Apart from the papacy, few doctrines divide the Catholic Church from non-Catholic ecclesial communities as does the doctrine of the indissolubility of a consummated Christian marriage. Eastern Orthodox Christians are permitted three marriages; King Henry VIII’s desire to remarry helped lead to the formation of the Anglican Communion. Martin Luther permitted divorce in the cases of adultery, desertion, failure to fulfill conjugal duties, and “where husband and wife cannot get along together.”
The Catholic Church holds that the teaching of Jesus Christ is clear: husband and wife “are no longer two but one flesh. What therefore God has joined together, let not man put asunder.… Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery” (Mark 10:8-12).
Thus, in 1563, the Council of Trent decreed that if anyone shall say that the Church has erred in having taught, and in teaching that, according to the teaching of the Gospel and the Apostles, the bond of matrimony cannot be dissolved, and that neither party—not even the innocent, who has given no cause by adultery—can contract another marriage while the other lives, and that he, or she, commits adultery who puts away an adulterous wife, or husband, and marries another; let him be anathema.
In our own time, Pope John Paul II taught that “it is a fundamental duty of the Church to reaffirm strongly…the doctrine of the indissolubility of marriage” (Familiaris Consortio, 1981). He affirmed the discipline of “not admitting to Eucharistic Communion divorced persons who have remarried,” adding that reconciliation in the sacrament of penance, which would open the way to the Eucharist, can only be granted to those who, repenting of having broken the sign of the covenant and of fidelity to Christ, are sincerely ready to undertake a way of life that is no longer in contradiction to the indissolubility of marriage. This means, in practice, that when, for serious reasons, such as for example the children’s upbringing, a man and a woman cannot satisfy the obligation to separate, they take on themselves the duty to live in complete continence, that is, by abstinence from the acts proper to married couples.
While most New Testament passages on marriage make no exception for divorce, our Lord says in St. Matthew’s Gospel that “whoever divorces his wife, except for porneia (unchastity), and marries another, commits adultery.” Catholic exegetes have debated the meaning of porneia for centuries, with the Navarre Bible explaining that “it is almost certain that the phrase refers to unions accepted as marriage among some pagan peoples, but prohibited as incestuous in the Mosaic Law and in rabbinical tradition. The reference, then, is to unions radically invalid because of some impediment.… They had never in fact been joined in true marriage.”
This explanation speaks to the development of the annulment, the declaration by Church authorities that a putative marriage never truly existed because of reasons such as consanguinity or lack of consent. In the West, popes and bishops were declaring marriages invalid in the early Middle Ages, with Pope St. Gregory VII beginning to systematize ecclesiastical court procedures in the 11th century.
Over the centuries, the Church’s discipline in this matter changed several times. In 1741, Pope Benedict XIV, concerned about the ease with which annulments were granted in his day, mandated that the declaration of nullity be appealed to another court, and created the office of the defender of the bond, whose function in ecclesiastical trials is to argue for the validity of the disputed marriage.
In 1970, the bishops of the United States obtained permission from the Holy See to modify canonical procedures in the adjudication of marriage cases. One judge, and not three, could render a decision, and cases could be heard in the diocese of the person seeking the annulment; in addition, appeal of a declaration of nullity to another court became discretionary rather than obligatory. The latter provision lapsed with the promulgation of the new Code of Canon Law in 1983, which expanded the grounds of invalid consent: “they are incapable of contracting marriage…who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature” (canon 1095).
Partly for these reasons, the number of annulments granted annually in the United States soared from 338 in 1968, to 28,918 in 1974, to a peak of 63,933 in 1991. By 2004 the number had fallen to 46,330, and it fell even further, to 35,009, in 2007—a remarkable decline of 24 percent in three years.
Despite this decline, the United States, with 5.9 percent of the world’s Catholics, still accounts for 60 percent of the Church’s 58,322 declarations of nullity (2007 statistics in the Vatican Secretariat of State’s Statistical Yearbook of the Church). Of the 35,009 declarations of nullity granted in the US, 79 percent were granted through the ordinary process, while 21 percent were granted through the documentary process.
The documentary (administrative) process is used for relatively black-and-white cases, such as those involving defect of form (which occurs when a Catholic is married outside the Church), consanguinity, marriage below the legal age, marriage to a person validly married to another, marriage (under certain circumstances) to one’s abductor or the murderer of one’s spouse, or marriage to clerics or religious not dispensed from their vows. Of the 7,355 declarations of nullity granted in the US by the documentary process, 74 percent were granted for reasons of defect of form.
