While the Synod of Bishops meets to continue its deliberations on the Christian family in the modern world, canon lawyers are still mulling over the promulgation of the recent motu proprio Mitis Iudex, which sets out a revised process for the declaration of marriage nullity.
Reaction to Mitis Iudex has been polarised. Most observers either welcomed it as the final junking of anachronistic legalism in favour of a simpler, more pastoral way of helping couples whose marriages have failed. Others rent their garments and wail at the introduction of “Catholic divorce” by another name. Both caricatures were wide of the mark, and both risk doing real damage to Pope Francis’s reforms before they even come into force later this year.
Even coming from opposite ends of the synod debates, both schools have suggested that the revised process for handling annulment cases was a significant move away from a solid judicial process – for good or ill. This, they argue, leads couples to see the process as a mere formality (at best) and a total sham (at worst), and that – to my mind, at least – is a terrible injustice.
Pope Francis has made it abundantly clear that the doctrine of the indissolubility of marriage is simply not up for discussion, either in the reformed process for the declaration of marriage nullity, or at the synod meeting in Rome. Because marriage matters a very great deal, it follows that the question of whether a couple’s marriage is valid is equally important, and so the process for determining nullity must be treated with respect. If we imply that the annulment process is a formality or a sham, we also imply that the outcome of the process is too, and, logically, so is the entire estate of marriage.
The work of canon lawyers is to avoid this kind of unhelpful and polemical commentary and get on with the serious work of forging an authentic implementation of Pope Francis’s reforms.
While Mitis Iudex gives the broad strokes of how the reformed process will work, the fine print is yet to be written – and written it must be.
The current procedures for an annulment case are outlined in the Code of Canon Law. The revised procedures will modify this law, and be inserted into the Code. But how a trial proceeds is established not just by the Code (even when it is revised) but by a separate set of complimentary procedural norms issued by the Holy See, Dignitas Connubii; my copy of which runs to nearly 600 pages.
Similar norms, a “users’ manual” as it were, will need to be developed for the revised process.
There are those who will say that the reformed process is intended to avoid getting bogged down in exactly this kind of procedural minutiae, but clarity of application does not mean, necessarily “complicated”, still less “burdensome”, but it does mean “fair”.
If we leave it to each diocesan tribunal to implement the broad vision of Mitis Iudex in their own way, as some will no doubt suggest, on some of the vaguely defined but crucial parts of the document, we can end up with radically different practices in the law and see dramatically different results.
As an example, Mitis Iudex calls for the consent of both parties for the new shorter-form process to be used in handling a case. In many cases only one of the parties is willing to take part in an annulment case, in some the other party, the respondent, can’t even be found. If Tribunal X decides that in these cases the petitioner alone needs to consent, then they carry on towards a decision. But if this decision is appealed to Tribunal Y, who holds that consent means both parties have to actively agree, they can quite reasonably overturn the whole process. This might then get appealed to Rome, who might take a different view altogether. In the meantime, the poor Petitioner, instead of getting the speedy process they were promised, ends up in exactly the kind of procedural hell Mitis Iudex was meant to deliver them from.
Similar potential conflicts can be found in the new value to be placed on witness testimony and in the suggested grounds for trying shorter-form cases. Without a coherent set of guidelines which all tribunals can follow, we can end up with petitioners seeing totally different forms of justice only a few miles apart, and even greater delays and confusion than we currently have. That would violate basic principles of fairness and justice.
Preventing this mess should be the current focus for canon lawyers.
Sooner or later, new procedural norms will have to be drafted to specify how exactly the new process is to work in practice. The hard way is to let Rome sort it all out on appeal. The easy way is for canonists to work together and agree some standard practices now, before the changes take effect.
How best to achieve this will be up for discussion at the several important canon law conferences taking place in the coming weeks and months. It will take a mature effort by canon lawyers not to be diverted by shrill accusations from both conservatives and liberals alike, but it is essential if Pope Francis’ authentic vision isn’t to become a casualty of war in their tiresome battles.
Pope Francis has been crystal clear that he wants to see a reformed judicial process, not a new administrative one. A process that seeks the truth, serves the interests of justice, and protects the rights of all – and does so in an efficient and sensitive way. The Holy Father has clearly defined Mitis Iudex as a duck, it’s now the canon lawyers’ job to make sure it will quack.