Ottawa Archbishop Marcel Gervais’s entreaty bounced from pulpit to pulpit across the country when he told politicians to remember that the marriage of a man and woman is “unique” and something to be “praised and treasured.” That has been a recurring theme in the Roman Catholic bishop’s ongoing drive to derail Prime Minister Paul Martin’s plan to legalize same-sex unions. And like Gervais, his colleagues in the Church have spared no rhetorical flourish to exalt the sanctity of traditional marriage. “Catholics,” intoned the Canadian Conference of Catholic Bishops in a submission to the Supreme Court last year, “treat marriage as both a vocation and a sacrament, the celebration of the sacred commitment . . . between a man and a woman, which is at the heart of family life as it is . . . the central locus of responsibility for the rearing and education . . . of each new generation of citizens.”
Fine words. But do the bishops really practise what they preach? Not according to many disillusioned Catholics whose faith has been shattered by their bitter experience with the Church’s secretive marriage-annulment process. They accuse the bishops of conspiring to obliterate thousands of the traditional unions it professes to hold sacred, setting up a tribunal system that gives short shrift to those who dare defend the validity of their marriages, and encouraging ex-spouses to invent bogus grounds to justify annulment. “People who believe their marriage is valid are not given proper representation, are not given a chance to exercise their rights and are often branded as troublemakers,” said Philip Gray, a Catholic canon lawyer from Ohio who has represented people caught up in annulment proceedings in both Canada and the United States. “This approach not only bastardizes the judicial process, it also attacks the very institution of marriage.”
Given the eagerness with which Catholic officials tried to expedite the annulment of her thirty-five-year marriage, Pat MacLeod believes the Church has no credibility in portraying itself as a champion of traditional marriage. “Absolutely not,” the feisty, sixty-seven-year-old Ottawa grandmother snaps. “What do they know about heterosexual marriage?” In choosing to criticize the process, which she describes as “emotional rape,” MacLeod is something of a pioneer. Annulments are usually granted only after couples legally divorce, and it’s hard to find Catholics such as MacLeod who are willing to discuss their experience. They are often sworn to secrecy and find it embarrassing to discuss the grounds, usually psychological, on which annulments are granted.
In the US, the veil of secrecy was pierced in 1997 by Sheila Rauch Kennedy’s book Shattered Faith, which described her battle to prevent the annulment of her marriage to congressman Joseph Kennedy. It sparked a furious debate over the annulment “scandal” in the US, where thousands of marriages are nullified each year. In going public, MacLeod hopes to spark a similar debate in Canada, where 98 percent (and 2,800 a year on average over the past twenty years) of annulment petitions are approved. “I want other respondents to know. . . if they really want to defend their marriages they should get themselves an advocate in order to fight back. Because as a respondent, if you don’t fight back, the cards are really stacked against you,” said MacLeod. “Until somebody speaks out and shows it up for what it really is, they’re going to continue . . . to abuse people this way.”
MacLeod was raised in a Catholic family, schooled by nuns, and taught to believe that when a couple is joined in matrimony their earthly bond is indissoluble. Any Catholic who divorces and remarries is, in the Church’s eyes, a public adulterer not entitled to receive communion or take confession. It was with that appreciation for the solemnity of marriage that Pat, a twenty-four-year-old nurse, wed Alistair MacLeod, a twenty-seven-year-old dentist, in a Catholic church outside of Glasgow, blessed by a nuptial mass presided over by a bishop. The pair eventually migrated to Canada where they raised two children. Unhappily, the MacLeods’ thirty-five-year union ended in divorce in 1998. Three years later, MacLeod’s ex-husband informed her that he intended to remarry and would petition the Church for an annulment.
At the time, MacLeod had only a vague idea of what that would entail. She knew annulment was the only way divorced Catholics could remarry with the Church’s blessing, but to receive it they had to prove that their original vows were invalid. And she assumed annulments were granted for only the most egregious reasons, such as non-consummation or mental incapacity.
MacLeod insists she had no objection to her ex-husband remarrying, but rejected the notion that his first marriage had to be declared non-existent in order to facilitate the second. She couldn’t fathom how her thirty-five-year marriage, entered into by mature, intelligent adults, could be deemed invalid or how her children could be rendered the progeny of an invalid union, which in her eyes meant illegitimacy.
She was quickly disabused of such quaint notions. Marriages that deviate from the Church’s prescribed form (for instance, those not conducted by a priest in the presence of two witnesses) can be annulled with little fuss. But most, like the MacLeod annulment, must move through a formal process.
In Canada, the Church has set up regional marriage tribunals to investigate and rule on annulment petitions. Their rulings are automatically reviewed by the Ottawa-based Catholic National Appeal Tribunal, and can be appealed to the Roman Rota, the Holy See’s marriage court. Each tribunal is presided over by a judicial vicar and employs the services of a “defender of the bond,” charged with presenting all arguments against nullifying the marriage. Both petitioner and respondent are entitled to an advocate (essentially legal counsel with expertise in Catholic canon law) are given an opportunity to testify and must supply the names of witnesses familiar with their married life.
