If you really want to know what the ‘fuss’ is about regarding Mitis Iudex Dominus Iesus (aka “Streamlining the Annulment Process”), it would be a good idea NOT to start with the popular media or even the local parish priest, but rather with the professional opinions of those who have been deeply involved in the process for years.
I have the personal impression that Cardinal Burke’s unceremonious departure from the Vatican at Pope Francis’ initiative (for reasons never publicly disclosed) was due, in part, probably large part, to the Pope’s intent to streamline the annulment process in ways with which Cardinal Burke did not agree. Obviously, as head of the Apostolic Signatura and the Rota, Cardinal Burke was in a unique position, over years, to see (and reverse) errors in the lower diocesan courts. That does not mean the process was perfect, or even that his own work was error-free; rather, he saw the opportunity for abuse which could come more easily with the kind of “streamlining” Pope Francis was then envisioning. I also have the personal opinion that if Cardinal Burke had supported such radical change, and stayed as head of the Apostolic Signatura to facilitate it, the changes would have happened a year earlier. But, with some separation in time, perhaps people will not link the two events.
Those are my personal opinions, worth absolutely nothing compared to the professional expertise and knowledge of those who regularly work deep in the process of canon law matters regarding annulments. The first press releases are often sensational, spun to the audience, and lacking in understanding. Then comes the commentary of people, trying to straighten out the media, introducing their own misunderstandings. Finally, if we wait for it, those who have taken the time to think, write and publish can make the reality known. Time is often more of a burden to truth than to fiction. However, in this case, the wait is worth it (and not all that long a wait either!) as the St. Joseph Foundation, the premier not-for-profit organization representing the rights of Catholics, laity as well as clergy, has published in its latest Christifidelis newsletter, two articles — one by its President, Philip C. L. Gray, JCL on “What’s All the Fuss?” and one by Edward N. Peters, JD, JCD, on the Canonical Basics. Together, these articles from the two leading canonists in this field, should be mandatory reading for anyone wanting to help others to understand, as opposed to simply sowing ill-informed coffee-break opinion.
The current Christifidelis newsletter can be found at https://stjosephcanonlaw.com/newsletters/contents/?issue=volume-313 and you may need to register (no cost), but it is well worth it, and you won’t be spammed, I promise! Meanwhile, to whet the appetite, here are just a few of the specific discussion points to explore further in that newsletter:
By Philip C. L. Gray:
- “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.”
- “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.”
- “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.”
- “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.”
- “Unfortunately, Mitis Iudex Dominus Iesus removes necessary protections provided by law.”
- “I offer a summary of the more harmful changes made to the current law….”
i. “No Automatic Review: 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.”
ii. “Fewer 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.”
iii. “Rejection of Appeal: [A single judge] could reject an appeal summarily and simply issue a letter to that effect [replaces current process with three judges reviewing the case.] … The expressed intention of the Pope is to limit the number of cases heard on appeal.”
iv. “The Pope has now obligated diocesan bishops to act as a sole judge in all fast-tracked cases within his respective diocese … 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.”
“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.” ( See page 8 of the newsletter.)
By Edward N. Peters:
“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 … is not indicative of the merits of the petition…. [It] 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.”
“… every annulment case—no matter how many pastoral, sacramental, or spiritual consequences it might have … is fundamentally legal in nature….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 to rely heavily on a report drafted by someone who need not be a canon lawyer, after conferring with an assessor who need not be a canon lawyer, 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. 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.”
“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. … Looking at the examples offered … 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. …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….”
“… 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.”
In conclusion, I would also like to add into the mix of input from the excellent and timely Christifidelis newsletter, a consideration on behalf of the individual priests and the related conscience issues raised for any judge losing a strong defender of the bond in the process, losing the collegiality of three judges seeing matters from various viewpoints and sharing those opinions in order to reach the best and most honest decision, losing sufficient time to make a fair, just and impartial decision, and losing the benefit of the second instance review, for the humility of subjecting one’s work to significant oversight. And I’d like to add a concern for individual souls who will soon know that various dioceses will have bishops of stronger or weaker integrity, and be able to ‘shop’ a decision, and learn to play the game to get what they want. And, if or when that happens, for those who lose the chance to really know the truth of their situation.
God help us all!