Can I Get an Annulment Without My Spouse Knowing About It?

Q:  I am divorced.  The marriage had some serious issues…we spent more time living separately than living together.  It has been suggested that I just fill out the traditional annulment application and follow through on that.  After discussing this with a Catholic clinical psychologist, it may not be the best thing for me unless a request to have my petition sealed so that my ex-husband could not have access to it was granted.  I’ve come a long way in the healing process and getting away from him and need to keep it that way.  I just don’t know at this point, what I am supposed to do… –Susan

A:  Susan’s scenario is not uncommon, and boils down to this: can one spouse request and obtain an annulment from a marriage tribunal, without the other spouse being involved or even aware of the process?

Procedural law makes for very dry and technical reading, but that doesn’t mean it isn’t clear.  The answer to this question is actually found repeated in several different canons of the code—and yet some tribunals still manage somehow to get this critical point wrong, with disastrous legal consequences.  Let’s take a look.

A declaration of the nullity (or not) of a marriage is the end-result of a court procedure.  There are two parties, the plaintiff and the respondent, known in ecclesiastical Latin as the actor and the conventus; a judge or a panel of judges; and advocates for the parties.  Externally it can sometimes look and feel a lot like a trial in a civil court—although here the substance of the argument is sacramental/spiritual in nature, and so the parallel can’t be pushed too far.

Canon 1507 describes what is supposed to happen in any contentious case, not just those dealing with marriage nullity: when the plaintiff’s petition is admitted, the judge must summon the other party (or parties) to court within 20 days.  The judge’s decree of summons must be conveyed immediately to the respondent (c. 1508.1).

Needless to say, if all parties to a case have to be informed about it within 20 days, that means that a spouse cannot be left in the dark about a petition to declare his/her own marriage null—because each spouse obviously has to be considered a party to the case!  But the law contains even more references to the rights of the spouses to be made aware of the information being considered in such a case.

Canon 1620 lists reasons why a court judgment is null, “with an irremediable nullity.”  One reason is that one of the parties to the case was denied the right to defense (c. 1620 n. 7).  So if a marriage tribunal accepted a petition for a declaration of nullity of a marriage, and didn’t even tell one of the spouses about it, that spouse plainly had no ability to muster a defense.  Note that the canon asserts that any such decision issued by a marriage tribunal is not only an invalid decision—but the invalidity of that decision is irremediable, i.e., there’s no way to fix it.  The only possible solution would be to throw the entire case out and start over from the beginning, this time of course involving the other spouse in the process.

The law can’t get much clearer than that.

There are mentions in several procedural canons of the need for secrecy (cf. cc. 1455 and 1457, e.g.), which at first glance might seem to contradict this.  But when considered in context, it is clear that this secrecy is to be maintained outside of the courtroom, with third parties—not with court officials, advocates, or parties to the case.  It is only common sense to prohibit a judge or advocate from chatting with his mother or best friend about the private details of a case he’s working on!  So once again, this canon does not permit a spouse to be left in the dark about his/her marriage case.

So what happens if a spouse has a history of violent behavior?  Is there any way to hide certain things from him/her during annulment proceedings?  The answer is yes, but only partly, and only in very specific circumstances.  The exception is found in canon 1598.1, regarding publication of the acts.

“Publication of the acts” is a literal translation of a Latin phrase commonly found in procedural law, but it can be extremely misleading.  In English it suggests that the court makes all the documents of a case public—but as we’ve just seen, outside of the court they’re supposed to be kept secret!  In fact, “publishing the acts” means that the tribunal makes available to the parties and their advocates all the documents pertaining to the case.  This of course enables each side to examine what was submitted as evidence by the other.

And canon 1598.1 notes that to avoid “very serious dangers,” a judge can decide that some part(s) of the documentation are not to be shown to anyone.  But the canon immediately adds that the judge must nonetheless take care to ensure that the right of defense always remains intact.

“Very serious dangers” is a strong term.  Its use in this canon indicates that documentation cannot be withheld from one party simply because it’s somehow embarrassing or discomforting to the other.  There has to be a reasonable fear of actual danger to someone or something, if the other party sees this documentation!

To take a wholly fictitious example, let’s say a woman seeks an annulment, and her husband has a demonstrable history of physical violence, toward both her and their children.  Let’s imagine that when the couple divorced, the husband told his eldest daughter, “I don’t want you having anything to do with your mother—if you ever talk to her again, I’ll kill you!”  But the daughter has in fact been in contact with her mother in secret; and in the witness testimony contained in the annulment proceedings, the fact of their communication was mentioned a couple of times in passing.

Well, it can safely be said that the validity or invalidity of this marriage does not hinge on whether or not the daughter has spoken to her mother after the divorce.  The mother-daughter contact is not a key point of evidence in this case—and so if the ex-husband doesn’t learn about it, this will not affect his ability to argue (if he wishes) against evidence submitted by his former wife.  Consequently, if the daughter genuinely fears for her life, the judge can decree that those sections of testimony mentioning this particular issue be withheld.  Note that this is a far cry from the tribunal failing altogether to tell the man that his former wife seeks a declaration of nullity of their marriage.

It is sad to say that there are marriage tribunals out there which have failed to follow the law in this regard.  In the name of “safety,” they have conducted proceedings and issued decisions which, as per canon 1620 n. 7 noted above, are null with an irremediable nullity, as they have violated the fundamental right of defense of one of the parties.  If a court declares that a marriage was null after such a violation, and the other party later learns of the decision, it can—and if the aggrieved party chooses to pursue the matter, it will—be overturned.  Readers who are canonists might care to read an old decision issued by the Roman Rota (one of the Church’s supreme courts, cf. c. 1443) on a similar sort of case here  Here one can see that in accord with the law as described above, the marriage tribunal’s decision wasn’t merely overturned—rather, the entire proceeding was completely thrown out, and with some blistering, yet well merited sarcasm about disregard for canon law, the tribunal was ordered by the Rota to start all over again.

So the procedure in Susan’s case should now be clear.  There is no way to “have [her] petition sealed” as she describes, because it would violate the rights of her ex-husband as a party to the case.  If there’s genuine reason to fear his reaction to certain pieces of evidence, it may be possible for the tribunal judge to withhold them; but the Church insists that all spouses have the right to know about, and participate in, any case involving the validity of their marriage.

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