‘Til Decree Do Us Part

As someone who often can’t remember what I was thinking thirty-five hours ago, I was skeptical that a tribunal judge could deduce what went through another person’s mind over thirty-five years ago. Pagé acknowledged it’s impossible to tell, and that is why, he said, the Church requires moral certitude, based on the evidence of witnesses and experts.

The first inkling MacLeod had that something was amiss came just weeks after learning of her ex-husband’s intentions. She received a phone call from the case director assigned to the petition in Nova Scotia, where her ex resides, who informed her of the petition, and then added: “When you get this annulment it will be good for both of you, because it will free you both up to marry in the Church again.”

Canon law asserts that every marriage is presumed valid until proven otherwise. But it seemed to MacLeod that the annulment of her marriage was considered “a done deal” from the outset. Two days after the director’s call, she received a letter spelling out the grounds for the annulment. It cited Canon 1095.2 of the Code of Canon Law: “A grave defect of discretionary judgment concerning the essential matrimonial rights and duties to be mutually handed over and accepted.”

As she soon discovered, “defective consent” is the basis for the majority of nullity petitions, and the root of what critics call North America’s “annulment crisis.” Canon 1095.2 was added to the revised code in 1983 and it broadened the psychological grounds for annulment. The intention was to take into account advances in behavioural science that had produced a more profound understanding of relationships and the reasons for marriage breakdown. But in practice, many Catholics contend Canon 1095.2 is interpreted so liberally that virtually every petition is granted on the flimsiest of pop-psychology grounds.

The introduction of the revised code prompted a meteoric spike in annulments—from a few hundred a year to more than 60,000 annually in the US and more than 4,000 in Canada by the mid-1990s. No less an authority than Pope John Paul II has condemned the practice of equating a failed marriage with an invalid marriage, reminding canonists that “only the most severe forms of psychic illness” truly impair the ability to consent.

Yet, according to Robert Vasoli, North American tribunals continue to flout the Pope’s directives, annulling marriages willy-nilly. Vasoli, an American sociologist and author of a highly critical 1998 book on annulment, speaks from experience. His ten-year marriage to a former nun was annulled by an Indiana tribunal, which ruled that she lacked the necessary discretion to consent because “she married a fantasy,” an idealized person who didn’t exist. Vasoli spent $10,000 (US) appealing the ruling to the Rota, which overturned the annulment in 1991. Tribunal officials, he said, believe they are doing the Lord’s work by allowing people who were in failed marriages to remarry. This, to them, is the essence of “pastoralism.” But for Vasoli, it’s pastoralism run amok.

According to statistics he’s compiled, North America accounts for about 82 percent of the world’s annulments. And while Canada churns out far fewer annulments than the US, its approval rate (98 percent) is actually slightly higher than America’s (96.6 percent), suggesting to Vasoli that his northern neighbour is even more complicit in making annulment the Catholic version of the quickie divorce. “Once you get a tribunal to accept your case,” he said, “it’s a lead-pipe cinch they’re going to annul the marriage.”

Father Francis Morrisey, however, contends those statistics are misleading. The St. Paul University canon law professor told me Canadian tribunals have “a very extensive system of preliminary inquiry” that screens out about two-thirds of the cases. It’s no surprise, therefore, that 98 percent of the remainder are ultimately approved.

As for North America cornering the world’s annulment market, Morrisey said that’s partly because the Church is well-established here and wealthy enough to spend roughly $4,000 to process each case. By comparison, in poorer countries the Church simply can’t afford to train canonists and set up tribunals. “Rome,” Morrisey observed, “doesn’t get on the backs of those who don’t have tribunals.”

In any event, Morrisey said, Canadian annulments are on the decline. Barely 2,000 were granted in 2004 from a peak of 4,225 in 1996. But whether that’s because fewer Catholics are bothering to seek annulments or the tribunals are finally heeding the Pope’s admonitions is open to question.