Nullity of Marriage. A Reform That Risks Sinking in the Dock
[Or to be undone by a future pope]
The extreme facility of the procedures was the solution contrived by Pope Francis to readmit the divorced and remarried to communion. But not everything is working out as planned. A commentary by the canonist Guido Ferro Canale
by Sandro Magister
ROME, December 31, 2015 – Like Fr. Antonio Spadaro in “la Civiltà Cattolica” before him, one of the other churchmen closest to Francis has launched a trial balloon in view of the conclusions that the pope will draw from the synod on the family.
His name is Marcello Semeraro. He is bishop of Albano, the diocese in which the pontifical villa of Castel Gandolfo stands. Jorge Mario Bergoglio had gotten to know and appreciate him before he was elected pope. And he wanted him among his close collaborators, first as secretary of the council of nine cardinals for the reform of the curia and Church governance, and then also as a member of the synod, among those charged with writing the final report.
In a booklet relesed at the end of the year, entitled “Il sinodo della famiglia raccontato alla mia Chiesa [The synod of the family as told to my Church]” and published by MiterThev, Semeraro maintains that the fundamental innovation of the synod was the “passage from the morality of the law to the morality of the person.”
And with regard to the readmission of the divorced and remarried to the sacraments, he writes:
“The synod abstained from presenting to the pope in a simply theoretical and abstract form the specific question of the possibility of admission to the sacraments of penance and the Eucharist for baptized faithful who are living conjugally in the condition of civilly divorced and remarried. It asked for attention to the person. It did not, however, dodge the problem, but laid the foundations for a solution already with the fact of having inserted the question on the discernment of imputability.”
In two footnotes Semeraro specifies better where he wants to arrive and above all where he hopes Pope Francis will arrive in the anticipated post-synodal exhortation.
In the first of the two footnotes, the bishop of Albano writes that when the final report of the synod speaks of solutions “in the internal forum,” these go beyond a decision of individual conscience. They constitute “a true process (‘forum’) that is conducted in the sacramental domain (‘internal,’ or in the sacrament of reconciliation and penance) and is carried out by a member of the faithful and an authorized minister of the Church.”
And in the second footnote he refers to a letter of the congregation for the doctrine of the faith addressed to the bishops on April 11, 1973, to show that already back then the Church was encouraging “a particular solicitude toward those who are living in an irregular union, applying in the solution of such cases, in addition to other just means, the approved praxis of the Church in the internal forum.”
The restrictions came afterward, Semeraro continues, when John Paul II imposed on irregular couples, as a condition for receiving sacramental communion, the duty of living “in complete abstinence.”
But now the bishop of Albano hopes for a return to the previous discipline, with a new openness to solutions permitted back then “in the internal forum.” And this is precisely what the synod – in his judgment – has already done, in remaining silent on the restrictions introduced by John Paul II and therefore “leaving ‘open’ a text that it wanted to entrusted to new discernment by the supreme pontiff.”
FROM THE 1973 LETTER TO THE NEW ANNULMENT PROCEDURES
As did Fr. Spadaro’s article in “La Civiltà Cattolica,” this booklet by Bishop Semeraro is also likely to reflect the thought of Pope Francis, both of them being very close to him.
It must however be pointed out that the “solution” Semeraro touts with his reference to the 1973 letter of the congregation for the doctrine of the faith was already extensively examined beginning in the 1960’s, when the question of the divorced and remarried had been imposed on the Church’s attention in massive form for the first time, on account of the introduction of divorce into civil legislation in many countries.
Previously, in fact, this question appeared much less pressing, so much so that there is no trace of it in the discussions of Vatican Council II, and not even explicitly in the aforementioned 1973 letter of the congregation for the doctrine of the faith, which does not speak of the “divorced and remarried” but more generically of “irregular unions”:
> Letter regarding the indissolubility of marriage
In 1998 then-cardinal Joseph Ratzinger, in taking stock of the question in a volume edited by the congregation of which he was prefect, cited that letter extensively and wrote that his aim was “that of protecting and defending the indissolubility of marriage in the face of certain liberal developments.”
“The appeal to established practice in the internal forum was however open to different interpretations. In certain cases confessors gave absolution to divorced and remarried members of the faithful and admitted them to receive communion. Also debated was the question of how justice could be done to those faithful who in conscience were convinced of the nullity of their previous union, but could not demonstrate this through concrete facts.”
