India's Supreme Court has made technical bigamists of Catholics who have remarried after an annulment. But it has not acted unreasonably

Earlier this week the Indian Supreme Court ruled that annulments granted by ecclesiastical tribunals lacked any legal force, meaning that couples who had received an affirmative decision still required a civil decree of divorce before they could remarry.

While the decision has been viewed by some as further evidence of the marginalisation of religious minorities in India by the Hindu government, at first glance there doesn’t seem to be much evidence to support this claim.

The decision of the court was based upon two Victorian-era laws: the Divorce Act of 1869, and the Christian Marriage Act of 1872. These two provided for the regulation of civil divorce and the civil recognition of religious marriages respectively. While Church weddings were accepted by the state as having legal force in the latter law, there was never any provision for the tribunal system in cases of nullity. This shouldn’t necessarily come as a surprise; at that time civil divorce was an extreme rarity by modern standards, as too were decrees of nullity. The Christian Marriage Act assumed, as does the very concept of Christian marriage itself, that all unions would be permanent, indissoluble, and life-long.

The argumentation presented to the court in favour of civil recognition was based on a long and pervasive tradition in the Christian community of India that, having received a decree of nullity and been declared free to marry by the Church, many people had entered second marriages in the Church, which were again recognised by the state. If the court refused to recognise ecclesiastical decrees of nullity (which it did) then they would be making these people technical bigamists under civil law.

The argument presented was that if civil law accepted the Church’s standards as acceptable to make a marriage, it should similarly accept its determination of nullity when those standards had not been met. It’s an argument possessed of a certain logic, but the court determined otherwise, and not unreasonably.

Contracting marriage is, in the civil sense, exactly that: entering a contract. The priest officiating at the wedding is not, canonically or civilly, “marrying” the couple but merely witnessing their exchange of consent as they marry each other. Entering a contract, even one as sacred as marriage, is, legally speaking, an administrative act. Though it has legal consequences, getting married is not a judicial procedure; not so getting a decree of nullity.

It is a common misuse of terms to speak of “getting” or “granting” “an annulment”. It is perhaps an understandable shorthand to have evolved for the rather longer “petitioning the ecclesiastical court for a juridic determination on a question of nullity”, but it does lead to people getting the wrong idea. Decrees of nullity are not discretionary, they are not, contrary to popular belief, handed out only to the worthy, or the pious, or the well off. Indeed, the tribunal does not “annul” marriages at all, in the active sense, it simply recognises the reality of the nullity of a marriage which already exists.

The decree in favour of (or against) nullity is a finding of fact following a full judicial investigation, with lawyers, notaries, judges and courts of appeal. This was the key difference at play in the Indian Supreme Court’s decision; you don’t need to civilly recognise an entire parallel religious legal system to allow priests to register marriages, but you do when you start talking about nullity cases.

It’s hardly unreasonable for the Indian courts to hold back from recognising an entire separate judicial system for Christians, even if it would only have been recognised for marriage cases. In this country, and in most others, it is the case that a couple must get a decree of nullity to be canonically free to validly enter another marriage in the eyes of the Church but they must also get a civil divorce to terminate the civil contract they mutually entered in the eyes of the state.

Here again there is a popular misconception that you have to first get a civil divorce before you will be allowed to file a petition for an annulment. Many tribunals do prefer that civil divorce is granted before taking a case. This is usually for two reasons: to demonstrate that the marriage has irretrievably broken down (which is a condition for taking the case); and to prevent tribunal records being subpoenaed as evidence by the civil court in a later divorce proceeding. These are both good reasons, but the tribunal cannot (and will not) refuse to take the case simply because the parties do not have a civil divorce – they may have a perfectly good reason not to want one.

Getting back to the decision of the Indian court, it only represents an injustice or marginalisation if it is only Christians being singled out. If, for example, the Indian courts do recognise sharia courts as having power to annul or dissolve marriages for the Muslim community, that would be a true instance of religious discrimination, but that is not my understanding of the situation.

Accepting that the civil courts are not necessarily being unfair or unreasonable by refusing to recognise religious courts isn’t to say that it would have been unworkable had the decision gone the other way. Many countries do recognise the authority and decisions of canonical courts over Catholic marriages, including annulment proceedings. Italy, for example, has a bilateral state-to-state agreement with the Holy See granting civil recognition to the findings of marriage tribunals.

Many countries in the Near and Middle East treat marriage as a purely religious matter which the state merely recognises but has no authority over and, because of the historical diversity of religious communities in those lands, respects the authority of religious hierarchies to handle all such matters on behalf the state. This practice dates back to the Ottoman Empire in which senior religious leaders, patriarchs or archbishops in the case of Christians, were granted the bérat, a sort of administrative/diplomatic recognition granting them authority over their communities in certain matters.

Closer to home, the time when the Church and the state saw anything close to eye-to-eye on marriage is fast receding into history. With the advent of no-fault divorce and same-sex marriage as civil realities in modern secular society, it is no longer possible to expect that the Church and the state mean the same thing when they speak of marriage. Canon law defines marriage as a “covenant, by which a man and a woman establish between themselves a partnership of the whole of life, ordered by its nature to the good of the spouses and the procreation and education of offspring”. There is scarcely any part of that which conforms to the modern British legal concept of marriage. Far from trying to preserve an increasingly untenable veneer of commonality between the two, we must learn to take conspicuous pride in the difference.

Secular society holds out a provisional contract, riddled with caveats and clauses to suit every possible human reservation and fear. The Church holds up a covenant, founded on the very dignity of human nature and supported by divine grace, in which true and permanent self-giving is accepted as our most basic and noble instinct. Marriage is part of the natural law, it is older than the Church and belongs to all humanity. The Church’s job now is to present society with its own inheritance and convince it of its worth.

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Jan 13 2016 cover