Annulment Reform: a Summary

Credit: Taufiq Khalil / AFP / Getty Images

08 Sep Annulment Reform: a Summary

The Vatican has released the following English-language summaries of the two documents promulgated today by Pope Francis reforming canonical processes for the declaration of nullity of marriage, in the Code of Canon Law (CIC) and the Code of Canons of the Eastern Churches (CCEO). These are followed by a summary of today’s press conference.  

In the first, “Mitis Iudex Dominus Iesus”, the Pope writes that the Lord Jesus, “clement Judge, Pastor of our souls, has entrusted to the Apostle Peter and his Successors the power of the keys to fulfil in the Church the works of justice and truth; this supreme and universal power to bind and dissolve here on earth affirms, corroborates and vindicates that of the Pastors of the particular Churches, by virtue of which they have the sacred right and, before the Lord, the duty to judge their own subjects”.

“Throughout the centuries”, he continues, “the Church, in matters of marriage, acquiring a clearer awareness of the Words of Christ, has understood and explained in greater depth the doctrine of the indissolubility of the sacred conjugal bond, has developed the system for the annulment of matrimonial consent, and has more suitably disciplined the relevant judicial process, so that ecclesiastical discipline is more consistent with the truth of the professed faith”.

“All this has always been done with the supreme law of the salvation of souls as a guide. … Aware of the above, I have undertaken to reform the processes for the declaration of nullity of marriage, and for this purpose I have constituted a Group of persons eminent for their competence in legal doctrine, their pastoral prudence and their forensic experience who, under the guidance of the Most Excellent Dean of the Roman Rota, have drafted a plan for reform, without prejudice to the principle of the indissolubility of the marriage bond. … This Group has developed a framework for reform which, after thoughtful consideration with the assistance of other experts, has provided the basis for this ‘Motu proprio’”.

“It is therefore the concern for the salvation of souls that, today as yesterday, remains the supreme objective of the institutions and laws, and drives the Bishop of Rome to offer to the Bishops this reform document, insofar as they share with him the task of the Church to protect unity in faith and in discipline regarding marriage, the cornerstone and origin of the Christian family. The drive to reform has been fuelled by the enormous number of faithful who, while wishing to be at peace with their conscience, are too often separated from the legal structures of the Churches due to physical or moral distance; charity and mercy therefore require that the same Church, as a mother, to be closer to her children who consider themselves separated”.

“This direction was also indicated by the votes of the majority of my Brothers in the Episcopate, gathered in the recent extraordinary Synod, who called for faster and more accessible processes. In full harmony with this desire I have decided to introduce, by this Motu proprio, provisions that favour not the nullity of marriage but rather the speed of processes, along with the appropriate simplicity, so that the heart of the faithful who await clarification of their status is not long oppressed by the darkness of doubt due to the lengthy wait for a conclusion”.

“I have done so following in the footsteps of my predecessors, who wanted procedures for the declaration of nullity of marriage to be treated by judicial rather than administrative means, not because the nature of the matter imposes this but because it is demanded by the need to protect to the greatest extent possible the truth of the sacred bond; and this is precisely what is ensured by the guarantees of the judicial order”.

The Pope goes on to indicate a number of fundamental criteria that guide the reform:

“1. A single judgement in favour of executive nullity: it would appear appropriate to no longer require a double conforming decision in favour of the nullity of the marriage to enable the parties to be able to contract a further canonical marriage, instead considering sufficient the moral certainty reached by the first judge in accordance with the rules of law.

  1. A single judge under the responsibility of the bishop: the constitution of the single judge, in any case clerical, is in the first instance the responsibility of the bishop, who in the pastoral exercise of his judicial power must ensure that the former does not engage in any form of laxity.
  1. The same bishop is the judge: … The bishop in his Church, of which he is constituted pastor and head, is for this reason judge among the faithful entrusted to him. It is hoped, therefore, that in both large and small dioceses the same bishop may offer a sign of the conversion of the ecclesiastical structures, rather than completely delegating the judicial function in matters of marriage to the offices of the curia. This is especially relevant to the shorter procedure, established to resolve the most evident cases of nullity”.
  1. Short procedure: Indeed, aside from streamlining processes for the declaration of nullity, a form of shorter process is designated – in addition to the current documentary procedure – to be applied in cases in which the alleged nullity of the marriage is supported by particularly clear arguments”. The Holy Father observes that “it does not pass unnoticed that a shorter procedure may endanger the principle of the indissolubility of marriage; for precisely this reason I have required that in such a procedure the judge be the bishop himself who, due to his pastoral office, is with Peter the greatest guarantor of Catholic unity in faith and in discipline”.
  1. Appeal to the Metropolitan See: it would be appropriate to restore the faculty of appeal to the Metropolitan See, since this office of the head of the ecclesiastical province, stable throughout the centuries, is a distinctive sign of the synodality of the Church.
  1. The competence of the Episcopal Conferences: the Episcopal Conferences, which must be above all driven by the apostolic eagerness to reach the lost faithful, are strongly aware of their duty to share in the aforementioned conversion, and fully respect the right of the bishops to organise the judicial power in their own particular Churches. … Along with their proximity to the judge, the Episcopal Conferences, to the extent possible, must ensure just and dignified retribution to tribunal staff, ensuring that the processes are free, since the Church, in a matter so closely linked to the salvation of souls, demonstrates the gratuitous love of Christ by which we have all been saved”.
  1. Appeal to the Apostolic See: It is convenient, in all forms, to maintain the appeal to the ordinary Tribunal of the Apostolic See, that is the Roman Rota, respecting an ancient judicial principle, so as to strengthen the bond between the See of Peter and the particular Churches, in any case taking care, in the discipline of such appeal, to limit any abuse of the right, so that it does not jeopardise the salvation of souls.