The ordinary process, on the other hand, entails a trial that determines whether a valid marriage took place. Questions over the validity of consent and over perpetual and antecedent impotence are adjudicated in the ordinary process. On occasion, disputes over defect of form and other impediments to marriage are dealt with in the ordinary process. Of the 27,654 declarations of nullity granted in the US by the ordinary process, 99.6 percent were granted for reasons of defect of consent—the most oft-criticized grounds for annulment.
In the US, 6 percent of ordinary-process cases are renounced by those seeking an annulment, while an additional 6 percent are abated because the parties failed to follow through with the procedural acts necessary for a trial to take place. Of the remaining 88 percent of cases in which sentences are given, 96 percent of sentences are in favor of nullity.
Sentences in favor of nullity are automatically appealed to a court of second instance in another diocese. One percent of these cases are renounced or abated, 69 percent are confirmed by decree, and 30 percent proceed to an additional trial. In this final category, 98 percent are eventually ruled null.
The United States leads the world in declarations of nullity (with 35,009 in 2007) by a very large margin; the country with the next highest annulment rate—Italy—had only 2,625 that same year. Brazil, Poland, Canada, Mexico, Spain, India, South Korea, Germany, Australia, Colombia, France, Ukraine, and Great Britain round out the world’s top 15 nations for annulments. These 15 countries account for 91 percent of declarations of nullity. On the other hand, Africa, which has 14 percent of the world’s Catholics, accounts for a mere 0.9 percent of the Church’s declarations of nullity.
An analysis of international annulment statistics reveals some similarities and some differences between the United States and the rest of the world. Of the 23,313 declarations of nullity granted outside the United States, 94 percent were granted through the ordinary process, while only 6 percent were granted through the documentary process; in the latter category, 57 percent were granted for reasons of defect of form. Since the United States accounts for 87 percent of annulments worldwide granted for defect of form, the US has a relatively high percentage of Catholics who took part in a civil marriage outside the Church and who now wish to get married within the Church.
Of the 21,879 declarations of nullity granted outside the United States by the ordinary process, 98.2 percent were granted for reasons of defect of consent. However, in 140 nations and territories, there was not a single declaration of nullity for reasons of defect of consent in 2007. Thirty-nine of these nations and territories are in Africa, 32 are in Asia, and 17 are in Europe. An additional 37 nations worldwide granted between one and a dozen declarations of nullity on defect-of-consent grounds.
There is a deep chasm between the United States and the rest of the world in the quantity of annulments granted; there is a similarly deep chasm between those nations that are relatively willing to grant annulments for reasons of defect of consent and those that are not. Twenty-eight nations grant more than 100 defect-of-consent annulments each year. From 2005 to 2007, the nations and territories with the highest ratio of defect-of-consent annulments to Catholics were Denmark, the United States, the Cook Islands, Norway, Japan, Tonga, South Korea, Thailand, Lebanon, Sweden, Samoa, and Finland.
Outside the US, 9.5 percent of first-instance ordinary process cases are renounced by those seeking an annulment, while an additional 7.5 percent are abated because the parties failed to follow through with the necessary procedural acts. Of the remaining 83 percent of cases in which sentences are given, 89.8 percent of sentences are granted in favor of nullity—a bit lower, but not much, than the 96 percent rate in the US.
Of all the nations of the world in which such trials take place, only in Burkina Faso, Eritrea, Malawi, Uganda, and Vietnam do 50 percent or more of cases result in rulings against nullity. Most of the world’s nations with high numbers of annulments decide 93-97 percent of sentences in favor of nullity, with Canada (at 99.5 percent) and Australia (at 98 percent) having particularly high affirmative sentence rates and Germany (at 82 percent) and Poland (at 79.5 percent) relatively low ones.
Outside the United States, almost 3 percent of second-instance cases are renounced or abated, 69.5 percent are confirmed by decree, and nearly 28 percent proceed to an additional trial, at which 87 percent of sentences are in favor of nullity. This rate is lower than the United States’ 98 percent rate, largely because of statistics from Europe, where only 65 percent of second-instance trials end with a sentence in favor of nullity.
Why the disparity?
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