(Oct. 22, 2015) On September 8, 2015, Pope Francis issued two Apostolic Letters, motu proprio (on his own initiative), in matters concerning Catholic marriage, which will enter into effect on December 8, 2015. The Pontifical Council for Interpretation of Legislative Texts performed the legislative work. (Pontifical Council for the Interpretation of Legislative Texts, The Vatican website (last visited Oct. 21, 2015).) The first Letter applies to the Latin Catholic Church, the second to the Eastern Catholic Churches. This article will just discuss the first Apostolic Letter.
This apostolic letter, referred to as Mitis Iudex, is on the “Amendment of the Canonical Procedure for the Causes on the Declaration of Nullity of Marriages in the Code of Canon Law” of 1983. (Code of Canon Law, The Vatican website (last visited Oct. 21, 2015); Lettera Apostolica in Forma di «Motu Proprio» del Sommo Pontefice Francesco, Mitis Iudex Dominus Iesus Sulla Riforma del Processo Canonico per le Cause di Dichiarazione di Nullità del Matrimonio nel Codice di Diritto Canonico [Mitis Iudex] (Aug. 15, 2015), The Vatican website (in Italian).) Mitis Iudex replaces Book VII of the Code of Canon Law, Part III, Title I, Chapter I, on the “Causes for the Declaration of the Nullity of Marriage.” (Code of Canon Law, Canons 1671-1691.) Mitis Iudex also includes “Procedural Rules for the Substantiation of Marriage Nullity Cases.”
General Purpose of Mitis Iudex
Mitis Iudex recalls that a majority of the bishops in the meeting gathered at the Third Extraordinary General Assembly of the Synod of Bishops (or the “Synod on the Family”) held at the Vatican in October 2014, requested that the Holy See create a faster and more accessible canonical procedure for the declaration that a marriage is null. The stated purpose of Mitis Iudex, according to the President of the Pontifical Council for Legislative Texts, is not to favor the nullity of marriages, but to render “marriage nullity trials more swift and speedy.” (Press Conference Details Marriage Law Reforms, NEWS.VA [the official Vatican network] (Sept. 8, 2015); Extraordinary Assembly of the Synod of Bishops, 5-19 October 2014, NEWS.VA (Oct. 3, 2014).)
In its preamble, Mitis Iudex reiterates the canonical principle of the indissolubility of marriage. It also emphasizes that the judicial, rather than administrative, nature of marriage nullity procedures was justly established by preceding Supreme Pontiffs to “protect in the highest degree possible the truth of the sacred bond (marriage).” (Mitis Iudex, Preamble, ¶ 2.)
Marriage Nullity Proceedings: The Judge
Under the amendments, unless an express legal exception applies, in each diocese the diocesan bishop is now the judge of first instance (diocesan tribunal) for the cases of nullity of marriage. (New Can. 1673 §§ 1 & 2.) The diocesan bishop may decide to exercise his judicial power personally or through other clerics or to send his cases to a neighboring diocesan or inter-diocesan tribunal. (Id.) A single judge, whether the bishop or his delegate, is to decide the nullity case. (Id. § 4.) Episcopal Conferences are reminded to absolutely respect the rights of bishops to organize their judicial powers in their own jurisdictions as they deem fit. (Mitis Iudex, at VI.)
Nullity procedures are free of charge, with the exception of the “just and dignified” compensation due to judicial clerks. (Procedural Rules for the Substantiation of Marriage Nullity Cases, Mitis Iudex, art. 7 § 2.)
Amendments to the Ordinary Proceedings
Mitis Iudex introduces significant procedural amendments to the current ordinary procedure for the substantiation of nullity of marriage claims. The current Code provides that 15 days after notifying a respondent and the Defender of the Marital Bond (a canonical clerk whose mission is to oppose the request for nullity), the judge must issue a decree within ten days establishing the “formula of doubt” (that is, whether grounds to determine the nullity of the marriage exist) (Current Can. 1677 § 2 & 3.) With the amendment, the same decree establishes whether the case is to be substantiated according to the ordinary or the abbreviated procedure. (New Can. 1683 § 2). In addition, this judicial decree orders that a panel of judges or a single judge panel be constituted (New Can. 1676 § 3), eliminating the previous need of a separate decree to that effect (Current Can. 1677 § 4). Per the amendment, decrees must be “swiftly notified to the parties and to the Defender of the Bond.” (New Can. 1676 § 2.)
A new abbreviated procedure is created for cases where “the alleged nullity of marriage is supported by arguments particularly evident” (Mitis Iudex, at III; New Can. 1683-1687; Mitis Iudex, at IV; New Can. 1683.) This procedure is to be used under two circumstances: when both spouses agree to submit the libellus (complaint), and when “factual or personal circumstances, proven by testimonies or documents that do not require an investigation or a more accurate instruction … render manifest the nullity.” (New Can. 1683.)
The libellus must “briefly, integrally and clearly expound the facts” on which it is based; indicate the evidence, “which may be immediately collected by the judge;” and provide the documentary evidence on which it is based. (New Can. 1684.) The respective hearing must be held no later than 30 days from the date when the decree establishing the formula of doubt is issued. (New Can. 1685.) If possible, the judge must collect the evidence in one hearing only, and establish a term of 15 days for the submission of comments in favor of the matrimonial bond and the defenses of the parties, if they exist. (New Can. 1686.)
