An annulment mill straw man, or, turning ignorance into the eighth sacrament redux

October 4, 2014 § 26 Comments

Catherine Harmon quotes Ed Peters:

No, the objections of the first group to the number of annulments being declared is, I suggest, not to the annulment process but to the people running that process. Tribunal officers are, it is alleged, too naive, too heterodox, or just too lazy to reach sound decisions on nullity petitions; they treat annulments as tickets to a second chance at happiness owed to people who care enough to fill out the forms. How exactly members of this first group can reach their conclusion without extended experience in tribunal work and without adverting to the cascade of evidence that five decades of social collapse in the West and a concomitant collapse of catechetical and canonical work in the Church is wreaking exactly the disastrous effects on real people trying to enter real marriages that the Church has always warned about, escapes me. Nevertheless that is essentially their claim: the process needs no major reform, processors do.

Peters in effect asserts a reverse ad hominem, suggesting that opponents of the annulment mill are attacking the character of the people carrying out the process rather than attacking the process itself.

There is a another view, which is that the process needs to be reformed because the ‘internal forum’ criteria for defective consent are inherently subjective. On this view, attempting to judge the majority of ‘internal forum’ annulments is like attempting to judge whether a particular confession was valid or not, based on the testimony of the penitent — who, by the time the issue comes up juridically years later, may not be certain himself.

In the case of a bad confession there is a simple sacramental solution: go make a good, valid confession and don’t leave anything involving ‘grave matter’ out, including the possible invalid confession.

In the case of uncertain consent to marriage there is also a simple sacramental solution: convalidation.  This is how the Church has always consistently treated epistemic doubt about the validity of sacraments, to wit, conditional baptism.  When in doubt because of inherently subjective factors or other uncertainties, the way forward is to ensure that the sacrament is confected validly and licitly.

Modern annulment practice is unique in the history of the Church, inasmuch as it treats a possible sacramental irregularity – based on purely subjective considerations – as a two way street.  It doesn’t provide a way forward, it provides a way backward, in the name of a false ‘mercy’. This is terribly unfair in a way in which carrying out the death penalty without objective third-party evidence would be terribly unfair.  Errors in death penalty cases result in killing the innocent; errors in ‘internal forum’ annulment cases turn various people (including innocent ‘spouses’, past and future) into material adulterers.  This is just the very modern phenomenon of turning doubt or ignorance into an eighth sacrament: it pretends that mercy means letting people stew in objective evil with no real way out.

It is quite human for the sinner to acknowledge his weakness and to ask mercy for his failings; what is unacceptable is the attitude of one who makes his own weakness the criterion of the truth about the good, so that he can feel self-justified, without even the need to have recourse to God and his mercy. An attitude of this sort corrupts the morality of society as a whole, since it encourages doubt about the objectivity of the moral law in general and a rejection of the absoluteness of moral prohibitions regarding specific human acts, and it ends up by confusing all judgments about values. – Veritatis Splendour

I’ll cite the documents of one American diocese just to give flavor on the sort of criteria which are actually being employed in the actual current process to annul marriages.  Of course examples can be multiplied, and I’ve seen many more egregious examples than these.  If someone doubts that, we can hold a contest to come up with more examples.  This just happened to be what I grabbed with a quick Google:

Error Concerning a Quality of the Person: (canon 1097, §2) Defect of consent due to error concerning a quality of the other person, directly and principally intended in a spouse. If one party intended to marry someone who possessed a certain quality (perhaps of a moral, social, physical, religious, psychological or legal nature), and the primary reason for entering the marriage was the erroneous belief the intended spouse possessed that quality, the marriage may be invalid. The intended quality must be of such a magnitude that, without it, the person would not have married the other, and the discovery of the truth must have had a serious effect on the nature of the marriage.