And he continued:
“These and other similar questions demanded clarification.”
In fact, important developments came not only from the 1980 synod of bishops and from the subsequent exhortation “Familiaris Consortio” of John Paul II, but also from the new code of canon law of 1983.
Canon 1536 § 2, in fact, established that even the statements of the parties could constitute sufficient proof of the nullity of a marriage, albeit together with other elements capable of corroborating this in a definitive way. And with this – the congregation for the doctrine of the faith wrote afterward in a 1994 letter to the bishops of the whole world – “every divergence between the truth verifiable in the judicial process and the objective truth known by a correct conscience” practically disappeared.
Ratzinger, in 1998, nonetheless lamented that “this new canonical system, unfortunately, in the practice of the ecclesiastical tribunals of many countries was still considered and applied too little.”
This brings us up to our time, when Pope Francis, visibly highly sensitive to the poor functioning of the canonical tribunals in his Argentina and elsewhere, has further facilitated annulment procedures with two motu proprio – the second for the Eastern Churches – prepared and promulgated by his initiative in 2015, between the two sessions of the synod on the family:
> “Mitis iudex Dominus Iesus”
> “Mitis et misericors Iesus”
THE PRACTICAL SOLUTION CONTRIVED BY FRANCIS
In effect, after so much discussion and even before the highly anticipated post-synodal exhortation, with these two motu proprio Pope Francis has already offered the Church a practical solution to the question of the divorced and remarried, modifying annulment procedures with the greatest latitude, to the point of allowing extremely fast and almost infallible recourse to certification of the nullity of the first marriage:
> Forbidden To Call It Divorce. But It Sure Looks Like It (15 settembre 2015)
The aforementioned canon 1536 § 2 was replaced with another canon, 1678 § 1, of an even looser weave, in which the statements of the parties now have on their own the value of “full proof” of nullity.
And if to this innovation are added all the others in the reform of annulment procedures, today there remains practically no case that could not find justice in a canonical sentence.
As if to say that material is running out even for that recourse to the “internal forum” so emphatically invoked by Fr. Spadaro, Bishop Semeraro, and all the other paladins of communion for the divorced and remarried.
THE DIFFICULTIES IN THE APPLICATION OF THE REFORM
But it is at this point that new difficulties arise. Because the new procedural system promulgated by Francis and constructed by the one who has become his deputy in canonical matters, dean of the Roman Rota Monsignor Pio Vito Pinto, appears to be anything but solid.
Some of his critical points “ad intra” have already been laid bare on www.chiesa by two expert jurists, Danilo Castellano and Guido Ferro Canale, in these two articles respectively:
> New Annulment Procedures. A Jurist Demolishes the Reform of Pope Francis (3.10.2015)
> It’s Liftoff for the New Procedures for “Failed” Marriages. But Such Confusion (16.12.2015)
But even “ad extra,” the new canonical procedures present serious flaws. In Italy, in particular, the civil tribunals could have trouble recognizing as valid the sentences of matrimonial nullity pronounced by ecclesiastical tribunals according to the new abbreviated procedures.
It is clear that if sentences of nullity were no longer to be seen as valid by the Italian state, the faithful would be forced to resort to state divorce and no longer to the ecclesiastical tribunals. And similar problems could arise in other countries, depending on the legal system. The reform would founder.
This and more is what Guido Ferro Canale thoroughly examines in the following commentary.
