Dr. Edward Peters: A first and second look at “Mitis Iudex”

Editor’s note: The following two posts from Dr. Edward Peters were originally published on the In the Light of the Law site, and are posted here with the kind permission of Dr. Peters. The first post was published shortly after the release of the motu proprio Mitis Iudex; the second was published late yesterday. 

A first look at Mitis Iudex

The Latin text of Pope Francis’ Mitis Iudex is here. The document comes in four discernible parts: introductory remarks, an eight-point summary, new canonical norms (for Canons 1671-1691), and a “Procedure for cases declaring the nullity of marriage”. Looking, for now, ONLY at the eight Roman numeral headings summarizing the pope’s introductory remarks, my observations are:

I. Una sententia pro nullitate exsecutiva. This portends a significant change in the law, eliminating the current requirement that all affirmative cases (i.e., nullity was declared) be reviewed by a “second instance” tribunal, essentially, a careful re-examination of the first decision. Canon 1682. Optional appeal remains in place. Canon 1628. I have always said that mandatory review is not required for justice under natural law and that it serves, in my opinion, little practical value in canon law. Some respected voices in canon law would disagree with me on that. The delays associated with mandatory review were, in my opinion, exaggerated by tribunal critics, but this step will certainly shorten the overall process.

II. Iudex unicus sub Episcopi responsabilitate. This represents little or no change in the law. Bishops have always appointed tribunal judges. Canons 1420-1421. With routinely-granted episcopal conference permission, bishops could already assign marriage cases to sole, clerical (including deacons) judges. Canon 1425 § 4. It appears that such permission need no longer be sought.

III. Ipse Episcopus iudex. This represents little or no change in the law. Bishops have always been the first judges in their dioceses. Canon 1419 § 1. Exhortational language that bishops play a greater role in hearing actual cases is to be followed in light of, among other things, the demands already made on bishops’ time and their personal training and/or aptitude for technical juridical work.

IV. Processus brevior. This represents a very, very significant change in the law. I must address it separately.

V. Appellatio ad Sedem Metropolitanam. This will be a minor change in the law made practicable by the elimination of mandatory second instance. The canonical tradition has long preferred judicial appeals to be made to the metropolitan (usually, the archdiocesan) tribunal. Canon 1438. The current burdensome system of special appellate tribunals, handling mostly affirmative marriage cases, was an expedient for the processing of mandatory nullity appeals. Eliminate those, and this reform follows.

VI. Episcoporum Conferentiarum officium proprium. Beyond some exhortational language that might portend further local reforms, this implies what would actually be a minor change in the law and practice of the US. Setting fees for tribunal services is the responsibility of bishops. Canon 1649. Such fees, charged (if at all) only in first instance, covered, by my estimation, less than half of the real expenses incurred by US tribunals for marriage cases. What other countries might have charged for their annulment cases or what marriage cases actually cost in Rome, I do not know. But charging any fees for annulments was a constant public-relations problem for the Church. Myths of high fees and the innuendos associated with payments to Church figures abounded. While Francis seems to leave room for tribunals to charge “administrative expenses”, it seems like annulments are now supposed to ‘look free’. Whatever that means in the practical order it appears that tribunal fees will now be a matter of episcopal conference concern.

VII. Appellatio ad Sedem Apostolicam. This represents no change in the law. Appeal to Rome has always been a fundamental right of the faithful. Canons 331, 333, 1417, and 1442. The complex norms regulating appeals to Rome are not changed herein.

VIII. Provisiones pro Ecclesiis Orientalibus. Canonical housekeeping, alerting readers that separate norms for marriage cases in Eastern Catholic Churches apply to those churches. …

A second look at Mitis, especially at the new fast-track annulment process

In an earlier post today I applauded most of the reforms of the annulment process issued by Pope Francis in Mitis Iudex Dominus Iesus. I offered some additional positive remarks about Mitis on my“Canon Law” Facebook page. I mention these points not to win a hearing for the criticisms of Mitis I will make below, but to save the trouble of reiterating what I generally like about the document.

