Divorce and Annulment Research Paper

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Annulment is a legal procedure that nullifies rather than terminates unions. This process can occur under civil law or under canon (religious) law. Civil annulments appear to be used less than divorce. Civil annulments are used by people who view marriage as a civil contract that can end. Persons who petition civil annulments are not opposed to divorce, but they tend to view annulments as a means to reduce the stigma associated with marital dissolution.

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Religious annulments are most common in the Roman Catholic Church, although they are also employed by the Eastern Orthodox Church, Hinduism, and Judaism. Preference for either form is explained by a person’s ideas of marriage. Religious annulments tend to be used by those who regard marriage as a sacrament and thus as indissoluble. Persons who seek religious annulments tend to do so because they believe the marriage to be invalidated by a condition of which they became aware only after the union was formed.

Civil Annulment

Civil annulments are legislated by social laws that consider marriage as a contract that can be terminated. In order to secure an annulment, the reason for seeking to nullify the marriage must have been in operation at the time the marriage was formed. Marriage as a civil contract is an indicator of status that can be modified upon request (although the process is difficult). In other words, the contract organizes people into social categories (such as the married) and assumes married persons to have certain responsibilities in fulfilling the social role of spouse. Contractual marriage can be terminated and recontracted. As a process that originated prior to divorce in places such as the United States and England, the civil annulment does not dissolve marriage but rather legally establishes that a marital contract is invalid and thus never existed. In other words, the civil procedure ascertains the validity of the conditions before, during, and after the formalization of a marital contract.




Civil annulments thus are legal declarations that label a marriage null and void. Although civil annulments are rarely petitioned, the invalidity of a marriage is attributed to legal problems in the formation of the marriage. Legal grounds for annulment are related to the following: bigamy, discovery that the spouse is a blood relation, mental state, establishment of a previous or later marital status, age, substance use or addiction, coercion or forced consent, fraudulent consent (dishonesty or concealment), physical impediment (affecting ability to engage in sexual relations), and criminal status (persons who are serving life sentences are not permitted to marry).

Specific grounds for validity are relative to the laws of a geographic region. Accordingly, those who seek an annulment must first ensure that they meet the residential requirements of their state; that is, at least one of the parties must have lived in the state for a predetermined period of time. Then the case proceeds with a filing of the case, petitioning, summons, and several ancillary documents.

The social benefit of an annulment is that it serves as a mechanism whereby the social stigma associated with divorce is absent. Civil annulments do decrease the financial or material benefits that can come from ending a contractual union, and thus as a rule couples who seek civil annulment are more concerned with the reactions of their social circles than with the financial consequences of the decision to end the union.

Religious Annulment

A religious annulment is a declaration similar to that made in a civil action, but the authority overseeing the annulment is a specific religious body. The religious authority determines if a marriage was invalid (or null) at the time vows were exchanged. In cases of two baptized Catholics, this also means that no sacrament ever took place. Thus, an annulment is declared only when an ecclesial tribunal finds a lack of validity from the time the relationship was entered. Behavior subsequent to this time is not directly relevant, except as post facto evidence of the validity or invalidity of the marriage. That is, behavior subsequent to marriage cannot actually change the validity of the marriage. For example, a marriage would be invalid if one of the parties, at the time of marriage, did not intend to honor the vow of fidelity. If the spouse did intend to be faithful at the time of the marriage but later engaged in a sexual affair, this does not invalidate the marriage.

Annulment and divorce, therefore, differ both in rationale and effect; an annulment is a finding that sacramental marriage never existed, whereas a divorce is dissolution of marriage. Religious annulments exist in the Roman Catholic Church, Eastern Orthodox Church, Hinduism, and Judaism. Religious annulments are most prevalent among members of the Catholic Church. Catholic religious annulments follow canon law and are based on the belief that marriage is a sacrament and indissoluble.

Annulment in the Roman Catholic Church

Marriages in the Roman Catholic Church cannot be terminated or dissolved by divorce; rather they can be determined invalid by a diocesan marriage tribunal under the process of annulment. Couples seeking an annulment begin the process at the parish level. After a person approaches the parish priest, the petitioner speaks with the marriage tribunal of the archdiocese. Information is gathered about the marriage, and each spouse undergoes interviews or completes questionnaires. If the petition is approved, a judge takes the case. In addition to undergoing scrutiny via court proceedings, the marriage is subjected to an assessment of validity by a defender of the bond. Following the judge’s announcement of the verdict, the decision is appealed and reassessed. If the appeal board sustains the court decision, then the marriage is proclaimed null and void. In the case that a marriage is declared void at the beginning of the process but is not in the review court, then the case can be taken to be reviewed by the Vatican. This pronouncement does not negate the existence of a relationship between two persons but instead states the marriage was not valid.

Marriages in the Roman Catholic Church are considered valid when both persons are able to marry, willingly give consent to be married, accept to be married until death, intend to remain faithful, maintain that they will try to have children, and promise to treat the other spouse well. The only circumstances in which an annulment cannot be granted are in cases where a marriage was entered with full consent, had the necessary canonical form, was not impeded in any way, and was consummated. There are several grounds for annulment. These include issues of validity prior to or during the wedding ceremony. Annulments can be granted on psychological impediments, total or partial stimulation, and evidence of force or fear in consent. Psychological grounds refer to the presence of factors that could inhibit a person’s mind at the time of the wedding; these could include being under the influence of alcohol or drugs or experiencing emotional dependence or rebellion against close relations. Total stimulation deals with circumstances in which the marital vows are said but at least one person does not intend to maintain the marital promises. Partial stimulation is similar to total stimulation, but in these cases one of the spouses does not intend to follow parts of the vows. For instance, a person may not intend to be faithful to vows of fidelity, procreation, or the indissolubility of marriage. The phrase “force or fear” refers to marriages in which consent was not chosen but was induced by force.

