Reforming the Annulment Process–A Continuing Conversation. (Or Why “Alienation of Affection” is a stupid reason to require divorce before annulment).

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I appreciated the many thoughtful responses to my brainstorming on ways to improve the annulment process.  Regarding my first suggestion; stopping the practice of requiring the couple to seek a civil divorce before filing for a declaration of nullity, a few people suggested that this needed to be in place because of the fear that the church might be sued for alienation of affection.

I actually addressed this issue, briefly,  in the original post as I’ve heard this argument before.  I’d like to address it in a little more detail now.

I will say that, in all humility, I am neither a canonist nor a civil lawyer, so I appreciate that I am not writing in any authoritative manner, but having been around this issue, and discussed it with bishops, canonists, and attorneys at one point or another, I have some insights that I think might contribute to the conversation.

1.  While it is true that some states do still have alienation of affection laws on the books, they are rarely enforced these days.  That said, it can still happen (so adulterers beware).

2.  That said, the alienation of affection that can occur from one’s spouse taking a lover strikes me as a very different matter than a spouse refusing to sleep with one’s mate because a marriage has been found invalid by a tribunal.  Specifically, in this case, the Church is acting like a counselor who says, “Your marriage isn’t healthy.”  That doesn’t cause two people to stop sleeping together.  It may, but it may not.  If the Church were to say that a marriage was invalid, that would not automatically cause the couple to stop sleeping together.  As far as I know, a therapist has never been sued for alienation of affection.  Why would the Church if, in its consultative capacity, it told a couple that their marriage was invalid.  That’s simply a finding of fact, not a command.

3.  You might say, “Well, if the Church finds the marriage invalid, then sleeping together would be a sin and that’s where the alienation of affection occurs.”  That strikes me as silly.  All the Church would have to do to defend itself is show the pre-marital sex rates  (or abortion rates, or adultery rates, or divorce rates, or contraception rates, etc, etc, ) for practicing Catholics.  The simple fact is that the Church making a statement about something compels… absolutely no one to do anything they don’t already want to do.

4.  Finally, the constitutional issues at play in trying to sue the Church for alienation of affection are mind boggling.  I really have a hard time, even in this current Church-hostile culture, imagining that such a suit would pass muster.

At the end of the day, using alienation of affection as an excuse for the Church to not do its job of guiding the faithful through their marital difficulties seems unconscionably cowardly to me.  Seeking legal counsel is one thing. “Pastoring by Lawyer” is, as the scandal has taught us,  quite another.

 

Reforming the Annulment Process–Brainstorming Solutions.

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Deacon Greg Kandra links an article that encourages overhauling the annulment process.   I think most people would agree that the annulment process is in need of serious improvement.  In fact, one of the factors influencing Pope Francis’ call for an Extraordinary Synod on the Family next November was his concern about the way the Church handles divorce and annulment.  Many of the questions in the survey the Vatican sent to the world’s bishops had to do with seeking input on how to improve the handling of annulments.

 

But while most people agree that the current way of doing things isn’t working, there is little agreement on what to do about it.  Unfortunately, many people are proposing ideas that have already been determined by the Church as unworkable.  For instance, in the article linked by Deacon Greg, the author, Fr. Peter Daly, suggests two ideas that the Vatican has already overruled.  The first is letting the local pastor handle the annulment.   He argues…

If I were pope, I would leave the decision about annulments and reception of the sacraments entirely up to the parish priest. It should be resolved in the internal forum of the confessional. The emphasis should be on mercy, not law. End of story. Move on.

The Problem with the Internal Forum

The problem is that this option, the so-called “pastoral provision” was already outlawed by the Vatican.  The original idea behind the pastoral provision was to allow people to confess the second marriage and allow the pastor to absolve the penitent of the sin of adultery in the second marriage.  But that really doesn’t make any sense at all.  To receive absolution for something, one has to resolve to try to not do it again.  How do I  confess a second marriage and receive absolution for it if I fully intend to continue sleeping with my second partner when I go home?  It appears to me that the internal forum option not only destroys the integrity of the annulment process, but the integrity of confession as well.  There are additional problems with using an internal forum solution–whether confession or some other process overseen by the pastor–to resolve marriage issues.  For example; marriage isn’t a private institution.  Its a social one.  You can’t deal with a public issue in a secret, private forum without causing more problems.   Another reason I think the internal forum option would cause annulment to lose any integrity at all is that pastors would be under tremendous pressure to grant every petition that came across their desk.  There needs to be some kind of oversight to protect both the pastor from undue pressure and the integrity of the sacrament.

The Problem with the  “Eastern Option”

The second option Fr. Daly proposes is following the Orthodox tradition of simply giving people a pass on the first divorce.  Orthodox Christians essentially get one “get out of marriage free card.”  2nd or 3rd marri

ages require permission from the bishop, but first divorces are merely accepted.  I have read the Orthodox justifications for this position, but honestly, they strike me as lacking coherence.  Regardless, the Vatican has also ruled, several times now, that this option is not consistent with the Catholic understanding of marriage.  For the indissolubility of marriage to mean anything, it needs to be indissoluble.  There can be certain conditions where the person does not intend to enter into marriage as the Church defines it or is incapable of entering into marriage as the Church defines it, but those are exceptions.  They can’t be the rule.  Making them the rule undermines the integrity of the entire Catholic theology of marriage.  Clearly this is non-starter.

