Annulment

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Annulment is a procedure for declaring a marriage null and void. Unlike divorce, it is retroactive: an annulled marriage is considered never to have existed. Annulment can be either a legal or religious process. Justification for annulment is that there was a defect in the marriage contract, usually due to one party being unable to comply with the terms. Such a situation may involve an existing marriage, or incompetence due to age, mental illness, or some form of coercion, fraud or the like. Since some religions deny divorce, regarding marriage as a permanent and unbreakable commitment between the two parties, annulment is a way in which marriages that were clearly a mistake and impossible to be successful may be voided without breaking religious law.

Situations in which annulments are declared are in all cases unfortunate. A marriage is a commitment between two people that begins with the hope of a happy, long-term relationship in which love and the extension of lineage arise, are nurtured, and flourish. Marriage is a fundamental unit for human society. Out of marriages, families and communities arise. When marriage fails for whatever reason there is pain and scars that may never heal. Although annulment declares that the marriage was invalid, it does not deny that it took place, and so the parties involved suffer.

Contents

Definition

Annulment is the dissolution of a marriage. The word comes from the Latin annullare meaning "to make to nothing."[1] When annulled, a marriage is declared to have never been valid.

In strict legal terminology, annulment refers only to making a "voidable" marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this. The process of obtaining such a declaration is similar to the annulment process.

In Law

Grounds for a marriage being voidable or void ab initio vary in different legal jurisdictions, but are typically limited to fraud, bigamy, and mental incompetence. Such circumstances include the following:

  1. One spouse was already married to someone else at the time of the marriage;
  2. One spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse's reaching marriageable age.)
  3. One spouse was under the influence of drugs or alcohol at the time of the marriage;
  4. One spouse was mentally incompetent at the time of the marriage;
  5. If the consent to the marriage was based on fraud or force;
  6. One spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;
  7. The marriage is prohibited by law due to the relationship between the parties. This is the "prohibited degree of consanguinity," or blood relationship between the parties. The most common legal relationship is second cousins; the legality of such relationship between first cousins varies around the world.
  8. Prisoners sentenced to a term of life imprisonment may not marry.
  9. Concealment (such as one of the parties concealed a drug addiction, prior criminal record, or having a sexually transmitted disease).

The guilty party—the one with responsibility for having caused the defect in the marriage—is ordinarily disentitled to request a declaration of nullity. The victimized spouse may ordinarily apply for innocent spouse relief. The fact that a marriage was a nullity ordinarily does not prevent an innocent spouse from collecting the financial benefits of marriage, such as the rights to community property, spousal support, child support, and equitable contribution to attorney fees for litigation expenses.

In religion

An annulment may also serve to nullify a marriage within its religious context.

Catholic Church

In the case of the Roman Catholic Church, annulment does not bear the same meaning as divorce. According to Catholic Church teachings, all marriages are permanent and therefore divorce is not an option. A "Declaration of Nullity" is not a dissolution of a marriage, but rather the determination that the marriage was contrary in some way to Divine Law as understood by the Catholic Church. According to the Church, an annulment affirms the Scriptural basis of divorce and at the same time affirms that in a true marriage, a man and a woman become one flesh before the eyes of God. The Church's teaching on marriage is that it is a Sacrament and that it is only validly contracted by the two individuals, and so questions may arise as to whether that person was able to contract a valid marriage.

For this reason (or for other reasons that render the marriage null and void) the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e., that the marriage never existed. In this case the contracting parties are free to marry, provided the natural obligations of a previous union are discharged. -Catechism of the Catholic Church #1629

Marriages are declared null ab initio, meaning that the marriage has been essentially invalid from the beginning. A common misconception is that if a marriage is annulled, the Catholic Church is saying the marriage never took place. The parties to the marriage know that the marriage took place. The Church is saying that the marriage was not valid; the valid marriage is what did not take place.

Some Catholics therefore worry that their children will be considered illegitimate if they get annulments. Canon 1137 of the Code of Canon Law specifically affirms the legitimacy of children born in both recognized and putative marriages (those later declared null). Critics point to this as additional evidence that a Catholic annulment is similar to divorce—although civil laws that recognized both annulments and divorce regard the offspring of a putative marriage as legitimate. A reason for annulment is called a diriment impediment to the marriage. Prohibitory impediments (which no longer exist in the Latin Code, CIC83) make entering a marriage wrong but do not invalidate the marriage, such as being betrothed to another person at the time of the wedding; diriment impediments, such as being brother and sister, or being married to another person at the time of the wedding, prevent such a marriage from being contracted at all. Such unions are called putative marriages.

