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Catholics concerned about good governance in the Church breathed a sigh
of relief when John Kerry lost his bid to become President of the United
States. The ecclesiastical complications of a Kerry presidency would have
been enormous. To state the issue simply, the junior senator from Massachusetts
seems quite willing to take over from that states senior senator
the role of poster boy for prominent Catholics running afoul of Church
Kerry has been at odds with Catholic teaching on a number of points for
some time. Recently he was accused of specific violations of penal canon
law in a novel but highly publicized heresy denunciation. Still another
persistent Kerry canonical controversy concerns the possibility that the
annulment (or declaration of matrimonial nullity) that he is believed
to have obtained for his first marriage to Julia Thorne might in fact
never have been declared. If this is true, then his second marriage to
Teresa Heinz is not recognized by the Church and on that score alone he
(and Teresa, for that matter) would be ineligible to receive Communion
(under the terms of canon 915) regardless of his potential culpability
for any other canonical issues facing him.
I do not know whether John Kerry received a declaration of nullity for
his first marriage. And that is precisely the problem. There seems to
be a gap in the canon law of marriage and annulments, and Kerry, wittingly
or not, has found it.
Had Kerry been elected president, the question of his marital status would
have demanded a clarification of a sort that is not easy to obtain now,
and depending on what the answer was, it could have resulted in another
mind-numbing scandal for the faithful.
There is, I think, a simple solution to the problem of public uncertainty
over matrimonial status in the Church. What is required is to recall the
values behind certain canons on marriage and annulment, and to bring canonical
practice more fully into line with those values.
Public Acts and Public Records
Marriage is a classic example of a public institution. Both Church and
state acknowledge this fact, and both require external, verifiable events
to occur before granting any marriage legal recognition. The state, for
example, requires licensing and the accurate recording of weddings in
publicly accessible files. The Church, as part of the "canonical
form for marriage," generally requires her members to marry before
her own ministers, accompanied by at least two independent witnesses,
with records to be preserved in various sacramental registers (see canons
These measures assuring the public verification of legal marriage (though
perhaps these are redundant in the case of Catholics who have also complied
with the requirements of canonical form) make great sense; civil and religious
societies need to know who is married to whomor to put it another
way, which "significant relationships" deserve the special respect
that is accorded marriage, and which ones do not. Under normal circumstances,
the canonical and civil rules promoting marriage-awareness work; we pretty
much know (or can easily find out) who is married.
A similar system for public verification of divorce is in place. The state,
which recognizes divorce, requires public filing of divorce actions for
them to be effective. Thus the basic fact of a divorce is not hard for
third parties to establish. Even the Church, which does not accept civil
divorce (at least not in so far as it purports to clear the path to subsequent
marriage) respects certain civil consequences of divorce and acknowledges
it in various contexts. Again, all of this is consistent with the needs
for both civil and religious societies to know their members marital
But because a prior divorce is sufficient to make possible a second marriage,
as far as the state is concerned, the states system of recording
marriages and divorces is sufficient to serve its needs. The same cannot
be said for the Churchs system of matrimonial record-keeping.
For the Church (prescinding from a few privileged cases and, obviously,
the death of ones prior spouse) only a declaration of nullity can
make possible ones "second" wedding in the Church. And
precisely here is the problem: We know (or can easily and unobtrusively
find out) who is married, and we know (or can easily and unobtrusively
find out) who is divorced. But we cannot tell with any objective certainty
which divorced Catholics have obtained annulments, and which are still
considered bound by their earlier attempt at marriage. In other words,
in regard to a fundamental fact about two peopletheir marital status
in the eyes of the Churchthe faithful have no means of knowing with
certainty what that status is, and consequently, how they should relate
to the persons in question.
Ironically, not only does current canonical practice not tell us who has
an annulment, but a strict reading of the canons on the presumptions favoring
marriage requires the faithful to presume the validity of a first wedding
(1060) and consequently, absent solid proof to the contrary, treat as
questionable anything that looks like a second wedding (1069). But this
presumption is manifestly unjust to the tens of thousands of Catholics
who have obtained declarations of nullity and entered new marriages.
A Need for Change
So what is to be done? Some suggest that we need do nothing.
The very fact that a second Church wedding has occurred, these people
argue, may be taken as proof that an annulment of the first was granted.