Through five new canons due to take effect in early December 2015, Pope Francis will authorize diocesan bishops to hear and decide, personally and very expeditiously (in roughly one-tenth the time presently needed) certain types of marriage nullity petitions, and he published an official explanation of his new process in the form of a “Ratio procedendi”. I think these five canons and the official explanation that accompanies them raise several serious questions for ecclesiastical marriage law. I will make two brief points about the canons themselves and then look at the official explanation.

The New Canons

First, New Canon 1683 n. 1 declares eligible for expedited processing petitions that are presented by both parties to the marriage or by one party but with the “consent” of the other. This provision is unsettling.

If the older canonical tradition wrongly assumed that a respondent necessarily opposed an annulment, this new norm wrongly, I think, makes relevant a respondent’s “consent” to an annulment petition. While a respondent’s participation in the tribunal process is always sought and is usually helpful in adjudicating marriage cases, his or her consent to a nullity petition is never necessary for the Church to exercise jurisdiction over a case and, more to the point, it is not indicative of the merits of the petition. Making mutual agreement to a petition an element of hearing that petition quickly risks confusing two things that the Church has long sought to distinguish, namely, the parties’ laudable cooperation with the tribunal’s search for truth and their collusion with each other toward a specific outcome. Treating nullity petitions in which the parties agree radically differently from those wherein they disagree, sends a dubious message.

Second, the tenor of these five new canons does not reinforce the unalterable fact that every annulment case—no matter how many pastoral, sacramental, or spiritual consequences it might have, and they usually have many—is fundamentally legal in nature. The inescapablylegal character of annulment cases explains why nearly every significant tribunal officer must have a degree in canon law. Legal training matters for those treating legal issues.

The new speedy annulment process, however, allows (I would say, pressures) bishops who are not necessarily canon lawyers (Canon 378), to rely heavily on a report drafted by someone who need not be a canon lawyer (Mitis, Art. 3), after conferring with an assessor who need not be a canon lawyer (Canon 1424), to rule upon a marriage that, besides enjoying natural (‘intrinsic’) indissolubility, might be sacramentally (‘extrinsically’) indissoluble as well. And note, these new speedy annulment cases are not cases that can already, under some circumstances, be processed quickly by documents because they deal with lack of canonical form or lack of canonical capacity. Canon 1686mox 1688. No, these fast-track annulment cases plainly turn on questions of consent to marriage—consent, long and by far the most complex topic in marriage canon law. True, a judicial vicar must provide certification that the petition proposed for speedy processing meets certain evidentiary criteria, and the defender of the bond is allowed to respond to the petition, but the judicial vicar is not making a judgment as to nullity when he verifies the presence of certain evidence, and the defender has drastically less time to work on a case slated for expedited processing than he or she has for a formal case. In sum, this general lack of awareness of the inescapably complex legal nature of marriage consent shown in these new rules is disturbing.

There is more to be said about the new canons themselves, but we must also look at the explanation Francis provided as to how these news canons should work in practice.

The Accompanying Explanation

Article 14 of the Ratio lists ten or twelve factors that enable an annulment petition (to which the parties agree) to be heard in a fast-track process. Note that the factors listed are simply examples of things enabling an annulment case to be heard quickly. Clearly, it is expected that other factors will also suffice.

The factors listed so far are (my trans): lack of faith that results in simulation of consent or an error that determines the will; brevity of married life; abortion procured to prevent procreation; stubborn persistence in an extramarital affair at the time of or just after the wedding; improper concealment of sterility or of a serious and contagious disease; concealment of children from a previous relationship; concealment of incarceration; entering marriage for reasons completely foreign to married life; unplanned pregnancy of the woman; physical violence inflicted to extort consent; lack of use of reason proved by medical documents; and so on.

Where to begin?

Looking at the examples offered—and setting aside the incoherence of some phrasings such as “abortion procured to prevent procreation”—they confuse several complex aspects of consent law, they seem to treat some fact patterns as if they were quasi-impediments to marriage, and they introduce into consideration some matters that have little (perhaps no) jurisprudence behind them with which to assist bishops assessing their significance in a marriage case. Worse, in my opinion, the enunciation of these factors is going to create crises of conscience among faithful who live with one or more of these conditions in their past.

