Introduction

“We are engaged in a service, which is ultimately pastoral in nature for it seeks to strengthen the bonds of communion in the Church through fidelity to the Gospel and promotion of justice” {Words of Pope John Paul II on 22 May 1992 to the Canon Law Society of Great Britain}

The Marriage Tribunal is the official organ and primarily part of the Church’s juridical system. Its main purpose is to contribute to the pastoral aims of the Church: that is to enable people marry in Church, have their unions recognized by the Church, participate in the sacraments or have their consciences quieted.

The ZCBC National Marriage Tribunal comes in contact with people from all dioceses whose lives have often been deeply scarred by the experience of a broken marriage, who at times feel very alienated from the Church or who are laden with a great deal of guilt. The work of this tribunal is to counsel and collect evidence for the first and second marriage tribunals in South Africa.

What is a marriage?

The Catholic Church teaches that marriage is, by God’s plan, an enduring and exclusive partnership between a man and a woman for the giving and receiving of love and the procreation and education of children.

For those who have been baptised, a valid marriage is also a sacrament.

The Catholic Church believes that every valid, sacramental marriage that has been consummated is indissoluble. This is the law of God according to the evidence found in the Gospels, the writings of St. Paul and centuries of Christian tradition.

Although not every marriage is a sacrament, every marriage, or at least every initial marriage, including a marriage between two non-Catholics, is presumed to be valid.

How, then, is an annulment possible?

The Church teaches that a marriage can be called real and genuine only when it is founded on the kind of relationship that Christ intended when He raised marriage to the dignity of a Sacrament. Over the course of the centuries, the Church has learned that the parties involved must bring certain intentions and capabilities to this relationship, in order that their relationship might indeed be a foundation for the Sacrament of Matrimony. Without these intentions and capabilities, there can be no marriage. In such a situation, there is no bond, regardless of external appearances or subsequent events. The parties who were involved in a broken “marriage” of this sort, cannot be considered bound to something which never existed, and they have a true right to have their free status recognised

recognised in an official way. The purpose of an annulment proceeding is to prove that the parties are not bound. The previous marriage is examined concerning those elements that seem to be defective, to determine if the relationship really was such that it could not be continued in a stable and permanent form. An annulment in the Catholic Church is a declaration by a competent ecclesiastical tribunal that a marriage in question was defective in some essential way from the very beginning.

Are there any civil effects to a Church annulment?

There are absolutely no civil effects to a Church annulment in Zimbabwe. It does not affect in any manner the legitimacy of children, property rights, inheritance rights, names, etc. A Church annulment is a declaration from the Catholic Church that a particular union, presumably begun in good faith and thought by all to be a marriage, was in fact an invalid union as the Church defines marriage. There is no attempt in this study or hearing to impute guilt or to punish persons. On the contrary, the purpose of the annulment procedure is to serve one’s conscience and spirit and to reconcile persons to full sacramental participation in the community of the Church.

What is the purpose of the Tribunal?

Church law calls for the existence of a tribunal in every diocese of the world. In Zimbabwe we have a National Marriage Tribunal on behalf of all the dioceses in the country. The Tribunal offers assistance to persons who request that the Church study a marriage in order to determine whether or not there is any possibility of an annulment. The Tribunal then investigates the marriage and on completion of the investigation, declares whether or not invalidity has been proved.

How does the Tribunal determine if a marriage is invalid?

The guidelines used by the Tribunal are the Gospel of Jesus, and the Laws of the Catholic Church. The work of the Tribunal is more specifically directed to a concern for the dignity of marriage, and to a concern for the good of the persons. The Tribunal must carefully protect the rights of both the man and the woman in a specific marriage and of the Church as Guardian of the Sacrament.

How does one request an annulment?

A case can be initiated in a number of different ways. The person may reach the Tribunal through a recommendation of his local priest; or through a counselling agency or sometimes by word of mouth of a friend, lawyer or doctor.

