DIFFICULT MORAL QUESTIONS
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Question 38: Should a separated Catholic get a divorce to seek an annulment?
My wife, who also was a Catholic, and I married in the Church the day after graduating from college, ten years ago. She was three months pregnant, and her parents put the pressure on. Five years later, when I went through a detoxification program and quit drinking, I realized I already was an alcoholic when we married. Also, we never got along well, even at the start.
By the time I quit drinking, we had two children, and the next year we had our third. I thought our marriage would improve, but soon after the last baby my wife took a real estate course in the evenings, got her agent’s license, put the children in day care, and went to work. She is very good at it; beginning in her second year, she has made more money than I do. As her income grew, she became increasingly independent. Six months ago, I found out she was having an affair with the broker. We had a fight about that; she moved out and left me with the children. We now have arranged a legal separation, and I am managing okay.
She does not care whether we get divorced; she says she does not believe in marriage anyway. The pastor at my parish told me there are good reasons to think we never really were married, and a Church tribunal would declare the marriage null. But he also said the tribunal will not consider the case unless we get divorced. Now, if I am not married, I would like to know it and be free to marry. However, if I am married, I do not want to get a divorce. I believe in marriage and think divorce, even without remarriage, violates the sacrament. Besides, many women regard a divorced man as available, and, knowing my own weakness, I think I would be more likely to get mixed up with someone if I were divorced.
Should I get a divorce so that I can seek an annulment? Or should I go on as I am and give up the possibility of marrying and having a happy family life?
Analysis:
The questioner may be able to resolve his dilemma. Though tribunals usually will not consider any marriage case prior to a final decree of civil divorce, that practice is not required by Church law. and the questioner has good reasons for wishing to seek an annulment without first obtaining a divorce. So, it would be appropriate for him to ask for an exception to the tribunal’s usual policy. If this request is not granted, he could ask a canon lawyer experienced in dealing with marriage cases how likely it is that the marriage would be found null. If the likelihood is great, the reasons against getting a civil divorce probably do not apply, and, in any case, those reasons do not absolutely exclude doing so. With good reasons both for and against obtaining a civil divorce, the questioner must judge which of the two morally acceptable options to prefer.
The reply could be along the following lines:
A civil divorce sometimes is necessary to forestall legal problems or vindicate legal rights. Competent legal advice regarding the possibility that a divorce would be appropriate for that reason might render your question moot. I shall assume, however, that you already have obtained such advice or that after obtaining it you will remain reluctant to get a divorce.
Civil divorce cannot dissolve the bond of marriage or, if the marriage is sacramental, affect the sacrament’s fruitfulness for a spouse who remains faithful despite his or her partner’s unfaithfulness. Still, by your fidelity in the face of your wife’s betrayal, you have sustained and even enhanced the effectiveness of your marriage, assuming it is valid, as a sign of Jesus’ irrevocable fidelity to his Church, whereas a civil divorce would obscure that sign, besides opening you to grave temptations, as you realistically acknowledge. So, your reasons for not wanting a civil divorce if in fact you are validly married certainly are sound. Your reason for wishing to know whether your marriage is valid also is sound, for, if it is not valid, you could be free to marry and would wish to do so, hoping for a happy family life for both yourself and your children.
Nevertheless, as you may know, according to the law of the Catholic Church, you must presume that your marriage is valid until the opposite has been proved and a decree of nullity issued by a Church tribunal (see CIC, cc. 1060, 1671). Until the tribunal makes its judgment, you will not be free to marry; and you cannot be certain that a decree of nullity will be issued until it is. Therefore, until then, you cannot enter in good conscience into any romantic relationship whatsoever. But the tribunal will accept your case only if you first obtain a civil divorce.130 Hence, you have a problem that seems not merely difficult but insoluble.
No doubt, there are reasons for the practice of Church tribunals in refusing to consider a case for annulment until after a civil divorce has been obtained. Canon lawyers whom I have consulted mention two. First, the Church does not wish to encourage people who think their marriages might be invalid to separate; rather, she prefers that they work out their problems and put to rest any doubts about validity by renewing their marital consent. Second, proceeding on the petition of one party toward the annulment of an existing, civilly valid marriage might provoke the other party into legal action against the diocese and/or its tribunal personnel.131
The practice of tribunals in this matter plainly is not based on divine law or on any exceptionless moral norm; indeed, it is not even mandated by the Code of Canon Law.132 While there probably are very few cases in which this practice has serious bad consequences, it seems to me that in your case the practice is imposing a grave burden, which you should not have to accept. Therefore, I think that, for the sake of justice, the tribunal can and should make an exception in your case, and my first suggestion is that you appeal to the bishop of your diocese (or of any other diocese whose tribunal would have jurisdiction) to direct the tribunal to consider your case without requiring you first to obtain a civil divorce. (If and when the tribunal decided that your marriage is null, perhaps it could tell you informally that you would be free to marry but delay issuing the decree of nullity until after you obtained a civil divorce.)
Your request is more likely to be granted, I think, if you can obtain from your wife a written statement saying she does not object to the tribunal dealing with your case before you seek a divorce. As a practical matter, you probably should seek a canon lawyer’s help in preparing your request to the bishop and drawing up the statement you will ask your wife to sign.
If your request is granted, the problem you pose is solved. What if it is rejected? You could appeal to the Holy See, but that probably would be time consuming, and I doubt it would be effective. The Holy See seldom overrules a bishop’s administrative decisions unless they are plainly and grossly wrong, which would not be so in your case.
Therefore, if your request is rejected, you will have to reconsider your good reasons against getting a civil divorce. The more likely it is that your marriage will be found to be null, the less likely it is that those reasons apply. Like the priest you consulted, I think there are good reasons for doubting the validity of the marriage, but neither he nor I is an expert in this matter. Consult a canon lawyer experienced in dealing with marriage cases and candidly tell him or her all the facts about your marriage, which your question summarizes. Studying those facts, the canonist can give you a well-informed opinion as to the chances a tribunal would judge your marriage invalid.
No matter how that inquiry turns out, your good reasons for not getting a civil divorce do not absolutely morally exclude it. If your marriage in reality is invalid, your interest in the possibility of marrying provides you with a good reason for wanting to test its validity in a tribunal; and, if that cannot be done without first obtaining a civil divorce, that interest gives you a good reason for doing so. Morally speaking, you could act on the good reasons on either side, and you need only judge which alternative is more reasonable for you to take, all things considered. Of course, if you get a civil divorce yet fail to obtain an annulment, you should strive to minimize temptations to commit adultery and to cause scandal, especially to your children (see LCL, 216–26, 232–35, 669–78).
Finally, in thinking about your future, I encourage you to be realistic, rather than overly optimistic, about the prospects of a happy family life. No earthly marriage is perfect, so that even the happiest marriages involve some hardships and suffering. The sacramentality of Christian marriage ensures graces that strengthen spouses to overcome difficulties, perhaps mitigate suffering, and certainly consecrate it as the couple’s share in Jesus’ cross. Only by accepting this cross with loving faithfulness can couples hope to take part in the only perfect marriage—the heavenly one that will begin with the wedding feast of the Lamb (see Rv 19.6–9).
132. In fact, the practice is arguably incompatible with CIC, c. 1505, §2.