Pope Francis’ documents issued motu proprio (on his own initiative) Tuesday, one for the Latin Church (Mitis Iudex Dominus Iesus) and one for the Eastern Churches (Mitis et Misericors Iesus), call for a close reading in order understand the developments of the canonical procedural laws concerning the declaration of marriage nullity process.
Unfortunately, the sensationalism that has surrounded it has caused some numerous misconceptions and misreporting that in turn can cause difficulty in understanding some of the reforms. While there is much still yet to be digested, I would like to highlight six misconceptions and also six of the developments in in these landmark reforms.
1. Let us first take the biggest misconception that is being reported, namely the one regarding the Church’s teachings on marriage. The Catholic doctrine on marriage and indissolubility has not and will not change. It must be said clearly and repeatedly that Pope Francis’ reforms today are procedural changes and not changes in Church teachings nor even changes in substantive canonical law or jurisprudence for marriage cases. Claims that these are changes in the Church’s beliefs on marriage are simply mistaken.
2. The purpose of these reforms is not to make it easier to obtain a declaration of nullity in the sense of laxity. The purpose is to make the investigative process more efficient and accessible. Whether we agree with them or not, these changes are what the Pope and the commission that studied this issue saw as areas where the process was either being denied or delayed unnecessarily. Unfortunately, even the tightest laws can be abused or treated with laxity, but those are personnel issues and outside of the scope of these reforms. Now as before, it will be important for bishops, canonists and the faithful not only to acquire a clear understanding the Church’s teachings and canonical laws on marriage but also to be vigilant that the process is not abused. Catechesis and faithfulness will be key.
3. There are no new grounds for declaring a marriage null. This is a major misperception. The grounds for determining whether or not a marriage was entered into validly remain the same. Every case must continue to be determined in light of — and only in light of — the established canonical grounds. The Pope has not established new grounds, nor can bishops, tribunals or judges read new grounds into these procedural reforms.
Particularly concerning Article 14 of Mitis Iudex Dominus Iesus (The Lord Jesus, the Gentle Judge), Pope Francis is not here establishing new grounds for marriage nullity. A careful reading of Article 14 shows that these are situations where it is possible for a party to request the new shorter process by which a case can be referred to the diocesan bishop for determination. These situations can include situations of lack of faith, brevity of married life, procured abortion, persistence in extramarital affairs, malicious concealment of serious past matters, unplanned pregnancy, physical violence and medically proven lack of the use of reason. These are situations allowing for the request of a certain procedure. It would simply be an error to see these as new grounds.
Equally erroneous is to see these as one-to-one corollaries with invalidity. In other words, as tempting as it can be to jump to conclusions, the mere presence of any of these do not necessarily mean that there was an invalid act of marrying. It merely means that a party can request the new shorter procedure. Once there is a determination as to which procedure to use, then the judge or the bishop must still determine according to canon law if there is a lack of capacity, a lack of consent, or a lack of canonical form (for the Catholic), following the specific ground that fall under these.
4. Pope Francis did not make the standard for declaring a marriage null easier. The standard for coming to an affirmative decision remains very high — the judge or bishop must reach moral certainty (Canon 1608). Pope Francis in Article 12 clearly reiterates this. He underscores that a mere preponderance of the evidence is not sufficient. It is clear that moral certainty remains the standard. In other words, an affirmative decision cannot be given if the act of marrying were just possibly invalid. Nor could it be given if even it were probably invalid. Rather, it can only be given if it is morally certain to have been an invalid act of marrying.
5. The Pope is not eliminating second instance courts. Rather, what is being eliminated is the mandatory appeal of the local diocesan tribunal’s affirmative decision. The parties, as well as the Defender of the Bond, are still free to appeal the decision to a second instance tribunal, usually the metropolitan or archdiocese. In addition, the ability of a party to appeal to the Roman Rota is retained.
6. Pope Francis is not requiring a total dropping of tribunal fees. Rather, he encourages that the process be made as free as possible taking into consideration the just and decent wages of those who work in the tribunals. Thus, an appropriate filing fee is permitted and appropriate in justice.
Keeping all this in mind, there are several new developments that these reforms are implementing as well as some things in the documents that are being missed by many.
1. The biggest change in the declaration of nullity process is the addition of the “processus brevior coram episcopo,” that is, the “shorter process” by which a diocesan bishop is allowed to determine the case himself. Where both parties to the case consent or where there may be a situation such as those in Article 14 (mentioned above), application can be made to the diocesan bishop for his determination.
There are several procedural requirements for this, but in broad strokes, the diocesan bishop is then to appoint what is called an “instructor” or handler for the case as well as two assessors to assess the facts in light of canonical laws. The Defender of the Bond is also to be informed and involved. These give their evaluation of the case to the bishop who can make a decision if he is able to reach moral certainty about the nullity of the marriage. If not, he is to remand the case to the ordinary process. A party retains the right to appeal the decision to the metropolitan (archdiocesan) court or to the Roman Rota.
2. What may be missed amid all of the controversy is the appeal of the Pope to the local — i.e. parish and deanery levels — for people to assist in the process. The document envisions training local personnel to assist the parties as they prepare for and enter into the process. This would be a great pastoral help to many who may misunderstand or be confused about the declaration of nullity process or about the Church’s teachings on marriage. The document calls for possibly the establishment of diocesan or even inter-diocesan groups to help in this regard and even putting together a “handbook” that can be used by those who are engaged in this work.
3. Currently, marriage nullity cases are usually reserved to a “collegiate tribunal,” that is, usually a panel of three judges. It is allowed for a diocese, due to personnel shortage, to appeal to the Conference of Bishops for the permission to use a single judge who is a cleric for marriage nullity cases. This option is usually granted to tribunals. A party is always free to request a collegiate tribunal and an appellate tribunal must always use a three judge panel.
Mitis Iudex Dominus Iesus will allow for a diocesan bishop to permit a single clerical judge without having to request the permission from the U.S. Conference of Catholic Bishops. Pope Francis does ask, however, that where possible, two assessors be appointed in cases where a single clerical judge is used in order to assist the judge in determining the decision. An appellate tribunal must still use a panel of judges.
4. The use of laypersons as judges has been allowed with the 1983 Code of Canon Law. However, currently, there can only be one layperson on a collegiate tribunal (panel of judges) to fill out the panel of judges (Canon 1421.2). The motu proprio will allow a panel of lay judges to decide the case so long as one of the judges is a cleric. The presumption is that the clerical judge still is the one who serves as the presiding judge (ponens). This can help in the staffing of tribunals and in dealing with backlogs.
5. A technical but important change also is the testimony of one witness. Currently, the testimony or declaration of one witness is not sufficient to constitute a full proof. In other words, a person’s claim must be corroborated in order to count as full, accepted proof. Mitis Iudex Dominus Iesus allows the testimony of one person to be taken as full proof under certain circumstances such as if their credibility is supported, if there are no other contrary proofs, if the statement was made ex officio, etc. However, it should be noted that if there is a reason to doubt the credibility of the person, whether malicious or not, the uncorroborated testimony still cannot be counted as full proof.
6. Finally, an interesting tidbit is the Marian dimension of the document, not so much in its words or content but in the dates — it was signed by Pope Francis on the Solemnity of the Assumption (Aug. 15); released on the Nativity of the Blessed Virgin (Sept. 8); and will take effect on the Solemnity of the Immaculate Conception (Dec. 8). May the Blessed Virgin in her maternal protection watch over the Church and over marriage and families as these reforms are implemented.