August 15, 2008
In the next few articles I want to explore the different ‘grounds’ for a declaration of invalidity (annulment). A ‘ground’ is the reason why the Petitioner thinks his/her marriage was invalid from the beginning. There are only eleven reasons for an annulment in canon law. Some reasons are fairly common across the U.S., others are very rare (like ignorance or deceit).
Many people believe infidelity is a reason for an annulment – why would God want you to stay in a marriage when your partner is not faithful? However, this is not so. Infidelity is usually due to a person succumbing to temptation and then sinning. For this to be a ground for an annulment, the person would have to decide, before marriage, that he/she was not going to be faithful and then seek out and have affairs throughout the marriage. This is called ‘exclusion’ – the person excluded fidelity from his/her vows when he/she made them.
There are other types of exclusion that can be grounds for annulment – children, permanence, sacramentality of the marriage, and the good of the spouse. These are called ‘partial’ exclusion because not all elements of a marriage are excluded; the person wants marriage, but on his/her own terms. There is also ‘total exclusion’ where the person married for a reason other than marriage itself, for instance, to get a green card or to receive an inheritance.
Exclusion is also called ‘simulation’ because the person ‘simulates’ his/her consent. Regardless of what it is called, it can be difficult to prove in the annulment process, especially if the person who is alleged to have simulated consent does not participate in the case. But even if there is no ‘confession’ of the exclusion, it may be proved through the person’s actions. To continue with our previous example, a person who is said to have excluded fidelity may have continued dating other people throughout the courtship and engagement. This behavior then continued into the marriage and, if verified, can be part of the required proofs.
Other things needed to prove exclusion or simulation are the reason why the person would marry if he/she didn’t want that particular part of marriage, why the person simulated his/her consent, and why the reason to simulate was more important than the reason to marry. Another very important piece we examine is whether there was a ‘positive act of the will’ in the alleged exclusion. This means the person made a choice not to include that element. This choice can be either actual – he/she was thinking about it during the wedding itself – or it can be virtual – if the person made the decision prior to consent and never changed his/her mind. The act of the will can also be explicit or implicit. ‘Explicit’ means the person understands the rights and obligations of marriage, but made a direct exclusion of marriage itself or one of its essential elements. ‘Implicit’ means the person has a different idea of marriage than the norm; for example, the person who believes that humans cannot be monogamous under any circumstances implicitly excludes fidelity.
In 1999, John Paul II discussed simulation with the judges of the Roman Rota (one of the highest courts in the Church). He said,
“In short, the simulation of consent, for example, means other than giving the marriage rite a merely external value, without the corresponding will for a reciprocal gift of love, of exclusive love, of indissoluble love or of fruitful love. Is it any surprise that such a marriage is doomed to failure? Once the feeling or attraction dies, it lacks any element of internal cohesion. Missing is that reciprocal commitment of self-giving which alone can guarantee its permanence.”
Most of us would agree, I think, that we’d rather have a valid marriage with all its elements than one that is just an empty shell of a marriage.
Mary Tarver is a tribunal judge who was formerly employed by the Bismarck Diocese. She now works as a tribunal judge in the Diocese of Corpus Christi, Texas.