SOMEONE said recently — and put the matter very clearly that nullity in Church law is as different from divorce as nonmarriage is from marriage. It is sometimes claimed today that a Church annulment is "a backdoor to divorce" or, as the rather silly phrase has it, "divorce Irish style". The truth is that an annulment is entirely different from divorce.
Nullity in Church law arises only in certain rare situations. It means that, when the couple set out to enter the very special relationship that is marriage, something essential is lacking. Nullity is never a matter of dissolving a marriage that was hitherto or formerly valid. It is simply an authoritative declaration, after a thorough and painstaking examination, that what appeared to be a true marriage was never a marriage in reality.
It is the role of marriage tribunals to issue such declarations, when it has been clearly established that there was some essential defect in the marriage. it should be stressed that only those defects may be considered which can be shown to have existed at the time the marriage was celebrated.
All later happenings are of interest to the proceedings only insofar as they indicate that something essential was missing from the start.
Defects which give grounds for a declaration of nullity include: lack of sanity, absence of freedom, inability to appreciate what marriage entails, incapacity to take on and fulfil the essential obligations of marriage.
Nullity, moreover, is not only a feature of Church law; it exists also in State law, and is found in legal systems all over the world.
Nullity in Church law is an expression of the Church's concern for justice and truth. It is also an exercise of her ministry of compassion. Through her marriage tribunals the Church seeks to have regard to the essential conditions for valid marriage. Indeed it is true to say that without provision for declarations of nullity the essence of marriage cannot be clearly recognised and upheld.
Recognition of nullity, therefore, is part of the defence of marriage, as the Irish Bishops have stated (Love is for Life). The Church would be failing in her ministry, not only of compassion, but also of truth and justice, were she not to act in situations where couples are found to have entered marriage when some essential element was lacking. There is simply no basis therefore for comparing Church annulments with civil divorce.
As mentioned above, nullity decrees are given not only by the Church but also by civil courts. In the latter sphere remarkable developments, as yet insufficiently appreciated by the public at large, have recently been taking place in Ireland.
The submission to the Taoiseach by the Irish Episcopal Conference (April 17, 1986) on questions relating to marital breakdown has this to say: "Since 1980 there have been several decisions of the High Court, the effect of which has been to develop the civil law of nullity of marriage to a considerable extent. There is now no difference in substance between the law of nullity administered in the civil courts and the law administered in the religious tribunals.
"The perceived 'gulf' between the two systems is at variance with the real situation. It is still of course possible that in a small number of individual cases the outcome of nullity proceedings in the civil court may be different from that in the ecclesiastical tribunal . . .
"We would like to point out that the civil law of nullity of marriage applies to all members of our society without distinction so far as the essential grounds of validity are concerned. Members of several different denominations have sought to have their status determined in these proceedings . . .
"We endorse the recommendations of the Committee on Marriage Breakdown on the cost of nullity as outlined in 9.18-20 of its Report. Adequate civil legal aid in such matters ought to be available. The hearings should take place in the Family Court".
Divorce, on the other hand, means that what was hitherto a real marriage is now dissolved. Those who were truly married are now declared to be no longer husband and wife. Such a declaration is false, since marriage is by nature indissoluble. If the State claims to grant a divorce and a consequent right to remarry, such a right has no basis in reality. There can never be a human right to divorce, since second marriage while the first marriage still exists is a contradiction in terms.
The Irish Bishops, in their Pastoral Letter Love is for Life, refer to this permanency which is inseparable from marriage. It is, they point out, "involved in marital union itself, in virtue of its own very nature, as it is derived from the plan of the creator in the beginning. What God has put together, no man can put asunder".
The bishops go on to say: "Christ's revelation gives a much deeper foundation to this natural indissolubility of marriage. For Catholics, marriage is a sacrament. The bond uniting couples is a sacramental bond, coming from God alone. No man, no woman, no human authority, no State or civil court, can put this bond asunder. No legislative enactment can dissolve a valid marriage and leave the partners free to marry again. Remarriage of a civilly divorced person is not a real marriage in the eyes of 'God. God's law continues to bind, no matter what the civil law says".
Even if civil law claims to be doing no more than regulating the civil effects of marriage where the partners (or one of them) want to bring their relationship to an end, it is in fact, by recognising a second marriage as legally valid, stating that as far as the civil authorities are concerned the first marriage no longer exists.
This contributes to the now well-established result of divorce legislation: gradually the very definition of marriage is changed; instead of being a commitment to life-long unity it comes to be seen as a provisional arrangement, a reality that exists for as long as it "lasts".