Francis, Mercy, and Annulments

The modifications in today’s motu proprio change little, at least in relation to Canon Law, but do perpetuate the narrative of the "revolutionary" pontificate

Pope Francis’ “revolutionary style” has elicited many strong reactions since his election to the papacy in March 2013. But why has Pope Francis been considered, by many, as “revolutionary”? Yes, he has preached mercy and love. But mercy and love are hardly new concepts and realities in the Catholic Church; they are quite ancient. The apex of the Father’s mercy has been a reality since the Son of God, the second Person of the Holy Trinity, became incarnate in the womb of Mary, the Mother of God (whose birthday the Church celebrates today). Mercy has been proclaimed since Jesus began his public ministry, while its culmination took place, in the history of salvation, when Jesus was crucified. It has been a message handed down since Christ left the care of his Church to St. Peter and his successors—including Saint Pope John Paul II, whose profound insights into mercy are well known to those serious Catholics whose historical knowledge of the papacy dates back more than a few short years.

Mercy, justice, and canon law

God’s mercy and love are never separated from his justice, nor do they conflict with one another. Indeed, mercy and love cannot change what God has created via the eternal law (as found in the Ten Commandments and the Sermon on the Mount) and the natural law. Yet God, as Father, disciplines his children and can even be angry with them while still loving them perfectly at the same time. In baptism, we are justified and filled with grace—God’s very divine life (CCC 1996-97)—yet we still need the divine law to keep us on the straight path. And when we fall off that path, we rely on God’s mercy to bring us back in order with God: “To receive his mercy, we must admit our faults. ‘If we say we have no sin, we deceive ourselves, and the truth is not in us. If we confess our sins, he is faithful and just, and will forgive our sins and cleanse us from all unrighteousness’” (CCC 1847; quoting 1 Jn 1:8-9).

The beauty of Canon Law, as with law in general, is that it keeps us within right parameters; it protects us and guides us. The Canon Law protects the Faith and the sacraments; it protects the Tradition of the one and only Catholic Church, the care of which has been handed down to the successors of St. Peter. It should be noted that a successor of Peter is different from a successor of Christ. In other words, though the Pope is the Vicar of Christ, he is only vicar insofar as he is an instrumental cause. And this means that he is an instrument of Christ—not Christ himself. Being a vicar of Christ, granted by the office of the successor of Peter (the Roman Pontiff) means that a Pope is an instrument not only because of the ontological Sacrament of Orders which confers on him the power of order, but also by the primacy of jurisdiction over the Universal Catholic Church, granted to him by the office itself.

Why state all of this in a piece about the motu proprio, Mitis iudex dominus iesus issued today by Pope Francis? First, it is in an attempt to put the Pope’s influence and power in the greater context of the law as such. In short, the Pope—like all Catholics—is beholden to and a servant of Jesus Christ. Furthermore, he, like all Catholics, is measured first and foremost by the so-called ‘first rule’, namely divine truth itself. Indeed, human knowledge is not the rule of faith; rather, it is divine truth that is the rule of faith (see CCC 748). And this divine truth is preserved, first and foremost, in the faith of the Universal Church. It is for this reason that no Pope could ever destroy Sacred Scripture, Sacred Tradition, or the articles of faith. They are a lived and objective reality, regardless of a Pope’s predilections. And yet it is also the pope who is supposed to preserve and defend that Faith: “Simon, Simon, behold, Satan demanded to have you, that he might sift you like wheat, but I have prayed for you that your faith may not fail; and when you have turned again, strengthen your brethren.” (Lk. 22:31-33).

Secondly, the media in general has very little, if any, understanding of the already existing law of the Catholic Church, and or specifically regarding the annulment process. The substance of marriage and the annulment process is guarded by Canon Law and has been essentially unchanged by this motu proprio. In other words, contrary to certain media reports, the sanctity and understanding of marriage according to the Catholic Church has not changed. The properties of the Sacrament of Marriage remain the same: indissolubility and unity. Indeed, no one can change this very fact. The Sacrament of Marriage has been, and will forever be, between a man and a woman, remaining indissoluble and unified by divine law, “What therefore God has joined together, let no man put asunder” (Mk. 10:9).

What has changed?

What has changed, if anything, as a result of this motu proprio? The three major modifications are the following: 1) the elimination of the obligatory second instance judgment for an annulment, 2) declaring the annulment process gratuitous for anyone who applies for an annulment, and 3) the handling of the “more evident” cases.

