Procedural Reform Pertaining to Declarations of Marriage Nullity
Pio Vito Pinto*
By the will and authority of Pope Francis
It is wholly and exclusively within the purview of the Roman Pontiff to reform the canonical ordering with regard to the validity or invalidity of the sacramental marriage bond. This is an expression of the “authority of the keys” entrusted by Christ to Peter and to his successors and, according to Pope Leo the Great, the first pope to pronounce this clear understanding, that indeed all authority has been passed on to Peter’s successors to govern the souls of the Church, the Church which belongs to Christ.
The objective of the special commission established by Pope Francis on 27 August 2014 was the revision of only the procedural rules. Throughout history, the Church has always sought to render visible and efficacious the salvific grace of Christ, and albeit dealing with the changing ages and fleeting circumstances of sinful men and women, she has maintained the constant aim of working for the salvation of souls (salus animarum). Therefore, three Popes — Benedict XIV in 1741, Pius X in 1908 and now Francis — have been inspired to enact deep reform of matrimonial processes so as to serve this supreme objective in contexts very different one from the other.
With the decretals that preceded Benedict XIV, an affirmative sentence of nullity of marriage that was not appealed was immediately executed after a single instance and resulted in a person’s unmarried status and the possibility of a new marriage.
A renowned jurist, Pope Lambertini on the one hand consolidated a system of pontifical dissolution for valid but unconsummated bonds; on the other hand, with the Apostolic Constitution Dei Miseratione promulgated 3 November 1741, which aimed to put an end to abuses committed by bishops and tribunals in declarations of marriage nullity especially in Poland, he set forth the requirement of two conforming sentences, the second based on the same grounds for nullity as judged in the first instance. Only if this was obtained could one celebrate a new canonical marriage.
This system has continued up to the present. There has been one exception, the authority conceded ad experimentum by Paul VI to the United States Conference of Catholic Bishops, which ended with the universal norms that followed — initially those expounded in the motu proprio Causas Matrimoniales (28 March 1971) and then the procedural system contained in the Codex Iuris Canonici of 1983. In truth, although maintaining the requirement of double conformity, the new codified system, under the guidance of Pope Montini, simplified the possibility of obtaining a declaration of marriage nullity with a brief process in the second instance according to canon 1682 § 2.
Pius X remained faithful to his episcopal motto reformare omnia in Christo, but in keeping the substance of the procedural system established by Pope Lambertini, he nevertheless made changes at the urging of one of his very capable collaborators. According to Michele Lega, who was first a dean of the restituta Roman Rota and later a cardinal, it was preferable that canonical processes be conducted at the diocesan level, save appeals and certain recourses to the Apostolic See. This is proposed in the motu proprii Mitis Iudex Dominus Iesus and Mitis et Misericors Iesus.
The reforms initiated by Pope Francis are inspired by the same spirit that sustained Benedict XVI and Pius X; however, the present changes are not only a veritable reform of canonical matrimonial processes, but above all are distinguished by the theological and ecclesiastical principles found therein.
One must begin with what has already been clearly delineated over the span of nearly a half century — from the pontificate of Paul VI to that of Benedict XVI — and was set forth at number 40 of the final propositions of the Synod of Bishops in 2005. This proposition recommends “the further development and understanding of the essential elements pertaining to the validity of marriage, while taking into account all the problems that emerge from the context of profound anthropological transformation of our day, in which the faithful themselves risk being especially affected by a lack of solid Christian formation”. In the introduction to the Instruction given by the Congregation for the Doctrine of the Faith on the pastoral care of divorced and remarried persons, Cardinal Ratzinger observes, “It needs to be clarified whether every marriage between two baptized persons is ipso facto a sacramental marriage. Faith belongs to the essence of the sacrament”. This is precisely the point of the matter that he has always addressed as a theologian, from the time he served as the Archbishop of Munich and Freising, as Prefect of the Congregation for the Doctrine of the Faith, and finally as Pope.
Benedict XVI and Francis both examine a point on the sacrament celebrated without faith by a great number of people who, after divorce and civil remarriage, are then forced to live in the periphery and far from the doors of our churches (cf. Evangelii Gaudium, n. 46). But there is an important new line of thinking in Pope Francis’ mission. Now is not the time for analysis alone, it is time to act, to take up the work of justice and mercy that has been long awaited. We must reorder the pastoral and canonical praxes that have been substantially in force for the better part of three centuries. This much Francis already announced early in his pontificate, in his closing remarks at World Youth Day in Rio de Janeiro on 28 July 2013.
In order to grasp the theological-juridical tension underlying the motu proprio on the new process of declarations of marriage nullity, it is critical that one understand the newness of Francis’ pontificate, which stems from a twofold centrality. On the one hand, Christ’s Gospel places the poor at the centre. On the other hand, as the promulgation of this new law makes clear, there is an understanding of the ministry of justice and mercy, as diakonia (service), in an indispensable communion with the bishops at the head of Churches in the world.
In his concluding remarks at the Extraordinary Synod, Francis maintained that Peter did not intend to govern the Church alone, and that bishops must in turn govern the Churches in communion with Peter, who lives in the Roman Pontiff. In this they all answer to Christ, the supreme pastor.
