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The New Annulment Norms and the American Experience

Pope Francis’s new motu proprio, which streamlines the annulment process, has been both praised and criticized. It is being praised because it seems to be another act of generosity and mercy by this pope and a blessing on those in bad marriages, who can now go through a fast annulment process and marry again in the Church. It is being criticized because some see it as yet another step undermining the indissolubility of marriage and Church discipline.

Some who praise it also seem to think that the pope has cleverly defused some of the controversy expected to surface at the coming Synod on the Family; and those who criticize it would say that he has defused it by simply granting another quick solution to the process of divorce and Communion. They think this is an extreme liberalization, which virtually guarantees the quick and easy annulment. The basis of this last assessment may well be the experience of the American Church.

In 1971, Paul VI allowed the National Conference of Catholic Bishops to use experimental norms for marriage cases. These norms became the law in the United States. What were they? First, one judge alone could hear a marriage case in most circumstances. Second, there was no mandatory appeal to a second tribunal. Third, short time frames were established for each part of the entire process so that a case could move from start to finish in eight months. Sound familiar? They are virtually the “new” procedures, though they go one step further and shorten the process – in some cases to forty-five days.

These very procedures, however, were deliberately omitted by St. John Paul II when he personally addressed the marriage canons in the 1983 Code of Canon Law (and obviously found the experimental American norms lacking). His annual addresses to the Roman Rota over the years suggest why he did so, for he frequently warned how the indissolubility of marriage could be undermined by a too-lax annulment process.

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He never mentioned the American experimental norms as such, but was well aware of the explosion of annulments in this country after those norms were put in place. In the late 1960s (before the new norms), there were fewer than 400 annulments here, but in the years following the number of annulments ballooned into the tens of thousands. Today, the Church in the United States accounts for half the annulments worldwide, even though it has only 6 percent of the world’s Catholics. It would take real blindness not to see the relevance of those norms for this explosion, and St. John Paul II was anything but blind.

Today, the United States is the abortion capital of the world, and the American Church is the annulment capital. The Church can say all she wants that an annulment is not a divorce, which is obviously true in terms of Catholic doctrine, but the general population, including a huge percentage of Catholics, has simply come to see the annulment process as Catholic divorce. An Anglican friend of mine used to chide me in the 1970s, “we Anglicans call it divorce and you Catholics call it annulment, but in the end it amounts to the same thing in the way it affects people’s lives.”

Pope Francis with judges of the Roman Rota [2]
Pope Francis with judges of the Roman Rota

They have a divorce mentality, and we now have an annulment mentality. That new mentality might explain why the number of marriages itself is sinking today and the number of annulments is gradually declining. Many Catholics ask, “Why bother?” If that doesn’t suggest something has happened to undermine the permanence of marriage, I don’t know what it could suggest.

Pope Francis surely has the best intentions, but he has quite clearly rejected the careful and prudential decision made by his predecessor, who gave us the 1983 Code. And it seems he thinks that the experimental American norms were just fine and should be extended to the whole Catholic world. But is he ready for the same results that followed in the United States?

If he really thinks that fast tracking the annulment process is simply going to help the poor and won’t result in undermining the permanency of marriage in general, all I can say is I hope he’s right. But the experience of the American Church is not reassuring.

It is not simply the relaxing of canonical norms that accounts for the annulment explosion here. That certainly played a part, but there’s more to it. What really happened was that, in addition, the grounds for annulment were greatly expanded to include all kinds of psychological impediments to valid consent. Most annulments today are granted on these grounds, usually on the ground of lack of due discretion regarding the essential obligations of marriage.

And what are these essential obligations? They used to be the three marriage goods identified by St. Augustine, which are reasonably objective: offspring, fidelity, and indissolubility or permanence. Likewise, the grounds connected to these were fairly objective, if not easy to verify: an intention not to have children by either partner; the intention not to remain faithful; the intention to enter a marriage that was not permanent.

With the new experimental norms, the incapacity to form the “communion of life” that constitutes marriage was added. But “communion of life” is a very subjective and indeterminate concept, as are psychological impediments to forming that communion. Moreover, the subjectiveness of the grounds inevitably entailed more subjectivity on the part of the judge, i.e., whatever his particular understanding of psychological impediment is, based on whatever psychology he personally embraces.

The combination of the subjective grounds, and the subjectiveness of the process created an explosive mix, and explosions inevitably followed. Will this same combination, now extended worldwide by Pope Francis, lead to a different outcome? Only time will tell, but given that Pope Francis has said several times now that he believes half of the marriages worldwide are invalid, I wouldn’t bet on it.

Fr. Mark A. Pilon, a priest of the Diocese of Arlington, VA, received a Doctorate in Sacred Theology from Santa Croce University in Rome. He is a former Chair of Systematic Theology at Mount St. Mary's Seminary, and a retired and visiting professor at the Notre Dame Graduate School of Christendom College. He writes regularly at littlemoretracts.wordpress.com.