Marriage Nullity Q&A

Marriage is a covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of children. This union is brought about through the legitimate consent of capable parties, which is an act of the will by which a man and a woman mutually give and accept each other through an irrevocable covenant in order to establish marriage. The essential properties of marriage are unity and indissolubility. When this covenant takes place between two baptized persons, it is a sacrament. This teaching, refined and explained throughout the centuries in many different cultures and societies, finds its clearest basis in the words of our Lord Jesus Christ when he says, "They are no longer two but one flesh. Therefore, what God has joined together, let no one separate" (Mt 19:6). This one-flesh union is indissoluble. Thus, when a valid marriage bond arises between two baptized persons, it can never be broken, except through the death of one of the spouses, even if the friendship or communication between those persons breaks down.

A declaration of nullity, often called an annulment, is not a determination whether this was a good marriage or a bad marriage, or who was at fault for the breakdown of the marriage, or whether the separation of the spouses is justified, or whether the parties "deserve" to remarry. Rather, a declaration of nullity is a judicial decision by an ecclesiastical tribunal that one or both parties did not give adequate consent or were hindered by some impediment in their attempt to contract a valid matrimonial bond on the day of their wedding. While a civil divorce can only dissolve the civil effects of marriage (e.g., paying taxes as a married couple), it cannot dissolve the marriage bond itself, which continues to exist. A declaration of nullity does not attempt to put an end to a valid marriage, but rather is a judgment that due to some defect, the conditions required for a valid marriage were never present, and therefore no valid marriage ever arose. Thus, the goal of the marriage nullity process is only to determine an objective fact: whether the indissoluble bond of marriage ever came into being in the first place.

In general, only the spouses, whether they be Catholics or non-Catholics, have the ability to challenge the validity of a marriage.

A tribunal is competent to hear a marriage nullity case when it is found in the diocese in which 1) the marriage took place; 2) the Respondent lives; 3) the Petitioner lives; 4) the most proofs for the case can be gathered. If more than one option exists, the Petitioner can choose where to introduce the case.

No. If at least one of the parties to an invalid marriage has exchanged marital consent in good faith, then the marriage is called putative. Children of valid marriages or at least putative marriages are considered legitimate.

There is no cost to the parties. Of course, there are significant costs associated with a time-consuming and labor-intensive legal process like the marriage nullity process. Formerly, petitioners who could afford it were asked to cover a portion of those costs as a matter of justice, but Pope Francis has asked for all judicial processes to be made free to the parties so that costs--or misconceptions about costs--do not prevent any of the faithful from exercising their rights. Instead, the costs are borne by the diocese, which ultimately means by the other people in the pews. Petitioners are asked to remember that fact, to make responsible use of the tribunal's resources, and to remain diligent in their support of the Church. See below regarding the costs associated with employing a canonical advocate.

No definite time frame for a completion date can be established, and no date for a new marriage can be set by a parish priest or deacon unless an affirmative decision is issued and no appeal is lodged against it. While there are certain time limits built into the law which must be respected, the pace of the marriage nullity process is often connected to the responses of the parties and the witnesses. From start o finish, a typical case could take anywhere from one to two years.

A petition for a declaration of nullity is an accusation that a marriage was invalid due to some factor present on the day on which the parties exchanged marital consent. There are three major causes of nullity, each of which can be further classified into several distinct grounds. A marriage can be invalid when there is: 1) a defect in consent; 2) the presence of an impediment which rendered one or both of the parties unqualified for marriage; or 3) a defect in the form of celebration. Please visit the page entitled "The Grounds of Nullity" for a description and example of each ground.

This judicial process seeks to discover the truth regarding the juridic status of the marriage in question and thus determine whether or not the legal presumption in favor of the validity of marriage can be overturned. The process includes the following steps:

1. Presentation of a petition accusing the marriage of invalidity
2. Acceptance or rejection of the petition
3. Citation of the Respondent, in which the other party is notified of the petition and given the right to participate in the process
4. Joinder of the issues, which determines the ground(s) on which the marriage will be judged
5. Instruction of the cause, which is the gathering of the evidence
6. Discussion of the cause, in which the parties present their closing arguments
7. Decision of the judges, in which the judges decide whether nullity is proven (Affirmative) or not proven (Negative)
8. Appeal of the decision, if applicable.

A description of each of these steps can be found on the page entitled, "The Marriage Nullity Process."

The parties cannot remarry unless and until an affirmative decision is issued and not appealed. Naturally, they must be otherwise free to marry, and Church law regarding marriage preparation is still to be observed.

Yes. Canonical advocates can be very helpful in understanding the process and arguing one's cause. There are a few in-house advocates that parties may use for a fee of $300 per case (unless the party asks for a total or partial reduction in the fee due to a demonstrated financial hardship). Parties are also free to seek external advocates who contract at their own rate. External advocates must first be approved in order to serve this function at the local Tribunal. A list of approved external advocates is available on request.

