Can Children Have Any Input in Their Parents’ Annulment Proceedings?

Q: If one or both of the parties to a marriage seeks an annulment in the Catholic Church, do the adult children of that marriage have any canonical rights to be informed of that process, involved in it, or have their opinions heard or represented in it?

It seems to me that the validity of the marriage which produced them is something that it is right and proper for a child to have an interest in. (I realize that the Church does not consider the children of an annulled marriage to be illegitimate—but surely the proper interests of a child in the validity of their parent’s marriage go beyond the mere question of their own legitimacy.) –Simon

A: Simon’s question highlights an issue that is frequently overlooked, whenever an ex-spouse petitions for an annulment: the effect that granting an annulment may have on the children of the marriage.

While during the annulment process everyone’s attention is logically focused on the spouses themselves, there is no denying that many children—of all ages—get tremendously upset at the idea that the Catholic Church might declare that their mom and dad were never really married.  It often doesn’t make much difference if a priest or a canonist tries to explain to a child what an annulment is; the fact is, that child lived in a home together with his mother and father as a family, and (he will argue) of course his parents were married, as anybody who knew them at the time could tell you!  Citing abstract sacramental theology and canon law to the contrary—no matter how accurately—is not going to undo a child’s emotional conviction about his parents’ marriage all at once, and this shouldn’t surprise anyone.  A child’s home life is his entire world for his first few years; if he is later told that elements of it really didn’t exist, we can’t expect him instantly to accept that and be totally okay with it.

While nobody seems to be keeping statistics, there’s no doubt that quite a few children of parents whose marriage is later annulled become angry at the Catholic Church.  In many cases they stop practicing their faith; and will bitterly explain, if asked, that it all seems to them to be nothing but a sham.

Yet the Code of Canon Law saying nothing directly about this.  Why not?  Let’s quickly review what a declaration of nullity of a marriage (a.k.a. an annulment) actually means, and then the reasons for this seeming lacuna in the law should be clearer.

At issue here is the validity of the celebration of the sacrament of marriage, which means by definition that the problem (if there is one) occurred at the time of the wedding, not at some later point in the marriage.  (See “Marriage and Annulment” for more on this.)  The Catholic Church has established requirements for a marriage to be valid in its eyes; and if one or more of them is flawed or missing, this means that while it may have appeared to onlookers that the couple was really getting married, the sacrament of matrimony was not in fact conferred on the spouses.  Everyone thought they got married… but they really didn’t.

If a marriage involving at least one Catholic was not celebrated in accord with canonical form (as has been discussed many times in this space, in “Why Would a Wedding in Our College Chapel Be Invalid?” and “Why Can a Parish Priest Annul This Marriage?” among others), this in itself invalidates the marriage, unless the diocesan bishop granted a dispensation from canonical form in advance (as seen in “Can a Catholic Ever Get Married in a Non-Catholic Church?”).

A marriage is likewise invalid if one or both of the spouses has an impediment to marriage—if he/she is too young, for example (c. 1083, discussed in “Can a Catholic Ever Elope?”).  True, there are some impediments for which the diocesan bishop can grant a dispensation, such as consanguinity in certain cases (c. 1091, addressed in greater detail in “Can Cousins Marry in the Church?”).  Others, however, cannot be dispensed, as they are considered to be of natural or divine law—such as the impediment of prior bond, which simply notes that you cannot validly marry if you are already validly married to someone else (c. 1085.1).

And finally, a marriage is invalid if one or both spouses exchanged consent which was defective (cf. c. 1057).  There are a tremendous number of different ways this could happen, and we have looked at some of them in “Contraception and Marriage Validity,” “Canon Law and Fraudulent Marriages,” and “Sacraments and Personal Identity,” among others.

If a spouse wants to challenge the validity of his/her marriage, he/she is going to have to be able to prove to the Marriage Tribunal that at least one of these elements was at issue when the wedding was celebrated.  Note that most of the time, any children of the spouses hadn’t been born yet when the wedding took place (second marriages of widows/widowers being an obvious exception), so of course they weren’t physically present at the ceremony and thus can’t address the claims as eyewitnesses.

That’s not to say that the children of a marriage can never have any input during annulment proceedings.  It happens quite often that a couple’s children can give valuable testimony, either in support of or against the claims being argued before the Marriage Tribunal.  Let’s imagine that an ex-wife is seeking an annulment, on the grounds that her husband’s consent was defective because he never intended to be faithful to his wife until death (cf. c. 1056).  As proof of this, she is submitting, among other things, the testimony of witnesses who knew first-hand that her husband was cheating on his new wife practically from the day of their wedding.  A grown child of the marriage might certainly be able to provide useful evidence in this regard, if he/she had first-hand knowledge of Dad’s constant infidelity too.

The opposite is true as well.  Let’s invent a different scenario, in which a wife is seeking an annulment under canon 1095 n. 3, because (she claims) her ex-husband has significant mental/emotional problems which prevented him from being able to commit to a marriage as the Church understands it.  But in this case, let’s say that the children know for a fact that their mother is conspiring with her friends to submit false testimony, hoping to get an annulment because she wants to marry somebody else.  Her husband is contesting the annulment, asserting (truthfully) that his ex-wife is lying.

In this situation, older children could provide vital testimony as witnesses for their father.  They might, for example, be able to describe for the Tribunal multiple instances in their childhood when their father demonstrated ample mental and/or emotional stability—detailing his behavior when (say) he unexpectedly lost his job, or a grandparent died, or one of the children was hospitalized for a serious injury.  Or the children might be able to testify that their mother had secretly been having an affair for years with the man whom she now wants to marry in Church—thus showing the Tribunal that there may be a lot more going on here than the wife is admitting.

In short, children can often get directly involved in their parents’ annulment proceedings as witnesses, whether in support of the grounds being alleged for the annulment, or against them.

But all this being said, it seems pretty clear that Simon isn’t merely asking about the ability of children to serve as witnesses in their parents’ annulment proceedings.  Rather, his question is deeper than that: do children have any rights, when one (or both) of their parents seeks an annulment?  Does the Tribunal have to keep the children informed of what is happening?  Can the kids weigh in, even if they don’t necessarily have any evidence to provide, and/or if their parents don’t want them to?

Strictly speaking, the answer to all these questions is no.  At first glance this may seem heartless; but before condemning the Church’s annulment process out of hand, take a look at what a Marriage Tribunal is actually being asked to do.

Submission of an annulment petition means that at least one spouse is asking the Tribunal to determine whether the sacrament which the two spouses celebrated is valid or not.  The Tribunal officials are required to look at the validity of the sacrament—not at the family’s home life, or the wishes of the children or any other relatives, or the effect that granting the annulment might have on them.  This is not to suggest that Tribunal officials don’t care—it’s just that it isn’t their role to focus on these things during the hearing of an annulment case.

The fact is, concern for the well-being of the children is the primary responsibility not of the Marriage Tribunal, but of the parents!  For this reason, parents who are anxious to obtain an annulment should first think long and hard about the effect this might have on their children.  And if the kids are old enough, why not ask them directly, and talk it through with them first?

It’s ironic that when parents weigh the pros and cons of moving to a new city for employment reasons, they invariably look at how this will affect their kids: they will leave their friends behind, have to change schools, etc.  A responsible parent might really, really want to take a better job in a different locale, but will sacrifice his/her desire for the good of the children if necessary.  How many parents will tell you, for example, “We were going to move to X, my husband got a great job offer… but our son had only one year of school to go before graduation.  We didn’t think it was wise to pull him out of one school, and put him into another one, for only one year.  It would have been too disruptive!  So we decided to stay put.”

Yet not all parents are willing to think so selflessly, especially when they are eager to remarry; and they will sometimes initiate annulment proceedings with little thought for the effect this might have on their kids.  To be fair, many children are perfectly okay with it!  But as Simon’s question indicates, many are naturally going to want to defend “the validity of the marriage which produced them”—and if that validity is denied, it can be a hard blow for them to handle, no matter how old they are.

Simon mentioned the issue of illegitimacy, something which was addressed back in “Marriage and Annulment,” mentioned above.  As canon 1137 tells us, children conceived or born of either a valid or a putative marriage are considered legitimate.  And the definition of a putative marriage is found in canon 1061.3, which states that a marriage is said to be putative if it has been celebrated in good faith by at least one party.  This means that a marriage can be found to be invalid—but children born from that marriage are still legitimate, so long as at least one of the spouses truly intended marriage.  In other words, if the marriage is declared null because one spouse messed something up… the children are still considered legitimate if the other spouse did it right.  In practice, it seems relatively uncommon for a marriage to be annulled because both spouses simply “went through the motions” at the time of their wedding, and recited vows which they didn’t mean at all; but this is the type of Tribunal finding which would mean that the children were not legitimate.

It’s a difficult subject, isn’t it?  A failed marriage is painful enough for the spouses, but it can be traumatic for the children too—even if they’re fully grown and on their own when it happens.  A spouse always has the legal right to contest the validity of his/her marriage in the Church… but when there are children concerned, parents should first think seriously about the effects that an annulment might have on them too.

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