The most confusing point about this list is that some of these factors, though presented as reasons for hearing a petition quickly, are actually grounds for nullity (e.g., simulation, force or fear); other factors, however, are most emphatically not grounds for annulment (e.g., brevity of married life); and others might, or might not, be suggestive of grounds for nullity (e.g., an extra-marital affair near the time of the wedding might show a grave lack of discretion of judgement or an inability to assume matrimonial rights and duties). Because traditional grounds of nullity have been mixed in among things that could be evidence for other grounds of nullity, and further mixed with things that are not grounds for nullity and often are not even evidence of grounds for nullity, confusion will—and already has, judging from questions I have already received from the faithful—erupt as to whether these factors are not just reasons to hear a case speedily, but are themselves proof of matrimonial nullity. Try to explain to non-canonists why one thing the pope listed (say, simulation) is grounds for an annulment but another thing he listed (say, pregnancy) is not grounds for an annulment.

Worse, many, many married couples have experienced one or more of these events in their lives. Unfortunately—again I say this has already started!—people with any of these factors in their lives are going to wonder, logically and sincerely, whether their marriage might be null. They will worry, for example, whether the fact that she was pregnant at the time of the wedding means their marriage is null. If not, why does it mean that an annulment case could be heard more quickly? Or, if he was not very active in the Faith when they married, did he just pretend for (technically, simulate) his wedding promises? Many of these questions are obviously highly dependent on fact analysis (e.g., what is “improper concealment” of infertility, what counts as “incarceration”?), and so one must ask, how are such cases reliably to be investigated, considered, and decided by a bishop (a man with about a hundred other things to do at any given time) in a matter of a few weeks?

Of course, in no time, this list of reasons to hear nullity cases quickly will lengthen greatly. And why not? If physical violence to extort marriage consent justifies a speedy hearing from a bishop, should not physical violence inflicted during the marriage also qualify? If pregnancy at the time of the wedding is grounds for a quick process, should not drug or alcohol or sexual abuse qualify as well? Last year Cdl. Kasper recklessly, but perhaps accurately, claimed that Francis believes half of all marriages to be null. I think that assertion, no matter who said it, is wrong, but it will take little imagination to conclude that half of all marriage cases should qualify for quick adjudication by diocesan bishops. Finally, if factors such as previous jail terms, abortions, or affairs leave a couple’s marriage liable to expedited annulment processing, is there now an obligation on couples to disclose such matters to each other—regardless of the implications such disclosures might portend for personal privacy and the internal forum?

Looking ahead

At the pope’s request, a tiny group of experts, most from just one country, developed these new canons and explanations in a very short time. I find, however, the implications of some of these norms for marriage law in general, and for diocesan bishops in particular, stunning, and I join Dr. Kurt Martens of CUA in wondering how bishops must feel at having such significant burdens thrust on them just in time for Christmas with, as far as one can see, virtually no prior consultation. I expressly cautioned against this approach last year and sound that claxon again. Assuming, in any event, that I have read the new norms correctly, and assuming that there are no easy resolutions to my concerns, what might one suggest?

First, and most importantly, the vacatio legis (a delay period before new laws go into effect per Canon 8) indicated for Mitis should be extended from this December until well into next year at the very least. If, as some assert, Francis’ annulment reforms are the most significant in the last three hundred years, a considerably longer period than three months is needed to prepare for them. If necessary, a request for an extension could be proposed by the upcoming Synod of Bishops.

Second, a much wider consultation about annulment reform should be conducted, a consultation that would involve, at a minimum, manyidentified diocesan bishops (identified precisely so observers could forward remarks to them) and canonists from several countries, especially from countries with extensive tribunal operational experience.

I repeat, some aspects of Mitis are sound. The elimination of mandatory appeal, for example, can be put into effect with minimal delay. But other aspects of Mitis, especially the fast-track annulment option, need, I suggest, considerably more study. I only hope sufficient time is accorded the wider Church to make such studies feasible.