Pope Francis touches his forehead during his general audience in St. Peter's Square at the Vatican Sept. 9. (CNS photo/Paul Haring)
Editor's note: The following two posts from Dr. Edward Peters were originally published on the In the Light of the Law site,
and are posted here with the kind permission of Dr. Peters. The first
post was published shortly after the release of the
motu proprio Mitis Iudex; the second was published late yesterday.
A first look at Mitis Iudex
The Latin text of Pope Francis’ Mitis Iudex is here.
The document comes in four discernible parts: introductory remarks, an
eight-point summary, new canonical norms (for Canons 1671-1691), and
a “Procedure for cases declaring the nullity of marriage”. Looking, for
now, ONLY at the eight Roman numeral headings summarizing the pope’s
introductory remarks, my observations are:
I. Una sententia pro nullitate exsecutiva.
This portends a significant change in the law, eliminating the current
requirement that all affirmative cases (i.e., nullity was declared) be
reviewed by a “second instance” tribunal, essentially, a careful
re-examination of the first decision. Canon 1682. Optional appeal
remains in place. Canon 1628. I have always said that mandatory review is not required
for justice under natural law and that it serves, in my opinion, little
practical value in canon law. Some respected voices in canon law would
disagree with me on that. The delays associated with mandatory review
were, in my opinion, exaggerated by tribunal critics, but this step will
certainly shorten the overall process.
II. Iudex unicus sub Episcopi responsabilitate. This
represents little or no change in the law. Bishops have always
appointed tribunal judges. Canons 1420-1421. With routinely-granted
episcopal conference permission, bishops could already assign marriage
cases to sole, clerical (including deacons) judges. Canon 1425 § 4. It
appears that such permission need no longer be sought.
III. Ipse Episcopus iudex. This
represents little or no change in the law. Bishops have always been the
first judges in their dioceses. Canon 1419 § 1. Exhortational language
that bishops play a greater role in hearing actual cases is to be
followed in light of, among other things, the demands already made on
bishops’ time and their personal training and/or aptitude for technical
IV. Processus brevior. This represents a very, very significant change in the law. I must address it separately.
V. Appellatio ad Sedem Metropolitanam. This
will be a minor change in the law made practicable by the elimination
of mandatory second instance. The canonical tradition has long preferred
judicial appeals to be made to the metropolitan (usually, the
archdiocesan) tribunal. Canon 1438. The current burdensome system of
special appellate tribunals, handling mostly affirmative marriage cases,
was an expedient for the processing of mandatory nullity appeals.
Eliminate those, and this reform follows.
VI. Episcoporum Conferentiarum officium proprium. Beyond
some exhortational language that might portend further local reforms,
this implies what would actually be a minor change in the law and
practice of the US. Setting fees for tribunal services is the
responsibility of bishops. Canon 1649. Such fees, charged (if at all)
only in first instance, covered, by my estimation, less than half of the
real expenses incurred by US tribunals for marriage cases. What other
countries might have charged for their annulment cases or what marriage
cases actually cost in Rome, I do not know. But charging any fees
for annulments was a constant public-relations problem for the Church.
Myths of high fees and the innuendos associated with payments to Church
figures abounded. While Francis seems to leave room for tribunals to
charge “administrative expenses”, it seems like annulments are now
supposed to ‘look free’. Whatever that means in the practical order it
appears that tribunal fees will now be a matter of episcopal conference
VII. Appellatio ad Sedem Apostolicam. This
represents no change in the law. Appeal to Rome has always been a
fundamental right of the faithful. Canons 331, 333, 1417, and 1442. The
complex norms regulating appeals to Rome are not changed herein.
VIII. Provisiones pro Ecclesiis Orientalibus. Canonical
housekeeping, alerting readers that separate norms for marriage cases
in Eastern Catholic Churches apply to those churches. ...