Conditioned Consent – Past and Present Condition (c. 1101, §2) Defect of consent when a person entered a marriage based on a past or present condition of the existence or non-existence of a fact, typically concerning the spouse’s or his/her past (e.g., citizenship, criminality) or present state (e.g., pregnancy, a medical condition, career, a character or trait). Placing such a condition on the marriage raises serious questions, and it invalidates marriage when it is proven the condition, upon which the marriage decision depended, was not fulfilled at the time of marriage. This ground may be considered when one or both spouses entered the marriage with an expressed condition based on something from the past or present

Notice that, in addition to relying on wholly subjective testimony about peoples’ expectations going into marriage, these two criteria basically contradict each other. If you married expecting your spouse to have a certain quality and your spouse doesn’t turn out to have that quality, the marriage is null because your spouse didn’t have that quality. But if you married expecting your spouse to have a certain quality at all, that too casts doubt on the validity of the marriage.

This sort of jurisprudence makes the very idea of validly consenting to marriage into a joke.

Now reforming the process to basically close off the way backward represented by ‘internal forum’ annulments still leaves ‘external forum’ cases open to adjudication, and I would use the term broadly to include cases where objective third-party evidence of defective consent prior to the wedding is admissible: e.g. bragging to friends about the mistress at the bachelor party, as attested by third party witnesses.

But closing the door on all ‘purely subjective’ and even self-contradictory internal forum cases – whatever one thinks of it – would (contra Peters) be a process reform, would be consistent with the way the Church treats cases of possible invalidity when it comes to other sacraments, and would preach to the world by walking our talk – unlike current practice – that the Catholic Church is serious about the indissolubility of sacramental marriage.

§ 26 Responses to An annulment mill straw man, or, turning ignorance into the eighth sacrament redux

  • donalgraeme says:

    I’m curious Zippy… do you disagree with 1097 or 1101 more? Or do you dislike both? Not seeking a gotcha, genuinely want your opinion.

    Setting up a hypothetical situation…

    Under the present form and application of 1097-

    Lets say that I want to marry a woman because I believe she is a virgin. I would only marry her if she were a virgin. If I knew she wasn’t, I would never marry her. After I marry her, I find out she wasn’t a virgin when we married.

    Under the present form of 1097 and application, I would just have to say that I believed she was a virgin and I married her only because of that, and would never have married her, right? I wouldn’t need to prove it with anything else- I can rely entirely on the “internal forum” of my mind?

    Whereas if reforms were enacted which limited significantly reliance on “internal forum” evidence, then more would be required, yes?

    For example, I might put down my requirement in writing on a document that I get notarized and hand it to my lawyer? And then video-tape my writing and notarizing the document, and saying everything out loud, and then safeguarding the video. And then tell a dozen witnesses what quality I concern paramount before the wedding?

  • Zippy says:


    The way the citations are made in that document may be deceptive to the casual reader. Those are not quotations of canon law, they are citations of canon law intended to justify the criteria. Actual canon law is here.

    Reading the actual code might lead one to conclude that the interpretation has been ‘creative’, particularly w.r.t. 1101.

    That said, canon law is just the juridical rules of the Church, has been changed many times over the years, and I’m not shy about concluding that it should be changed if that is necessary in order to accommodate my suggestions. Juridical rules are never ‘perfect’ or ‘infallible’ and thereby insulated from criticism.

    Even further, the following are distinct: criteria for validity, criteria for liciety, and criteria for a finding of nullity. My suggestions pertain to the latter: to the annulment process itself (the thing Peters claims that nobody criticizes, or that if they do they must just be ignorant because he is a canon lawyer so he knows better) including its standards of evidence. Basically I am proposing that in order to be more just, the ‘standard of proof’ in internal forum annulment cases should be more or less the same as the ‘beyond a reasonable doubt’ standard that applies in all of secular criminal law. Contracting marriage invalidly is a crime not a traffic ticket; and if we are not absolutely certain that one or both parties murdered the marriage before it was even conceived, we have no business pronouncing the marital equivalent of the death penalty.

    I actually quite agree with present canon law on validity and liciety (in fact on the second canon law is correct by definition, because what liciety means is more or less ‘done in accordance with canon law’); see e.g. here.

  • vetdoctor says:

    Concerning donalgraeme’s question. If you replace the word “virgin” with “rich” or “pretty” or any other value does that make a difference?

  • donalgraeme says:

    @ Zippy

    Thanks for the clarification. It was confusing, I didn’t realize those were interpretations.

