Can I Get an Annulment If My Ex-Spouse Refuses to Cooperate?

Q: I want to try to get an annulment, but my ex-wife has already informed me that if I do, she will not cooperate with the marriage tribunal.  She is taking this position out of spite, of course, because she wants to prevent me from remarrying in the Church.

I spoke to both my pastor and a tribunal official, and both of them said I can submit the annulment petition anyway, and they can proceed without my ex-wife’s input.  But I can’t tell if they’re just saying this to try to be nice to me.  Does my petition have any chance of approval, if they’re only getting my side of the story?  Additionally, I’m wondering if my ex-wife won’t cooperate, and I manage to get an annulment without her involvement, can she later get the decision overturned? –Craig

A: In “Can I Get an Annulment Without my Spouse Knowing about It?” we saw that in a marriage-nullity case, both spouses must be allowed to take part in the proceedings.  There is no way a marriage tribunal can declare a marriage null, if one of the spouses was never informed that the other had requested an annulment, and thus was given no opportunity to tell his/her side of the story.

But Craig’s situation is different.  His former wife is aware that he intends to seek an annulment of their marriage, and she says she will refuse to cooperate with the tribunal.  The tribunal obviously cannot force her to participate in the annulment process against her will.  This means that instead of the normal situation—where the spouse who is the petitioner initiates the annulment-process, and the other spouse is the respondent, and submits his/her own evidence and list of witnesses—there will only be arguments made by one party, the petitioner himself.  Can that be done?  If so, how does it work?

When someone petitions the diocesan marriage tribunal for a declaration of the nullity of his/her marriage, the initial procedure is pretty straightforward.  If the tribunal accepts the petition, it then sends out a summons to the other party (cc. 1677, 1508).  Exactly how this is done may vary, depending on what country you’re in; but generally the tribunal sends a written summons by registered/certified mail, to ensure that the respondent actually receives the letter (c. 1509.1).  Thus if the respondent wasn’t already aware that this was coming, he/she will learn about it right away.

In some marriage-nullity cases, both spouses want to get an annulment, so they will both work with the tribunal to formulate the precise grounds on which the petition is based.  In other cases, one spouse really wants the annulment, while the other doesn’t particularly care one way or the other.  (This is common when the petitioner is Catholic, and the respondent is not.)  The uninterested spouse frequently agrees to cooperate nonetheless.  The point here is, not every marriage-nullity case gets contentious.

But there are also plenty of marriage-nullity cases in which the petitioner argues that the marriage was invalid for X reason(s)—while the respondent insists that X is not correct, and instead argues that the marriage was and remains valid.  Both parties take an active part in the case, submitting their own testimony, responding to each other’s arguments, etc.  (See “What if the Other Spouse Doesn’t Want the Annulment?” for an example of this.)  There’s no denying that cases like these can get extremely heated and emotional; but so long as each side listens to the arguments made by the other, and has the chance to rebut them, the judges are able to get a full picture and make a determination based on all the evidence presented.  It goes without saying that when one spouse wants the annulment and the other one doesn’t, the final decision by definition is going to upset one, and please the other.  But just as in contentious cases in all sorts of civil courts around the world, that’s simply the way justice works.  If both sides want different outcomes, the judge naturally can’t please them both!

Which brings us now to the sort of case which Craig describes.  Sometimes one spouse wants an annulment, but the other spouse either (a) doesn’t want it, but is fairly certain that it will be granted anyway; or (b) doesn’t care whether the annulment is granted or not—but for vindictive reasons, wants to prevent the petitioner from getting what he/she wants.  In these types of situations, the petitioner naturally intends to cooperate fully with the tribunal, but the respondent will deliberately refuse to do so “out of spite,” as Craig says.

We don’t have worldwide statistics on how often this happens, but rest assured that Craig’s issue is not unique.  It’s actually common enough that canon law provides detailed instructions on what a tribunal is supposed to do when a respondent chooses to ignore the summons mentioned above.  Canon 1592.1 tells us that if a respondent is summoned but fails to appear, and doesn’t provide the court with a sufficient reason for this failure, the judge is to declare that person absent, and the case is to proceed to the definitive judgment.

