What's All the Fuss? Pope Francis & Changes to Marriage Nullity Procedures

By Philip C.L. Gray, J.C.L.

Dearly beloved, taking all care to write unto you concerning your common salvation, I was under a necessity to write unto you: to beseech you to contend earnestly for the faith once delivered to the saints (Jude 3).When I became President of The St. Joseph Foundation, I adopted the Epistle of Jude, particularly verse 3, as my mandate in office.  Before reading any further, I urge each of you to prayerfully read this very short, often forgotten epistle.  Its message deeply influences this article and my views on the crisis present in the Church today.Contemporary ContextOn September 8, 2015, the Pope significantly changed certain procedures in marriage nullity cases worldwide.  The motu proprio, Mitis Iudex Dominus Iesus, effected these changes in the Western (Latin) Church; Mitis et misericors Iesus, did the same for the Eastern Catholic Churches.  It is important to note that the changes only change ecclesiastical laws that affect procedures for hearing marriage nullity cases.  Acting as the Chief Legislator for the Universal Church, the Pope used his power to alter ecclesiastical discipline.  He did not proscribe doctrine.  He did not redefine marriage.  He did not define a matter of faith or morals.  Depending on one’s theological leanings, personal circumstances, or both, one may laud or complain.These recent changes in law take place during a time of rampant, moral relativism that has imbedded itself firmly within modern thought and practice—including the thoughts and practices of clerics, religious, and laity who catechize and influence millions of people.  Oftentimes, this moral relativism is expressed in the Church by way of a negligence that encourages a co-existence with evil rather than affirmative action to denounce it.  For example, what have bishops and priests done to decrease the number of divorces and encourage fidelity in marriage?  Where was the outrage from American bishops over the recent recognition of same-sex marriages?  What is the most affluent bishops’ conference doing to address an evil that caused the destruction of Sodom and Gomorrah, and cited as a cause for the destruction of Jerusalem and the exile of the Jews (c.f. Is. 3:9; Jer. 23:14; et al.)?I have found very few opinions or comments on the recent changes to law that I agree with, and almost none that I entirely agree with. I have been a canon lawyer for over 20 years, and have spent this time defending the faithful against unreasonable and unjust processes.  I cannot remember anytime that the number of my clients did not include those in a marriage nullity dispute.Historical ContextIn 1741, Pope Benedict XIV was Pope.  The Protestant Reformation, the Counter-reformation, and the defeat of the Ottoman Empire had occurred almost two centuries before.  Catholicism was settling into a co-existence with Protestantism in Europe, and the Church’s influence in secular society was declining.  Catholics were adopting Protestant views and values. Catholics married, divorced, obtained annulments and remarried multiple times over short periods.  The Pope was appalled.  He lamented that many would go through three marriages, and some even six marriages, in a lifetime.  The annulment process was easy.  If couples agreed on the facts of their situation, they could obtain an annulment without the need for unnecessary and bulky processes.  As the family goes, so goes society; and family life in the Catholic Church was on the verge of collapse.  The Pope acted decisively.  He instituted new procedures and elements to the annulment process that required a defense of the marriage bond itself in protection of marriage and family.Over time, the new elements to the process had an instructive effect.  By the 20th Century, it would be rare in Europe or the America’s for anyone—including non-Catholics—to believe the Catholic Church allowed divorce and remarriage.  People still had affairs; marriage vows were violated; but the Church’s clear position became an occasion for many couples to reconcile.  In fact, both the 1917 and the 1983 Codes of Canon Law, in reflection and application of Divine Law, obligate pastors and couples to pursue reconciliation before an annulment—even if a separation or divorce has already occurred; even if the marriage was invalid (Canons 529§1, 1676, et al.).In 1972, the Holy See allowed what were called the American Procedural Norms (APN) to be used experimentally in the United States.  The APN provided much the same procedures that the new law now provides.  Many canonists and priests hoped that the APN would be introduced into the 1983 Code of Canon Law.  After more than ten years of the experiment, Pope St. John Paul II rejected them.  The experiment was considered a failure due to significant, negative effects on Catholic marriages and family life in North America.A picture is worth a thousand words; allow me to paint a picture of the negative effects with quotes made by priests, canonists, even a professor of Canon Law, in the wake of the APN. “I can prove that all marriages are invalid.”  “God would never let divorce happen if the marriage is valid.”  “Anyone who opposes an annulment is a problem to be dealt with.” None of these comments focus on truth or reflect an objective doctrine on the indissolubility and sanctity of marriage.  I have heard from many people who approached their pastors for help in a difficult marriage situation, and were told, “Get a divorce, and I can make sure you get an annulment.  It will be easy.” And what about the children?  The law says they are not illegitimate, but that’s not their perception.  A primary, motivating influence on my clients—Protestant and Catholic—for defending the validity of their marriages, is their concern for the sake of their children. I know of no study or concern shown for the effects of a marriage nullity process on the children of the spouses; but from my conversations with those children, it is significant and it is negative.  