Marriages declared null under the Catholic Church are considered as void
ab initio, meaning that the marriage was invalid from the beginning. Some worry that their children will be considered illegitimate if they get an annulment. However, Canon 1137 of the
1983 Code of Canon Law specifically affirms the legitimacy of children born in both valid and
putative marriages (objectively invalid, though at least one party celebrated in good faith). Critics point to this as additional evidence that a Catholic annulment is similar to divorce; although civil laws regard the offspring of all marriages as legitimate. However, there are some significant differences between divorce and annulment. Divorce is concerned merely with the legal effects of marriage. Annulment, however, is also concerned with the reality of whether or not a true marriage was ever formed. This leads to the second difference. At least in most countries, divorce is always possible. However, not all applications for marriage nullity are granted. An annulment from the Catholic Church is independent from obtaining a
civil annulment (or, in some cases, a
divorce). Although, before beginning an annulment process before an
ecclesiastical tribunal, it has to be clear that the marriage cannot be rebuilt. Some countries, such as
Italy, allow the annulment process to substitute for the civil act of divorce. In many jurisdictions, some of the grounds the Catholic Church recognizes as sufficient for annulment are not considered grounds for a civil annulment. In such cases, the couple will often need to be divorced by the civil authorities to be able to remarry in the jurisdiction. Once the Church annuls a marriage it would generally prefer that the marriage be subsequently annulled by the civil courts. However, should this not prove feasible, a civil divorce is acceptable. If someone has been married previously and the first spouse is still alive, he or she must have received a declaration of nullity before entering into a marriage in the Catholic Church, even if neither party in the marriage was Catholic (
privilege of faith being separate cases). The Catholic Church treats as indissoluble and valid every marriage when it is the first marriage for both parties. However, the church does not recognise as valid a marriage when one of the parties is Catholic but the marriage was not celebrated before a Catholic priest (unless a dispensation was first obtained). Canon law
presumes that all marriages are valid until proven otherwise. Annulment respondents who want to use canon law to defend their marriage against declarations of invalidity have the right to have a competent advocate assisting them. An advocate is like a lawyer. Respondents have the right to read the petition (called
libellus, meaning "little book") of the petitioner. The petition must describe, in a general way, the facts and proofs that the petitioner is using as the basis for alleging that parties' marriage is invalid. It is necessary that tribunal judges study the jurisprudence of the
Roman Rota, since the rota is responsible to promote the unity of jurisprudence and, through its own sentences, to be of assistance to lower tribunals (
Dignitas Connubii, art. 35, citing
Pastor bonus, art.126). Annulment respondents can use case law from the
Roman Rota to support their defense of marriage. In order to obtain a declaration of nullity, the parties must approach a Catholic diocesan tribunal. Most applications for nullity that are heard by the tribunal are granted because one or both of the parties are judged to have given invalid consent (see above). In order to give valid consent, the parties must give it freely. They must have a basic ability to understand what they are doing and to evaluate their decision to enter marriage (
1983 CIC, Canon 1095). They must be capable of fulfilling the promises they make on the wedding day; that is, not suffer from any psychological infirmity (Canon 1095) that will prevent them from giving themselves in a partnership of the whole of life that has as its ends the good of the spouses and the procreation and education of children (canon 1055). They must not exclude any of the essential elements or properties of marriage: its indissolubility, its unity, or its orientation towards the good of the spouses and towards the procreation of children (canon 1101). Serious defects in these areas can allow a possible successful application for marriage nullity. There are other reasons that might justify an allegation of invalid consent, such as a serious error concerning the person to whom marriage promises are made (Canon 1097), one party being seriously deceived by the other at the time of the wedding (Canon 1098) or one of the parties being subjected to force or grave fear without which the marriage would not be occurring (Canon 1103). Church tribunals are courts. As with any court, the person bringing the matter before the judges must prove his or her case; advocates and Tribunals will advise applicants as to how they can present the
evidence necessary to prove a case. The trial begins when the petitioning spouse presents an accusation before the tribunal and the tribunal cites the respondent spouse. One or more grounds of nullity to be investigated will be determined. The judges make their investigation by hearing the parties and witnesses, reviewing documents, and hearing any experts. Both spouses have the right to intervene in the trial equally. They can review the evidence in the trial and offer arguments in favor of their position. These rights are shared by a third party to the trial: the defender of the bond. The defender of the bond is a Church official whose task is to defend the marriage bond against unfounded accusations of nullity. An affirmative decision is granted when the majority of judges reaches "moral certainty" that the petitioner proved his case. Moral certainty is the absence of any prudent doubt. It is a higher standard than mere probability ("x is probably true"). However, absolute certainty is not required ("the contrary of x is impossible"). The parties and defender of the bond can appeal the final decision to a higher instance court. Approximately 94% of petitions filed in the United States are granted, and although the United States has only 6% of the world's Catholics, it accounts for 60% of the annulments granted worldwide, leading Bai MacFarlane to suggest that the Church cooperates with the "evil of no-fault divorce".
Pope John Paul II expressed concern over the relative ease with which an annulment can be obtained in the United States. The tribunal judges are tasked with distinguishing those unions that were flawed from the outset from those valid marriages that have broken down. ==Numbers==