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Marriage Nullity Petition Process

Click to jump to section: Introduction Meaning of a Declaration of Nullity Can I petition before my divorce is final? Confidentiality People Involved FAQs about the Respondent The Process Possible Defects of Consent: Grounds of Nullity

For validation witness form, click here.

Introduction

For those who are divorced and may wish to remarry someday, the Church has a process to determine if a person is free to marry in the Church.  This process is conducted by the Diocesan Tribunal.

Many times, parties involved in this process have commented on the spiritual healing they have experienced as a result.  Often the parties say that the process brings closure on a sad chapter in their lives, and they are often able to learn from their past mistakes and make better lives for themselves.

The following information is meant to help those interested in further information about the process. It begins with a theological understanding of marriage, the laws of the Catholic Church regarding marriage, the rationale and grounds for a declaration of nullity, and the procedure for petitioning in the Diocese of Honolulu.

Petitioners:  Click here to download the petition, preliminary (pre-judicial) investigation and procurator-advocate mandate and witness list. Please give the completed form and documents to your priest or deacon or lay advocate at your parish, who will submit the papers to us.

If you are a respondent in a cause being heard by the Tribunal of the Diocese of Honolulu, click here for a fillable form in which you can make your declarations.  You can type directly into this form, print it out, sign it, and mail to the Tribunal office.  You can also scan and email the form to us, although it must have your signature.  It includes a witness list.  If you prefer to fill the form out by hand instead, you can print out the form and then fill it in (please print). 

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When a Marriage is Declared Invalid

A declaration of marital nullity is an authoritative statement issued by a Church Tribunal that a marriage is invalid.  Such a declaration does not dissolve a marriage, as if it was a type of divorce granted by the Church. It does not mean that the human relationship was void of meaning. Rather, a declaration of nullity is a ruling of the Church's court that some essential ingredient was lacking in a marriage from the time of consent.  A declaration of nullity has no civil consequences, and it does not say that no civil marriage existed. It does not render children illegitimate in the Church (canon 1137). Several grounds can make a marriage invalid.

In the Church's canon law, marriage is presumed valid (a true marriage) until it is proven otherwise in the Church's court of law (the Tribunal) (canon 1060). Once a marriage has taken place, neither party may remarry in the Catholic Church, unless one party dies or the marriage is declared invalid by a Church Tribunal. Otherwise, the new marriage is invalid.

Catholics living in invalid marriages are not permitted to receive Holy Communion (canon 915). This traditional discipline was reaffirmed by the Pontifical Council for Legislative Texts on June 24, 2000. Also, on October 23, 2013,  Archbishop Gerhard Ludwig Müller, then prefect of the Congregation of the Doctrine of the Faith, provided a summary of the doctrine of marriage that underlies this discipline.

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Can I petition before my divorce is final?

In a sense, the civil divorce is irrelevant. The Catholic Church considers parties just as much married after civil divorce as before, in accord with the teaching of Jesus. But the answer to the question is no, because:

• If the parties are not civilly divorced, maybe there is the possibility of reconciliation.  The Tribunal relies on the civil divorce as an indication that there is little chance at reconciliation. (The Preliminary Investigation also asks about the possibility of reconciliation as another indication.)
• If the civil divorce is not final, then there can be complications if both the civil court and the ecclesiastical Tribunal are proceeding at the same time. The Tribunal does not want to get involved in possible issues of finances and/or custody of children.  Instead, the Tribunal proceeds only after all such issues are settled.
• Also, if a declaration of nullity is issued, then the parish staff does not need to get a copy of the civil divorce before a new marriage as they know it has already been provided to the Tribunal. (The Tribunal only needs the first page and last/signature page.)

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Confidentiality

Tribunal personnel are sensitive, professional individuals who keep all information strictly confidential. Only the parties themselves have a right to the information concerning their marriage.

Even though the process is a legal procedure involving a judge, the gathering of evidence is done privately, not in a courtroom setting. The parties are not required to face each other in the Tribunal.

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People Involved

Petitioner and Respondent: The parties involved are the petitioner, who initiates the process, and the respondent.  Important: The burden of proof is on the part of the petitioner.

Advocates: The advocate helps the party to present his or her cause, promotes the position of the party in the cause, and informs the party of his or her rights. Advocates are also appointed as a proxy to represent him or her for procedural purposes of the cause. In the Diocese of Honolulu, priests and deacons serve as advocates for the petitioner. In some parishes, certain other members of the parish staff may be trained as advocates.

Judges: Judges are appointed by the bishop and must have degrees in canon law. Judges are assigned to causes by turn. The chief judge of the diocese is the judicial vicar.