The marriage nullity process serves precisely to allow for and encourage the discovery of truth regarding the juridic status of the marriage under review. In other words, the process is designed to arrive at the truth as to whether a valid and indissoluble matrimonial bond arose between the two parties at the moment of consent. Even though the judicial decisions of an ecclesiastical tribunal are certainly trustworthy, they are not infallible. In theory, the judges could err in two ways: 1) they could incorrectly declare a valid marriage to be invalid, or 2) they could incorrectly declare an invalid marriage to be valid. Neither error is a good thing, but the former is much worse, since the judges would essentially be doing what the Lord prohibited, separating what God has joined. For this reason, the Church's law is designed to ensure that any doubts about the validity of a marriage are resolved in favor of the marriage bond, means that marriages are presumed valid until proven otherwise.

The verdict is rendered by a tribunal of three ecclesiastical judges who determine whether the proofs brought forward by the Petitioner have overturned the legal presumption that the marriage was valid. The decision is reached by a majority vote. The judges make their decision based on the evidence presented to them, evaluated in light of the Church's law and jurisprudence.

The central question in the marriage nullity process is whether the marriage has been proven to be invalid on the ground(s) of nullity alleged by the Petitioner. An affirmative decision means that the judges have reached moral certitude that the marriage is invalid based on the proofs brought forward. This decision can be appealed by any party that feels the decision is incorrect. The appeal process follows the same steps as appealing a negative decision (see below). If there is no appeal, the nullity of the marriage is considered to have been definitively established, freeing the parties to remarry if they are otherwise free and able to marry.

A negative decision means that there was not sufficient evidence to overturn the legal presumption that the marriage was valid. In effect, it means that as best as can be publicly known, the marriage must continue to be publicly regarded as a valid marriage. Thus, despite the civil divorce, the parties must still be considered to be married to one another. When it comes to remarrying someone else, it is not a matter of private judgment, because marriage is inherently public. When one gets married, one stands in front of family, friends, and the Church, calling upon them to witness the vows spoken and to help the couple live out those vows. Without proof that the marriage they witnessed was invalid, those communities cannot witness or recognize a new marriage, since this would be like witnessing a commitment to adultery. Therefore, when a party receives a negative decision, they cannot marry in the Church. There are certain options, however, that could be pursued to appeal or reexamine the case. These options are described below.

Within fifteen (15) days of the publication of the sentence, one or both parties can appeal the sentence to a higher tribunal, either the Metropolitan Tribunal of the Archdiocese of Milwaukee, or to the Apostolic Tribunal of the Roman Rota. The appellate tribunal can function as a simple "second opinion," but if necessary, new evidence and even new grounds of nullity can be proposed during the appellate trial. If the appellate tribunal upholds the negative sentence, no further appeal is possible. But, if the appellate tribunal overturns the decision, the new decision becomes final unless there is a second appeal, in which case the cause can be heard in a third instance at the Roman Rota. It is highly recommended to use an advocate in the appeal process. The one appealing can usually use the appellate tribunal's in-house advocate at no expense. However, one also has the right to contract with an external advocate at one's own expense. A short list of external advocates can be received by contacting the Diocese of Madison Tribunal. The costs for the appeal, if any, are determined by the appellate tribunal. The appellate tribunal will reduce or completely waive these costs in cases of a demonstrated financial hardship.

Once a tribunal has issued a sentence on a certain ground (e.g., negative on the ground of total simulation on the part of the Petitioner), it is not possible for the tribunal to issue a second sentence on the same ground. But, every ground of nullity is different. Thus, the tribunal which issued a negative on the ground of total simulation on the Petitioner could accept a new petition on a different ground, such as, a grave defect of discretion of judgment on the part of the Respondent. Any other competent tribunal could also accept the petition with the new ground. The ability to petition on new grounds is not meant to allow parties to force a case through adjudication over and over until they get the result they desire. Rather, the Petitioner must truly believe that the marriage is invalid for the reason upon which the new petition is based, and a petition that lacks all basis is rejected outright. Furthermore, even if the petition is accepted, there might not be much hope of an affirmative decision, since if the marriage was truly invalid on a certain ground, chances are that evidence of nullity would have surfaced in the first trial.

If there were serious procedural irregularities or injustices during the course of the trial, in rare cases, the sentence itself might be invalid. The parties have ten years to make a complaint of nullity of sentence, and if the sentence itself is declared null, then the parties have a right to a retrial.