The law of the Roman Rota will be adapted as soon as possible to the rules of the reformed procedure, within the limits of necessity.

In the eighth point the Pope mentioned that, given the specific ecclesial and disciplinary order of the Eastern Churches, the norms for the reform of the discipline of marriage processes have been issued separately in the Code of Canons of the Eastern Churches.

Finally, he decrees and institutes that the Book VI of the Code of Canon Law (part III, title I, chapter I) on processes for the declaration of the nullity of marriage (canons 1671 to 1691) will be entirely substituted by the new norms, with effect from 8 December 2015.

In the Motu proprio “Mitis et misericors Iesus”, addressed to the Eastern Churches, Pope Francis notes that his venerated predecessor, St. John Paul II, in promulgating the Code of Canons of the Eastern Churches, affirmed that “since the beginning of the canonical codification of the Eastern Churches, the same consistent will of the Roman pontiffs to promulgate two codices, one for the Latin Church and one for the Eastern Catholic Churches, has shown very clearly that these latter wish to conserve what has occurred by divine providence in the Church, that is, that reunited by a single Spirit, she must breathe with the two lungs of East and West, and burn with Christ’s charity like a single heart composed of two ventricles”.

“Following in the same path, and taking into account the particular ecclesial and disciplinary order of the Eastern Churches, I have decided to issue in a separate Motu proprio the norms for the reform of the discipline of marriage processes in the Code of Canons of the Eastern Churches”.

The Pope goes on to emphasise the importance of the ministry of the bishop, with according to the teachings of the Eastern Fathers, is “judge and physician, since man, wounded and fallen, owing to original sin and his personal sins, sickens and with the medicine of penitence obtains healing and forgiveness from God, and is reconciled with the Church. Indeed, the bishop, constituted by the Holy Spirit as the figure of Christ and in the place of Christ, is first and foremost the minister of divine mercy”.

The Bishop of Rome emphasises that appeal to the Metropolitan See is “a hallmark of the fundamental synodality in the Eastern Churches, which should be supported and encouraged”, and addresses to the Synods of the Eastern Churches the recommendations which in the Motu proprio “Mitis Iudex Dominus Iesus” are addressed to the Episcopal Conferences.

Finally, he decrees and establishes that in Title 26 of the Code of Canons of the Eastern Churches (Chapter 1, article 1). Cases for the declaration of the nullity of marriage, canons 1357-1377) is entirely substituted by the new norms, with effect from 8 December 2015.

Presentation of the Holy Father’s Motu proprio on the reform of procedures for the declaration of marriage nullity

This morning in the Holy Press Office a press conference was held for the presentation of the two letters issued “Motu proprio” by the Holy Father Francis, “Mitis Iudex Dominus Iesus” and “Mitis et misericors Iesus” on the reform of canonical processes for the declaration of nullity of marriage in the Code of Canon Law (CIC) and the Code of Canons of the Oriental Churches (CCEO) respectively.

The speakers at the conference were Msgr. Vito Pinto, dean of the Roman Rota and president of the Special Commission for the Reform of Matrimonial Processes in Canon Law; Cardinal Francesco Coccopalmerio, president of the Pontifical Council for Legislative Texts and member of the Special Commission; Bishop Dimitrios Salachas, apostolic exarch of Athens for Greek Catholics of Byzantine Rite and member of the Special Commission; Archbishop Luis Francisco Ladaria Ferrer, S.J., secretary of the Congregation for the Doctrine of the Faith and member of the Special Commission; Msgr. Alejandro W. Bunge, prelate auditor of the Roman Rota and secretary of the Special Commission; and Fr. Nikolaus Schoch, O.F.M., substitute promoter of Justice at the Supreme Tribunal of the Apostolic Signatura and secretary of the Special Commission.