Francis therefore, with this fundamental law, ushers in his reform. Placing the poor at the heart — namely, remarried divorced people who are held or considered to be distant — he asks bishops for a genuine metànoia. He calls for “conversion”, a change of mentality that may in turn convince and encourage them to follow Christ’s invitation, present in their brother, the Bishop of Rome. He calls them to move beyond the limit of the few thousand declarations of nullity to the countless unhappy people who may be eligible for an annulment — demonstrated by their evident lack of faith, like the absence of a bridge to awareness, and thus the free will to give sacramental consent — but are left out of the system currently in force.
Pope Francis promulgates the new canonical procedure of declaring marriage nullity as called for by a vast majority of the Synod Fathers. But to be applied in truth and justice, it requires the freedom of hearts and minds of the bishops, in a sign of collcgiality that exists not merely in principle but in fact.
The first major innovation is the Pope’s invitation in his motu proprio that bishops once again take up the practice of the holy bishops of the early centuries of the Church, who tended to personally exercise the sacramental authority of fathers, teachers and judges — something received through the laying on of hands in the episcopal ordination.
Francis, the Pope who is a “servant among servants”, asks that bishops exercise and live out their sacramental authority, which is received not from Peter but from the Holy Spirit. Thus, the bishop is the servant of souls and is called to undertake the ministry of diakonia for the salvation of the faithful. He must make himself available to listen and, in time and manners that emphasize the value of mercy and justice. In particular, as seen in the prayer of episcopal ordination, the bishop receives the threefold power to forgive sins, entrust ministries and dissolve bonds.
In the two motu proprii — issued by the Pope under the protection of the Mother of God — the diocesan bishop, or eparch, is the heart and soul of the aforementioned “brief process”, which unfolds according to the strict conditions indicated: obvious nullity in incontestable facts (expounded above), the agreement of the parties (or at least the declared absence of the respondent in the process), the immediacy of the affirmative sentence, and the careful consideration of the written statements of the parties and the defender of the bond; otherwise, in such cases in which the bishop or eparch is unable to declare with requisite moral certainty the nullity of marriage, he will defer to the ordinary process, assisted as always by those instructing and assessing the case.
Yet how can bishops, or eparchs, especially in the larger dioceses, undertake this task of being pastor and judge, at least in part or symbolically? What is important here is that the spirit of collegiality and communion of bishops with what is set forth by the Pope begins to be absorbed into the hearts and minds of the pastors. The faithful await with apprehension and love this metànoia, but will be patient in the Lord when meeting the good faith of their pastors. The Jubilee Year of Mercy awaits this sign of humble obedience from the Church’s pastors to the Spirit who speaks to them through Francis.
The Roman Rota’s recent training course in Mexico City has brought hope to heart. Approximately 400 people, priests and lay people, men and women from countries throughout Central America, were sent by their pastors, eager to be able to serve the poor in their respective churches, assisting bishops in their judicial ministry. Francis sent a letter expressing his trust that there may be more courses of this kind, as ‘the service of the Pope to the particular Churches, in memory of the first Pope, Peter”, in line with the witness of “his third successor, Pope Clement I, who in his letter to the Corinthians speaks to regulate the specific matters of that local community”.
The communion and collegiality required by the new process will certainly need time for study and formation. But what counts is the welcoming of the new as expressed by Pope Francis: service and mercy toward this category of the poor, the great number of divorced people who await, if possible, a new canonical marriage. Permanent formation will help ensure that each bishop, having his own tribunal for cases of marriage annulments, will rediscover the ministry entrusted to him in his ordination as the judge of his faithful.
In sum, the reform is characterized by the centrality of the diocesan bishop, or the eparch, in the sign of collegiality. However, bishops cannot disregard the marriage bond should it be valid, for this would be a betrayal not of the Pope but of Christ. Indeed, the teacher and master of their sacramental authority is Christ himself, who will help them avoid any abuse of it.
In the case of obvious matrimonial nullity the process is brief — one must now avoid the terms “summary” and “administrative” — and in this the bishop is the judge. He is helped by two auditors with whom he discusses the moral cer- tainty surrounding the facts given for marriage nullity. Should the bishop reach this certainly he pronounces the decision, otherwise he sends the case to the channels of an ordinary process.
In the brief process, appeal is rare because there is the agreement of parties and demonstrative facts pertaining to nullity. Where elements lead to a finding that an appeal is merely dilatory or misleading, it can be dismissed for lack of juridical prerequisites.
The ordinary process can instead take up to a year; the requirement of two conforming sentences is abolished; and affirmative sentences which are not appealed shall ipso facto become effective. The appeal of an affirmative decision can be denied if there is a clear lack of argument, for example in the case of an appeal advanced to harm the other party.
The present reform responds to the primary motive of the request for a declaration of marriage nullity: this should be sought on the basis of conscience, for example, in order to partake in the sacraments of the Church or perfect a new stable and happy bond, as opposed to what came before.
The expedited process moves toward a greater limitation on the number of appeals submitted to the Holy See, namely to the Roman Rota, or the recourses made to the Apostolic Signatura for the consideration of the case when denied by the Rota.
The Pope wishes that as soon as possible, all cases in this regard may be made free of cost, according to the Scriptural principle: freely you have received, freely give. And those who are more fortunate are invited to contribute through donations for the benefit of the poorest.
According to St Ireneus, the glory of God is the living man. One might add, then, the man saved by the swift ministry of the justice and mercy of the Church.
*Dean of the Roman Rota
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11 Septamber 2015 , page 4
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