I hope this is the first in a series! Please be respectful in the comments. This is an emotional issue.

Since falling into the fight against divorce (especially the normalization and acceptance of divorce among Catholics and seemingly in the Church), I have inevitably come up against the issue and controversy surrounding annulments in America, a subject about which even the previous two popes have expressed concern. It’s a tricky subject to talk about for a few reasons. First, the process itself is secretive (not without reason); second, it’s fraught with difficult and painful emotions, especially among the small percentage of Catholics who have fought for their marriages in the annulment process and who don’t have the same “healing” experience as those petitioners who get the outcome they seek (nullity); third, I don’t want to make those with annulments feel insecure about their situations (the Church has jurisdiction on these issues, even if the conclusions are in error). 

Despite these difficulties in talking about tribunals and annulments, I do think we need a discussion—not for looking back at individual cases for re-litigation (although certainly folks are welcome to ask this tribunal judge for her thoughts on what happened to them), but rather for going forward from where we find ourselves today.

 The gracious woman who answered my questions has been a tribunal judge in a medium-sized diocese for 20+ years. I deeply appreciate her willingness to talk candidly with me, and after a phone call we had a few months back, I sent her a series of questions. Here they are, with her answers:


Q. You told me on the phone that my next book needs to be entitled, Does the Catholic Church Believe in Marriage Anymore? Could you explain what you meant by that?

The title reflects the question many seem to have, particularly those who have experienced (directly or indirectly) the Catholic Church’s annulment process. With the high number of marriages declared null, in addition to the seeming lack of evidence or lack of explanation for the reasons for annulment, a person could conclude that diocesan tribunal officials don’t believe in the nature of marriage traditionally understood and taught by the Church: that it is a partnership for the whole of life, ordered to the procreation of children and to the mutual support of the spouses. 

 
Q. Drawing on your own experience as a tribunal judge for many years, do you believe that conclusion or perception by the laity is accurate? Why or why not?

Gosh, hard question to answer with a simple yes or no. I believe it to be true for some dioceses and for some tribunal officials. When there is a 90-100% rate of affirmative decisions given by a tribunal, there is a real problem. The challenge is proving it. The annulment process is secret in order to protect the parties involved. That is necessary. So “transparency” won’t work to fix the problem. What will: First, become informed about the process (this forum is great). Second, object with respect and humility. The process in place—when followed—works and has worked for a long time. It doesn’t mean everyone is happy with the decision made. It does mean that both spouses have been heard, and that tribunal officials have made a real effort to get to the truth and have decided accordingly. If one of the spouses disagrees with the decision, appeal the decision. It’s allowed; it’s encouraged; and, it’s very effective.

There’s so much I could say about each point above, but this gives you a general answer, hopefully.

Q. Since the overwhelming majority of tribunals do have a 90-100% affirmative rate [i.e., the marriage is declared null], what is the problem as you see it, specifically? 

To answer the question, I think it’s good to first ask, about how many marriages are we talking? I think people have the impression that tribunals are annulling many, many marriages every year. I did some general calculations for my [medium-sized] diocese. There are about 100,000 Catholic marriages. The tribunal receives about 200 petitions for nullity every year. This number includes cases that are declared null through the documentary process (i.e., lack of form cases and prior bond cases—when there is the required documentation proving either lack of form or a previous marriage, the marriages are always declared null). That reduces the 200 number to about 150. So, about 150 formal cases per year. Not all are declared null. Let’s say 90% are, so 135 marriages per year are declared null. 

Judges are required to come to “moral certitude” about the facts of the case and whether the facts indicate invalidity. One judge’s “moral certitude” is different from another’s. Unfortunately, there is no measure or litmus test to indicate whether a judge has achieved moral certitude. So, given that, why are there so many canon lawyers judging most marriages to be null? Hard to say simply. In my experience, it’s cowardice; a misplaced sense of charity (i.e., it’s more charitable to let John Doe get back to the sacraments than not); arrogance.

Telling a person that he or she cannot receive the sacraments—especially if you are a priest—is very hard. A lot of priests just don’t like it, because the judgement is final and keeps a person from receiving the very sacraments necessary for salvation.

Q. You had also mentioned to me on the phone that sometimes priests don’t believe that married couples or laity are capable of keeping a permanent vow. Can you elaborate on what you’ve seen? Another question: You mentioned that God allows people to make stupid mistakes. For example, folks might pick a spouse that isn’t “perfect” for them…their “soulmate.” Or, someone might have made a stupid mistake in deciding to pick the lazy guy for a spouse, or the woman who nags a lot, or drinks, or the one who has this sin or that sin, etc. You said something to the effect that we are allowed to make stupid mistakes, and it doesn’t mean that our marriage is invalid! 