After the window for appeal has closed, the Church regards the matter as settled. However, even after the avenues for appeal have been exhausted or the time limit for appeal has run out, a party can approach the appellate tribunal to request a “new proposition of the case.” This could especially be useful if new and compelling evidence becomes available (e.g., a Respondent who formerly refused to participate is now willing to participate), and indeed such evidence is required if the negative decision has already been upheld on appeal.

No valid marriage can be dissolved at the whim of the parties. However, non-sacramental marriages (marriages in which at least one party is not baptized) may be dissolved by the Roman Pontiff for the welfare of individual souls. This is not a right but rather a favor granted by the Successor of St. Peter requiring a just and proportionately grave cause as well as the fulfillment of certain conditions. More information can be received by contacting the Diocese of Madison Tribunal.

In our culture, divorce is often regarded as the end of all hope of reconciliation between spouses, but Jesus reminds us that "with God all things are possible" (Mt 19:26). In some cases, especially those involving abuse or addiction, civil divorce may remain the only possible way of ensuring certain legal rights or the care and protection of the other spouse and children (Catechism of the Catholic Church, par. 2383). But in other cases, the parties should prayerfully consider whether reconciliation is possible. The salvation of souls is the primary goal of the Church, and the Church wants nothing more than the lasting happiness and salvation of all. However, the grave sins of adultery and fornication, which would be committed by those who would enter into a new union while being bound by a prior valid marriage, are seriously damaging to those who commit them and to those around them. A person who commits these sins with full knowledge and consent, loses the gift of sanctifying grace in his or her heart and, if there is no repentance, risks the loss of eternal salvation. If reconciliation is impossible, then as long as one's spouse is living, the only option is to live as though one were celibate. This means not attempting remarriage and not entering romantic relationships, since these are by their very nature oriented toward marriage. Such a life is so countercultural that it might not even seem worth considering. But as Christ teaches, "There is no one who has left house or wife or brothers or parents or children, for the sake of the kingdom of God, who will not get back very much more in this age, and in the age to come eternal life" (Lk 18:29-30). By God's grace and with the help of the Church and her sacraments, a chaste life is not an impossible task. Those who have divorced and have not attempted remarriage are able to receive the sacraments to support them in living a life of grace.

No. Excommunication is a specific canonical penalty imposed as a consequence for certain very serious canonical crimes. Neither seeking a divorce nor attempting remarriage are currently punishable by excommunication, nor are they even classified as canonical crimes. This is not necessarily to say that divorce and civil remarriage are not immoral or sinful, or that they have no effect on one's relationship with the Church. In general, divorce introduces disorder into the family and society, bringing grave harm to the deserted spouse and to children traumatized by the separation of their parents (Catechism of the Catholic Church, par. 2386). Therefore, depending on the circumstances, divorce can be gravely immoral. And attempting remarriage while already validly married is always seriously sinful.

No one who is conscious of serious sin should receive Holy Communion prior to sacramental confession. This is not because the Church uses the Eucharist as a weapon to enforce right doctrine and morality, but because "if anyone eats this bread or drinks this cup of the Lord unworthily, he will be held to account for the Lord's body and blood…He is eating and drinking damnation to himself if he eats and drinks unworthily" (1 Cor 11:27-29). Most of the time, the communicant privately determines whether to approach for Communion, and the minister may not refuse. But certain sins are serious, ongoing, and most importantly public, so that if a person approaches for Communion, he or she must be turned away for fear that admitting these people to the Eucharist may lead the faithful into error and confusion about the morality of those acts. Living in a manifestly invalid second marriage is serious (since it amounts to adultery), ongoing, and public. As long as the situation lasts, it is not possible for the parties to receive Communion. No sin is too great to be forgiven in the Sacrament of Penance. But there can be no forgiveness of sins--that is to say, even God cannot forgive sins (cf. Mt 12:32)--without repentance on the part of the sinner, and an integral part of repentance is a firm resolution to leave one's sins behind. For a person who has invalidly attempted remarriage, this means that absolution is not possible prior to a decision to separate from their attempted civil remarriage. In certain rare and exceptional cases, when separation is impossible, it might be tolerable for the parties to live together as "brother and sister," that is, completely abstaining from acts proper to marriage. Anyone can receive the sacraments today if he or she is willing to do what is necessary to be in a right relationship with God and the Church.

Yes! Saint John Paul II stated that those who are divorced should not consider themselves as separated from the Church. Rather, the Church invites them "to listen to the Word of God, to attend the Sacrifice of the Mass, to persevere in prayer, to contribute to the works of charity and to community efforts in favor of justice, to bring up their children in the Christian faith, and to cultivate the spirit and practice of penance and thus implore, day by day, God's grace" (Familiaris Consortio, art. 84). However, those who are divorced and remarried, should not serve as extraordinary ministers of Holy Communion or other such public roles, since this may lead the faithful into error and confusion regarding the Church's teaching about the indissolubility of marriage.