The Rotal Subsidium on “Mitis iudex”

A while back, we heard that the Roman Rota had prepared a lengthy guidance on Mitis iudex Dominus Iesus, intended for diocesan tribunals. In fact, we had heard about the document in the context of its general unavailability: it could be purchased at only the Vatican bookstore in Rome, or something like that. However, after a canonist of our acquaintance recently made some comments about it, we checked the Roman Rota website again. And the Subsidium for the Application of the Motu Proprio Mitis iudex Dominus Iesus is now freely available in PDF format. Much of it deals with some of the administrative reforms of Mitis iudex, including the expectation that diocesan bishops will constitute their own tribunals, ceasing to rely upon inter-diocesan tribunals, for example. However, it includes lengthy guidance on the processus brevior, especially article 14 § 1 of the Procedural Norms, which has been the subject of much concern and debate.

Of great interest: the Subsidium emphatically declares that article 14 § 1 does not articulate new grounds of nullity, and that the situations mentioned therein have long been “enucleated” by the jurisprudence “as symptomatic elements of the invalidity of matrimonial consent” (emphasis in original). That is not quite what we remember some eminent canonists saying, but we’ll take the Rota’s word for it.

More on the Holy Father’s speech to the Rota

At the Catholic Herald, Ed Condon has a very good appreciation of the Holy Father’s address to the Rota, which he  described as “remarkable for its continuity with the previous addresses of St John Paul II and Benedict XVI. If we were to insist on using political terms for a theological and legal address, it would be easy to characterise it as strikingly conservative.” Read the whole thing there.

For our part, we were very surprised by the Holy Father’s speech—we don’t know if that came through in our initial comments on it—largely because it seemed like another papal address to the Rota. Francis has tried, perhaps consciously, to provide a different tone to his public pronouncements. He seems to avoid the philosophical style of John Paul and the careful theological lectures of Benedict in favor of a broader, perhaps impressionistic, tone. And, of course, the context for any discussion of Mitis iudex and marriage questions needn’t be restated, except to say that Francis had to know that observers of the Church would be looking very closely at this address to see if it contains any clues for the Big Decision. With all that going on, we wonder if it is significant that he has delivered an address so in line with John Paul and Benedict’s thinking.

We also note that the handful of citations in the speech are also apparently sort of conservative: Pius XI’s Casti connubii, Pius XII’s 1940 speech to the Rota, some stuff by Paul VI (including a pastoral letter written when he was archbishop of Milan), some John Paul II, and St. Augustine on the bona matrimonii. If someone other than the Holy Father gave a speech sprinkled with Pius XI, Pius XII, Paul VI, and John Paul II, they’d be called a conservative (or worse).

The Holy Father limits lack of faith as a ground for nullity

Yesterday, the Holy Father gave his annual address to the Roman Rota. These speeches tend to be combinations of pep talks for the Rota as it begins its new term and careful discussions of points of law by the pope. Accordingly, these speeches are very important sources for the interpretation of canon law. The speeches, for example, of St. John Paul II are hugely important sources on matrimonial law, given that John Paul addressed, over the course of years, quite a few thorny questions on the subject. We had hoped that the Holy Father would address Mitis iudex Dominus Iesus, the Holy Father’s motu proprio reforming matrimonial cases, which, for now, is his most important contribution to the Church’s law. We were not disappointed.

One question arising from Mitis iudex has been to what extent is lack of faith a ground for nullity. Recall that article 14 § 1 of the Ratio Procedendi annexed to Mitis iudex states:

Inter rerum et personarum adiuncta quae sinunt causam nullitatis matrimonii ad tramitem processus brevioris iuxta cann. 1683-1687 pertractari, recensentur exempli gratia: is fidei defectus qui gignere potest simulationem consensus vel errorem voluntatem determinantem, brevitas convictus coniugalis, abortus procuratus ad vitandam procreationem, permanentia pervicax in relatione extraconiugali tempore nuptiarum vel immediate subsequenti, celatio dolosa sterilitatis vel gravis infirmitatis contagiosae vel filiorum ex relatione praecedenti vel detrusionis in carcerem, causa contrahendi vitae coniugali omnino extranea vel haud praevisa praegnantia mulieris, violentia physica ad extorquendum consensum illata, defectus usus rationis documentis medicis comprobatus, etc.

