The Unexpected Effects of Reform

This post first appeared on the website of the Catholic Herald.

While, in theory, the reformed process for marriage nullity cases has only been the operative law of the Church for a little more than a week, tribunals began weighing up the impact of the changes of Mitis Iudex almost as soon as it was promulgated back in early September. The initial effects of that document are now beginning to filter through into actual cases being heard before tribunals and some early trends, and some unlikely knock-on effects, can already be identified.

One of the first things many tribunals did upon reading Mitis Iudex was to declare an end to fees. While Pope Francis has often cited some scandalous, even usurious, examples from his home tribunals in Argentina, the idea of that a person could be denied access to a judicial process in the Church because they did not have the money to pay for it was greeted with frank incredulity by most canonists working in the UK or the US. The right to justice and due process, irrespective of person’s ability to pay, is fundamental, and has been a principle enshrined in, and guarded by, canon law far longer than in Western civil law. All the tribunals I have worked with routinely waive fees for those who cannot afford them, and there was some justified irritation that abuses present in one part of the world were held up as an example of a universal problem. Nevertheless, no amount of statistics and earnest clarifications from local dioceses seemed able to cut through the popular impression that marriage tribunals were a pay-to-play endeavor. As result, many declared, before Mitis Iudex came into force, an end to fees, even for those who could afford them, and that their services were now “free” for everyone.

But, of course, they are not “free” at all. At a basic operational level, tribunals need space, computers, supplies, and everything else that comes with running an office, and this costs money. Then there are the staff. While the diocesan tribunal will be headed by the Judicial Vicar (a priest), and many of the supporting roles in the office can and are capably and heroically supplied by committed volunteers, there is still a need for qualified canon lawyers in every tribunal to serve as judges and advocates. These will all have undergone a period of study and training every bit as demanding as those who qualify as civil lawyers, and will have done so in the full knowledge that there is no professional pot of gold waiting at the end. But, in many cases, many canon lawyers find even a living wage hard to obtain. In some places this is because the work of the tribunal itself is seen as something of an anachronistic formality and there is no actual appreciation that, for the process to be credible, it requires true legal professionals.

This is manifestly at odds with the stated mind of Pope Francis, who has repeatedly said that he explicitly rejected the idea of an administrative process for granting decrees of nullity and insisted upon a full, credible, juridic process. Indeed, Mitis Iudex itself, in addition for calling for an end to fees in tribunals, also called for tribunal staff to be paid a just and decent wage. This is an unintended contradiction at the heart of the reforms, which simultaneously call for tribunals, already stretched thin to the point of breaking in many places, to renounce their only dedicated source of income and, at the same time, increase their operating costs.

This is not to say that fees are the only way to fund tribunals, but it is a rare occurrence for a diocese to make the tribunal a financial priority when its work is, at its best, so efficient it is invisible to the public. The knock on effects of increased financial constraints are already showing up in cases.

pa-22028192-800x500One of the most common criticisms of global tribunal practice, repeatedly highlighted by the Apostolic Signatura, is the apparent over-use of the ground of a “grave lack of due discretion” by one of the parties in their decision to marry. This ground essentially posits that one of the people in a marriage had their ability to rationally consent to marriage severely compromised by some psychological event or trauma. This could be as immediate as the pressure of a pre-marital pregnancy or as remote as the legacy of abuse suffered in childhood. It is a complex determination to be made and, unusually, it requires not only the juridic assessment of the advocates and judges but the opinion of an expert in psychology.

Leaving aside debate about whether this ground has been over-used by tribunals, it is a fact that, certainly in my experience, the vast majority of cases are tried under this ground. Yet all of a sudden I have seen it disappear from the docket across almost all the tribunals I work with. Instead, previously rare grounds, like fraud or error of quality of person, were making up the bulk of cases. At first I assumed that this was the result of Mitis Iudex’s suggested broadening of these grounds, though I saw little in the argumentation of the cases to suggest a new way of treating the matter. The real reason became clear to me in a discussion with colleagues from a number of different dioceses, thousands of miles apart, which I had earlier this week. They all reported that it was becoming increasingly difficult for tribunals to afford expert testimony from psychologists or therapists in lack of due discretion cases; the going rate for an opinion was about $500 (more than triple what a freelance canonist can hope to make per case) and the tribunals simply did not have the money. As a result, they were trying to process cases under other, less used, grounds which do not require outside experts, but which may not be the correct canon to apply.

Even if we accept that lack of due discretion has been a greatly over-used ground for a number of years, it cannot be a good thing that cases are being tried on grounds set according to their likely cost.

Pope Francis has been clear that he sees the reforms to marriage tribunals as a key part of his pastoral plan for the Year of Mercy. As dioceses consider how to allocate their resources and help advance the Pope’s agenda, they would do well to consider recognising their tribunals as a priority and give them the resources they need to offer couples the efficient, considered, and credible help they have every right to expect.

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