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Vicar Judicial
Reverend Monsignor Jerry M. Sherba, JCD, PhD

Director
Mrs. Vikki Newell
Phone: (919) 821-9759

Assistant Director
Mrs. Susan Stanton
Phone: (919) 821-9754

Case Instructor
Ms. Paula Zanker
Phone: (919) 645-4435

Bilingual Case Instructor
Ms. Veronica Alvarado
Phone: (919) 645-4439

What is a Declaration of Nullity?

Patrick S. Morris, PhD, JCD, PhD

The purpose of this article is to provide a brief answer to this question. The answer to this question requires an explanation of what is meant by marriage in Catholic teaching. Marriage is a contract or covenant. The Code of Canon Law, which contains the law of the Catholic Church, uses both terms to describe marriage. For the sake of clarity, marriage will be referred to as a covenant in this article. The Second Vatican Council refers to marriage as a covenant.

The intimate partnership of married life and love has been established by the Creator and qualified by His laws. It is rooted in the conjugal covenant of irrevocable personal consent. Hence, by that human act whereby spouses mutually bestow and accept each other, a relationship arises which by divine will and in the eyes of society too is a lasting one, for the good of the spouses and their offspring as well as of society, the existence of this sacred bond no longer depends on human decisions alone (Pastoral Constitution on the Church in the Modern World, Gaudium et spes, n.48).

The word “covenant” was chosen by the Council Fathers because marriage is an image of (or a concrete reality which reminds us of) the covenant between God and His people and the covenant between Christ and the Church. All three covenants posses the basic elements of faithfulness, permanence, and fruitfulness. In addition, a marriage between a baptized woman and a baptized man is a sacrament. Marriages between the non-baptized and between parties only one of whom is baptized are referred to as "good and natural marriages."

Rights and obligations are elemental to all contracts including marriage covenants. Both parties to the contract have certain rights and both have certain obligations. For example, when a mortgage (a civil contract) is obtained from a financial institution, the financial institution obliges itself to provide the money and the purchaser obliges himself/herself to pay the bank within a certain length of time and at a certain rate of interest. In a marriage covenant both parties oblige themselves to provide the marital partner with the four basic elements of the covenant and both parties have the right to obtain these basic elements from the other partner.

The basic elements of the unique marital covenant are the four goods (bona) of marriage. These are the good of fidelity, the good of children, the good of indissolubility, and the good of the spouses. The good of fidelity means that conjugal acts will be performed only with each other and in a human manner. The good of children requires that the partners will provide each other with the right to engage in conjugal acts open to procreation. The good of indissolubility specifies that the partners will not enter into a marriage with another person until after the death of his/her spouse. The good of the spouses obliges both partners to create a conjugal community ( equal partnership, interpersonal relationship) in which both have the opportunity to mature spiritually, emotionally, and intellectually. The good of the spouses does not oblige a marital partner to create the other's "happiness." It is perhaps obvious that the "living out" of any vocation in life (including the marriage vocation) involves the exercise of rights and the fulfillment of obligations.

To return to the question: What is a declaration of nullity (invalidity)? An individual who petitions (both the baptized and the non-baptized have the right to petition) a tribunal (or church court as the place where the rights of individuals are upheld and defended) for a declaration of nullity states, in effect, that either one or both of the marital partners were incapable of entering a valid covenant or either one or both (although capable) did not enter a valid marital covenant at the time mutual consent was exchanged. That is, either one or both parties were incapable of providing for one or all of the goods of marriage or one or both parties excluded one or all of the goods of marriage. When a tribunal accepts the petition, it agrees to study the petition and to render a decision that grants the petition (affirmative) or does not grant the petition (negative). An affirmative decision means that the testimonies and documents submitted to the tribunal contain sufficient evidence to justify the grant of the petition. On the other hand, a negative decision is justified by the fact that the evidence contained in the documents and testimonies does not verify the petitioner's claim of an invalid covenant.

The Judge begins with the presumption that the marital covenant is valid and his decision-making process is guided by the evidence presented by the petitioner (the individual who presents a petition for a declaration of nullity to the tribunal), the respondent (the individual who responds to the petition) and the witnesses chosen by the petitioner and the respondent. There are occasions when the respondent chooses not to participate and not to present witnesses. This choice does not deter the petitioner from the exercise of his/her right to pursue the process. The Judge's decision-making process is also grounded in the Church's laws on marital consent contained in the Code of Canon Law. The Church has formulated several laws (called canons in Church law) on marital consent. The facts contained in the evidence determine the law or laws chosen for the adjudication of a particular case. The laws chosen for adjudication are to reflect as comprehensively as possible the complexity of the case. Since the outcome of a case is dependent on proof according to the law(s) chosen to ground adjudication of a particular case, justice and equity demand that the most applicable law(s) be selected.

When a petition is accepted for a possible declaration of nullity by a tribunal, a Case Instructor, an Auditor and Advocates are assigned. These individuals assist the petitioner and the respondent and insure that the procedural laws, designed to protect rights, are observed. When all information is received at the tribunal, the case is presented to the Defender of the Bond of marriage who must focus, in his/her report, on the evidence which indicates the validity of the marital covenant. The case is then presented to the Judge who enters into the decision-making process. A first affirmative decision, by the Judge, does not result in the immediate grant of a declaration of nullity. According to canon law, this first affirmative decision must be examined by a Court of Appeals (normally, for the Diocese of Raleigh the Court of Appeals is the Metropolitan Court of Appeals of Atlanta). If the Court of Appeals confirms the first decision or also judges in the affirmative, the declaration of nullity is granted. If the first decision is affirmative (and the respondent opposes the contention of the petitioner) or if the first decision is negative (and the petitioner contends that the marriage was invalid), either party is free to appeal this first decision with the presentation of new, substantive and factual evidence.  (Note: On December 8, 2015, Mitis Iudex Dominus Iesus was issued.  This Motu Proprio, in part, removed the requirement for cases to be automatically reviewed by a Court of Appeals.  Therefore, the decision made by the Court of First Instance is the only decision necessary for a declaration of nullity.  The right of a party to appeal a decision to a higher court remains.)

The process involved in the pursuit of a declaration of nullity is meant to be and can be a healing process. Healing is frequently accompanied by pain. This pain seems to be grounded in the emotions associated with re-visiting past anxieties, fears, injuries, unfulfilled dreams, mistakes, disappointments, and personal failures. Many individuals report that a declaration of nullity and the process involved therein result in a healing of the past, a certain liberation from the self, an acceptance of the self, peace and serenity. Pastors of souls and the parties themselves can judge, with accuracy, the benefits of the process involved in a declaration of nullity. If healing takes place primarily in a community context, the full integration of the parties into the parish community will undoubtedly promote the continuation of the healing process.

(rev. 6-19-17)