Cardinal Coccopalmerio specified that the reform regards the canonical process for the declaration of nullity of marriage. “It is a process that leads to the declaration of nullity, or in other words, which leads first to establish whether a marriage may be declared null and, if so, to declare its nullity. It is not, therefore, a process that leads to the annulment of the marriage. Nullity is distinct from annulment, and declaring the nullity of a marriage is entirely different to decreeing its annulment.

Archbishop Luis Francisco Ladaria Ferrer, S.J., recalled the necessary requisites according to canon law for the validation of a marriage between Catholics which, aside from the absence of diriment impediments and the observance of canonical form, including the free consent of the spouses.

“According to the teaching of the Church”, he said, “marriage is one, only a man and a woman may unite in marriage, and it is impossible to undertake a new matrimonial union during the life of the spouse. Marriage is indissoluble, as Jesus taught, and we have many examples of this teaching in the Gospel. The Letter to the Ephesians explains to us that sacramental marriage cannot be broken as it is the image and expression of Christ’s love for His Church. … Marriage must be open to the transmission of life”.

“In our traditional civilisation, it was possible to suppose that these teachings of the Church were known and shared. In recent times there has emerged the doubt, that would seem not without basis, as to whether all those who marry in the Church are sufficiently aware of these teachings and, therefore, as to whether their consent truly refers to them. If it is not the case, their marriage would be null; that is, it would not exist in fact. And precisely because there are these doubts, many would like to be able to offer a rapid but reliable means for resolving the problem and contributing to pacifying the conscience of many Catholics”.

The key points of the reform were explained by the prelate auditor of the Roman Rota, Msgr. Bunge:

“1) the central role of the diocesan bishop, to be applied in the spirit of collegiality. As well as the regional, interdiocesan and synodal tribunals, according to the various methods of the Church and taking into account the good of the faithful and the appropriateness of accessibility of pastoral remedies for wounded faithful, the diocesan bishops are enabled to have their own diocesan tribunals, and if necessary, also to decide that in this tribunal, if it impossible to have a collegial tribunal (always chaired by a member of the clergy), there may be a single judge (again clerical).

2) Short procedure (avoiding the terms ‘summary’ or ‘administrative’) for clear cases of nullity of marriage, to render it more accessible to the ‘masses’. In these cases the judge would be the bishop, assisted in ascertaining the facts by two assessors, with whom he will discuss in advance the moral certainty of the facts adopted in deciding on the nullity of the marriage. If the bishop is convinced of the moral certainty, he will pronounce the decision; otherwise the case will be referred to the ordinary process.

It may be objected that a bishop would be unable to decide a high number of cases, to which there is a dual response: in a region there would be not only the regional and interdiocesan tribunals, but also the bishop in each diocese for cases that are obviously clear; secondly, the bishop would be assisted by the staff of his tribunal. Ongoing formation would ensure that each bishop, with his tribunal for these cases of marriage nullity, would discover the ministry appropriate to him, entrusted to him in his holy ordination, as the judge of his faithful.

3) Appeal would be rare, as there would exist agreement between the parties and there would be evident facts regarding nullity; in the presence of elements that would lead the appeal to be considered merely dilatory or instrumental, it would be rejected a limine.

4) Ordinary process:

– Fast (a maximum of one year)

– Abolition of the double conforming decision (that is, the need according to canon law in the procedures for the declaration of nullity of marriage to have two conforming decisions to enable the spouses to be free to contract a new marriage. This implies that two tribunals of distinct grade declare the nullity of the marriage for the same reasons in fact and in law, Ed.).

-The affirmative non-appellate judgement ipso facto becomes executive.

-If an appeal is sought following an affirmative judgement this can be rejected a limine due to an evident lack of supporting arguments.

This may occur in the case of instrumental appeal, intended to harm the other party; often the non-Catholic appellant has already undertaken a civil remarriage.

There emerges in the reform the situation which is by now the reason why the majority of Catholics seek the declaration of nullity of marriage: ‘consulere conscientiae’, that is, aside from the civil law aspects, for reasons of conscience (to partake in the sacraments of the Church and to perfect a new bond which, unlike the first, is stable and happy).

  1. The speed of the procedure favours the limitation of appeals to the Holy See and therefore to the Roman Rota, or appeals to the Apostolic Signatura to newly present a case previously rejected by the Rota.

In conclusion, the glory of God is the human being alive, and may I add, saved by the diligent ministry of the justice and mercy of the Church”.

 

Mitch Boersma
mboersma@cvusa.org