[Google translation of the Italian; not translated into English in the Chiesa article]
Efficacy in Italy of judgments of nullity of marriage. Problematic aspects of the Motu Proprio “Mitis iudex”
Guido Iron Channel
Under the Concordat , the Italian State recognizes full effect to the judgments of the ecclesiastical courts which declare the nullity of the marriage, provided that they pass a special control procedure in the courts of appeal. But among canonists winds doubt that the judgments which will be issued in response to the new “processus brevior” can not overcome it. These fears have been mentioned, speaking at the conclusion of the seminar organized in Rome by the Free University of Maria Santissima Assunta on 30 October, Professor Giuseppe by Torre , president of the court of the State of Vatican City. But it’s talked about, especially in informal talks on the sidelines of the event, which has reported one of the participants, Professor Kurt Martens . Finally, a professor of canon law, Nicholas Colaianni , wrote a whole article devoted to the topic professedly; and although many of its considerations do not seem acceptable, I think that is enough time to consider the matter. Under Article. 8 seconds paragraph of the Concordat, a canonical judgment, to get the civil effects, must be provided with an “enforcement order” of the Supreme Tribunal of the Apostolic Signature, in which the highest court of the Church attests to the enforceability in terms canon (which , so far, generally it RESULTS, the two conforming decisions, on whose livelihoods are given, not infrequently, doubts of interpretation) and also acts as a check on maximum fairness of the proceedings under the laws of the Church. If these were irregular, the signature can intervene in various so, also causing the reopening of the case and, if that decision on his merit in itself, upon the Pontifical Commission, as happened in the seventies for two famous Netherlands cases (Haarlemen. and Ultraiecten.) in which the judges had earlier declared the marriage void for … to have come to conjugal love, which, according to their reading of the pastoral constitution “Gaudium et Spes”, was the only foundation of the bond. In addition to the decree of the signature, the other condition for the recognition of the civil effects Italians It is “that in the proceedings before the ecclesiastical courts was assured to the parties the right to appear and to be defended, in a way not dissimilar to the fundamental principles of the Italian”. It is, in fact, a specification of a more general obligation to respect the principles of public policy, also expressly provided for by the Agreement, but in itself is not relevant here. These fundamental principles, for all practical purposes, consist mainly in compliance with art. 6 of the European Convention on Human Rights, the right to a fair trial. The court in Strasbourg, 20 July 2001, deciding the case Pellegrini , has effectively condemned Italy for the improper execution of a canonical judgment, since no national courts sincerati that in the proceedings before the ecclesiastical courts – in itself not liable syndicate, since the Holy See is not a party to the Convention – it had been respected art. 6; and in this case, in the opinion of the court, the applicant Ms. Pellegrini had been cited only for interrogation, had not received the documents instituting and even after he had been able to examine the case file; Moreover, it would be necessary to inform you of the possibility of the assistance of a lawyer before the interrogation. And these defects could not be considered cured either by the fact that, later, she had appealed to the Roman Rota, or by the fact objective and obvious nerd, being prevented from kinship. Following this pronunciation, the Apostolic Signatura has issued a circular letter to all the ecclesiastical courts Italian (prot. 33840/02 VT, November 14, 2002, in “Ius Ecclesiae,” 15, 2003, pp. 869-71), recalling the fundamental nature of the right to defense for sorting canon – so much so that, if the exercise is effectively denied, the judgment is nothing can. 1620, n. 7 – and experiencing, in particular, we are not prepared to grant the enforcement order if not clear from the documents that “the defendant has been properly informed at the beginning of the process, the right to be assisted by a lawyer authorized or ask the court a court-appointed lawyer to assist her “(ibid. 4 i). You would think that all this has particular relevance to the “processus brevior” since the defendant must receive two citations and that the rite simplified accessed only with the consent of both spouses. However, the “invalidity manifest” presupposes that it will, almost always, “less manifest” that in the case Pellegrini. or otherwise in the documentary process, which entails more defensive needs. It is therefore assumed that the new procedure – which greatly compresses the time of the procedure, thus also the chance to speak with the judge – is deemed adequate. Especially since, in the Italian legislation, the parties can certainly give up some of their power but not the right to defend itself, so that the “processus brevior” could in no way lead to a sacrifice too severe defensive faculties, despite the requirement consensus. That requirement, however, to date it is not clear what should be understood. With two responses to questions on 1 October 2015, Prott. n. 15138 and 15139, the pontifical council for legislative texts stated that consent must be expressed in a public and unequivocal, to protect the judge and the parties, since the “processus brevior” is an exception to the ordinary rules. Therefore, one can not presume or infer such consent by the fact that the party has not initiated the trial if they disinterest completely and there participate in any way: hypothesis rather frequent, as occurs when it is not interested in placing their position with the Church. However, the responses of the department bind only the courts having jurisdiction