Today the canon law community has been on fire, or en fuego as the latins like to say, with the news of the new motu proprio from the Holy Father on the process for examining cases of marriage nullity.
When a big change in the law is announced, as it was this morning, and especially when it touches a topic like annulments, the internet echo chamber instantly explodes with the confident interpretations of Catholic journalists long before us canonists have actually finished parsing the Latin. While these professional opinionators are all terribly gifted classicists, they are not necessarily canon lawyers, so a measure of caution is needed when reading the confident predictions of what this will all mean. Whacking a couple of canon numbers in with fancy §’s all over the place doesn’t make a canon lawyer any more than salting an internet screed with Bible references makes a theologian.
Those confidently predicting a hyper-fast, “pastoral” (read “legally uninterested”) approach giving a speedy “yes” to all comers may find themselves disappointed. Similarly, those denouncing the changes as Anglicanism in birettas, and who have called it the advent of Catholic no-fault divorce, may find they lit their hair on fire a mite too soon. I say “may” because, like all changes in procedural law, we won’t know what the outcome will be until it’s put into action.
Now, while I will be reading Ed Peters’ line-by-line dissection of Mitis Iudex, I have no intention of producing one of my own. This is because Ed Peters will do a better job and you can just read it there, and I think over-explanation of the new and old procedural norms can be needlessly confusing, if not tedious, for non-canonists. I will simply offer the broadest of overviews of what the motu proprio does and give my own assessment of the good, the bad, and the ugly therein.
Mitis Iudex makes a number of changes to the process for dealing with a petition for a declaration of nullity concerning a marriage. Note that: Tribunals do not annul marriages, they declare them to have been null. It is not a favour to be granted or withheld but a formal statement of what is, or is not, the fact of the matter. There are some changes to the ordinary process, which is what was used in every case until now, including the abolition of the mandatory appeal by the Defender of the Bond in cases where nullity is proven, and reforms to the value of different kinds of evidence.
There is also the introduction of an entirely new process for certain circumstances. This new short form allows the Judicial Vicar to process cases where, and only where, the evidence is sufficiently clear and easily gathered without many of the procedural stages required by the ordinary process and with the agreement of both parties. He then hands these cases to the Bishop for him to personally render a proper judicial sentence on the matter. Crucially, in his decision he can say “yes”, or, if he is not sure, admit the case to the full ordinary process as before. With the new process comes a host of procedural guidelines on how and when to use it; how closely these are kept to and how widely, or strictly, they are interpreted, will determine if the short form is a short-lived experiment or a permanent part of Tribunal life. Those are the headlines. Now for the highlights:
Francis’s explicit intention: The Pope has made it clear in Mitis Iudex that the purpose of the new system is to make it more efficient, not to grant more annulments. He has said before on this subject that people have a right to “an answer, not necessarily the answer they want”.
The short form process itself: I was disposed to hate this on sight, thinking that any corner-cutting on procedure had to mean biased judgment. Reading the way this is set up, I am disposed to give it the benefit of the doubt. If it is used in the way it is intended and only for the cases outlined, it could go some way to speeding things up for those cases that can be handled faster. The current, now ordinary, process is sometimes needlessly bureaucratic. As an example, I recently reviewed a case as a judge. The file was almost 250 pages long but only about 100 pages were actual substantive testimony and evidence, the rest were procedural acts dealing with the appointment of people to the case, announcing the various stages of the trial and other legal instruments which were observed out of procedural necessity, not because the case required them. When the case turns on points of self-evident fact, or when the grounds and the relevant testimony are present from the beginning, those extra 150 pages don’t do anything for the judge reaching a decision. This is, I’d note, an exception, as is the whole short form process – the ordinary process is supposed to be exactly that.
Reforming three judge panels: It used to be that of the three, two had to be clerics. Now two can be laymen and the third a priest who presides. Since we are dealing with the (judicial) power of governance, in which laity “cooperate” but don’t exercise in their own right, it is essential to have a priest leading the panel. But nothing was gained by insisting on two out of the three being priests and it often meant priests with no knowledge of canon law were sucked into Tribunal work and taken away from their parish duties.