Or, they might say, the uncertainty about marital status can be resolved
by simply inquiring with the parties themselves. For several reasons,
I think both these approaches fail.
One cannot rely on the mere fact of a second Church wedding in order to
establish the annulment of an earlier marriage. Many people obtain annulments
with no intention of entering a subsequent marriage, so there literally
is no second wedding to observe. Moreover, if an individual who has obtained
an annulment hopes for a subsequent Catholic marriage someday, it is obviously
awkward, to say the least, to wait until plans for such a wedding are
well underway before demonstrating ones canonical eligibility for
marriage. Such eligibility should be demonstrated even before serious
Moreover, many canonically recognizable marriages are actually held before
the individual(s) involved become Catholics; these marriageswhich
may be the second public marriages for one or both partiesare practically
indistinguishable from other weddings that are not recognized by the Church.
If canonists have to pore over such cases to determine the truth, how
are rank and file faithful to know the difference?
Finally, and sadly, some clerics will scandalously permit subsequent weddings
without a declaration of the nullity of an earlier marriage.
Nor can we rely on the word of the parties that they have obtained an
annulment. Recall that in many situations, the parties mere assertion
is not regarded as sufficient to demonstrate their claim to be married
or their claim to be divorced; the same concerns would apply to accepting
the word of parties regarding their claim to have an annulment. More specifically,
some people lie about having obtained annulments. I know I am not the
only tribunal judge in America who has seen a fake annulment decree. True,
such forgeries are easy for tribunal personnel to spot, but they are plausible
enough on the surface to fool those who do not have canonical training.
Finally, the personal letter or "decree of nullity" that tribunals
typically send to petitioners and respondents when nullity is declareda
document which could provide clear evidence of the annulmentis frequently
not sent to parties for whom other canonical issues remain outstanding.
If they are sent, they are sometimes simply lost, depriving such Catholics,
and the wider faith community, of a reliable means of demonstrating marital
Many Catholics hang their wedding certificates or papal blessings on the
wall; a few unhappy people frame their divorce decrees. But no one has
ever hung a declaration of nullity over the fireplace. There has to be
a better way of knowing who has obtained an annulment and who has not.
And there is. Ecclesiastical declarations of matrimonial nullity, which
are already recorded in diocesan tribunals, should be available for public
verification as are the records of civil marriage and divorce. This simple
approach would eliminate virtually all uncertainty or misinformation about
an individuals basic marital status in the Church. And it would
do so without compromising in the slightest anyones right to privacy
or good reputation.
When a civil wedding license is issued and the fact of the wedding later
recorded by both Church and state, there is no significant private information
included in the files. The records, essentially, show only the names,
ages, and residences or the marital partners, and the date and place of
the wedding. One looks in vain to wedding records for spousal decisions
on potentially controversial issues such as their desire to share checking
accounts, the number of children they expect, or their favorite romantic
songs. Virtually no one seriously objects to the recording of marriage
in a publicly accessible file, and if they did object, the publics
right to know something as important as ones marital status would
prevail. Likewise, divorce decrees (with some exceptions made necessary
in more complex cases) are usually simple statements that such-and-such
a couple divorced in such-and-such a county on such-and-such a date. There
is no confusion, uncertainty, or significant possibility of deception
in such records. Again, the publics need to know such basic data
is reasonably served.
Similarly, in proposing to give the public the opportunity to verify the
records of annulments, there would be no question of disclosing the grounds
for the annulments, the evidence used in reaching the decisions, or even
which parties filed the cases. All that one could determinebut determine
with accuracy and reliabilitywould be that a certain couples
attempt at marriage was declared, on a certain date in a certain tribunal,
to have been ecclesiastically null.
Making possible the disclosure of such basic information (coordinated,
perhaps, by the diocesan Promoter of Justice) serves the common good,
is not prohibited by any canon now in force, and leaves intact the Churchs
ability to restrict disclosure in the rare problematic cases (see canons
1130, 1455, and 1614). In short order, the disturbing questions about
matrimonial status, such as the one raised in Senator Kerry's case, would
The article originally appeared in the December 2004 issue of Catholic
Edward Peters has doctoral degrees in canon and civil law. He has authored
or edited several books and is the translator of the English edition of
1917 Pio Benedictine Code of Canon Law. His canon law website can
be found at www.canonlaw.info.
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