in the specific case for which they were given (see. Can. 16). And the opposite interpretation, which is content of presumed consent, has already been put forward by both the Canadian canon lawyer Father Francis Morrisey, a member of the Board of reform process of nullity (conference of the Canon Law Society of America, Pittsburgh, 12-15 October) both Advocate rotal Jorge Ernesto Villa , and, above all, by Msgr. Pio Vito Pinto , dean of the Roman Rota and Chairman of the Committee, in the article on which the reform of “L’Osservatore Romano” on September 9, 2015. If this second reading were to prevail, the problems in the enforcement of foreign judgments may prove insurmountable. A apart from anything else, the new rules do not provide a warning, delivered to the sued, that his silence will count as consent to “processus brevior”, nor a description of the consequences in terms of the practical possibilities of defense. The seminar LUMSA, Cardinal Francis Coccopalmerio , president of the Pontifical Council for Legislative Texts, said very clearly that the new “processus brevior” must be applied with caution. But, as we have seen about the interdiocesan tribunals – before he confirmed but soon started to decline by a papal rescript – despite the charge that he serves not at all certain that his side will prevail. If presumed consent will find advocates in Italy, the controversy interpretative come then – except surprise – to the Apostolic Signatura, who, having or not to grant the enforcement order, certainly can not overlook the profiles of possible obstacle to enforcement procedure. The Concordat is indeed canon law especially for Italy, which indirectly obliges the ecclesiastical courts to respect the fundamental principles of Italian law on the rights of defense; and a systematic violation of this requirement, a fortiori when it derives from a new universal canon law, would risk exposing the Holy See in international responsibility. And if you could see the faithful still have to resort to divorce state, it is easy to foresee a drastic reduction applications for nullity and, above all, the use of “processus brevior”. But that would mean, at least in Italy, the failure of reform. In fact, Professor Colaianni, while not failing to refer the case Pellegrini, sees the prohibitive even more radical: the bishop could not be considered “competent ecclesiastical tribunal” the purpose of the Concordat; and his decision, although the form of the judgment, it should rather be considered an administrative act (the pantry) or a measure of voluntary jurisdiction (as required by agreement of the parties), in both cases not entitled to recognition. Personally, I remain convinced of three things: that the Concordat does not prevent you from modifying the jurisdiction of courts, also giving back to the bishop an active role in the decision of causes; that the “processus brevior” put the head in a true judgment and not a favor granted or denied according to assessments of opportunities (the same motu proprio ” Mitis iudex “to expressly require the moral certainty about the nullity); and that, despite the lack of contrast between private parties, there must still be one with the public side, the defender of the bond must also intervene in the “processus brevior” to argue in favor of the validity of the marriage. However, I do not rule out that these topics could find some echo in court. Finally, other issues related to the right to defense are likely to also come from the papal rescript of December 7, in particular by the provision no. 3, which drastically reduces the chances of reopening of the case if one of the parties has remarried canon. Usually, the proposed revision are subject to requirements concerning the new evidentiary material or falsity of that used, not an element external to the process and to chance. If the request to reopen the case (nova causae propositio) came from the same spouse who has remarried, it could still argue that, by contracting the new canonical marriage, he has waived this possibility; but it seems rather unlikely that the Italian courts, or to Strasbourg, admit that the other spouse can be seen in action as a result of coerced choices of his own party, against which can not affect in any way. Even if, in through interpretation, you could still allow the “nova causae Proposition” in this case – and I do not think that the text of the rescript leave handholds to do so – it would be infringed a fundamental principle of the Italian, also provided by art. 6 of the European Convention on Human Rights, namely the equality of the procedural position of the parties, including their respective powers. It is true that the “nova causae propositio” assumes that the canonical judgment has already become enforceable and, therefore, generally sopravverrà after the civil recognition. But, especially if prevail presumed consent, assessment of the appeals court will not take into account an important factor as the ability – or inability – to obtain a new examination of the case, as the court in Strasbourg takes this into account and how. Consider that, after long-standing and changing fortunes, the Italian legislature chose to suspend the criminal proceedings against the defendants found, rather than risk further convictions for violation of art. 6 of the Convention. And since the unavailability of the aforementioned is not a rare case in the rectory, if it was treated as a consent to the “processus brevior” and plus there was a serious possibility that the disappeared can not obtain the reopening of the case, Pellegrini judgment would end up looking like a case of little importance compared to the hail of legal problems that would arise. At present, therefore, there is a problem of interpretation of certain time, which is associated with the need to carefully assess the practical impact of the new process on the right of defense. It hovers in the background including the restriction of the papal rescript. The road to reform is rather bumpy