Many turn away from God.What’s all the fuss?If you wake up and a fire is raging in your home, what would you take with you out of the house? Would you go for irreplaceable items that have significant meaning or the latest newspaper?  When the fire department comes, the firemen don’t throw fuel on the blaze to give themselves more to do. They do their job.  It’s a simple fact; we protect what is important to us.  Unfortunately, Mitis Iudex Dominus Iesus removes necessary protections provided by law.  The world is burning the institution of marriage with the fires of hedonism (fornication, divorce, abortion, same-sex unions), and the Church gives us an easier way to claim freedom from our spouses.The document was issued in Italian and Latin, but the Vatican News Service published two articles in English that summarize the content of the documents.I urge Christifidelis readers to read at least the English articles.  If you do not have access to a computer and printer and want a copy, please call or write to us.  Because of space considerations, I offer a summary of the more harmful changes made to the current law followed by my comments on those points.No automatic review: Reflecting a fundamental principle to the ancient system of Roman (Civil) Law, all affirmative decisions issued by a Church tribunal must be reviewed by a higher court and either ratified by that court or submitted to an ordinary examination at trial. This mandatory, second instance review is a check and balance intended to discourage subjectivity, collusion, and laxity in the exercise of justice in the Church’s judiciary.  Many characterize this as an “automatic appeal”.  It is not an appeal but an obligatory review intrinsic to this system of justice.  The Pope abolished this mandatory, second instance review for marriage nullity cases only.Fewer judges: Canonical trials require a tribunal of at least three judges to issue a decision.  This requirement is also a check and balance in favor of objectivity and justice. The current Code of Canon Law allows conferences of bishops to allow a single, clerical (deacon or priest) judge to issue a decision in marriage nullity cases during the first instance trial, though bishops are not obligated to allow only one judge.  Second instance reviews must retain three or more judges.  The Pope has regularized the use of a sole judge.  With the abolition of a mandatory, second instance review, marriage cases will now be decided habitually by a single cleric.Rejection of an appeal: Currently, a second instance tribunal must follow a very specific process to determine whether an appeal made against a lower court will be heard.  The initial decision to hear the appeal or ratify the lower court is given by decree that explains the motivation of the three judges involved.  The Pope has added the possibility of a second instance tribunal to dispense from such a process and issue a rejection of the appeal a limine (literally, at the gate). This simply means the head of a second instance court, or one properly empowered by law or delegation, could reject an appeal summarily and simply issue a letter to that effect.The expressed intention of the Pope is to limit the number of cases heard on appeal.  As expressly stated by the Vatican, a second instance court could reject an appeal a limine if the court believed the appellant was abusing the right to appeal with an evident lack of supporting documentation.  Another reason identified is termed “instrumental appeals”; meaning the appeal is intended to harm the other party by dragging out the process. The specific scenario identified in which this could occur was a non-Catholic appellant who had already re-married after the divorce (the Vatican did not qualify this example any further).The new process: The diocesan bishop is the First Judge of his diocese.  That is, regardless of his training or background, every diocesan bishop, by virtue of his consecration and office, supervises the administration of justice in his diocese and may choose to serve as a judge in any trial conducted by his diocesan tribunal.  The Pope has now obligated diocesan bishops to act as a sole judge in all fast-tracked cases within his respective diocese.The Pope has established a new, fast-track process “to be applied in cases in which the alleged nullity of the marriage is supported by particularly clear arguments[i].  Of note, “supported by particularly clear arguments” would apply in cases when both the man and woman in the marriage nullity process agree to fundamental facts associated with the claim of nullity.  This is a departure from Canon 1536, §2, which does not allow a judge to arrive at moral certitude in favor of marriage nullity from the testimony of the parties alone.Salus animarum: It is important to note that the Holy Father expressly intended to streamline the marriage nullity process in order to provide for the salvation of souls.  He wants people in irregular unions—the divorced and remarried—to have greater opportunity to be reconciled with the Church and receive the sacraments again.Two Cents and More…In my opinion, the changes to the marriage nullity procedures will prove harmful to the Virtue of Justice and diminishes necessary safeguards that protect the sanctity of marriage and family.  Here’s why.Any legitimate and just system of law provides checks and balances against subjectivity, collusion, and any other element that may obstruct the Virtue of Justice.  Removing one element from a legal system without balancing that removal with some other method or element creates a loophole easily exploited.  