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Special (Briefer) Annulment Process

On September 8, 2015, Pope Francis issued an Apostolic letter Motu propio, titled Mitis Iudex Dominus Iesus (“The Lord Jesus, Clement Judge”), initiating a reform in the Church’s procedures for determining the nullity of marriage cases.

Here is what you need to know.

What is a Motu proprio?

“Motu proprio” is a document issued by the Pope at his own personal initiative and addressed to the whole Church. In the Motu proprio Mitis Iudex Dominus Iesus, we see Pope Francis’ personal concern for Catholics in irregular marriage situations who desire to be reconciled with the Church.

Did Pope Francis change the doctrine of the Church about marriage?

No. Although some aspects of doctrine might be further clarified over time, the Church’s teachings have been handed down to us from Christ through the Apostles and their successors, and as such are unchangeable. In Mitis Iudex Dominus Iesus, Pope Francis was careful to articulate this. Specifically, he confirmed the Church’s teaching that a lawful, consummated, sacramental marriage is a bond that cannot be broken by any force other than death. What Pope Francis did change, however, were some of the Church’s legal procedures for determining how to issue a declaration of nullity.

What is a declaration of nullity?

A declaration of nullity is often popularly called an “annulment.” But this is not a very accurate term, since the Church is not actively making a marriage null, but is merely recognizing the fact that the marriage was actually already null from its very beginning. There are some situations where two individuals might have appeared to have entered into a “valid” marriage when in reality some essential element to a real marriage was missing.

The details of the canonical process for determining the validity of a marriage can be complex and technical, but essentially it involves a tribunal:

  • determining a possible reason why the marriage might have been invalid;
  • collecting objective evidence—such as witness testimonies, documents, or professional opinions from experts such as medical doctors or psychologists—which would either support or rule out that proposed reason;
  • and then coming to an impartial judgment on whether or not the marriage was valid. If the marriage was determined to be invalid, the tribunal issues a “declaration of nullity,” and the parties are considered by the Church as free to marry.

Why did Pope Francis make changes to this process?

The legal process for determining the validity of marriage has developed over the centuries in order to meet the twofold goal of respecting the sanctity of marriage, as well as protecting the rights and dignity of everyone involved. However, many of the safeguards in place have had the side effect of making the process longer and more complicated to understand. This latest document is Pope Francis’ attempt to tailor the process to the specific pastoral needs and circumstances of today’s Catholics.

What specific changes did Pope Francis make?

The most important changes include:

  1. Lay canonists (people with advanced degrees in canon law) will be allowed to take on a greater role as judges in tribunals. Prior to Mitis Iudex Dominus Iesus, cases were ordinarily judged by a panel of three judges which needed to consist of at least two ordained clerics. Now, two of the three judges may be laypeople.
  2. It will be simpler to determine where a trial can be held. Previously, special permission was needed in order to have a trial anywhere other than the diocese where the wedding took place, or the diocese where the respondent (the spouse who did not request the trial) was living. Now, the trial may be held in the diocese where either party is resident, or in the diocese where it would be easiest to collect the evidence.
  3. The need for an automatic appeal has been eliminated. Before this Motu proprio, if a tribunal was to decide in favor of granting a declaration of nullity, it was required that the regional appeals court (called “second instance”) examine the case in order to confirm the original decision. This automatic appeal was meant to ensure that the sanctity of the marriage bond was protected and to prevent potential abuses of laxity. However, it often added additional weeks or months to the final decision. Now, one or both of the parties may still request an appeal to the metropolitan archbishop of their region if they disagree with the original decision, but an appeal is no longer mandatory.
  4. The possibility of an abbreviated process. If a married couple has reason to believe that their marriage might be invalid, they have the right to approach the Church for a clear answer on the truth of their situation. The Church makes itself available to provide such answer through canon law (the Church internal legal system) and local diocesan tribunals (the Church’s courts).

Did Pope Francis make it easier to obtain a declaration of nullity?

Yes and no. “Yes,” in so far as some common steps and “bottlenecks” will be avoided in many cases, which will make the process less complicated for people. But in another sense, no, it will not be “easier.” The process for determining the validity of a marriage is still focused on discerning the truth according to the Church’s teachings on the nature of marriage. Even if the truth is proved through slightly different means, it will still need to be proven in conscience and with moral certainty.

What's the Special Process?

In certain cases where both parties agree that their marriage should be declared invalid and there is clear and abundant proof to support their assertion, the parties can now opt to have the diocesan bishop judge their case directly, instead of going through the ordinary tribunal process. The parties will still need to present enough solid evidence for the bishop to make a confident determination of the status of their marriage, but in many cases, this will be a simpler process. This evidence would include witness testimony, expert testimony (such as evidence provided by a counselor, psychologist or other qualified professional) or documents.

The Bishop as a judge?

Can. 1419 §1. In each diocese and for all cases not expressly excepted by law, the judge of first instance is the diocesan bishop, who can exercise judicial power personally or through others according to the following canons. In order that the teaching of the II Vatican Council be finally translated into practice in an area of great importance, the decision was made to make evident the fact that the Bishop is, in his Church – of which he is constituted pastor and head – is by that same constitution judge among the faithful entrusted to him. It is probably desired that, in Dioceses both great and small, the Bishop should not leave the judicial function completely delegated to the offices of the diocesan curia, as far as matters pertaining to marriage are concerned.

What does "explicit agreement of the parties" mean?

On October 1st , 2015 the dicastery (office) of the Roman Curia whose work "consists mainly in interpreting the laws of the Church" clarified that the Special Process cannot be used if the respondent remains silent, does not sign the Petition or declare his consent. The consent of both parties is the required condition to initiate this process. The consent of the parties must be given clearly and unequivocally.

Why has a specific application form been created for the Special Process?

Each application contains a great quantity of information that needs to be transferred to the Tribunal database. A simplified application has been created to reflect the briefer and simpler procedure of the abbreviated process, but the task of the judge is still to make an assessment of the facts of the case based on the law of the Church. The central question and focus is still on the nature of the marital consent that was exchanged at the time of the wedding.

Canon Law requires that the following elements are needed to Petition for the briefer process:

  • Indicates that the case is introduced before the Bishop and what is being sought;
  • Indicates fully and clearly the right upon which the petitioners base the case and the facts and proofs which will prove the allegations;
  • Be signed by the Petitioners, indicates the addresses where the Petitioners live;
  • Indicate the proofs, which can be immediately collected by the judge;
  • Attach the documents upon which the petition is based

What are the steps of the abbreviated process?

Once an application has been submitted to the Diocesan Tribunal, the Judicial Vicar will determine if the case qualifies for the abbreviated process.

The judicial vicar will then decide on what the investigation should focus by determining the formula of the doubt which must be answered in the sentence.

He will name an Instructor, in order to collect the evidence or to hear the testimony of a particular witness on his behalf.

The Judicial Vicar will finally ask to both the parties and the witnesses to provide testimony within thirty days.

Who is the Instructor? What is his role?

The Instructor could be a member of the staff of the Tribunal, or the Judicial Vicar could decide to function as Instructor for a case. The role of the Instructor is to contact the parties and the witnesses to collect the proofs.

The Declaration of Invalidity

The Bishop will consult with the Instructor in regard to the gathered testimony; he will consider the Observations of the Defender of the Bond and will issue a Sentence declaring the marriage null if moral certitude has been reached. If moral certitude was not reached, the case will be referred to the Tribunal for the ordinary process.

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