When a person first gets in touch with the Tribunal, an appointment will be made for an interview. The person is asked to provide a certain amount of basic information – names, dates, places – and even an account of the marriage, its course and its breakdown. So far as the Church is concerned, anyone Catholic, non-Catholic, or even an unbaptised may petition the Tribunal for a case to be examined.

Before a person can discuss the matter of nullity with the Tribunal, there must be clear evidence that the marriage has broken down. For this reason a civil divorce decree absolute must be obtained.

At the interview it may emerge quickly that there is indeed a case and that there will be supporting evidence, that is, witnesses. If this is the situation, a petition is drawn up and the various requirements for commencing a case are dealt with.

After receiving the marital history, it is reviewed by the Tribunal. If there is no indication of nullity in the marital history, the petitioner is so advised. If, on the other hand, the marital history gives some indication that the marriage was possibly null, the receipt of the marital history is acknowledged, and the request takes its place on the waiting list.

Cases are heard on a first come, first served basis.

What about the former spouse?

Shortly after the marital history is accepted the former spouse, referred to as the respondent, is contacted by the Tribunal and invited to come for an interview and offer the names of witnesses. The universal law of the Catholic Church requires this. The testimony of the petitioner and the respondent will be obtained separately.

What about witnesses?

One of the items to be completed on the marital history is the names of witnesses, people knowledgeable about the husband and wife and how the marriage went. Shortly after the marital history is accepted, these witnesses are contacted with the request to come to the Tribunal for an interview. When the person puts forward the names of witnesses, it must be understood that the witness has been asked by the petitioner to give evidence and that the person agreed to do so. The testimony is recorded, transcribed and then presented to the witness for reading, for possible correction and for signing.

What about records?

The petitioner will supply the Tribunal with records of the baptisms of both spouses [or of the Catholic spouse where only one is Catholic] and of the marriage and divorce. Prior to the final decree of civil divorce the Tribunal will consider no petition for Church annulment.

Who reviews the information?

The statements of a petitioner, respondent and all other persons in the trial must be given under an oath to tell the truth in everything. No one else is present apart from the witness and the interviewer [auditor]. These statements are kept confidential. No one has access to any of the evidence apart from tribunal personnel.

When is the case decided?

When sufficient evidence is available and the information compiled all is presented to the Judges and the Defender of the Bond. The Defender of the Bond points out the elements of the case that favour the validity of the marriage.

If the decision is in favour of the petition, that is, the judges in the first Instance Court of the National Marriage Tribunal, have decided that the marriage in question appears to be null and void, the case must then be sent to the Appeal Court.

Our Appeal Court is the Durban Regional Matrimonial Tribunal. Should Durban reverse the decision of the National Marriage Tribunal in a given case, then the case must be examined by a third Court.

For a decree of nullity to be issued there must be two concurring or agreeing decisions in favour of the petition.

How long does the process take?

It is impossible to state the time required because of differences of circumstances in each case. Delays in marriage nullity cases almost invariably arise because of the length of time taken in obtaining evidence. However, the Church insists that the courts make efforts to speed up cases.

Is there a fee for Tribunal work?

A fee will be asked of the person who introduced the request for a study. It is fair that those who avail themselves of the services of this office assist in bearing this financial burden.

However, at no time should financial considerations discourage any person from exercising the right to receive a just hearing from the Church.

Is remarriage in the Catholic Church allowed?

If the marriage is declared invalid and there are no restrictions concerning remarriage, the usual procedure of preparing for marriage in the Catholic Church may be started with the local parish priest.

If a marriage is declared invalid due to a possibly ongoing cause, a second marriage obviously cannot be permitted until it has been demonstrated that the cause, which invalidated the first marriage, has been removed.

Special Note About Divorce

There is a particularly sad, and damaging, misconception in the minds of many Catholics concerning divorce. It is sometimes thought [but quite wrongly] that if a Catholic has been divorced, then he or she is barred from the sacraments. This is quite wrong. The only situation in which a Catholic should not receive Holy Communion is when he or she is divorced AND remarried outside the Catholic Church. Much unhappiness is caused by this misconception.