Coming across the term annulment, one might easily associate it only with the Church and its tribunals but that is merely one-half of the reality because the term annulment also encompasses civil annulment as well. So what is the big difference between the two of them? When one applies for a civil annulment or a Church annulment, wouldn’t the end result be effectively the same, that is, the parties can marry once again?
The reply to this question is yes and no. This is so because, yes, the end result will definitely be the same, that is, in both cases the parties can eventually remarry. However the no part to this reply refers to the form in which one can remarry.
When one obtains a civil annulment, one can only remarry civilly. However, when one obtains a Church annulment, one can either remarry in the Church or remarry civilly, if one so desires.
With a Church annulment one does not have to go through the civil process of annulment too. In fact, the only process left to go through after one obtains a Church annulment is to register it in the civil court so that it will be recognised civilly. The grounds for both cases are not so dissimilar. For instance, when the consent of one of the parties is vitiated through duress, external or internal force or pressure, in other words the consent to marry is not a free and voluntary one, or where there is fraud, in the case of sham marriages, or mental disability.
Another familiar term going round “annulment circles” is the dispensation from a ratified and non-consummated marriage. But what exactly is this? Does it amount to a marriage annulment as well? And if so, why is the term “dispensation” used?
A dispensation is a relaxation, a turning-a-blind-eye kind of thinking of an ecclesiastical law to a particular case. This particular case differs from a decree of nullity. In a decree of nullity the marriage is declared to be null ab intio, that is, as if it has never existed. In the case of ratum et non consummatum, the marriage is dissolved, that is, there will be the dissolution of the marriage.
One might ask what is the main difference between a decree of nullity and the dissolution of the conjugal bond? Isn’t the end result also the same?
That is, both parties can remarry once again? Yes, the end result is definitely the same. However, in a decree of nullity the marriage is deemed to be an invalid one whereas, in the dissolution of the marriage, the marriage is valid but failed (John P. Beal, James A. Coriden, Thomas J. Green (eds), New Commentary on the Code of Canon Law, USA, 2000, p. 1,359). Hence the term “ratified”, which implies a valid marriage and “non-consummation’”, which denotes the failed aspect of the marriage.
In canon law a marriage between baptised persons (the Code of Canon Law uses the term “baptised” because it applies not just to Catholics but to all Christians) is deemed to be ratum tantum if the marriage is not yet consummated and it becomes ratum et consummatum once the marriage is consummated. But, like in other aspects of the law, is there a presumption that the marriage has in fact been consummated? And the answer is yes. If the spouses cohabit together after marriage then there is the presumption that the marriage has indeed been consummated unless, obviously, the contrary is proven, with the person declaring such non-consummation having the burden to prove the allegation. However, this concept of consummation and the non-consummation thereof belongs, strictly speaking, to sacramental marriages and not to non-sacramental ones (Adolfo N. Dacanáy, Canon Law on Marriage: Introductory Notes and Comments, 2003, p. 8).
Would marital rape amount to consummation? Since, in marital rape, the conjugal act is a forced one and against the will of the other party, it does not amount to consummation of the marriage. The consummation, which is a human act, must be done without any physical force or violence so that definitely excludes marital rape.
Although there are parallelisms between the Church’s declarations of nullity and civil annulments in the sense that both are concerned with issues that happened prior to the marriage, such as the consent of the parties and the legal qualifications of the parties such as consanguinity and age, the difference lies in the sacramental part of the marriage because in a civil annulment the sacramental value of the marriage is absent and this is so because in a civil annulment the court will only look into the civil aspect of the marriage, even more so if the marriage was celebrated only using the civil form.
annmarie.mangion@gmail.com
Dr Mangion is a lawyer and a published author with a special interest in family and child law.