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Annulments: What is really changing?: The abbreviated process

October 22, 2015
Msgr. Michael Padazinski

Part 4 of 5

On Sept. 8, 2015, Pope Francis issued “Mitis Iudex Dominus Iesus” (“The Lord Jesus, Gentle Judge,”) a document revising the marriage nullity process. The mass media, including even some Catholic news outlets, have reported a great deal of misinformation about the changes. In question-and-answer format over the next few weeks, I would like to reflect on various aspects of this new “motu proprio” responding to some logical questions which have been raised since publication. It is my hope that this will help to clarify some misinformation about the new legislation while reassuring the faithful of the Archdiocese of San Francisco that our own metropolitan tribunal, which is comprised of wonderful canonists and other canonical officials, will do all it can to insure the proper, just and timely implementation of these new norms governing our universal church.

It is important to state at the outset, that there are still questions abounding among canonists and what follows will hopefully be of assistance to any who are interested in the new laws regulating the marriage nullity process while acknowledging that further guidance from Rome to assist local tribunals with the new praxis is anticipated.

The entire article containing 21 questions and answers has been posted online at www.catholic-sf.org. This is the fourth of five installments scheduled to appear in the print paper. Previous installments covered the definition and purpose of the marriage nullity process; and elimination of automatic appeal. The final installment will concern fees and implementation of the new law.

 

13. What is the new shorter process?

Even before the reforms, there are shorter processes that can be used in special cases when the nullity of the marriage is obvious and indisputable. The “documentary” process involves cases when an official document (e.g., a marriage certificate proving a previous marriage bond) proves the nullity of a marriage beyond a reasonable doubt; in some cases it can be finished in a matter of weeks. The so-called “lack-of-form” process, which deals with Catholics who marry outside the church without a dispensation, is not even a judicial process at all but a simple administrative verification of facts; in most cases it can be finished in days. However, there are certain cases—rare and exceptional, but not nonexistent—that are not “lack of form” cases and that do not qualify for the documentary process, but in which all the relevant facts are readily available and clearly demonstrate the nullity of the marriage. In such cases, some of the more time-consuming formalities of the ordinary process could safely be omitted without compromise to the integrity of the process. For cases such as these, Pope Francis has created a new, shorter process.

 

14. Who qualifies for the shorter process?

The shorter process is designed only for those rare cases when it can be employed without injustice. Three strict qualifications have to be met. (1) Both spouses have to petition for it together, or if not, then the other party must at least consent to it. (2) The nullity of the marriage must be manifest. Most marriage nullity cases deal with a defect in marital consent, i.e., with an invisible, internal act of the will placed by the spouses, often several years prior. Clearly, it would be exceptional for such a defect to be patently obvious today. (3) All the facts that make the marriage manifestly null have to be readily available. Unlike the documentary process, the shorter process can involve the questioning of both parties and knowledgeable witnesses, but this is to be done all in one session when possible. In general, the first criterion is not uncommon, but the second and third are both rare, especially in conjunction. The fact that the diocesan bishop has to oversee the process personally is an indication of just how rare and exceptional Pope Francis envisions the shorter process to be.

 

15. How does the shorter process work?

First, the parties (or one of them with the consent of the other) have to submit a petition for a declaration of nullity, which in addition to all the information normally contained in a petition, has to demonstrate why the shorter process could be used, i.e., why the nullity of the marriage is manifest and also how it will be proven by readily available evidence. If the case is admitted to the shorter process, the judicial vicar issues a decree stating the grounds in the case, nominating an instructor (an official in charge of gathering the evidence) and an assessor (an official in charge of advising the bishop) and citing them along with the parties and the defender of the bond to come to a session at the tribunal within 30 days. At that session, the parties will be questioned along with their witnesses, and other evidence may be presented. Afterward, the defender of the bond and the parties have 15 days to present their closing arguments in the case, at which point the whole case is presented to the bishop for judgment. If, based on all the evidence presented, he is certain beyond a reasonable doubt that the marriage is invalid, he can issue a sentence declaring the nullity of the marriage. If he is not morally certain, the case is admitted to the normal process, starting from the beginning.

Appeal against the bishop’s affirmative decision can be made by either party or the defender of the bond. According to the norms, an appeal would be lodged within 15 days to the Metropolitan Archbishop of the Ecclesiastical Province in which the diocese is located or to the Dean of the Roman Rota. However, in our case, since we are the Metropolitan Tribunal of the Archdiocese of San Francisco the appeal would be lodged within 15 days with the senior suffragan bishop of the province, who at this time is Stockton Bishop Stephen Blaire.

 

16. How long does the shorter process take?

A number of news outlets reported that the shorter process will last 45 days. Some of them even reported that number as if it applied to all marriage nullity processes! This is simply untrue. If you read the new law carefully, you’ll see that the number 45 doesn’t appear anywhere, and you don’t need to speak Latin or Italian to know that. So where does that number come from? Probably from adding the 30 days in which the session must be held to the 15 days for the presentation of arguments. But this number is inaccurate and arbitrary. In the first place, the law allows up to 30 days to review and admit a petition. The law also allows 30 days for writing the sentence once the case has been decided. And the sentence cannot be acted on until the window for appeal has passed, another 15 days. In all, that’s 120 days from start to finish, not counting the possibility of delays. In my humble opinion, nobody, no matter how strong his or her case, is going to get a declaration of nullity in 45 days.

 

17. Do I qualify for the shorter process?

Statistically speaking, probably not. Based on a cursory review of the cases heard in our tribunal over the past several years, well over half eventually received an affirmative decision, but only two or three appeared in retrospect to meet the qualifications for the use of the shorter process. If your case is pending and the tribunal has not already contacted you about the possibility of the shorter process, it means you don’t appear to qualify. In any case, no one needs to be overly anxious to qualify for the shorter process: as it is, the cases that would qualify for the shorter process are already the cases that are completed the fastest, and qualifying for the shorter process is no guarantee of an eventual declaration of nullity.

 

18. Why is it important for both spouses to agree to the shorter process?

There is a common misconception that if both spouses agree that the marriage is invalid, a declaration of nullity is somehow automatic or guaranteed. This has never been true, and the new law does not change that. Actually, it is the facts of the case, and not the spouses’ agreement or disagreement on the matter that determines whether the marriage has been proven invalid. So why does it matter whether they both agree to the shorter process? This requirement helps protect both spouses’ right to defend the validity of their marriage, including by insisting on the full, ordinary judicial process.

Msgr. Padazinski is the chancellor of the Archdiocese of San Francisco and judicial vicar of the metropolitan tribunal of the archdiocese.

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