Law Prof Defines Flaws in Pope’s Annulment Policy

An Italian professor of law has written a letter to Pope Francis pointing out the flaws of the pontiff’s annulment reform and its doctrinal and canonical break with Tradition.

DICI (#327) is now available and from this issue we have republished a piece concerning Pope Francis’ new annulment process.

Letter to the pope about the reform for annulment processes

Shortly after new canonical norms went into effect, on December 8, 2015, simplifying the process for recognizing cases of nullity of marriage, a rescript from Pope Francis was made public on December 11, in which he states that the new laws abrogate all previous laws and must be observed. The dean of the Tribunal of the Roman Rota, Msgr. Pio Vito Pinto, acknowledged that the pope’s decision to speed the procedures by requiring only one ruling instead of two, as was the rule until now, and by establishing more rapid procedures for certain cases of nullity, has met with some resistance in certain dioceses.

On November 30, Paolo Pasqualucci, professor emeritus of the philosophy of law at the University of Perugia and a contributor to the newspaper Courrier de Rome, had addressed, on his blog Chiesa e post concilio, a letter to the pope asking him to delay the implementation of this reform, which is dangerous for the faith. Here are the more significant excerpts from this well-reasoned request, which unfortunately has remained a dead letter.

Most Holy Father, I am one of the 790,190 Catholics from all over the world who signed the Petition that was addressed to you in early October of 2015, begging Your Holiness for “a word of clarification” that would dispel the serious confusion that has spread through the Church about some fundamental teachings, following the “overtures” proposed in the Extraordinary Synod of Bishops on the Family in Autumn 2014. These ‘overtures’ implied no less than the de facto legitimization of adultery and of sin, for they aimed, among other things, at admitting to Holy Communion Catholics who have divorced and remarried civilly. Not only that: they could even lead to the acceptance of homosexual cohabitation, which has always been condemned categorically by the Church because it is expressly contrary to the divine and natural law.

But this Magisterial word, the word of the Supreme Pontiff, the Vicar of Christ Our Lord on earth, was not heard. And the Petition remained unheeded. Instead, on September 12, 2015, there was the motu proprio Mitis Judex Dominus Jesus, “on the reform of the canonical process for causes of declaration of nullity of marriage in the Code of Canon Law”. In Section V, this motu proprio institutes, “the shorter matrimonial process before the Bishop“, an absolute novelty for the Church—which has prompted a lot of discussion—that was implemented with an explicit reference to the spirit of Vatican II.

The motu proprio abolishes the institution of the “conforming double sentence” (which has always been defended by the best canonists) for the purpose of simplifying the procedures for obtaining a declaration of nullity—a simplification that does not seem to be in keeping with the centuries-old tradition of presuming the validity of marriage, which is to be defended by all legal means.

In addition, the new “shorter” procedure, besides attributing to the bishops [i.e., local Ordinaries] an entirely unprecedented competence, presents (in article 14 §1) a list of “circumstances that may allow a cause of nullity to be dealt with by means of a shorter process.” The list of these circumstances is long: among them we find “the spouses’ lack of faith” at the moment when the marriage was contracted and “brevity of conjugal life together“. The admission of such “circumstances” has created considerable perplexity, leading some to speak about de facto “Catholic divorce”, obtained precisely by this “shorter” procedure; all the more so because the list of the aforementioned “circumstances” is left open-ended; the reader finds an “etc.” at the end, as though a list of this sort could be extended ad infinitum. This is a rather odd way of making law, and a fortiori canon law, which in the past was the beacon of true juridical civilization even for the secular world.

This informal way of proceeding is justified by Your Holiness through an appeal to the principle of mercy. It must not stop at the letter, it must grasp and put into action the spirit of the norms, laws and divine commandments. Today anyone who tenaciously defends the fundamental principles of doctrine is branded by Your Holiness as a hypocrite, as someone who wants to “indoctrinate the Gospel in dead stones to throw at others“. Of course, as Your Holiness has recalled,

the first duty of the Church is not to issue condemnations and anathemas, but to proclaim God’s mercy, to call to conversion and to lead all human beings to the salvation of the Lord” (cf. Jn 12:44-50).

But in fact, I take the liberty of pointing out, there must be “conversion” in order to be able to obtain salvation. We know very well what this means. “Conversion” of the heart to Christ with the help of grace and therefore repentance and a change of life so as to be able to become His disciple in faith and works; so as to become that new man, reborn in Christ, to whom alone it will be granted to “see the Kingdom of God” (Jn 3:3). Living in Christ (and therefore according to the traditional teachings of the Church) in the works of one’s own daily sanctification: doesn’t this mean having to take up one’s own cross in imitation of Christ? It is true that the Church has the mission to lead “all human beings to the salvation of the Lord“. Nevertheless we know that not all, or even many will not be saved. The Incarnate Word himself said so:

Enter ye in at the narrow gate, for wide is the gate and broad is the way that leadeth to destruction: and many there are who go in thereat. How narrow is the gate and strait is the way that leadeth to life: and few there are that find it!” (Mt 7:13-14).