A second look at Mitis, especially at the new fast-track annulment process
In an earlier post today I applauded most of the reforms of the annulment process issued by Pope Francis in Mitis Iudex Dominus Iesus. I offered some additional positive remarks about Mitis on my“Canon Law” Facebook page. I mention these points not to win a hearing for the criticisms of Mitis I will make below, but to save the trouble of reiterating what I generally like about the document.
five new canons due to take effect in early December 2015, Pope Francis
will authorize diocesan bishops to hear and decide, personally and very
expeditiously (in roughly one-tenth the time presently needed) certain
types of marriage nullity petitions, and he published an official
explanation of his new process in the form of a “Ratio procedendi”. I
think these five canons and the official explanation that accompanies
them raise several serious questions for ecclesiastical marriage law. I
will make two brief points about the canons themselves and then look at
the official explanation.
The New Canons
New Canon 1683 n. 1 declares eligible for expedited processing
petitions that are presented by both parties to the marriage or by one
party but with the “consent” of the other. This provision is unsettling.
the older canonical tradition wrongly assumed that a respondent
necessarily opposed an annulment, this new norm wrongly, I think, makes
relevant a respondent’s “consent” to an annulment petition. While a
respondent’s participation in the tribunal process is always sought and
is usually helpful in adjudicating marriage cases, his or her consent to
a nullity petition is never necessary for the Church to exercise
jurisdiction over a case and, more to the point, it is not indicative
of the merits of the petition. Making mutual agreement to a petition an
element of hearing that petition quickly risks confusing two things
that the Church has long sought to distinguish, namely, the parties’ laudable cooperation with the tribunal’s search for truth and their collusion with each other toward a specific outcome.
Treating nullity petitions in which the parties agree radically
differently from those wherein they disagree, sends a dubious message.
the tenor of these five new canons does not reinforce the unalterable
fact that every annulment caseno matter how many pastoral, sacramental,
or spiritual consequences it might have, and they usually have manyis
fundamentally legal in nature. The inescapablylegal character
of annulment cases explains why nearly every significant tribunal
officer must have a degree in canon law. Legal training matters for
those treating legal issues.
The new speedy annulment process,
however, allows (I would say, pressures) bishops who are not necessarily
canon lawyers (Canon 378), to rely heavily on a report drafted by
someone who need not be a canon lawyer (Mitis, Art. 3), after
conferring with an assessor who need not be a canon lawyer (Canon 1424),
to rule upon a marriage that, besides enjoying natural (‘intrinsic’)
indissolubility, might be sacramentally (‘extrinsically’) indissoluble
as well. And note, these new speedy annulment cases are not cases that can already, under some circumstances, be processed quickly by documents because they deal with lack of canonical form or lack of canonical capacity. Canon 1686mox 1688. No, these fast-track annulment cases plainly turn on questions of consent to
marriageconsent, long and by far the most complex topic in marriage
canon law. True, a judicial vicar must provide certification that the
petition proposed for speedy processing meets certain evidentiary
criteria, and the defender of the bond is allowed to respond to the
petition, but the judicial vicar is not making a judgment as to nullity
when he verifies the presence of certain evidence, and the defender has
drastically less time to work on a case slated for expedited processing
than he or she has for a formal case. In sum, this general lack of
awareness of the inescapably complex legal nature of marriage consent shown in these new rules is disturbing.
is more to be said about the new canons themselves, but we must also
look at the explanation Francis provided as to how these news canons
should work in practice.
The Accompanying Explanation
14 of the Ratio lists ten or twelve factors that enable an annulment
petition (to which the parties agree) to be heard in a fast-track
process. Note that the factors listed are simply examples of things
enabling an annulment case to be heard quickly. Clearly, it is expected
that other factors will also suffice.
The factors listed so far
are (my trans): lack of faith that results in simulation of consent or
an error that determines the will; brevity of married life; abortion
procured to prevent procreation; stubborn persistence in an extramarital
affair at the time of or just after the wedding; improper concealment
of sterility or of a serious and contagious disease; concealment of
children from a previous relationship; concealment of incarceration;
entering marriage for reasons completely foreign to married life;
unplanned pregnancy of the woman; physical violence inflicted to extort
consent; lack of use of reason proved by medical documents; and so on.