MacLeod’s first mistake was in assuming the duration of her marriage was relevant. It’s a common misperception, according to Monsignor Roch Pagé, president of the Canadian Canon Law Society and professor at Ottawa’s St. Paul University, one of only two North American institutions that confer degrees in Church law. In fact, it’s irrelevant whether a marriage has lasted thirty days or thirty years. The only relevant factor is whether at the time they exchanged wedding vows the couple were capable of giving proper consent. If not, the marriage can be nullified.
As someone who often can’t remember what I was thinking thirty-five hours ago, I was skeptical that a tribunal judge could deduce what went through another person’s mind over thirty-five years ago. Pagé acknowledged it’s impossible to tell, and that is why, he said, the Church requires moral certitude, based on the evidence of witnesses and experts.
The first inkling MacLeod had that something was amiss came just weeks after learning of her ex-husband’s intentions. She received a phone call from the case director assigned to the petition in Nova Scotia, where her ex resides, who informed her of the petition, and then added: “When you get this annulment it will be good for both of you, because it will free you both up to marry in the Church again.”
Canon law asserts that every marriage is presumed valid until proven otherwise. But it seemed to MacLeod that the annulment of her marriage was considered “a done deal” from the outset. Two days after the director’s call, she received a letter spelling out the grounds for the annulment. It cited Canon 1095.2 of the Code of Canon Law: “A grave defect of discretionary judgment concerning the essential matrimonial rights and duties to be mutually handed over and accepted.”
As she soon discovered, “defective consent” is the basis for the majority of nullity petitions, and the root of what critics call North America’s “annulment crisis.” Canon 1095.2 was added to the revised code in 1983 and it broadened the psychological grounds for annulment. The intention was to take into account advances in behavioural science that had produced a more profound understanding of relationships and the reasons for marriage breakdown. But in practice, many Catholics contend Canon 1095.2 is interpreted so liberally that virtually every petition is granted on the flimsiest of pop-psychology grounds.
The introduction of the revised code prompted a meteoric spike in annulments—from a few hundred a year to more than 60,000 annually in the US and more than 4,000 in Canada by the mid-1990s. No less an authority than Pope John Paul II has condemned the practice of equating a failed marriage with an invalid marriage, reminding canonists that “only the most severe forms of psychic illness” truly impair the ability to consent.
Yet, according to Robert Vasoli, North American tribunals continue to flout the Pope’s directives, annulling marriages willy-nilly. Vasoli, an American sociologist and author of a highly critical 1998 book on annulment, speaks from experience. His ten-year marriage to a former nun was annulled by an Indiana tribunal, which ruled that she lacked the necessary discretion to consent because “she married a fantasy,” an idealized person who didn’t exist. Vasoli spent $10,000 (US) appealing the ruling to the Rota, which overturned the annulment in 1991. Tribunal officials, he said, believe they are doing the Lord’s work by allowing people who were in failed marriages to remarry. This, to them, is the essence of “pastoralism.” But for Vasoli, it’s pastoralism run amok.
According to statistics he’s compiled, North America accounts for about 82 percent of the world’s annulments. And while Canada churns out far fewer annulments than the US, its approval rate (98 percent) is actually slightly higher than America’s (96.6 percent), suggesting to Vasoli that his northern neighbour is even more complicit in making annulment the Catholic version of the quickie divorce. “Once you get a tribunal to accept your case,” he said, “it’s a lead-pipe cinch they’re going to annul the marriage.”
Father Francis Morrisey, however, contends those statistics are misleading. The St. Paul University canon law professor told me Canadian tribunals have “a very extensive system of preliminary inquiry” that screens out about two-thirds of the cases. It’s no surprise, therefore, that 98 percent of the remainder are ultimately approved.
As for North America cornering the world’s annulment market, Morrisey said that’s partly because the Church is well-established here and wealthy enough to spend roughly $4,000 to process each case. By comparison, in poorer countries the Church simply can’t afford to train canonists and set up tribunals. “Rome,” Morrisey observed, “doesn’t get on the backs of those who don’t have tribunals.”
In any event, Morrisey said, Canadian annulments are on the decline. Barely 2,000 were granted in 2004 from a peak of 4,225 in 1996. But whether that’s because fewer Catholics are bothering to seek annulments or the tribunals are finally heeding the Pope’s admonitions is open to question.
Certainly MacLeod’s experience suggests tribunals haven’t adopted a stricter interpretation of “defective consent.” At a loss to understand how her consent was defective, MacLeod demanded to see her ex-husband’s petition. She was insulted by his claim that neither she nor he was capable of forming the proper consent because both came from dysfunctional families. The petition even maligned the reputations of dead relatives, a particularly low blow to MacLeod, who insists she comes from “a very happy, loving family.” Even worse, she was being cast as someone who’d been “swinging from the trees” when she wed. “That really hurt. It’s demeaning for people to try to tell you that you didn’t know what you were doing when you got married.”