All those who prefer “the broad way” of the children of this godless, unbelieving age have rejected divine mercy. If they persist in their rejection, they will be condemned by God’s justice, without that being a contradiction with his mercy.

Article 55 of the Final Report of the recent Synod of Bishops on the Family recalls a sentence dear to Your Holiness, of which the article itself is practically the exegesis: “Mercy is the center of the revelation of Jesus Christ.” Indeed, by the sacrifice of His death on the Cross, didn’t Our Lord obtain for us mercy (propitiatio) for our sins? Your Holiness also cites St. Thomas who, in the Summa Theologiae, wrote: “In mercy God’s omnipotence is chiefly manifested” (II-II, q. 30, art. 4). This is a very precise concept. Nevertheless St. Thomas, I make so bold as to add, quotes St. Augustine, for whom mercy is a virtue that must always be in conformity with reason and thus “preserve justice“, and then he also writes that mercy, [understood as] a passion unregulated by reason, impedes the counselling of reason, by making it wander from justice (ibid., art. 3 ad 1).

In other words: a misunderstood mercy (even if motivated by the best intentions) leads to latitudinarianism and laxism, setting many persons on the path of the “broad way” to perdition. And for those who utilize the principle of mercy advocated by Your Holiness to try to administer Holy Communion to persons who are living in sin and continue do to so, or else to accept de facto cohabitation of all sorts, hasn’t “mercy” become an irrational principle that leads them to a ‘counselling’ or deliberation that is not in conformity with reason, thus violating justice? Which here means in the first place divine justice. This is why St. Paul teaches us, concerning sacrilegious Holy Communion: “Therefore, whoever shall eat this bread, or drink the chalice of the Lord unworthily, shall be guilty of the body and of the blood of the Lord” (1 Cor. 11:27), thus falling under the ax of His justice….

For all these reasons Paolo Pasqualucci concluded his letter with this urgent petition:

I implore Your Holiness to reject the demands for ‘openness’ that have been presented, including those to divorced-and-remarried persons, and to postpone the date on which the motu proprio on the reform of procedures for obtaining a declaration of nullity of marriage goes into effect: to suspend this motu proprio, or else to rescind it….”

(Sources: apic/imedia/chiesaepostconcilio—Translated into English from Italian by MJM. Emphasis in bold type by the editors.—DICI no. 327, 12-18-2015)

Get AQ Email Updates

4 comments on “Law Prof Defines Flaws in Pope’s Annulment Policy

  1. I am still pondering the ramifications of a Pope universally legislating in such a way that practically diminishes the indissolubility of marriage. The new directives seem to nearly fall into the category of laws which must not be obeyed. Why would particular churches (dioceses) be prevented from retaining juridical procedures intended to preserve the indissolubility of marriage? I imagine there were similar concerns regarding the transition from the 1917 to the 1983 Code of Canon Law, such as the confusion on the ends of marriage in the new code.

  2. [“He ain’t the only one.” Establishmentarian canonists on both sides of the Atlantic have offered criticisms when FrankenPope first announced the changes and now that they have taken effect. For example, Edward Peters in America, who requested at least a one-year moratorium]

    A second look at Mitis, especially at the new fast-track annulment process
    September 8, 2015

    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.

    Through 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

    First, 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.

    If 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.

    Second, the tenor of these five new canons does not reinforce the unalterable fact that every annulment case—no matter how many pastoral, sacramental, or spiritual consequences it might have, and they usually have many—is fundamentally legal in nature. The inescapably legal 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 1686 mox 1688. No, these fast-track annulment cases plainly turn on questions of consent to marriage—consent, 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.

    There 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

    Article 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?

    Looking at the examples offered—and 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.

    The 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 will—and already has, judging from questions I have already received from the faithful—erupt 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.

    Worse, many, many married couples have experienced one or more of these events in their lives. Unfortunately—again 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 weeks?

    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 other—regardless of the implications such disclosures might portend for personal privacy and the internal forum?

    Looking ahead

    At 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, many identified 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.

    * * *

    [Also, in England Edward Condon, who initially saw no problems with the changes but now sees some unintended dangerous consequences]

    The impact of the Pope’s marriage annulment reforms is already being felt
    posted Thursday, 17 Dec 2015

    The initial effects of Mitis Iudex are now beginning to filter through into actual cases being heard before tribunals

    While, in theory, the reformed process for marriage nullity cases has only been the operative law of the Church for a little more than a week, tribunals began weighing up the impact of the changes of Mitis Iudex almost as soon as it was promulgated back in early September. The initial effects of that document are now beginning to filter through into actual cases being heard before tribunals and some early trends, and some unlikely knock-on effects, can already be identified.

