Rorate Caeli

Catholic Divorce - Canonical critiques of annulment reform are piling up: Will the Vatican, the bishops, and the Francis "Amen corner" listen?

See also our previous pieces:

Can zealous Bishops and Cardinals question the Annulment Reform and ask for its abrogation? 

For the record: Cardinal Burke's latest address on the Synod and "Annulment" Reform. Rorate reminder: 2015 Synod poised to assault Humanae Vitae too.

Head of Vatican Commission Admits in Official Paper: Surge in Number of "Annulments" Intended

The Excommunication of Robert II "the Pious" - painting by Jean-Paul Laurens. 

Something is definitely in the air: Prominent canonists initially lauding the marriage nullity reforms, then backtracking, then public coming out strongly against these, and very real talk of discontent among a significant number of canon lawyers and prelates. And we're not talking about traditionalists here! The Pope's arbitrary and highly problematic reforms of the process for declaring marriage nullity, worked out with no widespread consultations and in relative secrecy and published on September 8 through the motu proprio Mitis Iudex, is fast turning into an unprecedented crisis of authority for his rule. The crisis of authority is real and no amount of denial and snubbing by the Catholic media establishment and by "respectable" Catholic bloggers can hide it.

In the first days after the promulgation of Mitis Iudex the critical assessments of it by canon lawyer Kurt Martens and the professor of systematic theology Chad Pecknold, both professors at Catholic University of America, reached a wide audience through Washington Post's report on the reform (Pope Francis announces biggest changes to annulment process in centuries). To our knowledge it was Martens who first publicly referred to the reforms as the "Catholic version of no-fault divorce". Please keep this in mind next time you see a bishop or professional apologist blaming a secularist conspiracy for allegedly fabricating the idea that the Pope has just instituted "Catholic divorce". But we digress...

Despite the Washington Post article, the initial at-length analyses of the reforms in the "conservative" Catholic press tended to be either neutral or positive about it. Aside from Jimmy Akin's neutral "things to know and share" take on the motu proprio, three essays initially lauding or downplaying the seriousness the reforms and written by canon lawyers made the rounds in social media:

Benedict Nguyen: Annulment Reform: 6 Misconceptions and 6 Developments  

Edward Peters: A first look at Mitis Iudex (and its accompanying Facebook post 

Ed Condon: Mitis Iudex: The Good, The Bad, & The Ugly

These three experts soon began to come up with more critical responses.

Within several hours Ed Peters began posting more analyses, each more critical than the last: 1) A second look at Mitis, especially at the new fast-track annulment process (September 8), Nah, that twern't no smear, (September 10), Who is satisfied with Mitis Iudex? (September 13), and the last one so far - Note: Avoiding the requirements of Mitis would not be easy for bishops (September 14). Ed Peters' criticisms and reservations regarding the reforms have been widely discussed on Catholic blogs and websites and we will not be discussing these further.

Ed Condon's "A Modest Proposal" (September 12) still professes that "there is more good than bad to the reforms" but dwells largely on the very serious dangers inherent in the "short process" as authorized by Pope Francis. Mr. Condon also has the following anecdote about the increasing lack of juridical expertise among the "Defenders of the Bond" -- the officers tasked with defending the presumed validity of the marriage under question -- a lack that will only be aggravated by the new reforms.

In my own experience of marriage tribunals, which is pretty diverse, more often than not none of the participants will have doctorates and only some of the judges will have licenses. In fact, usually it will be a single clerical judge, not a panel of three (formerly an exception widely granted in the United States, now made a universal option by Mitis Iudex) and the parties will usually not have advocates at all, when they do it is rare for these to be canon lawyers. 
Less than half of the opinions from defenders of the bond which I have read as a judge are signed by a JCL. Usually they are signed by a priest, or increasingly a permanent deacon, without a canonical education and who has been assigned as defender of the bond as an unwelcome addition to their normal pastoral work in a parish. One defender of the bond I know actually submits exactly the same one-page brief for every single case to which he is assigned, and they have never yet penned an appeal. 
This is made possible because a tribunal can petition the Apostolic Signatura to allow them to appoint “otherwise expert” (read “formally unqualified”) people to these positions when they are unable to come by enough qualified staff.
This isn’t to say they do not mean well, work hard, or merit respect and gratitude for their efforts; but it is ridiculous to expect them to fulfill vital roles like defender of the bond. Does anyone think either party in a marriage nullity case would consider allowing someone without a law degree to represent them in their civil divorce proceedings, still less a well-meaning volunteer?

This is for the current process, in the United States which has one of the world's highest (if not highest) number of canon lawyers. We ask: how much more under the shorter, more "streamlined" process authorized by Francis, intended to open the doors to a deluge of applications for declarations of nullity?

