Marriage annulment is not a right

Marriage annulment is not a right

The annulment pro­cess asks a person to reflect on the broken marriage from its very beginning to its very end, “with an eye to forgiveness, reconciliation and integration” (Gerald Foley, Family-Centred Church: A New Parish Model, 1995, Missouri, p. 49). Thus, one seems to understand that annulment is different from separation or even divorce because, unlike the latter two, in a Church annulment it is not spouse A against spouse B but spouses A and B together against the marital bond.

Yes, but one might say that spouse A is alleging that an annulment should be given because spouse B had lack of due discretion when entering marriage. But that still does not render spouse A against spouse B. It might appear to be so but, in reality, spouse A is not attacking spouse B, as in a separation or divorce, but is attacking the marital bond in itself. Spouse A is stating that their marriage must be annulled because that marriage did not exist ab initio.

An annulment signifies that a sacrament was never conferred. However, a burning question which passes through the minds of many people is: If we say a marriage never existed, what about the children?

An annulment does not affect the children born from an invalid marriage because the civil status of the marriage is not affected by the annulment process and the children born out of that particular marriage remain born in wedlock.

No one has a right to an annulment but, on the other hand, no one has the right to a valid marriage if such marriage is not valid.

Should people be free to marry or should people be assessed and only “able” people capable of fulfilling the rights and obligations required in marriage be allowed to marry? If people are filtered and only couples who have the ability to fulfil the obligations of marriage are allowed to get married then, technically, there should be no need for separations or annulments. However, also this cannot be said to be true. Yes, it would heavily reduce the number of separations and annulments but there would still be marriages that go awry.

What about article 12 of the European Convention on Human Rights? Should not people be allowed to marry, irrespective of whether they are capable of fulfilling their role as a spouse? But what if s/he does not know what s/he is getting into when getting married? Shouldn’t these would-be spouses be saved the trouble of entering marriage at all? This is obviously a very draconian approach and one would even go as far as to say it does go against article 12 – the right to marry. However, is it not public policy to have healthy marriages? The Instruction to Dignitas Connubii states that “It is evident that marriage and the family is not a private matter that each person can construct at will”. Therefore, the state has and should have an interest in how these marriages turn out to be.

Thus, the only way to strengthen marriages is to strengthen the preparation for getting married both from a Church point of view and also from a civil point of view because one who wants to get civilly married is not required to go to the Cana Movement formation courses. Getting married is a fundamental right but marrying responsibly is an even greater obligation, not merely to oneself but also to society at large because when a marriage breaks down its effect ripples through society at large.

The procedure for a declaration of marriage nullity is inherently different from that for divorce because it is not intended to dissolve a valid marriage, notwithstanding it is a failed marriage; but to prove the premise that a marriage had never judicially existed because it lacked the essential properties that constitute marriage such as the prerequisites of consent, or the person’s capacity, or diriment impediments and so on.

Pope Benedict XVI said that “the canonical proceedings of the nullity of marriage are essentially a means of ascertaining the truth about the conjugal bond. Thus, their constitutive aim is not to complicate the life of the faithful uselessly, nor far less to exacerbate their litigation, but, rather, to render a service to the truth. The trial’s aim is rather to declare the truth about the validity or invalidity of an actual marriage”.

Thus, an annulment is entirely different from separation and divorce in that, in the former, one’s marriage is declared to have never existed due to an intrinsic defect. Therefore, one does not have a right for an annulment because the marriage is either valid, in which case an annulment can never be granted, or invalid, when, therefore, one cannot state that one party does not want an annulment and the other party wants it. If the marriage never existed it would be a disservice to the matrimonial bond itself to state that an annulment should not be given.

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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