Annulments FAQ

(v 1.0)

by James Akin

It is my desire to get a substantial amount of information on annulments up on this site, but I get so many requests for information about them, I wanted to put up even a minimal FAQ as soon as possible.

Q: What is an annulment?

A: It is a declaration by the Church that a given marriage was not valid at the time the parties attempted to contract it, meaning that the parties were not genuinely married by it and so are or were free to contract a subsequent marriage.

Q: Is that the same as a divorce?

A: No. A divorce is the dissolving of a marriage that really existed. An annulment is a declaration that there never was, in actuality, a marriage.

Q: Why is this distinction important?

A: Because Christ and Paul indicated that a genuine marriage between believers cannot be dissolved in God’s eyes (only in man’s eyes) by anything but death, and to remarry under such circumstances leads to living in a state of adultery:

“And he [Christ] said to them, ‘Whoever divorces his wife and marries another, commits adultery against her; and if she divorces her husband and marries another, she commits adultery'” (Mark 10:11-12).

Thus a married woman is bound by law to her husband as long as he lives; but if her husband dies she is discharged from the law concerning the husband. Accordingly, she will be called an adulteress if she lives with another man while her husband is alive. But if her husband dies she is free from that law, and if she marries another man she is not an adulteress” (Rom. 7:2-3).

“To the married I give charge, not I but the Lord, that the wife should not separate from her husband (but if she does, let her remain single or else be reconciled to her husband)–and that the husband should not divorce his wife” (1 Cor. 7:10-11).

While a civil divorce may dissolve a marriage in terms of man’s law, it does not dissolve it in terms of God’s law. This means that people who have gotten a civil divorce may still be married in God’s eyes and so are not free to marry other people.

To show that they are free to marry other people, you need to show that there was never a valid Christian marriage between them and so they are not bound in God’s eyes. Showing that there never was a valid marriage is what an annulment is.

Q: How can a couple live together for years and then have their marriage anulled?

A: This question proceeds from an assumption that the length of time a couple spends together makes it married. It doesn’t. The state may have a provision for “common law marriages” under which a couple which lives together long enough becomes regarded by the state as married or pseudo-married, but God does not. If a couple lives together for years without getting married in God’s eyes then they are still unmarried in God’s eyes. The passage of time doesn’t change that.

This is the principle which allows an anulment after a period of years. If a couple were never sacramentally married in God’s eyes, the mere passage of time does not create the sacrament between them. Thus if it can be established that their initial contracting of the marriage was invalid (due to an impediment or the fact that the couple did not exchange valid matrimonial consent), then no matter how much time has elapsed the two are not married because there never was a marriage in the first place.

Consider an analogy. A marriage is a special kind of contract (an especially serious kind known as a covenant), but even with regular human contracts–say one that brings into existence a
partnership–if the contract were illegal for some reason, the partnership it attempted to bring about does not exist, no matter how long the two “partners” have been working together. In the same way, a marriage must be valid before God from the time it was contracted or it is not valid at all and thus can be annulled–that is, it cannot be determined to have been invalid from the beginning.

Q: What if they have had children?

A: This doesn’t change anything. The fact a couple has had a child does not make them any more married than if they had not. If two unmarried people have a child, it does not make them married, and if two people are living in a marriage that was invalid from its beginning then the conception of a child will not validate their marriage. Only a new marriage ceremony–a new exchange of matrimonial consent–would do that.

Q: Does that mean children born to people who later have their marriages annulled are illegitimate?

A: No. First of all, illegitimacy is a (as its name suggests) is legal category, and it pertains to man’s law, not God’s. It is no stain on the child in God’s eyes if the child was born in a valid marriage, an invalid marriage, or no marriage at all. The child is equally precious to God and the Church no matter how it was conceived.

Illegitimacy is a purely human legal category that is used for such things as determining inheritance rights. As a result, if a child is born in a marriage that is valid under civil law (even if it was invalid in God’s eyes) then the child is legitimate. Thus the Code of Canon Law states:

“1137. Children conceived or born of a valid or putative marriage are legitimate.

A marriage which was invalid under God’s law but valid under man’s would count as a putative marriage.

