a valid marriage.
3. Are Catholic marriages the only ones which need to be declared null before a second marriage can take place in the Catholic Church?
A mistaken impression, very common among Catholics, is that the Church recognizes as valid only the marriages of Catholics. The truth is that the Catholic Church recognizes as valid not only the marriages of Catholics celebrated in the Catholic Church, but also those of baptized non-Catholics as well as those of the non-baptized. Marriages between baptized people (Catholics or non- Catholics), if valid, are sacraments; those between non-baptized persons are not sacraments since one or neither of the partners is joined to Christ in baptism. They are, nevertheless, governed by the law of God and considered firm and binding. Therefore, if a Catholic wishes to marry either a divorced, baptized non-Catholic or a divorced, non-baptized person, then, in either case of these non-Catholic marriages, a Declaration of Nullity would have to be obtained through the Marriage Tribunal before any second marriage could take place in the Catholic Church. However, where a marriage was entered into in the first place with a non-baptized person, the tribunal might examine the possibility of using a procedure called the Privilege of the Faith. This is not a Declaration of Nullity but a dissolution of the bond by the Pope in the favour of the faith of the Catholic party who wishes to marry.
4. If I do not think I have a strong case or if the majority of the fault of the marriage breakdown was mine, should I still request the Tribunal to examine my first marriage?
It is difficult for an individual to determine on his or her own whether there is a basis for a Declaration of Nullity. That is where the experience and expertise of the Tribunal staff is very
valuable. It is wise to let them help you with your application and to follow their direction. If your case has merit, they will make sure it is heard.
5. My first marriage lasted for many years and we had several children. How can this marriage possibly be declared null and void by the church?
It is quite true that marriages that have lasted for a considerable length of time are more challenging to instruct and present to the tribunal. Nonetheless, the duration of a marriage and the number of children makes absolutely no difference to the validity or non-validity of a marriage. In other words, if the initial consent was defective, ie., invalid due to an undetected impediment, then neither the length of time nor the number of children validate that defective initial consent.
6. It has often been said that it is only people with money who will be allowed to enter into such a process, and be able to reach a successful resolution? Is this true?
This is one of the most common misconceptions that exists when people speak of the tribunal and its work. In fact, from year to year there are a significant number of cases where parties are simply not able to make any significant financial contribution to the case whatsoever. The majority of the financial base for a tribunal comes from the diocese. However, it is deemed to be fair and just that those persons benefiting directly from this service should be asked to make a contribution, always in keeping with their financial ability toward the defrayment of the necessary expenditures. There are obvious costs involved in the preparation, instruction and judgment of a case. If a party is in a position to contribute to the cost, it is proper that they would do so. To reiterate however: one's ability or inability to make a contribution has absolutely no bearing upon the person's rightto receive a just adjudication of their petition.
7. If my petition for a declaration of nullity is judged in the affirmative, does this mean that my former spouse is also granted the same?
Yes. Both partners are now be to remarry in the Catholic Church. However, in some cases a
conditional restriction may be imposed because of the circumstances that gave rise to the invalidity of the first marriage. This would then have to be investigated at the time a request is made by that person (s) for remarriage in the Church
8. How long does the whole process take?
It is impossible to predict the exact length of time needed to process a case because each one is unique and may require a time line which is different. Much depends on the availability of witnesses, complexity of the grounds, and at times the need for intervention of experts. Plaintiffs, in particular, are encouraged to remind their witnesses to appear at their arranged appointment times. Since tribunal staff can have other matters of responsibility and a good number of other cases at hand, a great deal of time can often be lost when parties do not appear for scheduled interview times. It can often happen that a case can be instructed in our diocesan branch in a month or two. In its totality, parties are generally instructed to allow a year to one year and a half for a judgment. Please note: The tribunal cannot be responsible for individual plans or expectations of either of the parties. We will try to do our best to complete the instruction of the case as soon as we can. We remind the plaintiff and the respondent that the tribunal will not be able to tolerate repeated enquiries or pressure
concerning a case.
For further information please contact:
Catholic Marriage Tribunal
Diocese of Pembroke
Post Office Box 7,
Pembroke, Ontario
K8A 6X1
Telephone:(613) 732-7933
Facsimile:(613) 732-1679
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