 

That people keep returning to these two failed options strikes me as a stunning lack of creativity.  So what can we do?  I don’t have any comprehensive answers to the question, but in my response to the Vatican survey, I did make some suggestions.

Possible Improvements

1.  Stop Requiring Divorce First.

Currently, people who seek annulments are required to have a civil divorce first.  This is not a matter of canon law, btw. It’s just a policy.   I have asked several canonists why this stipulation exists.  They have told me that, in the first place, it is a way to certify that there is no chance of reconciliation.  Of course this is silly.  I have helped plenty of couples reconcile after civil divorce.  It’s more common than you might think.  Second, I have been told that requiring divorce first prevents the Church from being sued for “alienation of affection or loss of consort”  (i.e, one spouse filing a legal suit alleging that the Church forced the other spouse to stop having sex with him or her).  Really?  Does anyone sue for that?   What court would touch loss of consort for religious reasons with a 10 foot pole?  There are so many constitutional issues wrapped up in that  I can hardly think it would be worth it.

In my opinion, requiring married couples to divorce before seeking an annulment sends the message that the civil authority is the one that counts, not the Church.  That’s a terrible message to send.  Second, it puts Catholics in a terrible bind.  The Church forces the couple to get a divorce before it will rule on the validity of the marriage.  What if the church then finds the marriage valid despite the divorce?  How cruel is that?  This policy puts the Church in the position of finding a reason, any reason, to grant the declaration of nullity so the couple can be spared living in limbo, and it puts other couples who honestly don’t have legitimate grounds for an annulment in the position of being civilly estranged but morally bound to their spouse.  How does this not make the Church complicit in leading people into temptation of contracting an invalid second marriage?

Instead, I propose that the Church require couples to seek a declaration of nullity before seeking a civil divorce–except in cases of physical abuse.  That would allow the Church to adopt a pastoral position.  The Church could counsel the couple on the reasons that it appears that the marriage is valid and make recommendations for healing it.  Or it could state that yes, this is a marriage that is definitely invalid and the couple could proceed to divorce. It would make the annulment process a process of discernment which could be more pastoral than juridical but still have integrity and weight.

2.  Allow Lack of Informed Consent/Formation as a Criteria for Annulment.

Pope Benedict actually floated this idea himself.  The Church currently states that one needs to have free will and be able to give full consent to contract a valid marriage.  The problem is, you can’t freely give full consent if you don’t fully understand what you are choosing or believe in the Catholic vision of marriage. How many people get married in the Church with the express intent to live the Church’s vision of marriage and family life and to be their spouse’s best hope–second only to the saving work of Jesus Christ–of getting each other to heaven?  That, in a nutshell, is what the Church is asking couples who get married in the Church to do.  How many couples either understand that or have been formed to the degree that they are capable of living that out?

If the Church doesn’t do a good job of forming the couples it marries in the first place, it is unjust to hold those couples responsible for the Church’s (or the couple’s parents’) failure.  This option would both challenge the Church (and Catholic parents) to do a better job forming couples on the front end, but it would also recognize the fact that ignorance or incapability are legitimate impediments to free will and full consent.

 

No doubt there are many other ideas that could work, but I think these two options would do a great deal to make annulments more pastoral and logical while still respecting the integrity of the sacrament and the Catholic theology of marriage.
What do you think?  How could the Church do a better job to make the annulment process more pastoral while still respecting out theology of marriage?  Post your ideas as a comment.  I look forward to your feedback.

For help living the Catholic vision of marriage, check out For Better…FOREVER!  A Catholic Guide to Lifelong Marriage,   Just Married:  The Catholic Guide to Surviving and Thriving in the First 5 Years of Marriage, and Holy Sex!  The Catholic Guide to Toe-Curling, Mind-blowing, Infallible Loving.

Damn Lies: When Anti-Religious Bigots Use Math to Hate

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Mark Twain once famously said, “There are lies, damn lies, and statistics.”

You’ve probably heard some of those lies used by non-believing friends and relations to discredit Christians.  For instance, have you heard that Christians divorce at the same rate as others?  How about the one about Christians being bad tippers?  How about the one that says that the majority of young people are abandoning churches in droves?

It turns out that none of those statements are actually true despite the fact that the people who make these claims often begin their sentences with, “Did you know that studies say…”

Bob Smietana has an excellent piece that debunks these and other lies that are used to discredit believers.  Go and read so you’re prepared for that next water cooler conversation or argument with your brother-in-law.

Because No One Does Tolerance Like the Germans — (German Judge Torments Homeschooling Family)

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This is terrifying….

