New Vatican instruction lacks changes sought by U.S. bishops, canonists

By JOHN L. ALLEN JR.
Rome

A new Vatican instruction on annulment falls short of reforms that many American bishops and canonists hoped would have made an annulment faster and easier to obtain. The new instruction is not expected to change existing practice much.

The reforms were contained in a second draft of the document, which seemed on the brink of publication in 2003. After debates within the Vatican, however, the draft was sent back for revision, and in the end several significant provisions sought by Americans were eliminated or watered down.

The instruction, titled Dignitas Connubii, was issued Feb. 8 in a Vatican news conference. The Latin-and-English version runs to 226 pages, and is organized into 308 articles.

The document is the result of almost 10 years of work, and the new version represents the third draft. Experts from five offices of the Roman curia were involved: the Roman Rota and the Apostolic Signatura, the two chief Vatican courts that handle marriage cases; the Pontifical Council for the Interpretation of Legislative Texts, more or less the Vatican’s department of justice; the Congregation for the Doctrine of the Faith; and the Congregation for Divine Worship and the Discipline of the Sacraments.

The purpose of the document is to provide a step-by-step guide for judges in processing requests for annulment, applying the principles of the Code of Canon Law adopted in 1983, in light of the experience of the intervening 23 years. It replaces a 1936 document, Provida Mater, which did the same thing for the 1917 code.

“It’s like a recipe book,” one Roman canonist said. “If a judge follows all the steps outlined in the document, he can’t make a mistake.”

Unlike civil divorce, which simply acknowledges the failure of a marriage, annulment is a declaration that a marriage never existed, usually because one of the parties lacked the capacity to consent or because the marriage was never consummated.

In 2000, a total of 46,092 annulment cases was processed worldwide. Almost 70 percent of those, or about 32,000, were processed in the United States. That’s a remarkable change from just 35 years ago; in 1968, only 338 annulments were granted in the United States. Some Vatican officials have long felt that American church courts are too hasty in granting favorable responses.

Some had feared that the Vatican might use this new instruction to crack down on American practice, but in the end most of the points are technical matters of procedure that are not expected to alter the outcome of most requests. In fact, in at least one instance, the instruction should make life easier for Catholics seeking an annulment.

That instance concerns a canonical principle known as “conformity.” Existing law requires that two separate courts must find in favor of an annulment, and that those two findings must exhibit “conformity,” meaning they have to be based on the same point of law. If one court finds in favor of annulment on the grounds that the wife was insane, for example, and another that the husband was impotent, that doesn’t satisfy the requirement. In such a case, review by a third court would be required.

Article 291 of Dignitas Connubii, however, introduces the concept of “substantial conformity,” which would allow an annulment even if the two decisions were based on different points of law, as long as they are rooted “in the same facts and the same proofs.” For example, if one court finds the wife was incapable of giving consent, and the other that she lied, those two findings could be considered in “substantial conformity” and there would be no need for the intervention of a third court.

In general, experts told NCR that the instruction gives more power to judges to short-circuit procedural appeals that have the effect of unnecessarily slowing down the process. One canonist said this provision is intended in part to streamline cases such as that of Sheila Rausch Kennedy, who pursued a lengthy appeal of an annulment granted after a 1993 request from her husband, Joseph Kennedy.

Yet Dignitas Connubii falls well short of what many American bishops and canonists had wanted. The second draft of the document, circulated for comment in 2002, contained only 47 articles, and among them were at least two changes that theoretically would have made the process faster and easier.

First, Article 35 of the 2002 draft would have allowed declarations of the two parties, meaning the husband and wife, to constitute full proof of the nullity of the marriage. Under existing law, those declarations have to be supported by other proof, such as testimony from third-party witnesses. Many observers believe this reform would have been helpful especially in cases where the marriage dates back many years, and other proofs are hard to find.

In Dignitas Connubii, however, this provision is removed. One Roman canonist told NCR the logic was that “a marriage case is supposed to be about ascertaining the truth, and we all know that that the interested parties often have strong motives to lie.”

Second, Article 43 of the 2002 draft would also have dispensed with the requirement of a second finding in favor of annulment, most notably if the two parties and the church’s own canonist were all in agreement. Dignitas Connubii, on the other hand, confirms the necessity of a favorable finding from a second court.

One expert who worked on Dignitas Connubii told NCR that the aim of the document was to avoid pointless delays and objections, but at the same time to ensure that the outcome is not automatic, and that a serious judicial process is observed.

Inside the Roman curia, the evolution from the 2002 draft to Dignitas Connubii is seen as something of a defeat for Italian Cardinal Mario Pompedda, the head of the Apostolic Signatura, who spoke in favor of the earlier draft. Its revision in 2003 was instead entrusted to a group headed by Spanish Cardinal Julian Herranz, head of the Pontifical Council for the Interpretation of Legislative Texts. Herranz is one of two Opus Dei cardinals.

At the Tuesday press conference, Herranz defended the church’s right to subject failed marriages to a judicial examination before granting an annulment.

“Not to take an interest in this problem would be equivalent to obscuring in practice the sacramentality of matrimony,” Herranz said. “That would be even less understandable in the present circumstances of confusion about the natural identity of marriage and the family in certain civil legislation, which not only welcomes and facilitates divorce, but in some cases puts in doubt heterosexuality as an essential aspect of matrimony.”

National Catholic Reporter, February 18, 2005