The canonical annulment of marriage

There is a belief that only those with money can obtain a sentence from the Rota that annuls a marriage celebrated by the Church. However, this is not the case.

Firstly, ecclesiastical annulment of marriage can only be obtained when the conditions predetermined by the Code of Canon Law are met. And secondly, it is also possible to access the Church Courts through legal aid, taking advantage of the so-called benefit of free sponsorship ("beneficio de gratuito patrocinio") for interested parties whose income does not exceed specific limits.

Written by Maria Serra

Lawyer and mediator

Find out more

HOW CAN I OBTAIN CANONICAL ANNULMENT?

To obtain canonical annulment, we must start from the premise that unity and indissolubility are essential features of canonical marriage. These essential features, together with the way in which consent to marry was given, are the axes around which the analysis of whether or not there is cause for canonical annulment pivots. A study must be carried out in each case.

WHEN DOES CANONICAL ANNULMENT OCCUR?

Fundamentally, the marriage will be null and void:

• if there was no consent,
• if the consent was flawed from the start,
• if there was any impediment listed in the Code of Canon Law,
• if there was a defect in the way in which the marriage was celebrated.

CAUSES OF CANONICAL ANNULMENT:

According to the Canon Law, a canonical marriage will be null and void:

DUE TO THE EXISTENCE OF AN IMPEDIMENT:

1. Minority
2. Impotence
3. Preexisting bond
4. Disparity of worship
5. Holy Orders
6. Solemn vow
7. Abduction
8. Crime
9. Natural relationship or community of blood
10. Alliance or affinity
11. Public decorum
12. Legal Kinship

Due to DEFECT OF CANONICAL FORM.

due to DEFECT OF CONSENT

• Defect of free will: 
  1. due to simulation by exclusion of offspring,
  2. due to exclusion of fidelity, or
  3. due to exclusion of indissolubility,

• Defect of cognisance:

1. Incapacity due to lack of sufficient use of reason
2. Incapacity due to serious lack of good judgement
3. Incapacity to take on the essential obligations of marriage
4. Error
5. Ignorance

Of all of these, the most commonly cited are the serious lack of good judgement and  inability to take on the essential obligations of marriage and the partial simulation due to the exclusion of offspring, due to the exclusion of fidelity or due to the exclusion of indissolubility.

HOW THE CANONICAL MARRIAGE ANNULMENT PROCESS WORKS:

The process begins with a lawsuit in which the possible cause/causes of canonical annulment are set out in detail.

Once filed and established, the Court that will hear the case issues the Decree of admission and summons to trial.

Once summoned, the defendant may adopt a passive stance and not answer or appear, in which case the case will continue without them until the sentence is passed. However, they may adopt an active stance and appear to contest the lawsuit or else submit to the justice of the Court.

The Court then establishes the grounds in the Decree of Litigation and Evidence (Decreto de Litiscontestación y Prueba). The grounds will specify the chapters in which the nullity is raised. If it is not challenged, the evidentiary period begins, after which the period for conclusions begins, followed by the sentence.

The annulment judgement will be obtained if the existence of a cause for annulment has been proven with absolute certainty. This judgement will have to be confirmed in a second instance for it to be definitive.

Contact Maria Serra, lawyer specialising in canonical annulments: