Canonist Ed Peters on the changes to law for marriage nullity procedures

You will want to have at least a glance at largifical canonist Ed Peters take on the changes to Canon Law for the Latin and the Eastern Churches concerning the procedure for handling marriage cases which were announced yesterday.

A first look at Mitis Iudex

He points out the changes, major and minor.

And

A second look at Mitis, especially at the new fast-track annulment process

Toward the end of that post he writes:

Looking ahead

At the pope’s request, a tiny group of experts, most from just one country, developed these new canons and explanations in a very short time. I find, however, the implications of some of these norms for marriage law in general, and for diocesan bishops in particular, stunning, and I join Dr. Kurt Martens of CUA in wondering how bishops must feel at having such significant burdens thrust on them just in time for Christmas with, as far as one can see, virtually no prior consultation. I expressly cautioned against this approach last year and sound that claxon again. Assuming, in any event, that I have read the new norms correctly, and assuming that there are no easy resolutions to my concerns, what might one suggest?

First, and most importantly, the vacatio legis (a delay period before new laws go into effect per Canon 8) indicated for Mitis should be extended from this December until well into next year at the very least. If, as some assert, Francis’ annulment reforms are the most significant in the last three hundred years, a considerably longer period than three months is needed to prepare for them. If necessary, a request for an extension could be proposed by the upcoming Synod of Bishops.

Second, a much wider consultation about annulment reform should be conducted, a consultation that would involve, at a minimum, manyidentified diocesan bishops (identified precisely so observers could forward remarks to them) and canonists from several countries, especially from countries with extensive tribunal operational experience.

I repeat, some aspects of Mitis are sound. The elimination of mandatory appeal, for example, can be put into effect with minimal delay. But other aspects of Mitis, especially the fast-track annulment option, need, I suggest, considerably more study. I only hope sufficient time is accorded the wider Church to make such studies feasible.

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21 Responses to Canonist Ed Peters on the changes to law for marriage nullity procedures

  1. SharonB says:

    I have a question. How “fast” is “fast-tracked”? I read a news article (I know, I know…) that said annulment decisions could be made in 45 days. That couldn’t be true, could it? I would hope that a marriage that took place in a Catholic church between two Catholics could not be evaluated as to validity in as few as 45 days. I am divorced and have been considering seeking an annulment. I was pregnant when we got married but I find it upsetting that that alone would be a reason to “fast track” the process. To me, that suggests that while most marriages are assumed to be valid by the Church, if you are pregnant when you get married you can assume that your marriage is not valid, because if you apply for an annulment you’ll be “fast tracked”, apparently to a decision that your marriage wan’t valid. The fact that the whole process seems out of whack – which it already seemed to be in the US anyhow – makes me not want to participate in the annulment process. It’s not as if I have remarried, am dating or even necessarily want to get remarried.

    On the other hand, I have heard that in many countries, it is almost impossible to get an annulment, as though it just isn’t done and the Tribunals are not in place. That doesn’t seem right, and I can see that such a situation in justice should be addressed. Yet, that doesn’t seem to be the goal of the new laws. Am I correct in that?

    Clarity…. I do love Pope Francis, but I miss clarity.

  2. vandalia says:

    A couple things:

    1) One point noted in the motu proprio is that the “fast track” requires that the cases be judged by the diocesan Bishop (ordinary) to prevent abuse. I had the opportunity to speak with my Bishop last night and he stated that he believes that he will probably end up using this authority once every two or three years. The complaint “Bishops are already too busy” is precisely the reason this approach was chosen and will likely be rarely used.

    2) One should note that the Holy Father has always held the power to personally judge nullity cases due to his “supreme, full, immediate, and universal ordinary power.” I am not aware of any occasion where this was used to circumvent the normal nullity process. So the idea that the mere presence of a more rapid option will necessarily cause all cases to flow to that option is unfounded.

    3) Concern was expressed that the presence of certain grounds for “fast track” would cause confusion among married couples. Readers may remember from college math class the “Venn Diagrams” This is the use of intersecting circles to visually represent the union between different sets. The intersection between those aware of any aspect of nullity practice – including this document – and those who apply for an “annulment” is nil. In the same way, those who know enough to read the document in its entirety also have a solid knowledge of the nature of the consent needed for matrimony. It is an imaginary creature that will take time to read the motu proprio in its entirety yet be ignorant enough to wonder if the presence of a ground for a fast track case nullifies her own marriage.

    4) It is not strictly correct to say that under the current setup only canon lawyers judge nullity cases. None of the priests from my diocese who serve as judges in the province’s second instance panel have degrees in canon law.

  3. LeeF says:

    I for one do not doubt that a substantial number of Catholic marriages are annulable, even if less than the 50% figure attributed to Pope Francis. These reforms, whether or not they are prudent, strike only at the symptom of the underlying problem, which is allowing far too many religious marriages to persons who have not and will not practice their faith with any degree of faithfulness. The “Christmas/Easter/Marry/Bury” crowd, who may or may not temporarily be more active whilst their children attend a parish school, do not have a right to a church marriage on their own terms, one of which is that if it doesn’t work out then they are entitled to an annulment.

    I would wager that if prospective engaged couples [in the developed world] were required to punch a card at church after attending Mass each and every week for a year prior to marriage, starting over when missing one, there would be far fewer marriages in the Catholic Church.

  4. Magash says:

    I have read that at least 45% of annulments in the U.S are sought by non-Catholics, either Protestants seeking to enter the Church or people seeking to marry a Catholic. These marriages are not Catholic marriages. They may be Sacramental marriages or they may be Natural marriages, depending on whether or not both people involved were baptized.
    So basically the Church says that two people who do not believe marriage is a Sacrament managed to join themselves sacramentally anyway. This has always seemed to me perplexing. We would never say that a priest could consecrate without the intention to do so. He must also intend to absolve. Anyone can baptize, provided they use the correct matte and form and intend to confer the Sacrament, even if they themselves are not baptized. But for marriage we allow the ministers of the sacrament to confer the sacrament, even if they don’t believe it is a sacrament and don’t intend to confer it.
    Now that many people intend to join together in the same relationship that they believe same-sex couples are in I would say that their intent to confer the Sacrament of Matrimony is somewhat different than what the Church intends. How could such a marriage be valid?
    As for being pregnant when married I would say that it’s a matter of consent. Pregnancy might…might be an indicator that the parties involved consented to the marriage under duress. a marriage entered into under duress is invalid. Of course not all marriages that occur when the wife is pregnant are entered in under duress, especially in the modern world where out of wedlock births do not carry the same stigma that they carried in the past. That is one thing that the jurist will have to determine isn’t it?
    In many cases I do see a lack of charity in the response to this. At some level we must assume that people will be honest in their testimonies. If the couple is not honest with the Church then the jurist really has no way of determining the case, unless there are impartial witnesses. How often does that happen? Witnesses are almost always prejudice for the couple, either for or against the claim of validity.
    In many cases if the other spouse is non-Catholic or has left the Church they will simply refuse to play or actively try to extend the proceedings as a form of punishment. If the couple both agree that their marriage was invalid then why shouldn’t the process be quicker? Not because the couple can decide, but because one of the things that generally extends the proceedings is the failure of the other spouse to respond to the Church or their contestation of the proceedings. If both spouses, and their witness file their testimonies at same time it seems to me that the case should be able to be quickly resolved one way or the other.

  5. madisoncanonist says:

    Magash, sacramental marriage is just another way of saying marriage between two people conformed to Christ in baptism. There can be no other kind of marriage between the baptized. So when two baptized people intend to get married, they intend the sacrament, whether they know it or not–even when they erroneously believe that their marriage is not a sacrament. They don’t need any faith or any kind of special intention, just the intention to marry.
    Marriage is unique among the sacraments in that and other regards, but there is a certain parallel even among other sacraments: a Baptist might consider that baptism is just an “ordinance” and reject the notion that it is a sacrament or that it imparts any kind of grace at all. Still, his intention when he baptizes is to do what the Church does, i.e., to baptize, even if he has wrong ideas about what it is the Church does when it baptizes.

  6. sw85 says:

    Magash,

    You’re conflating belief with intention. What one believes is distinct from what one intends. A faithless priest may intend to confect the Eucharist, believing falsely that the Eucharist is nothing more than a symbol of our communal love for one another (or whatever), but it nevertheless becomes the body and blood of Christ. Intention means intending to do as the Church does, not believing what the Church believes the Church does.

    Individual entrants to a marriage may believe divorce is a thing, but that doesn’t matter unless they themselves enter into a marriage with the mental reservation that they will divorce under X or Y condition.

  7. Elizabeth D says:

    I am surprised that I do not see much comment from moderate to conservative bishops about the canon law changes. I wonder if some are taking their comment direct to the Holy See. Have any diocesan bishops commented yet (yes I watched the Cardinal Burke video and his comments that seem related)?

  8. Magash says:

    But for a Marriage to be valid it must include consent. So for a marriage to be valid I, as a participant, must consent to the marriage. As long a society had common definition of what marriage is then determining consent was easy. To do what the Church does “marriage” must be an institution between two people of the opposite sex, for life, opened to the creation of children. Since as far as I can tell most modern people, even in the Church, believe that marriage is a legal contract between two people that love each other, which last until it becomes too difficult and children are included if convenient I question whether the participants intend the do what the Church does.
    In other words when I marry if I think I’ve done the same thing Adam and Steve have done then my intention is not the same as the Church’s intention.
    I would specifically bring up the case of Mormon baptism which even though it follows the correct form and uses the correct matter is not valid because the intent is not the same as the Church’s intent.