While current canon 1673, section 2, gives competence for handling marriage nullity cases to “the tribunal of the place in which the respondent has a domicile or quasi-domicile,” that section is replaced by new canon 1672, section 2, which states “that the tribunal of the place where one or both parties have their domicile or quasi-domicile” is also competent. The revised canon also eliminates the former requirement of a judicial vicar’s consent before a nullity case can be tried by a tribunal in the place in which most of the evidence to be considered is collected. (New Can. 1672 § 3.)
Appeals and Composition of the Canonical Tribunal
Mitis Iudex eliminates the need for a second appellate decision to confirm a first instance decision that declares the nullity of a marriage. (New Can. 1679.) Mitis Iudex does not amend the current canonical right of every Catholic to petition the Rota Romana (Vatican Supreme Court) in any matter of their interest, which includes ecclesiastical decisions that either approve or reject a request for the nullity of a marriage.
Mitis Iudex maintains collegiate judicial panels that handle second instance appeals of nullity of marriage decisions. These panels, formed by three judges, must be presided over by a clerical judge; the rest of the judges may be laymen. (New Can. 1673 § 3.) [Note that the new Code of Canon Law for the Oriental Churches says: “and the rest of the judges may be Christian laymen” (New Can. 1359 § 3).] In cases where it is not possible to constitute a collegiate panel, the bishop appoints a single clerical judge to perform appellate review functions. (New Can. 1673 § 4.) With the approval of the respective bishop, this single clerical judge, whenever possible, must bring in two “associates of exemplary life” (persons who abide by the moral standards of the Church without reservation), and who are also experts in legal or humane sciences, to assist the single clerical judge with the procedures. (New Can. 1673 § 4).
Pastoral Efforts to Avoid Declaration of Nullity
Current canon 1676 directs the ecclesiastical judge, before accepting the case “and whenever there is hope of a favorable outcome … [, to] use pastoral means to induce the spouses if possible to convalidate [that is, to remove the obstacles that impinge the harmonious development of the marital bond] the marriage and restore conjugal living.” The amendments eliminate the obligation of pastoral efforts, establishing instead that the ecclesiastical judge “must have the certainty that the marriage has irretrievably failed, in a manner that it is impossible to reestablish marital cohabitation.” (New Can. 1675.)
The current Code refers to the need for “full evidence” to demonstrate the facts of the case. (Current Can. 1679.) (Under canon law and civil law, evidence is classified in categories of “full” proof, “half” proof,” and “quarter” proof, depending on several criteria; e.g., relative closeness to the facts and degree of blood relationship to the parties.) The amendment specifies that confessions (sworn depositions provided by a party to a marriage nullity case within a canonical judicial procedure) and statements of the parties, supported by any documents concerning their credibility may be regarded by the judge as “full evidence” to establish the facts of the case. (New Can. 1678 § 1.) The amendment adds that these evidentiary means are “to be valued by the judge considering all the indicia and circumstantial evidence, if there are no other elements refuting them.” (Id.) Thus, it is easier to prove a case for nullity under the amended Code.
The testimony of only one witness will now be sufficient to establish the proof needed for nullity, provided that the person is a “qualified witness […] or the circumstances surrounding the facts or the persons suggest that it is proper to establish full proof authority for a given fact.” (New Can. 1678 § 2.) This is a major departure from the previous canonical rule that at least two witnesses are required to have a fact proven.
The current Code allows the judge to appoint one or more experts in cases of impotence or when one party could not have properly consented to the marriage due to mental illness. (Current Can. 1680.) The amendment broadens this ground to cases of “mental or physical illness,” and directs the judge to appoint two or more experts to attest to such illness. (New Can. 1678 § 3.)
Decisions that reject a claim for nullity, or that stay the proceedings, or that concern any other matters except the approval of a nullity, are appealable. The aggrieved party, the Promotor of Justice, and the Defender of the Marital Bond all have standing to appeal a decision on nullity. (New Can. 1680 § 1.) The Promotor of Justice is a judicial clerk “appointed in the diocese for penal cases, and for contentious cases in which the public good may be at stake.” (Code of Canon Law, IntraText (last visited Oct. 22, 2015).)
The appellate panel is entitled to reject the appeal when it is “manifestly dilatory,” in which case it must confirm the decision under appeal. (New Can. 1680 § 2.) If a new ground of nullity of the marriage is introduced at the appellate level, the judge may rule on that ground “as a first instance tribunal would.” (New Can. 1680 § 4.)
The current Code provides that after the declaration of nullity of a marriage the parties to it may contract a new marriage “as soon as the decree or second sentence [the appellate decision that declares the nullity, overturning a first instance decision that denied it] has been communicated to them.” (Current Can. 1684 § 1.) The amendment eliminates the need of formal, legal communication to the parties of a declaration of nullity as a requirement for the validity of such a declaration in order for a party to be able to contract a new marriage. (New Can. 1682 § 1.)