(Emphasis supplied.) In the Vatican’s official translation, this is rendered,

Among the circumstances of things and persons that can allow a case for nullity of marriage to be handled by means of the briefer process according to cann. 1683-1687, are included, for example: the defect of faith which can generate simulation of consent or error that determines the will; a brief conjugal cohabitation; an abortion procured to avoid procreation; an obstinate persistence in an extraconjugal relationship at the time of the wedding or immediately following it; the deceitful concealment of sterility, or grave contagious illness, or children from a previous relationship, or incarcerations; a cause of marriage completely extraneous to married life, or consisting of the unexpected pregnancy of the woman, physical violence inflicted to extort consent, the defect of the use of reason which is proved by medical documents, etc.

(Emphasis supplied.) Now, obviously, article 14 § 1 refers to situations that “can allow a case for nullity to be handled” according to the processus brevior. But there has been some concern that article 14 § 1 also sets forth grounds for nullity. (To put it another way, article 14 § 1 sets forth some “red flags” for cases to be transferred to the processus brevior, and thus those “red flags” have been seen by some as grounds of manifest nullity (cf. can. 1683, 2º.) And these new grounds would include, of course, lack of faith. In fact, the criterion of lack of faith has been offered as a justification for the argument that half of all marriages are null, a sentiment that has been attributed to the Holy Father.

In his speech to the Rota, the Holy Father offers a refreshing correction to that idea,

È bene ribadire con chiarezza che la qualità della fede non è condizione essenziale del consenso matrimoniale, che, secondo la dottrina di sempre, può essere minato solo a livello naturale (cfr CIC, can. 1055 § 1 e 2). Infatti, l’habitus fidei è infuso nel momento del Battesimo e continua ad avere influsso misterioso nell’anima, anche quando la fede non è stata sviluppata e psicologicamente sembra essere assente. Non è raro che i nubendi, spinti al vero matrimonio dall’instinctus naturae, nel momento della celebrazione abbiano una coscienza limitata della pienezza del progetto di Dio, e solamente dopo, nella vita di famiglia, scoprano tutto ciò che Dio Creatore e Redentore ha stabilito per loro. Le mancanze della formazione nella fede e anche l’errore circa l’unità, l’indissolubilità e la dignità sacramentale del matrimonio viziano il consenso matrimoniale soltanto se determinano la volontà (cfr CIC, can. 1099). Proprio per questo gli errori che riguardano la sacramentalità del matrimonio devono essere valutati molto attentamente.

(Emphasis supplied.) In the translation available from Rorate Caeli, in the context of an article by Antonio Socci, this is rendered,

It is a good thing to reiterate that quality of faith is not an essential condition for matrimonial consent, which, according to perennial doctrine, may be undermined only on the natural level (cfr CIC, can. 1055 § 1 e 2). Indeed, the habitus fidei is infused at the moment of Baptism and continues to have a mysterious influx in the soul, even when faith has not been developed and seems psychologically to be absent. It is not rare that those preparing for marriage, induced into a true marriage by instinctus naturae, at the time of the celebration have a limited awareness of the fullness of God’s plan, and only afterwards, in family life, discover all that God [Our] Creator and Redeemer has established for them. The lack of formation in the faith and also the error about unity, the indissolubility and the sacramental dignity of marriage vitiate marriage consent only if it is determined by the will (cfr CIC, can. 1099). For this reason the errors regarding the sacramentality of marriage must be evaluated very carefully.

(Emphases and italics added.) (We think that there’s an error in translation, both with our limited Italian skills and from looking at the English portion of Mitis iudex, in the second emphasized passage. Check out the linked translation at Rorate.) It seems to us that the Holy Father moves here to explicitly reject the broad interpretation of Mitis iudex that lack of faith or lack of formation in the faith constitutes ipso facto a ground for nullity.

Important PCLT clarifications on “Mitis iudex”

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.

Forests, trees, and bombshells

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:

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

 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.