Changes relating to some aspects of declarations of nullity for marriage
and application of these changes to the
tribunal of the diocese of New Ulm
On September 8, 2015, Pope Francis issued a legal document called MITIS IUDEX DOMINUS IESUS, (in English, “The Lord Jesus, the Gentle Judge”). In it, he revised some aspects of the procedure that is followed by the Church in declaring that a marriage is null. The secular media and even some Catholic media has, unfortunately not presented the information completely or correctly. This is written to clarify some of the misunderstandings that have come up in the days following the announcement of these changes.
The Church’s marriage nullity process:
The Lord Jesus taught that marriage is a permanent commitment, that the marriage vows, once exchanged and mutually received, are indissoluble. So that means that once a couple is married, even though they might get a civil divorce or separate, they still are in the Eyes of God joined in the bond of matrimony. This was counter-cultural in the time of Jesus’ public ministry and it is now.
The Church, though, has recognized that in some cases, there are conditions that prevent a marriage from being valid from the beginning. The Church, in every diocese, under the direction of the Bishop, establishes courts called Tribunals that exist to examine individual marriages to see if they are indeed true and valid marriage. A declaration of nullity, commonly called an “annulment” is given by the Tribunal in specific cases, after thorough investigation, are proven to have never taken place.
The process for evaluating these marriages that are called into question has developed over many centuries and continues to develop. It involves testimony and proof that the marriage did not exist; then the Tribunal issues a statement saying that the marriage in question was invalid from the start and that this has been proven beyond a reasonable doubt.
Pope Francis introduces changes to the Process
In introducing some changes to this process Church courts or Tribunals issuing decrees of nullity, reiterates in these changes the Church’s desire to uphold the teaching of Our Lord on marriage, that marriage is indissoluble. The Church maintains and assumes that a marriage is valid UNTIL it is proven contrary. It would be dishonest, unjust, and unmerciful to say that a valid marriage is invalid when it is not.
The Pope’s concern is not to have “easier” annulments but to make changes that would alleviate any unnecessary or burdensome barriers in obtaining a decision in a fair amount of time by Church Tribunals and minimize the amount of time that people need to wait for the procedures required by the justice of the Church to question whether their marriages are indeed valid or invalid. Because of this, Pope Francis, with the counsel and recommendations of a committee of experts in Church Law has changed some elements of the process while maintaining basic and essential principles of Church Law upheld for centuries.
What are the major changes to the Process?
There are three changes that affect the process for declaring a marriage null:
- the elimination of the requirement for an automatic second instance “appeal,”
- the introduction of a shorter and more streamlined process that can be judged personally by the diocesan bishop for certain rare and exceptional cases that are introduced to the Tribunal that because of circumstances or proof do not need the additional elements that would normally be a part of a trial.
- a request for a change in handling the costs that are a part of the operation of a Tribunal.
Each will be discussed more fully below.
When do these changes take effect?
These changes in procedure take effect on December 8, 2015, effectively three months after they were announced. It is normal for new laws to have a period to allow for transition to be studied and prepared. This means:
- for cases already introduced into Tribunals that are decided before December 8, 2015, the automatic second instance appeal will still take place according to the law.
- for cases introduced or that began before December 8, 2015, there is not the possibility of the rare and exceptional option of expediting the case with the involvement of the Diocesan Bishop.
What is the reason for removing the automatic “appeal” of a second instance court?
Up to the date of December 8, 2015, all cases that are decided will still be required to go to the second instance “appeal” court. The purpose of making this part of the marriage nullity process was to be a protection against mistakes being made in the first Tribunal, “another set of eyes” to ensure that the rights of all involved were protected.
The right to appeal a decision is a very important right everyone has, and it needs to be protected. It will continue to be an option for the parties involved, who after receiving a decision on a questioned marriage will still have the option of appealing the decision. The difference is that this “appeal” court will not automatically receive all the decisions, just the ones that are appealed by the parties involved. With the Pope’s changes, this will mean that after the Tribunal has made a decision on a particular marriage, the parties will have 15 days from receiving the decision to appeal if they think that the decision is in error or one or any of the parties believes that their rights were not properly protected.
The Pope has himself discerned that this change is the best way to use the resources of the Church in questions relating to the validity of marriages.
How Long the Process Should Last?
Because of the nature and gravity of questions relating to the validity of marriages, the process has requirements that must be observed to protect the rights of the persons involved: the right to be heard, the right to defend one’s self, the right to appeal. The process requires time to gather information, interview the parties and witnesses, and collect documents. The law foresees that the process should normally be wrapped up in about a year, but delays can occur which can mean that the process can take more or less time depending on the circumstances. The Tribunal of every diocese always wants to be efficient, while never rushed; the aim is always discovering the truth.
What is this new “shorter process” involving the Diocesan Bishop?
There are already before these changes of Pope Francis, situations that were shorter processes in the declaration of a marriage being invalid. Situations such as a Catholic being married outside of the Catholic Church without the proper dispensation would be an example of such a process.
The new cases, rare and exceptional, that are being added to this possibility of a shorter process would involve cases where the facts are very clear and the extra processes of a “full process trial” by the Tribunal would be an unnecessary formality.
Who would be eligible for the “shorter process” that is introduced by these changes of Pope Francis?
While this is all new, and has not been completely “ironed out” yet, the criteria that the Pope has determined to look at eligibility for this process is:
- When both spouses petition for the marriage study together, or at least the second party consents to the process.