    I was aware of the juridical (odd sounding word) nature of canon law. Its meant to implement doctrine, rather than being doctrine itself, as I understand it.

    I think we are in agreement about what evidence should be allowed and required.

    Having read section 1097 now, I do wonder what this means:

    ” unless this quality is directly and principally intended.”

    I mean, if not the interpretation above, then I wonder what else it can mean.

  • donalgraeme says:

    @ vetdoctor

    I think that it would matter whether the criterion was objective or subjective. Virginity is an objective factor (you are or your aren’t). Pretty, though? That is very subjective. How do you define it? Measure it? Also, keep in mind that future state doesn’t matter, it is what the other spouse is like at the moment that matters (if I read Canon law right).

  • Zippy says:

    Remember that marriage is a contract, and deliberately defrauding someone invalidates a contract. So lying to one’s betrothed about important objective things (e.g. virginity) can at least in theory invalidate the contract.

    This is entirely different from e.g. “he promised me he would work hard and be successful”. That is just an expression of expectations about the future, not an objective fact that someone lied about going into the contract.

    Re: juridical, it just refers to positive law as distinct from natural or divine law. The Church has the authority to make positive governing rules (like the civil authority making a law that says we must drive on the right side of the road). Canon law is the same kind of thing as civil law: it is the particular (and always fallible) rules established by the governing authority of the Church.

    No end of confusion arises from people conflating natural law and positive law. The same is true of people conflating doctrine and canon law.

    This is even further confused because marriage is intrinsically both a contract and a sacrament; and contracts are governed by positive law.

    However, advocating a change in canon law (if that is necessary, which I am not convinced that it is) is a perfectly reasonable thing to do, just like advocating a change in speed limits.

  • donalgraeme says:

    Thanks for the clarifications Zippy.

    So the problem is not so much the laws, but how they are interpreted, and the rules of evidence in the tribunals?

  • Zippy says:

    I’ll leave it to the experts to figure out how to make the change I am proposing. As long as the outcome is that it is no easier to prove nullity than it is to prove capital murder, I’m good.

  • Zippy says:

    A question I have about annulment is that when annulment is warranted, it is generally (there of course may be exceptions) because of a case of contract fraud: defective consent. Do the tribunals tell the appropriate party(ies) that because they have committed contract fraud in a grave offense against the common good and particular persons, they need to confess that sin before resuming reception of the Eucharist?

    I don’t actually know the answer to that question, but I kind of doubt that this is ever part of the process. But it should be, certainly some of the time.

  • Zippy says:

    Interestingly, it looks like canon law does answer donalgraeme’s question, if you read a bit further. Yes, factual conditions about the past and present can be asserted as part of the contract. (Conditions about the future cannot be asserted). But they have to be in writing, and approved by the local ordinary (the bishop in whose jurisdiction the marriage takes place).

  • donalgraeme says:

    Zippy, good catch. So the local bishop must approve any additional conditions on the marriage, and it must be in writing? Makes sense to have that requirement. Satisfies an evidentiary (is that a word?) requirement and also keeps improper conditions from being placed upon consent to marry.

  • Zippy says:

    One caveat: it says ‘licitly’ not ‘validly’:

    Can. 1102 §1. A marriage subject to a condition about the future cannot be contracted validly.

    §2. A marriage entered into subject to a condition about the past or the present is valid or not insofar as that which is subject to the condition exists or not.

    §3. The condition mentioned in §2, however, cannot be placed licitly without the written permission of the local ordinary.

    So validity depends on the condition being satisfied, while liciety depends on the condition being approved in writing by the bishop.

    On its face the caveat doesn’t matter to my own proposal, since I am not proposing anything (as far as annulments go) that affects the ontological validity of marriages one way or the other. A requirement for ‘beyond a reasonable doubt’ objective evidence would either require the Bishop’s written approval or third-party evidence (from credible witnesses other than the spouses themselves) of a positive intention on the part of both parties, and documentation of the explicit lie by one party, equivalent to what a secular court would require for conviction in a murder case.

  • Zippy says:

    This is probably a good thing for unmarried Catholics to know though. If it is a past or present ‘make or break’ condition for you, get it in writing from the bishop.