Making the process “free”: First of all, the process is, and has always been, free for those who can’t pay. The constant insinuation that Tribunals are ruinously expensive, corrupt, or exclusive is nonsense. That having been said, it’s a piece of bad press which no amount of explanation ever gets rid of. Making all Tribunals free at the point of use takes a nonsense criticism off the table.
Paying the staff a “just and decent wage”: Not to sound self-interested but this is important. A friend of mine recently finished his license in canon law and has about $150,000 in student debt, as well as a family to support. No canon lawyer is ever going to get rich, and none of us go in hoping to, but some (not all) Tribunals seem content to treat canon law as a hobby for volunteers, perhaps like running the parish bingo game. One Tribunal I know of expressed genuine surprise at the idea of paying judges or defenders of the bond. Do we really want Tribunals to become the exclusive province of those who can afford the time and money needed for a three-year law degree just so they can volunteer? If nothing else, that is a small talent pool.
Reinstating the Metropolitan See as the court of appeal: Having to send all appeals to the Archdiocesan Tribunal of the Province is the restoration of a good tradition. Many provinces fell into unhealthy case-swapping circles or sent their cases for appeal somewhere else entirely. The restored system keeps decisions local, emphasizes the relationship of the archbishop with his bishops, and has good internal coherence as a hierarchy.
Reform of the 2nd instance procedure: Previously, a court of appeal could confirm a sentence in favor of nullity by simple decree, that is just by looking at the appeal itself and the sentence being appealed, and without a re-examination of the whole case. Now every case which is appealed must be subject to the entire ordinary process, this makes appeals matter.
The grounds for using the short form: The procedural guidelines for using the new short form give a list of the kinds of grounds for which it could be used and which lend themselves to empirical proof, rather than the weight of witness testimony, which will help safeguard the process. They also include some new or expanded grounds which could signal welcome developments in jurisprudence including: fraudulent concealment of sterility; a hidden diagnosis of a serious disease; undisclosed abortions, ongoing affairs, or criminal records. These amount to a likely broadening of the ground of error of quality (c. 1097 §2). In the past, Rotal jurisprudence on this ground has been very narrowly drawn, so much so that it is almost impossible to use. Also in the list is a “lack of faith amounting to simulation”, this is an interesting development; many non-canonists will infer that this is Francis looking for a new way to hand out annulments, in fact both St John Paul and Benedict XVI called for the development of this ground.
The Bishop having to sign each short form decision himself: Bishops are the first judges of their diocese and they should be engaged with the dispensation of justice in their territory. Moreover, I think this is the most powerful safeguard against abuse in the new short form. While some bloggers are touting anonymous bishops as already welcoming the new power, I think many will be keener to welcome the power than to use it. Even a small diocese will receive several hundred cases a year, and while some bishops are happy for their Tribunals to grant affirmative decisions as often as they like, safe in the knowledge that they are personally somewhat removed from the process, when it’s their name on the bottom of the sentence and their decision which gets appealed to the neighboring archdiocese, I wonder if they won’t suddenly have an attack of conscience. It would be a bold bishop indeed who was happy to take personal responsibility for a large number of annulments every year, especially using an untested system. Perhaps even more so when the alternative is not saying “no” but just sending the file for the ordinary process. Thus far, Bishops supposedly in favor of this power don’t even like putting their name next to a quote welcoming it, are they really going to be willing to sign several hundred a year? Given the attention these new powers have attracted, no bishop will want to be seen to be signing off on every case to come through the door, nor will he want to be seen to be failing use them at all, hopefully this will promote a prudential medium.
The reform of competence for marriage cases: There is now a simple, clear hierarchy of who can hear a marriage case, beginning with the diocese where the marriage happened, then the diocese where the parties live, and then the place of most proof. Gone is the need to get the consent of the Tribunal in the diocese of the Respondent; in many cases where the Respondent was overseas and the Church there less structurally developed, this could take months. This change does not lessen the Respondent’s right of defense: failing to notify him of the proceedings and hear his objections will still void the process.