- The nullity of the marriage must be manifestly clear. Since most deal with what is referred to as “defect of consent” (ie., a judgment of the internal act of the will of one or both of the parties), this is very difficult to prove in a summary way, thus most often would not be eligible for the “shorter process” that the Pope is introducing.
- All the facts would have to be very clear and beyond question.
The first criteria might be clear and obvious, but the other two criteria more often than not are not so clear and would need juridical protection that the “normal” process and not the abbreviated new summary process (“shorter” process) could handle. Furthermore, the connection to the Diocesan Bishop being personally involved would indicate just how rare and exceptional such a process should indeed be.
The way the “shorter” process would work:
- The parties (or one party with the consent of the other) submit a petition for a declaration of nullity to the diocesan tribunal which in addition to the usual information submitted would also have information which would demonstrate why the shorter process should be used and how the proofs can be verified with ready evidence.
- The Judicial Vicar of the Diocese issues a decree stating the grounds, nominates an instructor who gathers the evidence, and also nominates an assessor who will advise the Diocesan Bishop, and orders that they meet with the defender of the bond in a session within a period of 30 days.
- At that session, the parties will be questioned with their witnesses and other evidence may be presented.
- The defender of the bond and the parties will have 15 days to present their own arguments in the case
- Then the whole case is presented to the Diocesan Bishop for his judgment. If the Diocesan Bishop decides that he has “moral certainty” that the marriage is invalid, he can issue a sentence declaring the nullity of marriage. If the Diocesan Bishop cannot say he is morally certain, the case then goes back to the Tribunal to be opened as a “normal process”
- If the Diocesan Bishop affirms that the marriage is indeed null, the parties have 15 days to appeal the decision.
Length of time that the “shorter” process will take:
Some media outlets reported that this process will take 45 days. Even with the most clear evidence and cooperative parties and witnesses, the process will not be that quick! Justice is done with proof and facts and certainty, not speed and shortcuts! The number of 45 days seems to come from some reporters reading numbers in the Pope’s document, without considering that there are other considerations, such as the fact that the law allows 30 days to review a submitted petition by the parties, and 30 days to write the decision after it has been reached. The number also does not admit for the 15 days to pass to appeal the decision. That means according to most experts in Church law that the rare times that this “shorter process” might be used would be at least 120 days without any other possibility of delays that might come up.
What percentage of cases would qualify from the “shorter process”?
Looking at the cases that a Tribunal would normally accept, most judicial vicars are estimating a small percentage of cases would have everything they would need to qualify for this if they would have been submitted after the December 8, 2015 implementation date. (At first glance, it would seem that a good estimate would be under 10% of submitted cases based on historical estimates). Additionally, just because a case might be handled with the “shorter process” does not mean that it will be decided in favor of granting the decree of nullity after all the proof and evidence is gathered.
Why does the new procedure for the “shorter process” require both spouses to agree to it?
Just because both spouses agree to the proceeding doesn’t automatically mean that their marriage was invalid. This requirement will just help protect the rights of both spouses in a consistent way, and to Pope Francis, this seems the best way to accomplish this.
What about the “fees” that are involved in the process of obtaining a decree of nullity?
Here again, the media has included in reports some very absurd monetary figures involved in the process. Dioceses usually ask the parties to contribute to some of the costs that are involved in maintaining a diocesan office that is dedicated to receiving and reviewing questions about the nullity of marriages, called a Tribunal.
No one in the Diocese of New Ulm is ever “charged” for the procedure, and only after the case is decided is a request for a donation to defray a portion of the costs involved made to the party or parties. There are different ways of handling these costs in different places in the world (remember the Catholic Church is Universal!). In the USA, and in most dioceses including the Diocese of New Ulm, the diocese subsidizes heavily the costs associated with the Tribunal operation. And no one is ever subject to required payment of any amount that might be requested to handle the fees involved in the process.
The Pope rightly wants to be sure that there is no hint of someone being able to pay for a decision in his/her favor and has asked that fees be re-evaluated.
The New Norms and the Tribunal of the Diocese of New Ulm:
The Tribunal here is dedicated to the Truth and the teachings of Our Lord, and to following Church Law that governs the process of establishing the validity of individual marriages when they are called into question. The Tribunal takes the opportunity to recommit itself and its staff to a timely and just process for those involved for their good and spiritual well-being.
Should priests counsel parties to wait until after the December 8, 2015 implementation of the New Norms relating to these matters?
In short, NO. To wait to introduce a marriage being called into question until after December 8th so as to come under the “new norms” would seem to be an unnecessary delay to the parties involved. Cases introduced now moving forward into the future would not be concluded before the December 8th implementation, so they would not be subject to the requirement of “second instance appeal”.
If the delay to introduce a case is because of a desire to use the “short process” after December 8th, this could not be guaranteed since the overwhelming majority of cases would not qualify for the “short process.” So to delay would be only a delay of justice to the parties who seek the justice of the Church.
One of the good “on the side” results of this new set of “norms” and procedures by the Pope is that is allows us to once again be reminded about the truth of marriage, its goodness and its indissolubility and the need to protect parties and educate about what makes a marriage, and what is required by parties who wish to enter into marriage.
As with all new laws and procedures, it will take experts in Church Law time to implement the changes, and fine-tune forms and processes based on this new document and the wishes of Pope Francis. But we will make every effort to do it with a sense of fairness, justice and Truth, faithful to the Gospel and Our Lord Jesus Christ!