Where to begin?
at the examples offeredand setting aside the incoherence of some
phrasings such as “abortion procured to prevent procreation”they
confuse several complex aspects of consent law, they seem to treat some
fact patterns as if they were quasi-impediments to marriage, and they
introduce into consideration some matters that have little (perhaps no)
jurisprudence behind them with which to assist bishops assessing their
significance in a marriage case. Worse, in my opinion, the enunciation
of these factors is going to create crises of conscience among faithful
who live with one or more of these conditions in their past.
most confusing point about this list is that some of these factors,
though presented as reasons for hearing a petition quickly, are actually
grounds for nullity (e.g., simulation, force or fear); other factors,
however, are most emphatically not grounds for annulment (e.g., brevity of married life); and others might, or might not, be
suggestive of grounds for nullity (e.g., an extra-marital affair near
the time of the wedding might show a grave lack of discretion of
judgement or an inability to assume matrimonial rights and duties).
Because traditional grounds of nullity have been mixed in among things that could be evidence for
other grounds of nullity, and further mixed with things that are not
grounds for nullity and often are not even evidence of grounds for
nullity, confusion willand already has, judging from questions I have
already received from the faithfulerupt as to whether these factors are
not just reasons to hear a case speedily, but are themselves proof of
matrimonial nullity. Try to explain to non-canonists why one thing the
pope listed (say, simulation) is grounds for an annulment but another thing he listed (say, pregnancy) is not grounds for an annulment.
many, many married couples have experienced one or more of these events
in their lives. Unfortunatelyagain I say this has already
started!people with any of these factors in their lives are going to
wonder, logically and sincerely, whether their marriage might be null.
They will worry, for example, whether the fact that she was pregnant at
the time of the wedding means their marriage is null. If not, why does
it mean that an annulment case could be heard more quickly? Or, if he
was not very active in the Faith when they married, did he just pretend
for (technically, simulate) his wedding promises? Many of these
questions are obviously highly dependent on fact analysis (e.g., what is
“improper concealment” of infertility, what counts as
“incarceration”?), and so one must ask, how are such cases reliably to
be investigated, considered, and decided by a bishop (a man with about a
hundred other things to do at any given time) in a matter of a few
Of course, in no time, this list of reasons to hear nullity
cases quickly will lengthen greatly. And why not? If physical violence
to extort marriage consent justifies a speedy hearing from a bishop,
should not physical violence inflicted during the marriage also
qualify? If pregnancy at the time of the wedding is grounds for a quick
process, should not drug or alcohol or sexual abuse qualify as well?
Last year Cdl. Kasper recklessly, but perhaps accurately,
claimed that Francis believes half of all marriages to be null. I think
that assertion, no matter who said it, is wrong, but it will take
little imagination to conclude that half of all marriage cases should
qualify for quick adjudication by diocesan bishops. Finally, if factors
such as previous jail terms, abortions, or affairs leave a couple’s
marriage liable to expedited annulment processing, is there now an
obligation on couples to disclose such matters to each otherregardless
of the implications such disclosures might portend for personal privacy
and the internal forum?
the pope’s request, a tiny group of experts, most from just one country,
developed these new canons and explanations in a very short time. I
find, however, the implications of some of these norms for marriage law
in general, and for diocesan bishops in particular, stunning, and I
join Dr. Kurt Martens of CUA in wondering how bishops must feel at
having such significant burdens thrust on them just in time for
Christmas with, as far as one can see, virtually no prior consultation. I expressly cautioned against this approach last
year and sound that claxon again. Assuming, in any event, that I have
read the new norms correctly, and assuming that there are no easy
resolutions to my concerns, what might one suggest?
First, and most importantly, the vacatio legis (a delay period before new laws go into effect per Canon 8) indicated for Mitis should
be extended from this December until well into next year at the very
least. If, as some assert, Francis’ annulment reforms are the most
significant in the last three hundred years, a considerably longer period than three months is needed to prepare for them. If necessary, a request for an extension could be proposed by the upcoming Synod of Bishops.
Second, a much wider consultation about annulment reform should be conducted, a consultation that would involve, at a minimum, manyidentified diocesan bishops (identified precisely so observers could forward remarks to them) and canonists from several countries, especially from countries with extensive tribunal operational experience.
I repeat, some aspects of Mitis are sound. The elimination of mandatory appeal, for example, can be put into effect with minimal delay. But other aspects of Mitis, especially
the fast-track annulment option, need, I suggest, considerably more
study. I only hope sufficient time is accorded the wider Church to make
such studies feasible.