    One of the first things many tribunals did upon reading Mitis Iudex was to declare an end to fees. While Pope Francis has often cited some scandalous, even usurious, examples from his home tribunals in Argentina, the idea of that a person could be denied access to a judicial process in the Church because they did not have the money to pay for it was greeted with frank incredulity by most canonists working in the UK or the US. The right to justice and due process, irrespective of person’s ability to pay, is fundamental, and has been a principle enshrined in, and guarded by, canon law far longer than in Western civil law. All the tribunals I have worked with routinely waive fees for those who cannot afford them, and there was some justified irritation that abuses present in one part of the world were held up as an example of a universal problem. Nevertheless, no amount of statistics and earnest clarifications from local dioceses seemed able to cut through the popular impression that marriage tribunals were a pay-to-play endeavor. As result, many declared, before Mitis Iudex came into force, an end to fees, even for those who could afford them, and that their services were now “free” for everyone.

    But, of course, they are not “free” at all. At a basic operational level, tribunals need space, computers, supplies, and everything else that comes with running an office, and this costs money. Then there are the staff. While the diocesan tribunal will be headed by the Judicial Vicar (a priest), and many of the supporting roles in the office can and are capably and heroically supplied by committed volunteers, there is still a need for qualified canon lawyers in every tribunal to serve as judges and advocates. These will all have undergone a period of study and training every bit as demanding as those who qualify as civil lawyers, and will have done so in the full knowledge that there is no professional pot of gold waiting at the end. But, in many cases, many canon lawyers find even a living wage hard to obtain. In some places this is because the work of the tribunal itself is seen as something of an anachronistic formality and there is no actual appreciation that, for the process to be credible, it requires true legal professionals.

    This is manifestly at odds with the stated mind of Pope Francis, who has repeatedly said that he explicitly rejected the idea of an administrative process for granting decrees of nullity and insisted upon a full, credible, juridic process. Indeed, Mitis Iudex itself, in addition for calling for an end to fees in tribunals, also called for tribunal staff to be paid a just and decent wage. This is an unintended contradiction at the heart of the reforms, which simultaneously call for tribunals, already stretched thin to the point of breaking in many places, to renounce their only dedicated source of income and, at the same time, increase their operating costs.

    This is not to say that fees are the only way to fund tribunals, but it is a rare occurrence for a diocese to make the tribunal a financial priority when its work is, at its best, so efficient it is invisible to the public. The knock on effects of increased financial constraints are already showing up in cases.

    One of the most common criticisms of global tribunal practice, repeatedly highlighted by the Apostolic Signatura, is the apparent over-use of the ground of a “grave lack of due discretion” by one of the parties in their decision to marry. This ground essentially posits that one of the people in a marriage had their ability to rationally consent to marriage severely compromised by some psychological event or trauma. This could be as immediate as the pressure of a pre-marital pregnancy or as remote as the legacy of abuse suffered in childhood. It is a complex determination to be made and, unusually, it requires not only the juridic assessment of the advocates and judges but the opinion of an expert in psychology.

    Leaving aside debate about whether this ground has been over-used by tribunals, it is a fact that, certainly in my experience, the vast majority of cases are tried under this ground. Yet all of a sudden I have seen it disappear from the docket across almost all the tribunals I work with. Instead, previously rare grounds, like fraud or error of quality of person, were making up the bulk of cases. At first I assumed that this was the result of Mitis Iudex’s suggested broadening of these grounds, though I saw little in the argumentation of the cases to suggest a new way of treating the matter. The real reason became clear to me in a discussion with colleagues from a number of different dioceses, thousands of miles apart, which I had earlier this week. They all reported that it was becoming increasingly difficult for tribunals to afford expert testimony from psychologists or therapists in lack of due discretion cases; the going rate for an opinion was about $500 (more than triple what a freelance canonist can hope to make per case) and the tribunals simply did not have the money. As a result, they were trying to process cases under other, less used, grounds which do not require outside experts, but which may not be the correct canon to apply.

    Even if we accept that lack of due discretion has been a greatly over-used ground for a number of years, it cannot be a good thing that cases are being tried on grounds set according to their likely cost.

    Pope Francis has been clear that he sees the reforms to marriage tribunals as a key part of his pastoral plan for the Year of Mercy. As dioceses consider how to allocate their resources and help advance the Pope’s agenda, they would do well to consider recognising their tribunals as a priority and give them the resources they need to offer couples the efficient, considered, and credible help they have every right to expect.

  3. It’s fast alright. But it could be faster. Maybe change the vows to provide for an opt-out, so the Church could pre-approve the annulment on the wedding day. Or maybe a plenary annulment day once a year (“Mercy Day”) where you can call the whole thing off.

  4. Given the current trends in Novus Ordo circles, it would not be surprising to see instant annulment application cards passed out by pastoral associates at weekend Enneagram seminars. It’s a curious thing about the Spirit of Vatican II that it seems to get more absurd the more it evolves. There should be a committee of neo-Catholic modernist theologians who “study” this phenomenon (i.e., the ones keeping track of the new evangelization of culture). Maybe the Opus Dei operatives at First Things could look into it?


Leave a Reply