Canonical trials for centuries have relied on the element of mandatory second instance reviews, three judge panels in first instance, and the procedures used on appeal to safeguard objectivity and truth in marriage nullity trials.  Removing these elements without providing other checks and balances substantially alters a system of law and creates significant loopholes that allow unjust practices.For example, I know of many cases in which the petitioner “bought” an annulment.  In one case, I actually saw a letter identifying the reward to be given.  In other cases, I know of judges who act out of fear of reprisal by their bishop or the judicial vicar.  More commonly, most tribunal judges I have encountered in North America demand a lower threshold of proof to arrive at moral certitude than demanded by papal instructions and long-standing jurisprudence.  In my experiences, the truths surrounding the marriages in question often have little value.  I have used the elements now removed to ensure an objective hearing for my clients.  The results are staggering.  More than 90% of the decisions issued against my clients were overturned on appeal.  In some cases, corrective action was taken against tribunal personnel.  Effective December 8, 2015, those safeguards will no longer exist.My concerns about removing essential elements of a process apply also to the innovation of a fast-track process for particular cases of marriage nullity.  This innovation is similar to certain elements of the APN and pre-1741 processes.  It was the failure of those procedures to provide objectively for the protection of rights that led to their demise.The innovation of a limine rejection of appeals is disturbing to me.  It is held as a matter of Natural Law that a person’s right to appeal is inalienable.  I recognize that this innovation in the process does not abolish the right to appeal.  I also understand that the implementation of law must be reasonable, and that unreasonable appeals should be rejected.  Nonetheless, given the aversion of many North American tribunals to objectively and comprehensively evaluate the facts of a marriage nullity petition, I am most concerned over how this will be done and the motivations used to reject appeals.Currently, a limine rejections of appeals are an element of the administrative appeal process at the Apostolic Signatura.  However, if the Supreme Tribunal rejects a case in limine, the appellant has the right to demand a full hearing from that Tribunal’s Congresso.  In other words, though the Prefect or Secretary may reject an appeal, the appellant can force a panel of prelates to review the case and issue a decision on the merits of the appeal.  If such a safeguard is not provided in marriage nullity appeals, this innovation—together with the loss of three judges and the loss of a mandatory second instance review—allows for significant abuses.The Holy See specifically uses the example of “instrumental appeals” by non-Catholics who have already remarried civilly as a potential reason to reject an appeal a limine.  This means a second-instance judge must determine the appellant’s intentions for appealing, and may dismiss the appeal without a hearing on the evidence.  The potential for abuse is immense.It is important to note the most marriage nullity cases in North America are not currently contested; i.e., both parties seek the freedom to marry and usually get what they want.  I also note that the current process allows for a rejection of an appeal with minimal review by the higher court.  Given the very high percentage of cases overturned on appeal and the ability of a higher court to reject an appeal in the current system, I wonder what value the a limine rejection would actually have in an objective process.It is also important to note that the Holy Father expressly intended to streamline the marriage nullity process in order to provide for the salvation of souls.  He wants people in irregular unions—the divorced and remarried—to have greater opportunity to be reconciled with the Church and receive the sacraments again.  Herein lies a significant problem.Divine Law intrinsically ties the salvation of souls to Truth (c.f. John 8:32).  As noted by Pope St. John Paul II, it is adherence to and protection of the Truth in marriage nullity cases that expresses true pastoral sensitivity.  This sensitivity must be directed toward the truth; not toward granting the parties freedom to remarry.  This is true freedom; to recognize the Truth of one’s circumstances and choose to accept the grace of those circumstances.  If that means one’s marriage is null, the parties may remarry in the Church; but if evidence is lacking, they must gracefully accept the circumstance and either reconcile with the other spouse or live a chaste life.  Salvation of souls requires us to desire and pursue what is true, not to call true what we desire.[ii]Where do we go from here?I am deeply concerned over how marriage and family will be viewed and promoted in the wake of these changes.  The disciplines of the Church are instructive, and I fear these new disciplines will encourage a changed perception in the Church’s doctrines.  What is the solution?  “I beseech you to contend earnestly for the faith once delivered to the saints” (Jude 3).  Be faithful to the Truth.  Be faithful in your marriages.  Do not be confused.  We must reclaim the Sacrament for what it is; the Primordial Sacrament as identified by Pope St. John Paul II[iii]; the only sacrament that existed before sin, and the only one that was not given as a result of sin.St. Joseph and his Immaculate Spouse, pray for us![i] His Holiness Pope Francis, motu proprio: Mitis Iudex Dominus Iesus, 8 Sept. 2015[ii] C.f. John Paul II, Allocution to the Roman Rota, Jan. 18, 1990.[iii] General Audience, 20 Feb. 1980.Source: Christifidelis Newsletter, Vol. 33, No. 6. Reprinted with permission from author, Philip C. L. Gray, J.C.L., President of The Saint Joseph Foundation.