This weekend the Pope gave a speech to a group of canon lawyers attending a course on Rotal practice. He took the opportunity to speak about the reforms he has made to the process for examining marriage nullity cases. He framed the talk within the context of the recent Synods on the family which “had the purpose of promoting and defending the Christian family and marriage for the greater good of spouses faithful to the covenant celebrated in Christ,” media spin notwithstanding. When speaking about marriage on such occasions, the Pope is known for sometimes straying off script and making impromptu remarks; while wonderful for giving us an insight into how the Pope feels about a particular subject, the spontaneity can be legally inexact. This was not the case on Saturday, however.
The Pope used the occasion to deliver a prepared clarification of the so-called briefer process for handling marriage annulment cases, which was created as part of the reforms of Mitis Iudex Dominus Iesus. His central theme was the role of the diocesan bishop, as the first judge of his diocese and the specific judge in such cases.
The briefer process was created to handle cases in which there is overwhelmingly clear evidence of nullity, and in which neither of the spouses is contesting the process. While the ordinary process can take several months to gather evidence and return a decision, the briefer process is intended to take a few weeks and allows for all the testimony to be taken in a single one-day session – made possible by the open-and-shut nature of the case.
The briefer process calls for the direct participation of the diocesan bishop as the sole judge in every case handled by the briefer process. At the time of the reforms, I said that this was an excellent idea, for two reasons in particular.
The first of these is that the work of tribunals is often treated as “out of sight, out of mind.” Processing cases about marriage annulments is essential work in the diocese, both legally and pastorally, but not exactly eye-catching. The temptation is that diocesan bishops, through a desire to delegate work they know to be both important and technical, remove themselves entirely from the tribunal’s work. They are, as Pope Francis has repeatedly said, the first judges of their diocese, and exercising that function in a formal legal setting is part of fully living their office.
The second reason I was in favour of the diocesan bishop being the sole judge in every case being handled according to the briefer process was that it would serve as an essential safeguard against abuse. It is a simple fact that there is a small minority working in some tribunals, in some places, who treat the whole process as a mere formality. Their attitude is that every applicant deserves a “yes” and, in practice, their methods reduce the tribunal process to a sham and little more than Catholic divorce court. The briefer process, if abused by people with this mentality, could do untold damage to the judicial integrity of the diocesan tribunal. By placing the bishop himself in charge of every individual case, nothing could be done behind his back and, with his own name being signed to every decision, the bishop is obliged to take personal responsibility, before his diocese and God, for the verdict.
Two years after the promulgation of Mitis Iudex, the Pope’s clarifications this weekend can be seen as an explicit corrective to how the reforms have been implemented. Legal clarifications are only made in response to bad practice – so the Pope’s intervention tells us a great deal about what has been happening on the ground.
The Pope’s clarification comes in nine points, but these essentially treat the necessity of the diocesan bishop’s personal involvement as the judge in every case handled according to the briefer process. At one point, it is stressed that episcopal consecration and being head of the diocese are co-equal criteria for the validity of the process. This seems to be a fairly clear indication that, at least somewhere, briefer process cases were being delegated to auxiliary bishops, and this is unacceptable.
The Pope also addressed a question which many canonists had asked in the wake of Mitis Iudex: is the briefer process an option available at the discretion the diocesan bishop, or the required way of handling certain cases? The Pope states that “the streamlined process is not an option that the diocesan bishop can choose, but rather an obligation that derives from his consecration and from the missio received.” In legal terms, access to the briefer process is not a privilege to be granted by the diocesan bishop, but an acquired right of those petitioners whose case meets the criteria, and when the evidence is clear and overwhelming. This seems to be a fairly obvious response to some bishops, usually those with exceptionally well run tribunals, who have declined to use the briefer process at all, citing the ability of the ordinary process to deliver swift and credible decisions in all cases.
The Pope continues on to stress that the diocesan bishop is exclusively competent in all three phases of the briefer process – in other words, he must be actively participating in the case from the beginning, and the decision cannot simply be presented for his signature at the end.
Taken as a whole, the Pope’s statement this weekend is a thoughtful and pointed legal instruction on how he wants his reforms of the marriage tribunal process to be brought into practice. It shows a remarkably clear-eyed assessment of possible abuses of the briefer process and it leaves no room for doubt: Pope Francis is serious about delivering speedy and judicially credible decisions for couples seeking annulments, and he will not tolerate his reforms being hijacked or abused.
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