The end of the mandatory appeal and the double conforming sentence: The removal of the obligation for the Defender of the Bond to appeal every affirmative decision was the most widely predicted reform in the whole package. There is no getting around it, it does weaken the process. But not by as much as many claim: the Defender and all the parties still have the right to appeal, and when they do, the reform of the second instance process means they will be taken seriously. In the current state of affairs, most automatic appeals were returned as confirmed just as automatically. The removal of a need for a second conforming sentence is also a weakening of the process on paper, but it needs to be asked: was it ever more than a paper guarantee? What needs to happen is for Defenders to take their role seriously and for Judicial Vicars to respect their right to appeal. Automatic appeal didn’t ensure scrutiny or justice anymore than these changes will deny it, but the new system is giving local Tribunals a lot of credit they haven’t necessarily earned.
A lack of a requirement of expertise: Canon 1421 §3 states that judges must have the doctorate, or at least license, in canon law. But in the new short form, the assessors who help the Instructor (the Judicial Vicar) can be expert in canon law or the “human sciences”, whatever that means. I’m all in favor of a procedurally streamlined process provided everybody understands what they are streaming out and why, and what rights and safeguards it is their implicit duty to protect if the explicit guarantees of the law are removed. In general, if you want to make do with less law, you need better lawyers.
Making the process “free”: Not withstanding what I said above, this is a real problem. If the Tribunal cannot charge those who can afford it, how is it going to afford to operate? A good working estimate from two small diocese I know puts the operational costs per case at about $750-1,000, not including outside experts if they are needed. How is a Bishop supposed to fund this, and pay a just and decent wage to his staff, if he’s just had his direct revenue source shut off? Bad press aside, dioceses are already stretched thin financially and this can only lead to under-paid, under-qualified, under-staffed Tribunals, which are already a major source of delays in the process.
The lack of consultation: No one on the working group which proposed the changes has heard a first instance case in decades, neither were there any members from Africa, where there are the greatest shortages of Tribunal staff, or North America, where more than half of the marriage cases in the whole world are heard. A Vatican “international committee” is often defined as eight Italians, a Spaniard or two, and the nearest German; we weren’t quite there on this one but we were close. When a process fails to engage with the people who will be most affected by it, legitimacy suffers.
Blurred lines: While the new procedural guidelines for the short form give a very good steer on the kind of cases it is intended for, they lack force, leaving the process open to abuse. It only takes one Bishop or Judicial Vicar with an agenda to make the whole reform a mockery of justice.
The weight of evidence: The revised canons allow for the testimony of one person to be deemed “full proof” when a judge decides it is credible to do so. This can look like a shockingly low bar, but the truth is many tribunals already have to operate on this premise because it is so hard to get credible supporting witness testimony. I’m not saying this is good but it’s a reality. Many cases come down to being an exercise in good faith, the new rules on evidence make for unpleasant reading but they’re a fact of life.
Allowing the parties to petition jointly: It is not exactly clear what the knock-on effects for the ordinary process will be if there isn’t a Respondent, and it does give the whole thing a whiff of “no-fault”. Nevertheless, if having both parties consent is going to be a criterion for the short form to be used, it makes sense.
The whole damn thing: Reforming procedure is not something that lends itself to public commentary, still less the hystrionics which accompany anything to do with marriage annulments. Apart from basic considerations of the right of defense and the integrity of the of the system as a whole, there isn’t that much room for (canonical) laymen to usefully contribute, but plenty of room for misunderstandings and panics about things which do not make all that much difference. When procedural changes are interpreted (rightly or wrongly) as geared towards any one outcome other than better procedure, it’s almost impossible for them to be properly applied. These new norms have been published under a spotlight and to howls of publicity. We can expect them to become a serious source of contention at the next session of the Synod, further diminishing the chances that we will see them succeed or fail on their own merits. Which is a shame, as they could prove interesting.