This post first appeared on the website of the Catholic Herald.
While December 8 was being marked in the wider Church as the beginning of the Year of Mercy, for canon lawyers it was, first and foremost, the day the reforms of Mitis Iudex come into force.
Since Pope Francis announced the dramatic changes to the tribunal system for handling marriage nullity cases in September, the Church’s legal community has been frantically trying to prepare itself for the day the changes would take effect, and make no mistake, there has been much to do.
The reforms of Mitis Iudex have been criticised, in some quarters, as an unwarranted and dangerous liberalisation of the process for examining cases of nullity which could seriously jeopardize, even if unintentionally, the indissolubility of marriage, in practice if not in theory. Some of the concerns about Mitis Iudex were sincere and well founded, others were the product of misunderstanding, and some came from what seemed at times to be deliberate misrepresentations of the content of the reforms and their intent.
As the reforms take effect, it is worth recapping what they are, what concerns have been raised since they were announced, and what steps have already been taken to put them into solid practice.
There were three key procedural changes brought in by Mitis Iudex: the introduction of an abbreviated process for some cases; the abolition of the requirement for a mandatory appeal and a double confirming sentence for all affirmative decisions; and changes to the kind of grounds under which cases could be considered and the standards of proof used in their consideration.
Each of the these three major changes raised a number of serious legal questions, and the last few weeks have been a seemingly endless round of canonical conferences, articles, and letters of clarification from Rome. But the good news is that some of the major points of confusion, you could even say conflict, have been resolved.
The first of these came in mid-October, when the Pontifical Council for Legislative Texts released a statement clarifying two massively important points. The first of these was that the new shorter form process, under the personal judgement of the diocesan bishop, is absolutely to be considered a special procedure only for unusual circumstances – the ordinary and full process is to remain the means by which the vast majority of cases are to be handled. This point has been underscored by several members of the committee responsible for drafting Mitis Iudex and has helped highlight for canonists that the purpose of the short-form process is not summary justice, but a means for dioceses to handle cases where the Church is less structurally developed and access to a formal tribunal process is severely restricted because of a shortage of qualified staff.
This has allowed bishops in some dioceses to rule out the use of the short form entirely in their dioceses, as it is meant to address only special circumstances which do not apply to them. Conversely, bishops in developed countries, like Britain and the United States, who insist on using the abbreviated process on a regular basis, despite having fully functioning tribunals of their own, will be effectively declaring that their own courts are unfit for purpose and incapable of delivering basic judicial services; this would not reflect well either on them or their tribunal staff.
The second important clarification regarding the short form process is that it can only be employed when both parties to a marriage actively participate in the trial and consent to the shorter form being used. This was a point of real debate among canonists, and Rome’s definitive opinion underscored fundamental judicial principles and further restricted the number of cases when the short-form process could be employed. Going on my own experience, these two interpretations alone rule out as much as three quarters of cases handled by some tribunals.
The second major reform of Mitis Iudex is the abolition of the mandatory appeal and the requirement of a double conforming sentence in all affirmative decisions. These are two separate, but often wrongly conflated, legal requirements. The requirement of a mandatory appeal in all affirmative cases meant that in every case which decided in favour of nullity, the Defender of the Bond, who acts in every trail as the advocate for the marriage itself, rather than either of the parties, was obliged to appeal – even if there were no clear grounds for doing so. This system had the benefit of “looking tough” in favour of marriage, but actually, by removing any real discretion from the Defender for the Bond, it often served to undermine the credibility of the Defender’s role and offered little distinction at the appellate level between cases appealed as a legal formality and those genuinely proposed for review.
Conversely, the abolition of the requirement to appeal in all cases increases the weight of an appeal made out of sincere conviction. This is reinforced by the complimentary reform of how appeals cases are handled. Before Mitis Iudex, courts of appeal could confirm an affirmative sentence by decree after inspection of the original decision and the Defender’s motion of appeal. Under the new system, every appeal will have to be subjected to a second, full trial, process. Far from weakening the appeals procedure, this effectively restores much of credibility it has been lacking. The remaining concern is if, after generations of pro forma appeals and soft confirmations, defenders of the bond have the backbone to appeal decisions in earnest, staking their personal credibility against a decision perhaps even signed by their own bishop.
The requirement of a double conforming sentence in the case of every affirmative is (or was) a separate requirement that every affirmative decision had to be confirmed by a higher court before it could be executed. So even if the Defender was not bound to appeal, the higher court would still have had to review every affirmative decision before the sentence could be executed and the parties declared free to marry. Again, this looks tough on paper, but in reality this confirmation was often treated as a pro forma matter. If a tribunal is doing its job, then, assuming no appeal has been lodged, its sentences should be considered credible; if a particular diocese isn’t delivering sound judgements, the problem is not solved by having the neighbouring tribunal permanently looking over their shoulder.
The third major innovation of Mitis Iudex is the broadening of the grounds under which marriage cases could be considered. These included 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 has predictably draw a considerable amount of attention and become controversial, though it was often referenced as a necessary ground for further study by the two preceding popes.
Since Mitis Iudex came out, I have yet to encounter any two canonists who agree on what this might mean in theory, still less what it would look like in the facts of a case. If tribunals are to avoid a jurisprudential train wreck as they try to sort this out for themselves and wait for decisions to be confirmed or overturned by the Roman Rota on appeal, it is essential that Pope Francis give a clear legal character to this concept, traditionally this sort of development has formed the basis for the Pope’s annual address to the Rota – this coming year’s speech will be keenly anticipated.
While many canonists would have preferred that the Pope delay bringing his reforms into force a little while longer, while some outstanding points of debate are resolved, this was never likely to happen. It is clear that Pope Francis wants Mitis Iudex to play an important part in his plans for the Year of Mercy, and, given his increasingly obvious pastoral focus on places like Africa, where access to a full tribunal process is often seriously limited, they certainly have that potential.
Initial concerns that Mitis Iudex, together with a move by the Synod on the Family to allow the civilly remarried to receive communion, would form part of a wider liberalisation of the Church’s doctrine of the indissolubility of marriage seem increasingly unfounded. The Synod itself produced no such recommendation, speaking only of the need for greater “pastoral accompaniment” of such couples. In fact, it seems that the reform of marriage tribunals was intended as a necessary step in helping such couples regularise their situations whenever possible because no such change was ever going to happen, whatever Cardinal Kasper may have wanted. As recently as last week, Cardinal Wuerl of Washington DC, himself a strident moderate and supporter of a more pastoral approach to difficult situations, reiterated that the proper means for a civilly remarried couple to approach the sacraments was through a tribunal process and that, far from being able to arrive at some private discernment about their freedom to receive communion, “the person’s discernment could not properly be contrary to the truth and charity of the Gospel as taught by the Church.”
Despite some serious concerns along the way, it looks as though Pope Francis’s reforms are not nearly as controversial as some thought. The problems which have arisen, and which will, no doubt, continue to arise, seem to stem, rather, from his sense of haste. While many would like to see a better appreciation that the barque of Peter doesn’t turn on a sixpence, his course looks solid.