With regard to the first modification, it has been the practice that once a decision of an annulment case has been reached, in the tribunal to which the person has made their petition, that decision must be ratified (or contested) by a ‘second instance’ tribunal, which is another diocesan/archdiocesan tribunal generally within the same region of a conference of bishops. This will most likely be welcomed since this practice seems to have become a mere ticking of the box and does, more often than not, slow down the entire process.

As for the second modification, the Pope has called for the annulment process to be free of charge. Though this is wonderful in theory, there is the practical side of life and economics. The majority of tribunals, in the United States at least, are staffed by many lay persons who offer their valuable time and expertise. Indeed, many of the larger dioceses would mostly likely not function without these lay persons. And yet, at the same time, these lay persons cannot do their job for free. The likely question for most diocesan tribunals will now be, “How do we pay our staff?” It is a little known fact, however, that tribunals (again, at least in the United States), do not charge individuals who cannot afford to pay the annulment fee. The annulment process, in other words, is not a money-making machine. Far from it. There are materials that must be purchased and staff who must be paid. Hopefully, the United States Conference of Bishops will ensure a “just and dignified compensation” [1] for the work done by the tribunal staffs.

The third modification regards the “more evident” cases. The motu proprio appears to be asking that these cases, which seem to be quite evidently ‘invalid’, to be judged directly by the bishop (or delegated judge) so as to allow the case to move more quickly. This raises a very important question, one which is not understood with a secular mindset, nor by many Catholics: what, really, is an annulment? Unfortunately, the word ‘annulment’ is misleading. The Church does not have the power to “annul” (render invalid) a true sacramental marriage. The consent of the man and woman is precisely what makes such a marriage valid. Conversely, if that consent is in some manner defective it is also possible that a marriage is invalid; that is, there was no actual marriage in the first place.

The annulment process is not, in any way, synonymous with a civil divorce. Rather, it is a discernment process by Catholic tribunals in order to decipher, with hard objective facts, the truth: was a particular marriage valid or invalid at the moment of consent? This third modification must, therefore, follow the very same discernment process in order to decipher the objective truth, the validity or invalidity of a marriage. On the one hand, this is really nothing new since more evident cases are generally moved along more quickly anyway; on the other hand, however, it seems that this modification could be potentially misused. Put another way, it is unclear why this assertion by the Pope has been made since the objective truth must still be determined, regardless of whether or not both spouses participate. Canon Law, despite this modification, has seemingly not been changed—which means that the process of obtaining the truth is still safeguarded and remains the same whether the case for an invalid marriage seems evident or not.

Additionally, the motu proprio “reinstates” the possibility of an appeal being made to the Metropolitan See. However, making appeal to a Metropolitan Tribunal is already foreseen by the law (canon 1438). The motu proprio also puts great emphasis on the bishop as primary judge, but again this is nothing new. Nevertheless, in large dioceses, it is likely impossible for a bishop to judge annulment cases on an individual basis, due to his general schedule and work load. Lastly, the motu proprio has confirmed the Roman Rota as the ordinary tribunal of the Apostolic See for appeals.


Essentially, then, these modifications have changed little, at least in relation to Canon Law. Part of what potentially causes change, however, is the widespread and common understanding and interpretation, or lack thereof, of the motu proprio. The secular media have yet another opportunity—out of pure ignorance or perhaps malice—to perpetuate the already well-established secular agenda which they have aligned with Pope Francis. In this way, confusion and misunderstandings increase, and the mythology of a “revolution” grows.

What remains a nebulous concept, as mentioned in both the motu proprio and the Pope’s Apostolic Exhortation, Evangelii gaudium, is the “conversion of ecclesiastical structures” [2]: how does the bishop offer a sign of the “conversion of ecclesiastical structures” and what is intended by conversion of ecclesiastical structures, and what is the role of the Conference of Bishops in relation to this so-called “conversion”?

Just like everything else “revolutionary” that this pope has done, nothing has substantially changed with this motu proprio: the bishop has always, since the primitive Church, been the primary judge of his diocese, and he always will be; the law has already historically foreseen one judge under the bishop, he is called the judicial vicar; and the law already provides for an appeal to go to a Metropolitan tribunal. And, yes, we really are merciful and charitable to the people to whom we minister in the tribunals; in some cases we bend over backwards!


[1] Mitis iudex dominus iesus, n. 6.

[2] Evangelli gaudium, n. 27; Mitis iudex dominus iesus, nn. 3&6.

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About David Salvato 0 Articles
David Salvato received his doctorate in Canon Law from the University of St. Thomas Aquinas (Angelicum) in Rome, Italy. He is currently working as a lay judge for the Metropolitan Tribunal of the Archdiocese of Los Angeles in California and teaching at the Archdiocesan seminary.