On Marital Failure and Nullity

Interview With Father Miguel Ortiz, Professor of Canonical Marital Law

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ROME, SEPT. 22, 2004 (Zenit.org).- The failure of a marriage does not necessarily imply its nullity.

That’s why a correct understanding and interpretation of canonical rules, even within the Church, is so important, says Father Miguel Ángel Ortiz, an expert in the field, in this interview with ZENIT.

Father Ortiz is a professor of canonical marital law and coordinator of studies at the School of Canon Law of the University of the Holy Cross.

He was in charge of organizing a recent refresher course for agents of law in the ecclesiastical tribunals. The course, held at the Rome university, gathered more than 200 experts, includes judges, defenders of the bond, and lawyers, from 33 countries.

Q: What is the purpose of the process of marital nullity?

Father Ortiz: The purpose of these processes is not to identify the one «responsible» for the eventual failure of the marriage, as could be done in a civil case, but only to establish if, in a concrete case, there is or is not nullity of the marriage itself.

And this objective confers a very precise structure on the process: the judicial action by one or both of the spouses; the plea of the other party, if it was not yet presented; the specification of the problem to be examined; the gathering and discussion of the proofs; and finally the judge’s decision.

In order to hasten, case by case, the determination of the objective truth, insofar as it is humanly possible, it is indispensable that both the spouses as well as the defender of the bond really have the possibility of confronting one another, that is, that the proceedings be a real judicial process.

Before issuing an official statement on the nullity of the bond, the Church requires that a rigorous procedure be followed, so that the ecclesiastical judge, with moral certitude and on the basis of the gathered proofs, can come to a decision based on the truth of the facts.

Q: There are those who say that the number of cases of marital nullity is in reality much lower than the figure of marriages that fail, suggesting that most of the failed marriages could be declared invalid. And [some think] that such a process might be the solution for the divorced who have remarried and for their readmission to Eucharistic Communion. Do you think the present legislation should be reviewed?

Father Ortiz: Two questions must be distinguished here: that of the declaration of the nullity of the marriage, and that of the eventual admission to the sacraments of persons divorced civilly who have remarried.

They are two different things, also because of the theological and pastoral implications that derive from them.

Limiting myself to the more strictly canonical aspects, I would like to recall what John Paul II said in his address to the Roman Rota in 1987: The failure of marriage is never in itself proof of its nullity.

In 2002, according to the Church’s Statistical Yearbook, 56,236 ordinary processes in the first instance decided for the declaration of the nullity of the marriage.

Of these, 46,092 received an affirmative sentence. The declaration of marital nullity might perhaps be the remedy only for a small number of failed marriages.

The problem is not to decide whether or not the existing law must be reviewed, but to make the norm on the matter well known and well interpreted, also within the Church.

Moreover, I think it is necessary to avoid a view of processes of nullity that seeks to «enlarge them» so that people can regularize their situation. It is not pastorally correct to say to a person that their marriage has never existed, if the judge is not absolutely sure of the nullity.

In connection with pastoral care, I would like to recall other words of the Pope addressed to the Roman Rota, this time in 1990: «A judge must always be on guard against the risk of false compassion that would degenerate into sentimentality, and would be pastoral [in] appearance alone. The roads leading away from justice and truth end up in serving to distance people from God, thus yielding the opposite result from that which was sought in good faith.»

Q: In your opinion, what are the priorities in this realm?

Father Ortiz: The priority, in my opinion, is to improve the formation of people, especially engaged couples preparing for marriage — and also the formation of the agents of law in the ecclesiastical tribunals.

They must have a clear understanding of the procedures, both to avoid giving people illusions or useless loss of time, and to bring the cause of marital nullity to a conclusion with seriousness and speed.

And there must be an awareness that the service to souls does not consist in «forcing» declarations of nullity, but of trying to find out with rectitude what the truth is on the persons’ marriage.

Meanwhile, in my judgment, the term «annulment» should be absolutely avoided inasmuch as it is very ambiguous.

According to the doctrine of the Church, neither the parties in the case nor the ecclesiastical judge can dispose at will of the marital bond when the latter has been effectively constituted.

It might seem obvious, but it is important, as very often one finds notions on the matter, in current public opinion, which are absolutely unfounded.

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