The Code also states:

  • “1138-1. The father is he whom a lawful marriage indicates unless (nisi) evident arguments prove otherwise.
  • “1138-2. Children are presumed to be legitimate if they are born at least 180 days after the celebration of the marriage or within 300 days from the date when conjugal life was terminated.
  • “1139. Illegitimate children are rendered legitimate through the subsequent valid or putative marriage of their parents, or through a rescript of the Holy See.
  • “1140. Insofar as canonical effects are concerned, legitimized children are equivalent in everything to legitimate children unless (nisi) the law expressly states otherwise.”

So the only case when a child would not be legitimate would be if it was conceived by parents who were not married even under man’s law and if they never got married. And even then legitimacy is only used for determining things like inheritance rights; it has no religious or moral significance concerning the child, who is equally precious in the eyes of God and the Church no matter how it was conceived.

Q: How can I know if I need an annulment?

A: You should presume you need an annulment and go ask a local priest or canon lawyer about it if you meet the following conditions:

  1. You have been married before.
  2. Your previous spouse is still living.
  3. You wish to remarry or have remarried.

You should also check with a local priest concerning an annulment if your previous spouse was living at the time you remarried even though that spouse has subsequently died.

You may not, in fact, need an annulment, but if you meet the above criteria then you should check it out with a local priest or canon lawyer.

Q: What if I or my partner in the former marriage were not Catholic?

A: One spouse being non-Catholic is not normally relevant. Follow the above rule of thumb for now and ask a priest or canon lawyer.

Q: What if the marriage was not performed before a minister?

A: That also is not relevant. Any putative marriage must be investigated to ensure that the parties are free to marry.

Q: What if I don’t want to get remarried?

A: Then there is no need for a declaration that you are free to remarry, and hence no actual need for an annulment. However, you might want to go ahead and get one any way so that if, in the future, you decide that you do want to remarry then you will already have the situation taken care of and won’t have the painful situation of being engaged (or being ready to get engaged) and having an annulment to take care of.

Q: What if I have remarried but am not leading a conjugal life?

A: Partly it depends on whether you are living with the person to whom you are currently legally married. If you have separated from that person and are living celibately as a result then there is no pressing need for an annulment, but if you want to begin cohabiting again or leading a conjugal life then there is an urgent need to get one because any sexual relations one was having would objectively count as adultery (or fornication in certain special circumstances), as per Jesus’ warning about living in an adulterous marriage.

If you are cohabiting with the person but not leading a conjugal life (that is, if you are living with the person celibately) then there is not as urgent a need for an annulment, but you should go ahead and get one anyway so the marital situation can be rectified, as people who are cohabiting usually end up leading (or slipping into) a conjugal life.

Q: How difficult is it to get an annulment?

A: It depends entirely on the circumstances. If the original marriage was valid, an annulment cannot be granted. If it was invalid then the difficulty of obtaining an annulment will be the same as how difficult it is to show that it was invalid. If it can be easily shown that this was the case then the annulment will be easy. If it is harder to show this then obtaining the annulment will be harder.

Q: Can you cite an example of when an annulment is easy?

A: Sure. The Catholic Church currently requires that its citizens either be married in a Catholic ceremony or get a dispensation to have a non-Catholic one. If they don’t do this, the validity of the marriage will be automatically blocked by canon law. Therefore, if a Catholic married someone in a non-Catholic service (either civil or religious) and didn’t get a dispensation first, the marriage was automatically invalid. As a result, in such cases it is very easy to show the invalidity of the marriage and thus very easy to obtain the annulment. It can be done very quickly once the documents have been gathered to show that at least one of the parties was Catholic and that a dispensation was not granted for the non-Catholic service. This kind of thing is an open and shut case.

Q: What are some other grounds for an annulment?

A: Examples include situations in which it can be shown one or both of the partners refused to get married on God’s terms and would not have gotten married had they know what God’s terms are (if they were merely ignorant of God’s terms but would have gotten married anyway then they were willing to get married on his terms and so the marriage is valid; they just didn’t know all of what they were agreeing to at the time).

