Why is the Marriage Tribunal Insisting I First Need a Divorce?

Q: My sister wants an annulment so she can remarry in the Church.  But when she began asking questions about how to go about it, she was immediately told that she can’t get an annulment unless she is divorced first.  Can that possibly be true, or is her diocese doing something heretical?  The Church is opposed to divorce, but then it pressures Catholics to get divorced… why is she being told she must get a divorce?  –Denise

A:  In short, because she lives in the United States.

As we Catholics know full well, Christian marriage is a sacrament, and the marriage of Catholics is consequently governed by the laws of the Church.  But marriage is also recognized by the state, as a status which has legal ramifications in the purely civil sphere.  Depending on the country where you live, being married may, among many other things, affect your right to inherit (or the right of others to inherit from you), your financial responsibility for the support of someone else (or the responsibility of someone else for your own support), the amount of taxes you pay to the state, and of course your ability to legally marry again.

This sort of state involvement should not be construed as government interference.  Rather, it is generally accepted by civilized nations that marriage is a social institution, the existence of which affects society as a whole.  It’s only logical that civil governments take an interest in it—failure to do so would actually be irresponsible.  Without any civil laws regarding marriage, the family structure would immediately suffer: among other things, children could be abandoned by their parents, stay-at-home-wives/mothers could arbitrarily be evicted from their homes by their husbands, under-age daughters could be sold by their parents to adult men, and obviously bigamy could run rampant.  It should go without saying, therefore, that a civil government’s interest in regulating marriage isn’t automatically a bad thing!

When two Catholics marry in a Catholic wedding ceremony, therefore, their marriage has both civil and canonical effects.  This isn’t always obvious to everyone, since the two often overlap.  The centrally important canonical effects are largely theological and abstract, pertaining to the obligations of one spouse to the other (c. 1134); but to cite a couple of other, more concrete examples, under canon law a married Catholic is obliged to see to the proper upbringing of any children (c. 1136), is unable validly to marry someone else (c. 1085), and in the case of the husband, is impeded from receiving the sacrament of Holy Orders (c. 1042 n. 1).

At the same time, canon law certainly doesn’t legislate regarding property rights, rules of inheritance, or the tax burden of married persons.  These sorts of rules are found in civil law, and they can vary widely from country to country.  The Code of Canon Law recognizes in canon 1059 that states have the right to enact regulations pertaining to civil matters.  This canon acknowledges the competence of civil authority with respect to the “merely civil effects” of a Catholic marriage.  In other words, the Church doesn’t tread on the toes of governments which (let’s say) enact laws regulating the changing of a married woman’s name, or the need to file one’s income-taxes in a different way from that of non-married people.

So how does all this apply to Denise’s friend, who wants an annulment of her Catholic marriage in the United States?  It’s actually very simple.  When a Catholic marriage tribunal declares that a marriage is null, that declaration has canonical effects—the most obvious being that the spouses are now free to (re-)marry in the Church, since they were never really married in the first place.  (See “Marriage and Annulment” for a more in-depth discussion of what an annulment really is—and what it isn’t.)  But in the U.S., a declaration of marriage nullity by the Church has no civil effects whatsoever!  Without a civil divorce, an American Catholic who obtained an annulment would still be married in the eyes of the state.  He/she would therefore be unable to re-marry, in the Church or outside of it, because in the eyes of the state such a second marriage would constitute bigamy, which of course is a crime in the U.S.  At the same time, all civil laws regarding property, support of children, etc., would also still be in force—because so far as the state was concerned, the two spouses would still be man and wife.

It should be clear that such a situation would be untenable.  The government could rightly object that by annulling marriages which the civil authorities still deemed valid, the Catholic Church was granting its members rights (particularly the right to a new marriage) which it had no authority to give them.  It would be simply impossible for such a dual-system to work!

But isn’t this true of Catholic marriages in every country of the world?  Not necessarily.  A small number of nations have treaties—often, but not always, called concordats—with the Vatican, which grant certain rights and/or privileges to the Catholic Church as an institution, and to individual Catholics living within the country.  In general, these are usually nations with majority-Catholic populations, such as Italy, Spain, Poland, and Brazil; but this is not always the case, as the 2006 agreement with Bosnia-Herzegovina shows.  After the horrific inter-religious violence that accompanied the break-up of the former nation of Yugoslavia in the 1990’s, both the Vatican and the government of this new country willingly agreed to officially acknowledge (for example) the right of the Catholic Church to appoint its own bishops without government interference, to operate Catholic schools, and to own property.

While the agreement with Bosnia-Herzegovina doesn’t mention Catholic marriage, some concordats specifically acknowledge that a Catholic wedding has not only canonical, but also civil effects—and conversely, an annulment in a Catholic marriage tribunal can therefore have effects on the couple’s status under civil law as well.  In a nation with a concordat that specifically permits it, a Catholic who obtains a declaration of nullity of his marriage from the Catholic Church would also be recognized by the state to be no longer married.  In such a country, therefore, there would be no reason for someone seeking an annulment to also obtain a divorce, because the second would follow automatically from the first.

It should be emphasized that not all concordats are identical!  On the contrary, depending on the situation, the Vatican’s concordat with one nation might (for example) put particular emphasis on regulations governing the teaching of religion in public schools, while the concordat with another country might include extensive discussion of the exemption of church property from taxation.  Each nation that has signed a concordat with the Vatican has spent extensive time and effort hammering out an agreement that is specific to the issues of its own Catholic population.  In other words, just because a country has a concordat with the Vatican, doesn’t automatically mean that Catholic annulments there have full civil effects.

The United States, of course, has no such treaty with the Vatican, and presumably never will.  The U.S. Constitution specifically bars the government from showing any sort of preferential treatment to one religion over others, so signing a concordat that gave particular rights to Catholics and to the Catholic Church would naturally be unconstitutional.  This is why an American Catholic diocese has the authority to declare that the marriage of Denise’s sister is null (if that is in fact the case!), but such a declaration will have no effect whatsoever on her civil status as a married person in the U.S.

This is why, in the United States, a marriage annulment normally cannot be granted unless the couple have already obtained a civil divorce.  Marriage tribunals quite rightly require a Catholic who seeks an annulment to be divorced first—but this hardly constitutes “pressure to get divorced.”  Remember that a tribunal will only examine the validity of a marriage if it is asked to do so by one of the spouses!

Since Denise mentions it, it’s worth noting that there is nothing intrinsically “heretical” about being divorced.  As was discussed in “Divorced Catholics and the Eucharist,” there are many difficult situations in which a devout Catholic can find divorce to be the best resolution to family problems.  Similarly, many Catholics are divorced solely because their spouse sought and obtained the divorce, and not because they themselves wanted it!  The Church’s objections to the concept of divorce stem primarily from the common—and gravely wrong—notion that a marriage can be ended, and a new one entered while the first spouse is still living (cf. Catechism of the Catholic Church 2382-2386).

By this point, the answer to Denise’s question should be clear.  Her sister, who lives in the U.S., is being given correct information by her diocese.  The Catholic Church doesn’t support divorce per se, but it also recognizes the need to conduct canonical proceedings in ways that are consistent with civil ones.  Church authorities are concerned with the spiritual wellbeing of those Catholics committed to their care… but they know that those Catholics live in the world, and that the spiritual and secular spheres have to try to work together.

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