Pope Francis has today decreed a major reform of the Catholic Church's process for the declaration of nullity of marriages, which includes some substantial changes, involving both a streamlining and speeding up of the process as well as a reduction to the minimum of the costs involved for the parties seeking this decree of nullity.
He has done so by issuing two letters 'on his own initiative' (motu proprio) that introduce significant changes in both the Latin and Oriental Codes of Canon Law.
The new reform was presented at a press conference in the Vatican on September 8, and one of the main speakers at that event was the Italian cardinal Cardinal Francesco Coccopalmerio. He is president of the Pontifical Council for Legislative Texts, one of the Vatican's top canon lawyers, and was appointed by the pope to the commission that he set up, August 2014, to study the annulment process and to come up with proposals for revision and improvement in this important area. He was the only cardinal on the commission.
Cardinal Coccopalmerio began by telling the press that he wanted to make three points in presenting the reforms issued by Pope Francis in his two letters—motu proprio ('on his own initiative'). First, he offered a clarification of the concept of annulment for the benefit of the general public, then outlined the most significant changes introduced by the new norms and, thirdly, listed some areas that require further work.
The following is a rough translation by America's Rome correspondent of what he said.
I. Some conceptual precision
We must once again be clear about the question that we are talking about here.
1. One is dealing with the canonical process for the declaration of nullity of a marriage. Note well: for the declaration of nullity. One is dealing with a process that leads to the declaration of nullity: a process that leads in the first place to see if a marriage is null and, then when the answer is positive, to declare the nullity. Therefore, one is not dealing with a process that leads to the annulment of marriage. Nullity is different from annulment: to declare the nullity of marriage is absolutely different from decreeing the annulment of marriage.
2. The motives (reasons) that determine the nullity of marriage are many and this is not the moment to list and comment on all of them. It's sufficient to mention one which recurs often: that of the exclusion of indissolubility.
3. The process of nullity of marriage consists therefore in seeing if there exists some motives in a given marriage that render it null. Note well that one is dealing with finding out, not inventing, the eventual existence of some motive of nullity. The process of nullity of marriage is, in other words, a process 'for the truth of the thing' (“pro rei veritate”).
4. There's no problem in what has been said up to now: it's received doctrine and praxis, without any difficulty. Instead, the problem is one of an exquisite pastoral nature and consists in speeding up the processes of nullity of marriage, so as to serve in a more responsive manner the faithful that find themselves in such situations. But here too there is a premise that is fully intuited: the processes of nullity of marriage can certainly be speeded up, but in full respect of their nature as an investigation of truth.
5. In an effort to speed up the processes with which we are dealing, Pope Francis set up a commission for this purpose on August 27, 2014, a kind of 'task force' that would study possible solutions. The Dean of the Roman Rota presided over the commission, and I was part of it. I am here today at this press conference only in my role as a member of that Commission.
II. The most significant changes introduced by the new norm.
I believe that it is interesting to outline, as rapidly as possible, the most significant changes introduced by the new norm that's aimed at speeding up the conducting of the processes of nullity of marriage. I will limit my attention to the text of the motu proprio relating to the Latin Code, the Code of Canon Law. I select three aspects.
1. THE COMPOSITION OF THE TRIBUNALS
Canon 1671 speaking of this.
§ 1. Presupposes the doctrine according to which the diocesan bishop is the judge in his particular Church and it therefore affirms that the tribunal can be constituted by the bishop alone.
§ 2. (Says) the diocesan bishop, however, is not the only judge in his particular Church:
- in fact, it says, the diocesan bishop can establish a tribunal that judges in his stead:
- However, it gives the bishop the faculty to accede to a nearby tribunal.
§§ 3-4. They deal with two problems that we can say are an issue:
- that of the collegial or one-only judge;
- that of the judge who is a cleric or a lay person:
And they resolve them with the following directives (dispositions):
- if it's possible, the tribunal should be collegial and formed of three members who are clerics:
- if it's not possible that all the members are clerics, it's permitted that one only need be a cleric and be the president of the tribunal, while the others can be lay people;
- if, moreover, it's not possible that the tribunal can be collegial, it's permitted that it be formed of one judge only, but he should be a cleric;
- that one only judge who is a cleric should avail himself, if possible, of two assistants (assessors) of upright life, who are expert in the legal and human sciences, and approved by the bishop for this purpose.