  9. Vincent says:

    I rather think that marriage has become a bit of a problem. How can we possibly argue that “most” marriages are invalid? I mean – we all know that marriage is supposed to last “til death do us part”. I believe that’s still in the ceremony? You can’t really make an oath like that (unless with the intention of invalidating it, either in word or deed) without it being a fairly clear oath….

    There was a time when an oath meant something serious. Maybe it doesn’t any more.

  10. Chuck says:

    I know my case is unique, not the least of which is I was a former Presbyterian and my ex was raised as a Methodist and it was amicable. But, when I was going through the process I asked my ex-wife to either respond to the questionaire or write across the top of the form “I choose not to participate.” Otherwise, I warned her she would have the forms resent to her twice. My marriage was annulled in less than 90 days AND it cost less than the divorce. From my myopic point of view I don’t see what really needed to be changed.

  11. The Masked Chicken says:

    While the changes in annulment law may be the most extensive in 300 years, nevertheless, the slow erosion of marriage in a Christian sense, or at least the recognition of the slide is not new. The 1917 Catholic Encyclopedia, in its articles on marriage and the history of marriage looks positively prophetic when read in the light of current events.

    The Chicken

  12. iamlucky13 says:

    @ vandalia

    “The intersection between those aware of any aspect of nullity practice – including this document – and those who apply for an “annulment” is nil.”

    While I get the sense Dr. Peters is tending to read the document in a dire light, I don’t find it credible that the set you refer to remains nil once they have started the annulment process and start digging into how it may proceed. Nor that a person who has gone through the process won’t share their experience with others while adding the typical misunderstandings that occur in legal matters, eg – “I got an annulment because my fiance was preganant when we were married, so the wedding wasn’t valid.” The actual declaration of nullity would not, as far as I understand it, actually be based on the pregnancy, but rather the question of whether the consent was freely given was first hinted at by the fact of the pregnancy.

    Given how the mainstream media and outlets like the Non-Catholic Reporter cover topics related to the faith, I’d hope every reader of Fr. Z’s blog recognizes that a person does not have to read an original Church document in its entirety or even at all to be aware of just enough of what it says to get a badly mistaken impression of it.

    See also, SharonB’s post, who I assume has not read much if any more than I have, and yet when attempting to apply reason to what she has gleaned of the document, felt pulled toward a conclusion she didn’t want to make about assumed nullity in certain cases. People who do want to assume nullity are not likely to give the validity of their marriage as much benefit of a doubt as it sounds like she has:

    “To me, that suggests that while most marriages are assumed to be valid by the Church, if you are pregnant when you get married you can assume that your marriage is not valid, because if you apply for an annulment you’ll be “fast tracked”, apparently to a decision that your marriage wan’t valid. “

    @ SharonB:

    “On the other hand, I have heard that in many countries, it is almost impossible to get an annulment, as though it just isn’t done and the Tribunals are not in place. That doesn’t seem right, and I can see that such a situation in justice should be addressed. Yet, that doesn’t seem to be the goal of the new laws.”

    The impression I get, from the little I’ve read so far, is that it actually is the goal of the new laws. However, Dr. Peters seems to be looking at how they could play out in countries like the US where annulments are very frequently granted, and is seeing some slippery slopes.

    “How can we possibly argue that “most” marriages are invalid?”

    Stopping short of your reasoning, I don’t think we can. Unless I’m badly mistaken, marriages are assumed valid unless properly judged null.

    “I mean – we all know that marriage is supposed to last “til death do us part”. I believe that’s still in the ceremony?”

    Yes, it is still part of the vow. Unfortunately, a lot of people seem to treat it as a platitude (except one pair of non/lapsed Christian friends who I noticed were not willing to say more than “for a very long time” – a vow disappointing enough to be memorable). “Til death do us part” sounds nice, but other people who have said the same thing parted before death, so they view it as more of a best case scenario than a solemn vow.

  13. Gratias says:

    Fast-track may be nice, but consider a this: how does Catholic Divorce help anyone believe in the Apostle’s Creed? The Faith of Catholics needs a nurturing environment for it is not at all easy. This Promethean Pope might love the World but His duty should be to the Spirit.

  14. Imrahil says:

    Dear SharonB,

    this day I read in the newspaper an article about a judge that condemns people-smugglers to one and a half-year on probation for first-offenders and three years for repeated offenders or such not respecting human dignity… in fifteen minutes per case.

