It seems like an age ago that Mitis iudex Dominus Iesus, the Holy Father’s motu proprio modifying matrimonial cases in the Latin Church, was the subject of debates about “Catholic divorce.” For our part, we think that in many respects, Mitis iudex is very traditional and seeks to restore aspects of the 1917 Code jettisoned in the 1983 Code. In particular, the 1917 Code emphasized the role of the bishop as ordinary judge of the first instance in his diocese (1917 CIC 1572 § 1), including his right to preside over the tribunal personally (1917 CIC 1578). Furthermore, the restoration of the metropolitan tribunal as default appellate tribunal also reinstates a practice under the 1917 Code (1917 CIC 1594 § 1). But no one has so far been especially interested in the ways in which the Holy Father has restored prior practice. Everyone has been especially interested, however, in the processus brevior—the shorter process conducted by the diocesan bishop personally.

One concern has been that the processus brevior will become the default procedure for matrimonial cases. Francesco Cardinal Coccopalmerio, president of the Pontifical Council for Legislative Texts, the dicastery responsible for providing authentic interpretations of legislation, has apparently sent a letter to a priest advising that the processus brevior may be harder to get into than one first thought. The Catholic Herald reports:

A top Vatican official has clarified the use of fast-track annulments amid disagreement among canon lawyers.

Cardinal Francesco Coccopalmerio, president of the Pontifical Council for Legislative Texts, said that annulments could only be fast-tracked with the explicit consent of both parties.

His clarification, in a letter to a priest in the United States, surfaced as the subject was being contested at a conference of the Canon Law Society of America.

Canon lawyers say the intervention makes clear that the fast-tracking of annulments – introduced in the Pope’s landmark apostolic letter Mitis Iudex – will be rare.

(Emphasis supplied.) In other words, when spouse does not participate in the nullity proceeding the processus brevior is immediately off the table. This is not an insubstantial thing, either, since apparently about half of the nullity cases in the United States and England have an absent spouse.

Canonist Edward Condon, who noted that Cardinal Coccopalmerio’s letter emerged during a meeting of the Canon Law Society of America, adds,

In a letter responding to questions about the correct implementation of the reforms of Mitis Iudex, Cardinal Coccopalmerio, who was a full and formal member of the committee which drafted Mitis Iudex and is the head of the Vatican department charged with issuing authoritative legal interpretations, said the “explicit consent” of the respondent was a “condition sine qua non” for the short form process to be used. He also reaffirmed that the full process is properly termed the “ordinary process”.

(Emphasis supplied.) Condon also gives a little more context: Fr. Francis Morrisey, a Canadian canonist who was not part of the Mitis iudex drafting team but who apparently had been consulted by the team, argued that non-participation by one spouse could give rise to a presumption that he or she consented to the processus brevior. Fr. Morrisey also (it appears from Condon’s report) suggested that the processus brevior could be used as the default process in tribunals. Cardinal Coccopalmerio’s letter apparently knocked the wind out of both proposals.

To our mind, Cardinal Coccopalmerio’s interpretation is a very straightforward interpretation of Mitis iudex canon 1683, 1º, which reads, in Latin,

Ipsi Episcopo dioecesano competit iudicare causas de matrimonii nullitate processu breviore quoties:

1° petitio ab utroque coniuge vel ab alterutro, altero consentiente, proponatur;

2° recurrant rerum personarumque adiuncta, testimoniis vel instrumentis suffulta, quae accuratiorem disquisitionem aut investigationem non exigant, et nullitatem manifestam reddant.

(Emphasis supplied.) Neither Mitis iudex or the Ratio procedendi that accompanied it gives any indication that consent could be presumed to the processus brevior. Condon notes that, in canon law, consent generally requires an affirmative act of the will. (In American civil law, about which we know a little, we note, not showing up to court generally results in default judgments. That is not possible in nullity cases.) And now it appears that Cardinal Coccopalmerio has confirmed the literal text.

But presumably when both spouses are present and consent to the processus brevior, the case will proceed on the processus brevior. (But we wonder to what extent a bishop could cite MI canon 1683, 2º to refuse to admit a case to the processus brevior.) And, when we first read Mitis iudex, our first thought was not that the processus brevior would be leveraged to create “Catholic divorce,” but that it would it even easier for spouses to collude to obtain a constat de nullitate. (Collusion seems possible when a Catholic couple splits up, both spouses meet new folks, and both spouses want to get remarried in the Church.) Obviously, if parties are working together for the same end—civil lawyers might call such a thing a “friendly suit”—it is hard for a tribunal to thwart their ambitions. In the ordinary process, however, an instructing judge has more time to get to the bottom of things and the tribunal, often made up of a diocese’s serious canonists, can consider the evidence much more thoroughly. But given the time pressures and the fact that many bishops are not canonists, we wonder whether colluding spouses might be able to obtain a constat much more easily.

We note, too, that the Synod has taken up most of everyone’s attention lately. We hope that folks will not forget that our bishops need their subjects’ help in implementing Mitis iudex. Canon 212 § 3 applies to all sorts of things, not merely to Synod-related things.