No priest has ever told me he doesn’t believe the laity are capable of keeping a permanent vow. Likewise, no priest has ever told me he doesn’t believe the laity are incapable of marriage. I have concluded that based on the decisions of particular canon lawyers. That is, when a canon lawyer decides in favor of annulment for 99% of the marriages he examines (and then compound that by the frequency with which this occurs), it is hard not to conclude that many priests believe the laity are incapable of marriage. This probably would shock and infuriate many, but if it walks like a duck and quacks like a duck....

About the second question: Just because a spouse or spouses behave badly in their marriage, it doesn’t mean the marriage is null. So, behaviors like infidelity, addiction, or homosexuality don’t automatically (ipso facto) prove invalidity. They could just be bad behaviors which don’t touch the consent given at the wedding. (The obligation of the canon lawyer is to determine if marital consent was lacking in some way at the moment it was given. We don’t—or shouldn’t—look at a bad marriage and assume invalidity. That’s what’s going on in the question/answer above.)


Q. Do you feel it's wrong for concerned Catholics to question the system? Many Catholics speak about this behind the scenes or in hushed tones, because speaking against an ecclesiastical system is seen as “going against the Church.” Instead, is questioning a way to ensure the soundness and integrity of the system? For example, considering what has happened in the past 50 years, we have been right to question the integrity of seminaries, of liturgical practices, of catechesis, of the hierarchy itself—and I personally believe it's okay to also question the integrity of the tribunal system in America, especially as marriage is under attack, and marriage and family are the number one target of the enemy. Are there people within the system who are also okay with that questioning? Sometimes we are told that we must simply accept that all is sound, even when red flags are waving. I hope you can make sense of that question! 

I don’t think it’s wrong to question anything, as long as it’s done with respect.

However, regarding the tribunal process, it’s important to make a distinction between the process and the practitioners when asking the questions. It’s also important to keep in mind that the process is the process. It’s a set of steps to be followed to ensure the parties to the case are heard. It’s not political. It’s not abusive. It is what it is. People don’t know what it is, and so are apt to think the process is a problem. It’s not. It’s the practitioners.

This gets at the heart of the very difficult part of the problem: The obligation of the judge is to come to “moral certitude” about the validity or invalidity of a marriage. Moral certitude is not like a chemistry experiment where you add the right ingredients and—presto!—get the same results, regardless of who is the chemist. It’s the judgement of a particular person who is, presumably, well-educated in the law, and, hopefully, has a well-formed character. This implies that the practitioners are on the same page about the human person, human action, human freedom, the nature of marriage, etc.

However, every judge is different, of course, and only the judge(s) on a particular case know the particular facts and are therefore able to make the determination about a marriage. For example, I work with a priest-judge who is a very nice man. He also judges most of the marriages he addresses in his position as a tribunal judge as invalid. I have an opinion about his work—a strong opinion—but I don’t have the information he has, because I’m not privy to his casework. All I see are the results. Since he is the judge, I don’t have any say in his judgement. I can disagree to myself; that’s it. He will have to answer to God for his work. Like all of us will have to do. Yikes. 

The questions people should ask, in my opinion, should pertain to whether tribunal judges really believe lay people are capable of something so basic as marriage. The number of annulments would say “no.” So, the next question is, why? Why do they annul so many marriages? Why do marital difficulties ipso facto prove to so many tribunal judges that a marriage is null? Doesn’t this indicate their belief that lay people do not have the capacity for marriage? 


Q. My perception of what you are saying here is that "it's the luck of the draw" when it comes to who adjudicates one's case. Does the outcome in America seem to be based on who is the judge assigned to the case? For example, it sounds like if I want the best shot for my marriage to be upheld, I'd have a greater chance of that outcome with you rather than with your colleague. Is that perception correct? A lot of people do think that's how it goes.

It does seem like the luck of the draw. There are probably people who wish I weren’t the judge on their case. :/

The equalizer is the appeal process. Both affirmative and negative decisions can be appealed, so another Court and another set of eyes get to make a decision.

If there are particular questions about the process, I’m happy to answer them as best I can. God bless you and your work, Leila.

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Links to many resources, especially for a respondent wishing to defend his/her marriage in the tribunal, can be found here.

Related blog post: Tribunal Psychologist: “I could conceivably make a case for any marriage being null.”