Many readers may recall that in August, German authorities used the equivalent of a SWAT team to remove children from their homeschooling parents.  20 jack booted thugs (literally) burst into the Wunderlich’s home and took their children, even though the judge in the case admits that the children were well-adjusted and well cared for.  The problem is that in Germany, homeschooling is unconscionable and anti-social (because Germans are so pro-social) and so, despite all evidence to the contrary, the mere fact of homeschooling is enough to have your home violated and your children kidnapped by the state.  The children were returned to the family after three weeks when they agreed to enroll their children in public school over their religious objections.

The family then made plans to leave the country so that they could resume homeschooling.

Sadly the case just got worse.  This week, the judge ruled that family could not leave the country.  Further he told them that if they did leave, then he would pursue extradition and prosecution of the parents in criminal court.

You can read more here.

Orthorexia–When “Eating Right” Goes Wrong

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I read a fascinating article at Christianity Today about an interesting twist on problem eating. 

…I’m equally concerned when I see how easily the devotion to ‘healthy’ and ‘righteous’ eating can take a pernicious turn and become legalistic, judgmental, isolating and even crippling. Not long ago, I met a woman who was deeply concerned about her granddaughter. “She doesn’t eat anything any more! It’s not that she wants to be thin, she just thinks so many different things are unhealthy. She doesn’t eat grains. She doesn’t eat anything that comes from an animal. She tries to eat only things that are raw. She wouldn’t even eat this,” she said, gesturing to the home-cooked meal we were sharing.

The grandmother was putting her finger on a key aspect of food and eating as well as one of the dangers of dietary legalism: food is communal and community-forming, and restricted diets of all sorts tend to isolate and damage people. Dr. Stephen Bratman explores this dynamic. The author of Health Food Junkie, he coined the term “orthorexia nervosa” (from the Greek ortho, “correct,'” and orexis, “appetite”) in 1997. In an essay, Bratman talks about his time as a cook in a commune. Some members were vegans, some vegetarians, some macrobiotic eaters, some who wouldn’t eat anything from the onion family of vegetables and some who were raw foodists. All could marshal “experts” to support their dietary doctrines. And it was really, really hard for them to eat together.

Orthorexia isn’t an official disorder but I think the points in the article are well-taken.  While eating healthy is an important part of well-being and self-discipline, Christians have always considered being too “fussy” or rule-bound about food to be a manifestation of gluttony.    Food should feed the body, soul, and community and any approach to eating that offends these dimensions of eating becomes disordered no matter how “healthy” the approach to eating is.

Exposing the Lie: Marriage and Manipulating the Media

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No doubt you’ve seen the headlines, Marriage Is Not an Antidote to Poverty.  It’s a lie–or at least wishful thinking.  If Marlboro came out with a pr campaign that said, “Anti-Smoking Efforts Fail to Curb Lung Cancer Rates” would you believe it?  Or would some part of you say, “Hmmm.  Maybe there is something else going on here.”

The same is true about the paper underlying the headlines. It’s a position paper–essentially a PR campaign of the marriage-hostile “Council on Contemporary Families”, and since all news is PR these days, the press is swallowing this report whole.  The paper is fine for what it is, but it is not a study, nor does it report new findings.  Despite what the news is leading you to believe (or has been lead to believe) this isn’t a new study demonstrating the failure of the marriage movement to address poverty.  In fact, the position paper  that is the source of all the buzz actually supports a foundational point of the marriage movement’s campaign to fight poverty.  Namely, that marriage after baby is a risky proposition, especially if the husband isn’t the father. 

University of Virginia sociologist Brad Wilcox does a great job respectfully fisking this non-story.

Ironically, this CCF report just confirms that old wisdom recently articulated in the report Knot Yet: The Benefits and Costs of Delayed Marriage in America: namely, men, women, and children are much more likely to enjoy a stable and supportive family life when they sequence marriage before parenthood. As Ron Haskins and Isabel Sawhill at the Brookings Institution pointed out in their book Creating an Opportunity Society, young adults who put education, work, marriage, and parenthood in the right order—first finishing high school (or college), then getting a job, then marrying, and then having a baby—face very low odds of poverty.

And while it is true that most of the federally funded programs designed to strengthen relationships among low-income couples with children have not achieved success, this is a common pattern for new policy initiatives (most of these programs are just a few years old). It usually takes some time for policymakers to figure out the best strategy to address a critical public policy challenge. Heck, almost fifty years after Head Start was launched, the evidence suggests the federal government still has not figured out how to make Pre-K effective for poor children—and yet, given preschool’s potential benefits, lawmakers remain determined to make the program work.

He goes on to share actual research on marriage initiatives that actually are fighting poverty.  You should go read his post.  It’s good stuff and essential reading for anyone who wants to know how to come out on top in those water-cooler conversations where people can’t wait to tell you how your values are outdated and your morals are dead.   The data is on our side, folks.  When you see reports that claim to show that marriage isn’t what it’s cracked up to be, know that there is a growing body of data–never mind 4000 years of cultural experience–that gives you the power to say that the rumors of the death of marriage are greatly exaggerated.