Annulments can be granted if, at the time of marriage, a condition of invalidity was present. These can include a defect of form, a former bond of marriage, and diriment impediments. The law regarding defect of form dictates that a marriage between two Catholic persons must include the presence of a priest and two witnesses at the ceremony. Exceptions can be requested if these requirements pose a problem. The law regarding a previous bond of marriage establishes that if one of the persons was previously in a valid marriage, he or she must seek annulment of that union in order to validly marry again. Diriment impediments refer to invalidity resulting from the transgression of laws regarding ineligibility. Some of these, found in Canons 1083–1094, concern age (girls must be at least 14 and boys at least 16), impotence (sexual relations are necessary for a marriage to be consummated), Baptism (permission for a marriage between a Catholic and an unbaptized person must be obtained from a bishop), priests and religious (dispensation is required of persons who have made solemn vows but wish to marry), murder (if a former spouse was murdered so a union could be valid), blood relatedness (persons who are related by blood cannot marry), affinity (marriage is not permitted between a person and a family member of a former spouse), public relationships (common-law marriage and sexual behavior with others), and legal relationships (a person cannot marry an adopted child or someone related to an adopted child).

There are situations in which persons seek to dissolve a valid marriage. These cases are assessed under the Pauline Privilege, Petrine Privilege, and nonconsummation. They assess issues of baptismal status and nonconsummation. Such instances are difficult to obtain, in that the Vatican must adjudicate these cases.

Although couples who do not annul their marriage are not excommunicated, annulments are necessary to remarry and receive Communion and the other sacraments in the church. Therefore, remarriage is higher among Catholics who have received annulments than among those who have not. Children of couples who conceived during their marriage and then received an annulment are not considered illegitimate, according to Canon 1137.

Annulment in the Eastern Orthodox Church

Like the Roman Catholic Church, the Eastern Orthodox Church holds that a valid marriage is a sacramental one. As stated in Canon 853 in the Code of Canons of Oriental Churches, the dissolution of consummated sacramental marriage is not permitted. For the most part, the Eastern Code follows the dissolution canons of the Latin Church. However, as established by Canon 780, the Orthodox Church has its own annulment process, which was proclaimed valid by the Roman Catholic Church during the Second Vatican Council in the 1960s. The only case in which a marriage may be terminated is in the extreme case of the Pauline Privilege. In this situation, permission may be requested to dissolve the union if a person, in a marriage between unbaptized individuals, becomes baptized and consequently wishes to remarry as a result of the departure of the other partner or if the partner does not allow the new believer to live the faith.

Although the Eastern Orthodox Church considers marriage as an indissoluble sacrament, the Orthodox Church does permit couples whose marriage was unsuccessful to seek pardon and remarry. The validity of a couple’s first marriage is recognized and held in high esteem, but subsequent remarriages are permitted under the consideration of oikonomia, or economy of salvation.

Annulment in Hinduism

Hinduism views marriage as a sacrament, or samaskara. Hinduism considers vivaha samaskara, the wedding ceremony, to be a sacrament. There are eight types of wedding rites, whose use differs by caste. These include brahmana, daiva, arsha, prajapatya, asura, gandharva, rakshasa, and paisaka. Each type is believed to bring about good and bad consequences for individuals. Annulments may be obtained if the marriage was not consented to freely or consent was based on fraud or force. Annulments are also granted if a man’s wife becomes pregnant by another man prior to the marriage. Annulment petitions can be claimed only up to a year after abuse ends (in the case of physical force, the person must also have separated from the abuser).

Annulment in Judaism

Judaism considers valid marriage to exist between two Jewish persons. If a Jewish and a non-Jewish person wish to terminate their union, they must seek a civil annulment. If both persons are Jewish, a valid Jewish marriage can end only with permission for divorce, that is, a get m’safek.

Conclusion

Annulments can be obtained in two forms, either civilly or religiously. Civil annulment varies by geographic region. Religious annulments are most prominent among Roman Catholics. However, the Eastern Orthodox Church, Hinduism, and Judaism also employ annulment. The use of either form can be attributed to the idea persons hold of marriage. People who view marriage as a contract, and thus as dissoluble, petition for civil annulments. Persons who consider marriage a sacrament, and so indissoluble, seek religious annulment because they do not consider divorce an option. Preference for annulment over divorce can be ascribed to the level of stigma associated with marital termination.

Overall, although the specific grounds that determine validity of unions are different according to the type of annulment, all forms of annulment acknowledge the presence of certain discrepancies at the time of the marriage that kept the marriage from being valid or existing.

Bibliography:

  1. Coleman, G. D. Divorce and Remarriage in            the          Catholic Church. New York: Paulist Press, 1988.
  2. Grossman, J. and C. Guthrie. “The Road Less Taken: Annulment at the Turn of the Century.” American Journal of            Legal          History, v.40 (1996).
  3. Jenks, R. J. and C. A. Woolever. “Divorce and Annulment Among American Catholics.” Journal of            Divorce and          Remarriage, v.30/3 (1999).
  4. Larson, A. Annulment Law. https://www.expertlaw.com/library/family_law/annulment.html
  5. Mackin, Theodore. Divorce and         Remarriage. New York: Paulist Press, 1984.
  6. Pontifical Council for Legislative Texts. Instruction to            Be           Observed              by           Diocesan               and               Intediocesan        Tribunals              in            Handling              Causes   of            the          Nullity   of            Marriage. Vatican City: Libreria Editrice Vaticana, 2005.
  7. Wrenn, L. G. Annulments. 6th ed. Washington, DC: Canon Law Society of America, 1996.
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