Simply tracking MacLeod’s case became a logistical challenge, as responsibility for it bounced between tribunals in Scotland, Ottawa, and Nova Scotia, where a patronizing bishop offered to “pray for me that my suffering did not turn into any kind of bitterness.” At no point was MacLeod told that she was entitled to an advocate. Only by sheer chance, about a year into the ordeal, did she retain one on the advice of a priest she met at St. Paul’s library, where she’d spent hours deciphering the jargon-laden nuances of canon law. The priest recommended a professor, a renowned authority on annulment, to represent her.
In a July 2002 letter to the presiding judicial vicar, the professor, who asked not to be named, laid out a raft of injustices and “serious violations” of canon law in MacLeod’s case. One month later, she received a curt note informing her that her ex-husband had abruptly withdrawn his petition. MacLeod believes it would have sailed through had she not finally retained the canon law expert, whose protests authorities couldn’t ignore. Alistair MacLeod, meanwhile, politely declined to discuss the case. “For me,” he said, “it’s water under the bridge.”
For his former wife, it has been harder to forgive and forget. Indeed, she’s found the annulment process “more upsetting” than the divorce itself, “because it’s taking away all the principles that you’re raised to believe in within the Catholic Church.”
MacLeod is not alone. I spoke with two other Canadian women, whom I’ll call Martha and Eleanor, who also told me the process shook the foundations of their faith. “I haven’t been back to church since, other than for the christening of my grandchildren and the weddings of my children, because everything I believed was just a joke,” said Eleanor, whose thirty-year marriage was annulled in 1997. Eleanor trusted the Church would protect the sanctity of her marriage, and did not realize she had the right to retain an advocate. She voiced her objections by phone to the judicial vicar who promised to meet with her, but never did. “I was very naive,” she said. “The annulment was granted so easy, so fast, based on just a couple of letters. I did not understand it.”
Martha met with outright hostility from Church officials when she objected to her ex-husband’s 2001 petition to annul their thirty-one-year marriage. She wasn’t allowed to see his petition and thus couldn’t refute whatever grounds he’d used to invalidate the union. The petition was eventually withdrawn, but only after Martha retained canon lawyer Philip Gray, who complained to the bishop in Martha’s diocese, and the Apostolic Signature, the Vatican’s top court, about the tribunal’s biased conduct. “If there was ever a case of adding insult to injury, this has got to be it,” Martha told me. “I cannot blame the entire Church for the faults of some misguided zealots. All the same though, I sure would like to see this hypocrisy and corruption publicly exposed.”
Despite such concerns, the Catholic Church seems determined to maintain a resolute silence. The Apostolic Nunciature (essentially the pontiff’s embassy in Canada), the head of the National Appeal Tribunal, the Conference of Bishops, and the Ottawa diocese all declined to comment, although the latter arranged for me to speak with Morrisey. “I drew the short straw,” the priest joked. Morrisey acknowledged that there may be some legitimacy to the criticisms levelled by “contentious respondents”—canon law parlance for those who object to annulment petitions. But for the most part, he dismissed such critics as unbalanced. “There are always going to be problems, because don’t forget that so many of the marriages that break up, break up on psychological grounds. And if somebody is disturbed or immature or things like that, we have to expect immature reactions on their part afterwards too.”
Certainly no one could pretend MacLeod is a dispassionate analyst of her own annulment. But her advocate made it clear her grievances weren’t simply the delusions of an embittered ex-wife. “I have no doubt,” he wrote the judicial vicar in 2002, “that the behaviour of the tribunals had certainly given Mrs. MacLeod sufficient basis for feeling that she was being unjustly treated, and that the procedures were being deliberately ‘manipulated’ in favour of the petitioner.”
Obviously, the Church does have some happy customers, namely the petitioners who win the right to remarry. Typical is the reaction of a prominent Ottawa businessman who was granted an annulment to one marriage and a dissolution of another—the former on the grounds that his wife misled him about her intention to raise their children as Catholics and the latter because his wife wasn’t baptized. Had he been unable to erase those first two mistakes, he told me, “it would have been a profound barrier” to the twenty years of bliss he found in his third marriage.
For progressive Catholics like Janice Leary, who founded the Massachusetts-based Save Our Sacrament to lobby for annulment reform, the solution is obvious. Abolish annulment, she says, and “declare that you’re in the modern age and divorce is a fact of life. Very simple.”
Such talk is heresy to conservatives like Vasoli. He contends the only answer is for the Pope to crack down on lax North American bishops who’ve been rubber-stamping annulments. “If he cashiered a couple of these bishops, maybe the others would straighten up and fly right.” Whatever the solution, the debate promises to be ferocious, perhaps every bit as •erce as the one raging over same-sex marriage. In the meantime, as the bishops blast Prime Minister Paul Martin for daring to tamper with traditional marriage, they might do well to remember Jesus’ admonition: “He that is without sin among you, let him cast the first stone.”