Diriment impediments include:

  • Consanguinity: the parties are closely related by blood.
  • The parties were related by marriage or adoption in a prohibited degree.
  • Insanity precluding ability to consent.
  • Not intending, when marrying, to remain faithful to the spouse (simulation of consent).
  • One partner had been deceived by the other in order to obtain consent, and if the partner had been aware of the truth, would not have consented to marry.
  • Abduction of the woman, with the intent to compel her to marry (known as raptus), constitutes an impediment as long as she remains in the kidnapper's power. (In theory, the abduction of a man also constitutes an impediment, but no man has applied for annulment on these grounds.)
  • Failure to adhere to requirements of canon law for marriages, such as clandestinity
  • One or both of the parties have brought about the death of a spouse with the view of entering marriage with each other.
  • One of the parties had received sacred orders.

Some impediments can be dispensed, in which the Church exempts a couple, prior to the marriage, to the obligation to conform to the canon law. While some relationships can not have the impediment of consanguity dispensed, a marriage can be sanctioned between cousins. This renders the marriage valid, and so non-annullable. Again, if an invalid marriage has been contracted, and the diriment impediment can be removed, a convalidation or sanatio in radice can be performed to make the marriage valid.

Eastern Orthodoxy

The Code of Canon Law for the Eastern Churches (CCEO) in canon 780 follows the Second Vatican Council's teaching that the tribunals of the Orthodox Church have a valid annulment process to declare a marriage null. Only divine law and merely civil effects of marriage are not considered valid actions by a tribunal. In other words, if an Orthodox tribunal holds that the marriage was invalid from its inception, that decision would be accepted by a marriage tribunal in the Catholic Church. However, some of the Orthodox churches allow a second or third marriage in oikonomia (economy), which is not permitted in the Catholic Church. This concept states that the first marriage was valid, and the second is allowed in the economy of salvation. The Catholic Church would see this as contrary to divine law, and so not a valid act. The same impediment would exist as with divorce or "dissolution" of a bond (annulment) that is not favor of the faith.[2]

Hinduism

In Hinduism, marriages may be annulled if one partner's consent was obtained through force. The victim has one year from the end of the force to file claim for the annulment. The victim must also no longer live voluntarily with the aggressor. A man may also seek an annulment if it is revealed that his wife was pregnant by another man before marriage. This claim, too, must occur within one year of marriage.[3]

Islam

Nikah Mut'ah, or a fixed time marriage, is a marriage form seen in Islam. Sunni Muslims deem it abrogated by the Islamic prophet Muhammad, while Shi'a Muslims disagree. Hence, according to Shi'a jurisprudence, it is a legal marriage form. Shi'a view divorce procedures (Arabic: talaq) as a last conflict resolution step in permanent marriages (Arabic: Nikah) before ending it. Shi'a do not engage in any divorce procedures (Arabic: talaq) at the end of the pre-determined period, they just annul the marriage, since there is no conflict to resolve.

Judaism

In Judaism, annulments can be obtained for the end of a marriage in which one person is not Jewish. Should both partners be Jewish, the couple must obtain a 'get m'safek,' which is permission for divorce from a rabbinic court.[4]

Notes

  1. Annul Etymology Online. Retrieved November 28, 2007.
  2. Roman Replies and CLSA Advisory Opinions 2000. "13. Canon 779 - Juridical Status of An Annulment Granted by a Coptic Orthodox Church." F Steven Pedone and James I Donlon (eds). Canon Law Society of America, 2000, pp 39 – 51.
  3. Women And Hindu Marriage Law Counter Currents. Retrieved November 28, 2007.
  4. Who needs a get? The Jewish Life Information Center. Retrieved November 28, 2007.

References

  • Foster, Michael. Annulment: The Wedding That Was : How the Church Can Declare a Marriage Null. Paulist Press, 1999. ISBN 0809138441
  • Jenks, Richard. Divorce, Annulments, and the Catholic Church: Healing or Hurtful?. Haworth Press, 2002. ISBN 0789015633
  • Peters, Edward. Annulments And The Catholic Church: Straight Answers To Tough Questions. Ascension Press, 2004. ISBN 1932645004
  • Vasoli, Robert. What God Has Joined Together: The Annulment Crisis in American Catholicism. Oxford University Press, 1998. ISBN 0195107640

External links

All links retrieved October 15, 2012.

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