    If it involves promises w.r.t. the future, forget it: you are putting your future – possibly your eternal future – completely in your spouse’s hands and in the integrity of her word, and need to consider the risks carefully.

  • donalgraeme says:

    “So validity depends on the condition being satisfied, while liciety depends on the condition being approved in writing by the bishop.”

    So the former is a matter of consent, and the latter a matter of form? In terms of error, I mean?

    This is probably a good thing for unmarried Catholics to know though. If it is a past or present ‘make or break’ condition for you, get it in writing from the bishop.

    Hence my interest.

  • Mike T says:

    Concerning donalgraeme’s question. If you replace the word “virgin” with “rich” or “pretty” or any other value does that make a difference?

    It’s fairly hard to deceive someone about how pretty a woman is. It is, however, reasonably possible, to actively deceive a potential spouse about one’s virginity or wealth (or rather, prospects). If a man actively deceived his future wife into believing that he was a good provider, and turned out to be a shiftless bum with no prospects (or worse, his prospects were from illicit activities) I would think that’s enough deception that she could rightfully claim she was deceived into marriage. It’s not like a woman marrying a millionaire and then getting huffy because his net worth is slightly over $1m, not $50m like she fantasized.

  • Zippy says:

    Mike T:
    As I understand it, conditions about the future – like whether he works as hard as she thinks he should or expects him to – cannot invalidate a marriage. Only factual conditions about the present or past – and not things she assumes, but things which he attests are true in an explicit act to incite her to marriage – apply.

  • Zippy says:

    In other words, as soon as you bring in the future – “prospects” – you are outside of the bounds of the kind of contract fraud we are discussing here.

  • Mike T says:

    That’s why I qualified that he is “actively deceiving her” about his prospects and that the deception masks a delta that is significant enough to be recognized as a form of genuine fraud.

  • Zippy says:

    It doesn’t matter whether it is “genuine fraud”. If it involves the future, as opposed to current established and explicitly attested facts, it doesn’t apply. A man’s ‘prospects’ aren’t a fact in the pertinent sense here.

  • Mike T says:

    So if a man passes himself off as a college-educated engineer and in fact turns out to be a trash collector who can’t pass a GED, that wouldn’t count?

  • Zippy says:

    Whether he has a particular degree or not is a fact, not “prospects”. Perhaps the problem here is the conflation of ambiguous expectations about future prospects with lies about facts. We should be clear. The word “prospects” does not belong or apply, because prospects are a kind of expectation about the future, not established facts about the present or past.

    So if by “prospects” you mean prospects, it doesn’t apply. If instead you mean material facts, those material facts need to be stated explicitly rather than incorrectly understood as “prospects”.

  • jf12 says:

    Is wispy censing or besprinkling the flock with ignorance sufficiently efficacious? Or do they require an obscurant fog and total immersion in doubt and vagueness?

  • jf12 says:

    In case it’s hard for someone else to tell, I’m in complete agreement with Zippy about this. While I’m not invested in Catholic teachings, it is wonderful to have the Catholic Church as a bulwark against modernity in doctrinal matters such as abortion and divorce. Thus I’m against anything that smells like a loosening of restrictions, or rather, the expanding of enough-rope-to-hang loopholes in the name of mercy. Then too there are still enough observant Catholics in the US that if they knew for certain that their Church would enforce a hard line, the larger society would benefit by the mass effect.

    I suspect that it is truly modern policy, and not just for the Catholic Church, that a little ignorance is better for the flock than no ignorance provided that the ignorance is provided by leadership. But I think it to be true that if something (such as ignorance, or moldy bread, or polluted water) is bad for the flock, it doesn’t become good simply by making it sacerdotal.

  • Ita Scripta Est says:

    I wish the Catholic Church would stop placing so much emphasis on marriage. Look at Wojtyła’s “theology of body” teachings. Can we really say that that is consonant with tradition?

  • […] good; the objective moral law is merely an ‘ideal’; invincible ignorance is the eighth sacrament.  Evil comes from outside the person via the imposition of a purely external moral ideal, not from […]

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