On the better-than-average website for the Pontifical Council for Legislative Texts, there are six letters concerning the implementation of Mitis iudex Dominus Iesus, the Holy Father’s recent motu proprio reforming the procedure for matrimonial cases. Two letters—Prot. No. 15138/2015 and Prot. No. 15139/2015, both dated October 1, 2015—are especially interesting, as they deal with the admission of a case to the processus brevior. We have written about them before, especially when, as we recall, canonist Ed Condon reported on them initially. However, the PCLT website makes these letters—and four others—available for all who want to read them.
In case you don’t want to visit the PCLT website: the letter in Prot. No. 15138/2015 states,
The new canon 1683 and Art. 15 of the procedural norms make clear that the consent of the petitioner and the respondent (whether given by a joint signature of the parties or by other means) is a preliminary condition to initiate the brief process. The consent of both parties required to initiate this procedure is a condition sine qua non. This explicit consent is foremost necessary because the brief process is an exception to the general norm.
If the whereabouts of a respondent are unknown, the case cannot be accepted for the processus brevior. While the legislator formulated a presumption regarding the disposition of the respondent in art. 11 §2 of the procedural norms, this presumption applies only to the ordinary process and not to the brief process. Though the consent of the respondent can be given by several means, those means must however guarantee publicly and unequivocally his or her will, also for the protection of the judge and the parties. Otherwise, the brief process cannot be introduced.
(Emphasis supplied.) In the same vein, the letter in Prot. No. 15139/2015 states, unequivocally, “The brief process cannot be used, if the respondent remains silent, does not sign the petition or declare his consent.” (Emphasis supplied.) In short, both parties have to appear and explicitly consent to the processus brevior before it can be used. If one party fails to appear or appears and does not consent (note the distinction between objecting and not consenting) to the processus brevior being used, then the case proceeds in the ordinary manner.
This is, of course, an important clarification, since some folks have worried that the processus brevior could be forced upon absent or unwilling parties. In a non-trivial number of matrimonial cases, we are given to understand, one spouse often refuses to participate. Thus, the concern was that the spouse who does want to participate would get the case put on an express train to Constat City. Apparently not. And more than that, if the other spouse does participate but refuses to give his explicit consent to the processus brevior, no processus brevior. (However, as with anything like this procedure, it is still possible to overcome the resistance of a respondent, especially if tribunal staff sell it as a fast-track process in everyone’s best interest.)
Of course, we still wonder how tribunals would be able to weed out colluding couples, who seem to get a leg up in the processus brevior.