Pope Francis’s apostolic letter Mitis Iudex Dominus Iesus, released last week, proposes major changes to the way the Church issues declarations of matrimonial nullity. Many respected canon lawyers and commentators are expressing grave concerns about the text as they study it more carefully. I join my voice to the growing number who are apprehensive. In my view, some changes run the risk of doing more harm than good, creating more confusion than clarity about the truth of marriage and the purpose of the declaration of nullity process.
The most significant proposed change in Mitis Iudex is the creation of the “shortened procedure” whereby marriage cases are given to the diocesan bishop to decide himself in a sort of administrative fiat. This highly problematic change raises serious questions and grave confusion.
Extremely busy diocesan bishops, including those who may not have training in marriage law, will be asked to decide potentially hundreds of canonical marriage cases each year by relying almost solely on the report of assessors who themselves may not be canon lawyers. This is supposed to “streamline” the process. Yet practically it is difficult to see how this could possibly be so without the diocesan bishop either rubber-stamping decisions without consideration or rushing through them at the expense of thoroughness. Either would be an injustice.
Canon law already uses a shorter “documentary process” for cases involving a lack of capacity to marry (canons 1073-1094) and a lack or defect of canonical form (canons 1108-1123). For the third kind of marriage cases – those involving defect of consent (canons 1095-1107), which use the “formal marriage procedure” – Mitis Iudex will now allow the new “shorter process” to be used where these cases seem to be null “by particularly evident arguments”.
This is where the problems begin. How would such “evident arguments” be properly considered before an appropriate process?
What Mitis Iudex has effectively done is overturn in practice the all-important principle found in canon 1060, where marriage is presumed to be valid until proven otherwise. In allowing the shorter process for cases deemed to be null “by particularly evident arguments”, Mitis Iudex is allowing a sort of pre-judgment of a marriage as null before a process is even selected.
The result is that some marriages will be presumed invalid even before the process starts. This runs directly against the presumption of validity required by justice, logic and canon 1060. Mitis Iudex has created a situation where marriages are presumed to be invalid and that validity must now be proven. This is tantamount to adopting a “guilty until proven innocent” approach and will be detrimental to the notion of the indissolubility of marriage.
Worse, Article 14 of the “Procedural Rules” attached to Mitis Iudex gravely adds to the confusion. Article 14 presents a jumbled, inconclusive list of principles and situations that may warrant a request for the shorter process. These examples range from merely difficult marriage situations to some that are actually canonical grounds for a declaration of nullity.
Article 14 will cause two unfortunate errors: the belief that a marriage in one of these situations is invalid even before proper investigation, and the fallacy that some of these are new grounds for invalidity. These errors will be used or misunderstood as justification for easy annulments, creating in effect “Catholic divorces”. In fact, no less a figure than Dr Kurt Martens, professor of canon law at the Catholic University of America, has decried the expedited process and these situations as “providing a path that looks like the Catholic version of no-fault divorce”.
The second major change proposed in Mitis Iudex is the elimination of the required review by a second instance appellate tribunal. Some see the review as an extra step that is redundant, unnecessarily delaying the final outcome. While many have seen this change as positive, I believe that we will lose valuable pastoral and historical wisdom that the Church has applied to marriage cases.
The purpose of the review is to help keep local tribunal judges close to the case from being careless or manipulative and to check them if they are. The idea is to help to ensure that the proper procedure is used and that judges make a properly objective decision.
Dropping the mandatory review was already briefly allowed in the past – with dreadful results. From 1971 to 1983, the so-called “American Provisional Norms” were allowed on an experimental basis for tribunals in the United States where a dispensation from the mandatory appeal was granted when it seemed superfluous. The result was that very few cases during those years were ever reviewed in second instance.
Scrutinising those 12 years, the Apostolic Signatura, the Church’s highest judicial authority, expressed concerns regarding not only the way some local tribunals handled certain marriage cases but also that cases clearly needing to be appealed were never actually appealed by the parties, the defender of the bond or the Ordinary.
With this experience in mind, the current universal Code of Canon Law promulgated in 1983 maintained the second instance review. Mitis Iudex will effectively reinstitute the situation of the “American Procedural Norms” but go even further by making the lack of the mandatory appeal the standard.
The reality is that where first instance tribunals follow the process appropriately and objectively, a properly staffed second instance tribunal can generally arrive at a favourable decision rather quickly. If, however, there are unnecessary delays because of understaffing or sluggish attitudes on the part of tribunal officials, this is not the fault of the canonical laws.
The problem can be solved by proper staffing and management.
Rather than eliminating the second instance review, we need norms that ensure that it is used effectively and efficiently. If the sublime dignity and beauty of marriage is truly what we believe it to be, would the presumed validity of a marriage not make it worth a second review to safeguard it from possible sloppy or arbitrary decisions?
One must also ask why changes as important and dramatic as these were not offered for consultation beyond a very small committee working with seemingly no transparency over the period of a year.
Why was there no consultation with the synod of bishops, which will be held next month, pontifical faculties of canon law throughout the world, professional canon law societies, and select bishops and Church tribunals who will be charged with the difficult implementation and pastoral fallout of these reforms? North America is where nearly three-quarters of all declarations of nullity are issued yearly. Why was there no American or Canadian on the committee?
As Mitis Iudex does not take effect until early December, it is not too late to rectify the many serious problems in this document. I echo the call of some for a delay in implementation in order that a much-needed wider consultation can be carried out.
Finally, one must wonder whether the time is right for such jolting reforms.
As numerous crises in marriage and family continue both inside and outside the Church, perhaps it is not the best time to embark on changing the declaration of nullity process, which is a product of centuries of the Church’s pastoral experience. As the old adage goes, a time of crisis is the worst time to make law.
What is needed now is not new procedures but rather faithful implementation of the ones we have; not derogation from marriage laws, much less their abrogation, but rather a new appreciation of their purpose and pastoral wisdom.
What we need now more than ever is clarity about the Church’s teachings on marriage – especially its indissolubility – rather than hasty reforms that may further confuse them. What we need is mercy based on truth and not a false mercy based on convenience or a misplaced compassion which, as St John Paul II reminded us, could degenerate into a sentimentality that is only pastoral in appearance.
Benedict Nguyen is a canon and civil lawyer and serves as canonical counsel and theological adviser for the Diocese of Corpus Christi, Texas. He is also an adjunct professor for the Avila Institute for Spiritual Formation (avila-institute.com)
This article first appeared in the Catholic Herald magazine (18/9/15)
Take up our special subscription offer – 12 issues currently available for just £12!