By being unwilling to marry on his terms, they excluded an essential property of marriage according to God’s definition of what marriage is, and so had no genuine marriage.

For example, one of the essential properties of Christian marriage is the property of unity, meaning that the marriage is monogamous. If, in one of those countries where polygamy is still practiced, a Christian got married but said in this heart, “I will only take this wife on the condition that I later can take another wife in addition to her,” then the person was not accepting Christian marriage on God’s terms, meaning that he rejected Christian marriage and so was never married in God’s eyes.

More relevant to our society (where polygamy is not practiced), a person might exclude the essential property of fidelity and say in his heart, “Yeah, I will marry her, but only on condition that I can fool around a little later if I get tired of her.” This person rejects the essential property of fidelity, and so rejects Christian marriage, meaning he was never married in God’s eyes because he refused marriage on God’s terms.

Similarly relevant to our society, a person might exclude the essential property of indissolubility in his heart and say, “Yeah, I will marry her, but only if that I can divorce her later and remarry if this doesn’t work out.” Such a person would again being refusing Christian marriage on God’s terms and thus would be refusing Christian marriage.

Finally, a person might exclude the essential property of openness to children and say, “Okay, I’ll get married, but only on the condition that we never have kids, and if I knew we were going to have kids, then I just wouldn’t get married.” Again, an essential property of marriage is excluded, and so the marriage itself is excluded.

Other situations in which there would be an impediment to marriage would be ones in which one or both spouses were psychologically immature to the point of not being able to make a rational commitment to marriage, severely mentally ill, under the influence of drugs or alcohol, had lied about their identity, had lied about their sexual orientation, had lied about their ability to consummate the marriage, etc. Any of these could potentially pose an impediment to the marriage coming into existence in the first place.

Still, the majority of Christian marriages are valid, which is why the Church assumes they are valid until compelling evidence to the contrary is shown.

Q: Why is the Catholic Church so hung up about annulments? No other Church makes divorced people go through such a process before they can marry again.

A: To the extent that is true, it is because no other Church is doing its job. It is not, however, entirely true. It is true that no Protestant group has such a process, and this is sad because historically Protestant churches have taught that there are some situations in which one cannot biblically remarry and thus that Jesus’ command about remarriage in these circumstances being adulterous really means something (Mark 10:11-12).

Therefore, they should be conducting their own objective investigations of marriages and whether a given church member can remarry. However, in no Protestant denomination is there any mechanism to do this.

Instead, the decision of whether or not to marry a couple is left up to the pastor whom they approach and ask to do the service, and of course there is immense pressure on the pastor to not refuse a marriage request from members of his congregation. This creates a situation that would parallel one in which each and every Catholic priest were permitted to grant annulments if it seemed like a good idea to him personally. That situation, of course, would involve gravely irresponsible, pastorally. Someone who personally knows the parties must not be deciding such a case as his affection for and desire to receive the affection of his parishioners would strip him of his objectivity.

One must therefore conclude that all the Protestant denominations are engaged in something that is gravely pastorally irresponsible in this area by not putting in place a mechanism to objectively evaluate whether given members are or are not biblically free to marry.

The situation is compounded by the fact that, so long as a couple has been married by someone, somewhere, almost every Protestant church will accept the marriage as valid, even if it is in violation of Jesus’ warning about adulterous marriages. This is simply pastorally unacceptable as it confirms to the couple in such a marriage that their union is valid and wholesome in the sight of God, which in fact it is not.

Jesus’ warning that some marriages are adulterous means something, and Protestant churches need to think through the pastoral implications of that and not simply take the easy way out by telling everyone their marriage is valid so long as they were able to find someone somewhere who was willing to marry them.

It is thus for the sake of the souls who wish to remarry after one marriage has failed that the Church has established the annulment process. The Church must remain faithful to Jesus’ teaching that remarriage following a genuine marriage results in an adulterous union, which is gravely sinful, and so if the Church is being asked to marry people who have been divorced, it must, for the sake of the souls involved, conduct an investigation of whether or not the first marriage was valid, lest it bless an adulterous union between the parties petitioning it.

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