Canon Lawyer Told Me 90% of Marriages are Invalid

by Bai Macfarlane

Recently, I had a bizarre conversation with a graduate from the canon law program at Pontifical Lateran University in Rome.  The canon lawyer, whose name I’m keeping private, told me 90% of marriages are invalid due to immaturity.

I find this ludicrous because marriage is not that complicated. Parties marry who can choose straightforward things: 1) marriage lasting till death; 2) open to having and raising children in an intact home; and 3) no adultery.  The Dean of the Tribunal of the Roman Rota says canonists are “lax” who claim that “insufficient human maturity understood in a general way” is proof of invalidity of marriage (source).  Furthermore, a great point is made by Cardinal Edward Egan, who was a judge at the appeals tribunal of the Roman Rota, one of the six canon lawyers who edited the 1983 Code, and a professor at Pontifical Gregorian University. He says, “The vast majority of marriages are valid, the vast majority of people know it, and they know we know it too” (source).

The canonist who says 90% of marriages are invalid is both a divorce lawyer in Italy’s State judicial system and a canon lawyer in the Church system. According to the canonist, a Church tribunal’s expert psychological witness can see that marriages are invalid after reviewing a history of a party who gave invalid marriage consent.  The canonists believes that it is very rare for a young man and woman to be mature enough to choose marriage because the culture is anti-marriage.

Regarding separated faithful, the canonists said it seems laudable to be faithful to one’s marriage after divorce. However, after a psychologist studies the person’s history and interviews the person, the psychologist—according to the canonist— will give insights to the tribunal judge and the truth will be discovered that the person had a grave lack of discretion and couldn’t marry (i.e. canon 1095 §2).

Please endure my sarcastic observation: If these psychologists are so sure of themselves, dioceses should employ them during marriage preparation programs when priests are to “establish that nothing stands in the way of [marriage’s] valid and lawful celebration” (c. 1066-1067).  Since dioceses trust psychological experts to determine a person was incapable of consenting to marriage—years after the fact, imagine how much clearer the psychologists report can be at the time of the parties’ engagement.  After all, annulment tribunals are judging the parties’ condition at the time of the marriage consent, not years later.

I told the canonist that Mary’s Advocates is interested in redressing the unfair outcomes arranged by no-fault divorce courts.  If a person suffered a serious psychopathology at the time of consent making canon 1095 §2 applicable, I suggested that State courts could be invoked to apply a State annulment where the party who caused invalidity is not rewarded and the party wanting to keep the marriage together is not punished.  This routinely happens in no-fault divorce when defendants lose everyday access to children and must pay support for a household in which defendants are not allowed to live.

The canonists said that the State’s understanding of mental issues and the canonical understanding are very different, so canon 1095 §2 would have no bearing on State’s understanding of invalid consent.  I’ve found, however, canon 1095 §2 is based on natural law, not positive man-made law invented by Church officials. Natural law applies in both State and Church judiciaries.  Cardinal Raymond Burke, who served as the Defender of the Bond of marriage at the Supreme Tribunal of the Signatura says, “Canonists agree that according to the requirements of natural law, a person who lacks discretion of judgment does not give valid consent” (source pg. 5).  I’ve seen State grounds for annulment include developmental disability, lacking mental capacity, temporary insanity, fraud, and misrepresentation (Source Findlaw.com).  It seems unfair that a disgruntled spouse can win his/her no-fault divorce in the State forum (punishing the other party by taking children and money), and then, allege in the Church forum that he/she was the person suffering “grave lack of discretion of judgement” so their marriage was invalid.

The canonists told me no one is to blame for an invalid marriage. This theory explains why the canonists doesn’t like the idea of using the State’s grounds for psychologically based annulments.  The States have some interest in reparation of damages for the party who suffered from the other party’s lacking mental capacity or fraud.   If a woman was the cause of invalidity for psychological reasons, the husband would not be forced by the State to pay her spousal support.

The canonist’s belief that no one is to blame and 90% of marriages are invalid, explains why the Church appears not to care about marital abandonment. According to the canonist’s theory, marriage projects just “end” as the result of one having been too immature to choose marriage.  We see how this theory eliminates the possibility of abandonment because abandonment assumes there is some obligation to stay together. However, with annulments based on faultless immaturity, there would be no obligation to stay together. On the contrary, there would more likely be an obligation to divorce and quit fornicating with the person who was never really your spouse in the first place.

In context of 1095 §2, the canonists avoided answering what are the essential obligations of marriage, and, instead, started talking about psychology and mentioned Sigmund Freud as a source.

This canonist resides in Italy, and I found that Italy’s no-fault divorce law looks like Ohio law. If the parties are separated for a year, the State Court will grant a divorce even if the Defendant committed no fault justifying separation/divorce.  Technically, marital abandonment is a crime, but my research shows that if the party separating complains that he/she experienced severe marital conflict, the Italian courts won’t intervene. The abandoner will earn his right to a no-fault divorce after absenting the marital home for one year  (source Normattiva: Legge 1 dicembre 1970, n. 898).

If this Italian canonist is incorrect, is there anyone who can repair damaged caused by these contrary ideologies?  Please contact me if you could help or need more details.