Witnesses: Witnesses serve to corroborate the facts presented by the parties and testify to the character of the parties. The witnesses may be family or friends of the parties. Due to concerns for family harmony, children of the marriage are ordinarily discouraged from being witnesses.

Psychological Expert: If discretionary or psychic factors are being considered, the judge may request the services of a psychological expert.

Defender of the Bond: The defender of the bond is an officer of the Tribunal who is appointed to propose everything that reasonably can be brought forth against a declaration of nullity. Like the judges, the defender of the bond is appointed by the bishop and must have a degree in canon law. The Church requires this officer to be involved in marriage causes so that the appearance that a declaration of nullity is merely a Church divorce is avoided.

Promoter of Justice: The promotor of justice is like the district attorney for the Church. He is not involved in marriage causes and usually is the same official as the defender of the bond.

Moderator of the Tribunal Chancery: The moderator of the Tribunal chancery is the chief notary of the Tribunal and serves basically as an office manager. Other notaries may also be appointed by the bishop to attest to the authenticity of the documents.

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FAQs about respondents

Do I have to provide the respondent's address?

Yes. Because a marriage is a contract between two people, canon law recognizes the right of the respondent to be notified that a petition for a declaration of nullity has been submitted and to participate if he or she chooses.  If the respondent is not notified, then the process is invalid.

What if it is impossible for me to find the respondent?

A difficulty faced by many divorced persons prior to petitioning for a declaration of marital nullity is that of being unable to locate a former spouse. Often the current address of a respondent can be found through one of the various Internet people search engines.

If that doesn't work, the Tribunal office has also arranged for a detective agency to conduct an electronic search (a "skip trace") that is 95% effective in locating a missing respondent. The cost from the detective agency is about $125, a cost which is passed on to the petitioner. In those 5% of cases where the respondent still cannot be located, it might then be possible to process the cause of nullity without the respondent being notified as the detective agency provides proof of a diligent search having been made. Please email the Tribunal office about this when working on your petition.

What if the respondent is opposed to a declaration of nullity?

In this case, the Tribunal staff will be particularly careful to safeguard the rights of the respondent as he or she participates in the cause.  However, a respondent has no veto power over the process and does not need to agree to a declaration of nullity in order for one to be issued.

What if the respondent does not respond or refuses to participate?

Justice requires that the process continue in the situation where a respondent does not respond to invitations from the Tribunal to participate.  In that case, the judge must rely solely on the declarations of the petitioner and the testimony of the petitioner's witnesses in reaching his decision.

What if I am afraid that my former spouse will get angry or even violent?

The Tribunal has experience dealing with such situations.  The petitioner's current address can be withheld from the respondent upon request.  At no point in the process do the petitioner and respondent face each other.  Furthermore, often the behavior of an angry respondent can end up helping the petitioner's cause.

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The Process

A petition for a declaration of nullity involves a process in a Church Tribunal. The goal is to determine the truth about a marriage in question.

A  priest, deacon, or parish minister can help a person prepare the papers required to petition for a declaration of nullity.  The priest, deacon, or parish minister also verifies if there is any possibility of reconciliation between the parties before beginning the process.

1.  A cause begins with a petitioner filling out a preliminary investigation form that covers the basic facts, including a current address for the respondent, and submits a list of witnesses. The petitioner also signs a mandate appointing his or her priest, deacon or parish minister as a procurator-advocate, and submits photocopies of the following documents:

• Photocopy of baptismal certificates for the petitioner and respondent (only needed for Catholics)
• Photocopy of marriage certificate (Catholic if it was a Catholic wedding; otherwise civil)
• Photocopy of divorce decree (first and last pages only)

The priest, deacon, or parish minister reviews the preliminary investigation form, completes the petition page, and once the paperwork is complete, mails it to the Tribunal.

2.  Once the petition and documents are received at the Tribunal, the judge accepts the petition and notifies the petitioner of the grounds being considered.  At the same time, a notice is sent to the respondent also informing him or her of the grounds being considered and inviting him or her to participate in the cause and to state whether he or she is in favor or opposed to the declaration of nullity.  The respondent is given three weeks to respond.  The parties have the right to express any objection to the grounds being considered at this beginning stage of the process.

3.  Next, evidence is gathered in the instruction stage. At this time, the petitioner is given another questionnaire for each ground being considered to complete.  If the respondent is involved, he or she also completes a questionnaire.  Witness testimony forms are also sent out at this time.  (The primary reason for a delay in the process is that the witnesses are slow in completing their forms.)

The judge directs the instruction of the cause, may call an oral hearing, and may set deadlines so that the cause is not prolonged. The respondent has a right to actively participate in the process, know what is being said, and contribute to the gathering of evidence.

If a respondent refuses to cooperate with the Tribunal, then he or she is declared absent by the judge. If the respondent is opposed, then the Tribunal staff is especially careful in safeguarding the rights of the respondent. However, a respondent does not need to agree for a declaration of nullity to be given. The declaration of nullity is given or denied based on whether the ground for nullity is proven. A respondent who is opposed cannot stop the Church from declaring the truth about a marriage.

4.  Once the evidence has been gathered, then the parties are notified that they have a right to know what evidence is being considered by coming to the Tribunal office.  They must do this within two weeks.  Many times, however, the parties do not exercise this right and instead choose to entrust themselves to the justice of the Tribunal.

5.  Next the cause is concluded and sent to the defender of the bond to give his or her observations. The defender must point out all indications in the acts that suggest that the marriage is valid.

6.  Finally the judge writes his decision. Notice of this decision is sent to the parties, and they have three weeks in which to lodge an appeal of this decision.  After that, if affirmative, a declaration of nullity is issued.

A negative decision is given if a cause for nullity is not proven. In such causes, the presumption that the marriage is valid continues.

A party may appeal or take recourse against a decision with which they do not agree either to the Tribunal of the Diocese of San Jose, prorogated as the Diocese of Honolulu's Tribunal of second instance, or to the Roman Rota at the Vatican.

 

The Palazzo della Cancelleria in Rome, built between 1483 and 1513, houses the three Vatican Tribunals: the Supreme Tribunal of the Apostolic Signatura, the Roman Rota, and the Apostolic Penitentiary.

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Possible Defects of Consent: Grounds of Nullity

The following are the canonical grounds why a marriage might be invalid due to a defect of consent. They are simplified explanations. The ground for invalidity must exist at the beginning of the marriage. The ground for invalidity can be on the part of one or both of the spouses.

Lack of sufficient reason  (canon 1095, 1º) - An incapacity at the time of the marriage to understand and intend true marital consent due to some temporary or habitual cause.

Defect of discretion of judgment  (canon 1095, 2º) - An incapacity to consent due to a grave failure to evaluate adequately and freely choose what marriage to the other party will entail regarding essential marital rights and obligations. There must be some temporary or habitual cause of the defect.

Psychic incapacity  (canon 1095, 3º) - An incapacity to assume and fulfill the essential obligations of marriage due to psychic causes.

Ignorance of marriage  (canon 1096) - A lack of knowledge about marriage as a permanent consortium between a man and a woman ordered for the procreation and education of children.

Error of person  (canon 1097, §1) - An error about the identity of the person married.

Error of quality  (canon 1097, §2) - An error about a quality of the other party that was directly and principally intended.

Deception with malice  (canon 1098) - Deliberate deception about some quality in the other party that can cause grave marital discord.

Error about fidelity  (canon 1099) - An error at the time of marriage in the party's understanding of fidelity as an essential property of marriage, to the degree that the party only understood marriage with that error.

Error about perpetuity  (canon 1099) - An error at the time of the marriage in the party's understanding of perpetuity (indissolubility) as an essential property of marriage, to the degree that the party only understood marriage with that error.

Error about sacramental dignity (canon 1099) - An error at the time of marriage in the party's understanding of marriage as a sacrament instituted by Christ, to the degree that the party only understood marriage with that error.

Total simulation (canon 1101, §2) - A positive act of the will at the time of marriage to exclude marriage itself while externally consenting to marriage.

Partial simulation, against fidelity (canon 1101, §2) - A positive act of the will at the time of marriage to exclude the right and obligation of fidelity from the marriage.

Partial simulation, against perpetuity (canon 1101, §2) - A positive act of the will at the time of marriage to exclude the right and obligation of perpetuity (indissolubility) from the marriage.

Partial simulation, against children (canon 1101, §2) - A positive act of the will at the time of marriage to exclude the right to acts which are by themselves apt for the procreation of children or to exclude children themselves.

Partial simulation, against the good of spouses (canon 1101, §2) - A positive act of the will at the time of marriage to exclude the establishment of a mutually beneficial marital relationship in which the parties are true and equal helpmates.

Partial simulation, against sacramental dignity (canon 1101, §2) - A positive act of the will at the time of marriage to exclude the good of marriage as a sacrament instituted by Christ.

Future condition (canon 1102, §1) - A requirement to consent to the marriage that was based on a condition to be fulfilled in the future.

Past or present condition (canon 1102, §2) - A requirement to consent to the marriage that was based on a condition of something from before or at the time of marriage that was not fulfilled.

Force or fear (canon 1103) - A party was compelled to enter marriage to be freed from force or grave fear inflicted, even unintentionally, by someone else.