You don’t need a degree in canon law to appreciate that this is only common sense.  After all, there are two parties to a marriage-nullity case—and if one party doesn’t feel like cooperating, that doesn’t mean justice is automatically going to be denied to the other!  So the marriage tribunal will simply proceed without any input from the respondent.  It will base its decision on the evidence collected from the petitioner and his witnesses.  So what Craig’s pastor and the tribunal official told him is correct.  If Craig can show that (for example) his own consent at the time of the wedding was defective—a concept that has been discussed numerous times here in this space, in “Contraception and Marriage Validity” and “Canon Law and Fraudulent Marriages,” among many others—then the marriage is invalid regardless of whether his ex-wife submits her own evidence or not.

Remember that it takes two people to marry validly.  This means that for a valid marriage, both spouses have to get it right—but for an invalid marriage, only one spouse has to get it wrong.  If the marriage is invalid due to defective consent on the part of the petitioner and he/she can prove it, then the tribunal can find it has all the evidence it needs to render a decision, without any input from the respondent.

Yet even if the petitioner wants to argue that the marriage is invalid due to defective consent on the part of the respondent, it may be possible to prove this without the respondent’s cooperation.  There might be multiple witnesses—sometimes even including blood-relatives of the absent respondent—who are able and willing to testify to the tribunal about the respondent’s overall behavior, or specific actions, providing the tribunal with all the evidence it needs.

If the respondent is so vengeful as to think that non-cooperation will stall the petitioner’s case, and make him/her wait longer for the desired annulment, that is not necessarily so.  Depending on the individual circumstances, the respondent’s failure to participate in the process might actually allow the court to issue a decision even faster.  In fact, occasionally the non-cooperation of a spiteful respondent might even help to buttress the petitioner’s claims: imagine that a petitioner is claiming that the respondent has mental and/or emotional problems, which prevented him/her from giving full consent to the marriage.  The tribunal mails a summons to the respondent… who furiously runs the summons through a paper-shredder and mails the fragments back to the tribunal in response.  Would this kind of immature, irrational behavior really hurt the petitioner’s case?

Let’s say that the marriage tribunal ultimately gives Craig a decree of nullity, which will mean that he is able to marry someone else validly in the Church.  So long as his ex-wife really was informed of the case by the tribunal, and knowingly chose not to participate in the proceedings, she will not be able to claim later that her rights were violated and have the decision invalidated as per canon 1620 n. 7.  That’s because refusing to exercise your rights does not mean you were denied your rights.

There’s only one potential procedural loophole in this equation, and it concerns the need to be sure that the tribunal’s summons really does reach the respondent.  Canon 1592.2 tells us that before issuing a decree declaring the person absent, the tribunal judge must make sure that the summons sent to the person really did arrive.  Post-office efficiency can vary dramatically from one country to another, and the tribunal has to be sure that the letter was not misplaced or lost by the mailman.  If the respondent genuinely never gets the summons, and has no idea what is happening, this would be grounds to have the decision invalidated, as the respondent’s rights would have been denied.

Sometimes the mailman may ask the respondent to sign for the summons, and when the respondent realizes what it is, will refuse to sign for it.  In this case the declaration by the postal service that the addressee refused to accept the letter constitutes sufficient proof, so far as the tribunal is concerned, that the letter arrived as per canon 1592.2.  Thus the respondent can’t claim ignorance later on.

So now Craig has his answer.  It’s certainly preferable that both spouses participate in the marriage-nullity process, but if one spouse doesn’t want to, the case can still move forward.  One party’s refusal to cooperate certainly may cause a lot of frustration, but it will not necessarily affect the ultimate decision.  It’s important to remember that the goal of marriage tribunals isn’t to upset the respondent; it’s to find out the truth about the validity of the marriage, whatever that may be.

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