§ 5. The tribunal of the second instance should be collegial always, and should be formed according to the criteria given in § 3.
2. THE ABOLITION OF THE DOUBLE CONFORMING (SENTENCES)
Canons 1679-1680 speak of this and touch the actual structure of the double confirming sentences and decree their abolition.
One can see this change clearly if one looks at the present norm that envisages the double conforming sentences (cann. 1682, § 1 e 1684 § 1) and compares it to the new norm that abolishes this (can. 1679).
The present norms states that “The sentence which for the first time declares the nullity of the marriage ...is transmitted by an act of office (ex ufficio) to the tribunal of appeal” (can. 1682, § 1). And again, “After the sentence which declared the nullity of marriage for the first time was confirmed in the appeal instance... those whose marriage was declared null can contract a new marriage” (can. 1684, § 1).
The new norm disposes that: “The sentence that for the first time decreed the nullity of marriage, after the times (terms) established have passed...becomes executive” (can. 1679).
It is therefore no longer obligatory to appeal ex ufficio to the second grade. Nevertheless, the possibility to appeal the sentence is not denied, because the new norm at the same time disposes: “The part which feels burdened as well as the promoter of justice and the defender of the bond of marriage retain the right to challenge the sentence of nullity and appeal against the same sentence (can. 1680, § 1).
Attention, however, and here is the great novelty: “The collegial tribunal, if it concludes that the appeal is clearly only (a) prolonging (tactic), can confirm the decree of the first instance“ (can. 1680, § 2).
3. THE SHORTER PROCESS ('Processus Brevior')
Another significant innovation, always with a view to speeding up the processes of nullity of marriage, is that contained in canons 1683-1684, and consists in the 'shorter process' (“processus brevior”).
Let's look schematically at the elements that structure this process:
- the diocesan bishop is the sole judge.
- the cause of nullity is introduced by both parties, who must however be convinced of the nullity of marriage;
- the testimonials or documentary proofs must be evident and make clear the nullity (canons. 1683-1684);
- the term (time) within which the 'shorter process' must be done is 30 days from the moment all the participants are convoked, and another 15 days can be added for further observations (canons 1685-1686);
- the sentence is issued by the diocesan bishop himself if he reaches the moral certainty of the nullity of the marriage, or else the case examined by him is assigned to the ordinary process (can. 1687, § 1);
- an appeal against the sentence is also envisaged here but, here too, it cannot be an appeal that is merely a delaying one, because in this case also it is rejected at the start.
As one can see, this 'shorter process' is a very agile structure, and therefore rapid.
However, it is the judicial praxis that will make this structure more precise and definitive. The same can be tranquilly said for the other innovations, and in particular those mentioned above.
We should remember too that since the church is extended in all continents, the experiences of the different surroundings will bring better understanding and eventual normative precisions.
III. Some prospects for future work
As regards the subject dealt with in this press conference, it may interest you to know that the themes and problems of marriage and the family, also through the stimulus of the synod of bishops, are constantly under the attention of the various offices of the Roman Curia, and in particular of the Pontifical Council for the Family and the Pontifical Council for Legislative Texts.
This latter dicastery, in accord with the Holy Father, is dealing with the normative canons and, at this moment, is giving attention to those relating to marriage and the family in three sectors.
The first concerns the canons on marriage in the Latin Code where it seems necessary, in addition to some updating of a more doctrinal nature, also an integration on the canons on the family. The Latin Code should give space not only to the sacrament of marriage, but also to the family, to its identity, to its subjectivity, and to its mission.
The second sector where an intervention is desirable relates to the necessary harmonization between the discipline on marriage in the Latin Code and the parallel one in the Oriental Code.
The third intervention is on the problem of the new civil norms relating to marriage and the family, norms that are often incompatible with the doctrine and discipline of the church but in fact exist. These new civil norms inevitably have an impact on the canonical order. How does the latter order respond? Take one case, among the more simple ones: in legislations where homosexual couples can adopt, how should one proceed if a homosexual couple wants a child baptized? How does one, for example, register the baptism?
The processes of nullity of marriage which we are examining here today fall into this panorama of problems and normative reforms. The new canonical texts will be received and inserted in an organic and definitive way in the wider reform illustrated above.
Thank you for your attention.
