Many people in Poland seek not only a civil divorce but also to resolve their position in the Roman Catholic Church. The informal term “church divorce” usually refers to a declaration of nullity. Once the judgment is enforceable, the parties may enter into a new marriage under canon law, unless a prohibition in the judgment or imposed by the local ordinary prevents this (canon 1682 § 1).
What is a declaration of nullity?
Canon law presumes a marriage valid until the contrary is proved. A sacramental marriage that has been ratified and consummated cannot be dissolved by human authority or for any reason other than death (canon 1141). This is distinct from a finding that a marriage was invalid from the outset.
However, a marriage may prove to be invalid if it has a defect specified in canon law. Canon law distinguishes three groups of grounds for the nullity of marriage:
- impediments to marriage;
- defects of matrimonial consent;
- defects of canonical form.
The impediments to marriage listed in the 1983 Code of Canon Law include age (canon 1083), impotence (canon 1084), a prior marriage bond (canon 1085), killing a spouse (canon 1090), consanguinity (canon 1091), affinity (canon 1092) and legal relationship arising from adoption (canon 1094).
If such a defect is established, an ecclesiastical tribunal may declare the marriage null, meaning that it does not exist despite the outward signs of its celebration. Until that ruling, the marriage is presumed valid.
The purpose of nullity proceedings is to establish whether the marriage was validly entered into. The judgment is declaratory: it confirms the existing legal position rather than dissolving a valid marriage. If the marriage was invalid, that invalidity existed from the moment it was celebrated.
Author: Katarzyna Gorgol Pryczynicz, advocate