    What do we need in an annulment process? The parties have to present their case. The defender of the bond needs some time to check whether they tell the true story (in so far as that can be checked), and then to present his case. Once the facts are on the table, the panel has to decide. They may “think it over” even after the facts are presented, but any decision, as such, is ultimately made within one moment of time.

    I am no lawyer nor have been party to such a process. However, from such a perspective as I have, I do not see how a restriction to 45 days means presuming invalidity. If the tribunal isn’t busy elsewith, I think the facts can be put on a table within a couple of weeks. And while there may be something behind of the idea of taking time for taking time’s sake, to mark the gravity of the decision (and it is indeed grave) (as long as it isn’t too much, then it would certainly be unjust), that is a prudential thing and the Church may decide otherwise.

  15. Imrahil says:

    After all, nullity isn’t supposed to be rocket-science. Either a marriage is provably null or it isn’t – even in psychological maturity cases*: here, probably, the lawyers of the suing parties would have a lot of a job to do, or else the judge would simply look at the files, say “hmm… no” and dismiss the thing as not proven.

    [* I don’t think that doesn’t exist. But I don’t think it can be easily proven, even if there’s proof of pre-marital violence or pre-marital infidelity: a sin is never more than a possible indication of a psychological illness, or of a conviction that the thing isn’t sinful. The presumption has to be that the offender is of healthy mind and of Catholic faith, but, as regards his sin, just messed up.]

  16. Magash says:

    Vincent, an oath is a solemn promise made before God. In order for someone to take an oath seriously they must first believe in God. If someone lives their life in a manner that shows that they do not believe in God why should we expect that they would take an oath seriously? Whenever anyone testifies in court they take an oath. We know that people lie in court all the time (even though they are not only breaking their oath but actually committing a crime.)
    As for how many marriages are invalid I think that we need to define our sets. I have read in several sources that as many as 45% of annulment proceedings in the U.S. concern marriages entered into by non-Catholics. These marriages are submitted for review because one of the people involved is in RCIA and wishes to enter the Church and they have already remarried or because they were previously divorced and now wish to remarry someone who is a Catholic. How many of these marriages are Natural marriages and how many are Sacramental marriages I don’t know, nor have I seen any data on that point. How many were officiated by a minister and how many were conducted by a civil servant I don’t know either.
    We should also remember that outside the Church many people now write their own vows. How many of those self -composed vows do not contain “until death do us part”? How many are not in the form of an oath at all? How many even contain the expectation of permanence? How many describe the institution of marriage as the Church understands it?
    All marriages between baptized persons are Sacramental, but they are only valid Sacramental Marriages if they meet the requirements for marriage. If the participants do not intend for their marriage to be a permanent bond until death, no matter what, if they do not intend it to be fruitful, if they think that it is equivalent to a same sex union in what way are they doing what the Church does when it marries?

  17. Sonshine135 says:

    I really can’t make hide nor hair of what the Pope’s proclamation really does for the whole situation. It seems with the upcoming Synod, we as a church would be focusing on making annulments less frequent, families more solid, and formation of Christian principles more stringent. Instead, this gives the appearance that we are weakening the family. I just don’t get it.

  18. frjim4321 says:

    Wow, Ed and I are in complete agreement on his first point here.

    In another thread I referred to the exceptionally extensive, fine-tuned procedures developed over many years by high sophisticated modern tribunals. Making these changes effective in three months will be like taking an ax to a bonsai. December, 2016, would have been more realistic.

    Not only to procedures, letters and so forth need to be reworked, an extensive education period is necessary for bishops, judges, auditors, procurators. The three month window is very unrealistic.

    Granted this is not the same as putting and man or woman on the moon, but still, it’s a very big deal.

  19. dans0622 says:

    Magash: even though the perception is that so many people out there think marriage is temporary,
    “open”, can be between two guys or they can write their own vows, etc., I have seldom seen those sorts of views actually impact the Parties’ consent. People, when the wedding time comes, still want a permanent and faithful marriage that (…eventually) results in children. I have only seen one case where people wrote their own vows. Maybe a reason for this disconnect between the perception of modern man’s understanding of marriage and actual nullity cases is that the people who are way out there in their understanding of marriage seldom “convert” and want the Church to investigate their prior marriage(s).
    Dan

  20. The Cobbler says:

    Forget Eye of the Tiber, here’s some real humour for you:

    Dr. Peters says confused people have already started writing to him.
    The first commenter on Fr. Z’s post about it expresses said confusion.
    The second commenter on Fr. Z’s post denies the existence not only of Dr. Peter’s correspondents but even of the immediately previous commenter.

    You can make up stuff about shipping annulments by drone, but this stuff here you can’t make up.