On that same day as Conlon published his cautionary article Benedict Nguyen gave a brief interview on National Catholic Register radio (September 12 -- listen here). He spoke clearly about the lack of consultation with the world's bishops and canon law faculties by the Pope's appointed commission, which worked by itself in secrecy. He also mentioned the desire of many canon lawyers to see an extension of the vacatio legis given by the Pope before the reforms are implemented (December 8), for the sake of widespread consultation in the Church over these reforms. Within a few days he had published another article, this time on UK's Catholic Herald, which had shamelessly praised the reforms only the previous week.

Nguyen's second article has a clear title: We’re heading for ‘Catholic divorces’ (September 18)Nguyen explains briefly and clearly why the new reforms overturn the presumption of validity for marriages and allows many marriages to be pre-judged as null even before any process could begin (our emphases in the following passages):

...Many respected canon lawyers and commentators are expressing grave concerns about the text as they study it more carefully. I join my voice to the growing number who are apprehensive. In my view, some changes run the risk of doing more harm than good, creating more confusion than clarity about the truth of marriage and the purpose of the declaration of nullity process.
The most significant proposed change in Mitis Iudex is the creation of the “shortened procedure” whereby marriage cases are given to the diocesan bishop to decide himself in a sort of administrative fiat. This highly problematic change raises serious questions and grave confusion.
Extremely busy diocesan bishops, including those who may not have training in marriage law, will be asked to decide potentially hundreds of canonical marriage cases each year by relying almost solely on the report of assessors who themselves may not be canon lawyers. This is supposed to “streamline” the process. Yet practically it is difficult to see how this could possibly be so without the diocesan bishop either rubber-stamping decisions without consideration or rushing through them at the expense of thoroughness. Either would be an injustice.

Canon law already uses a shorter “documentary process” for cases involving a lack of capacity to marry (canons 1073-1094) and a lack or defect of canonical form (canons 1108-1123). For the third kind of marriage cases – those involving defect of consent (canons 1095-1107), which use the “formal marriage procedure” – Mitis Iudex will now allow the new “shorter process” to be used where these cases seem to be null “by particularly evident arguments”.
This is where the problems begin. How would such “evident arguments” be properly considered before an appropriate process?
What Mitis Iudex has effectively done is overturn in practice the all-important principle found in canon 1060, where marriage is presumed to be valid until proven otherwise. In allowing the shorter process for cases deemed to be null “by particularly evident arguments”, Mitis Iudex is allowing a sort of pre-judgment of a marriage as null before a process is even selected.
The result is that some marriages will be presumed invalid even before the process starts. This runs directly against the presumption of validity required by justice, logic and canon 1060. Mitis Iudex has created a situation where marriages are presumed to be invalid and that validity must now be proven. 

Last but not the least our friends at the Canon Law Centre have published a commentary (The “Et Cetera” Time Bomb In Article 14 §1 Of The Ratio Procedendi) on what may very well become the most dangerous word in the Pope's motu proprio - the "etc." at the end of the list of circumstances that can be invoked so that the "shorter process" can be used to judge the validity of a marriage (our emphases in the following passage):

Not unlike certain ambiguities and vague expressions which found their way into the official documents of Vatican II, the “etc.” in Article 14 §1 will, I contend, be among the most potentially abused targets of heterodox interpretations found in the new norms. This abuse will be made possible by the vast reservoir of administrative discretion granted to diocesan bishops under the reformed law. While it is true that certain basic requirements must be met in order for a case to be heard according to the processus brevior, it is equally true that these requirements are not very difficult to satisfy under the new norms.

The Canon Law Centre also contends that the "shorter process" for speedily handing down declarations of nullity will become the rule, not the exception:

... it would be rather naïve to believe that the processus brevior will be something exceptional or rare in contemporary tribunal practice. Indeed, if recent trends in canonical penal procedures provide any indication as to what we can expect to see in the near future (the past two years have witnessed a concerted effort led by the Congregation for the Doctrine of the Faith to move away from judicial trials and establish shorter administrative processes as the norm), it is the opinion of this author that, in similar fashion, the processus brevior will gradually become the new norm in tribunal practice. This shorter process will undoubtedly open the door for abuse in the administration of justice as many roles will be placed in the hands of one and the same person, the bishop. On that score, one’s confidence in the marriage nullity process will necessarily hinge upon one’s confidence in the bishop who pronounces judgment.

So far, the bloggers of Rorate have not seen a single, non-liberal, extended commentary on Mitis Iudex that is overwhelmingly in favor of it, and which has not been retracted in some measure. It is true that some Catholic dioceses and bishops' conferences have published press releases praising the reforms, but frankly this is to be expected. Some conservative Catholic dioceses (e.g. Madison, WI) have published commentaries trying to minimize the sweeping nature of the reforms, but these strike us as more in the nature of damage control. Indeed it is not realistic to expect dioceses to put out official criticisms of Roman decrees. Nevertheless it is no help to the truth when bishops to try to put a nice face on an enormously bad piece of Church law, particularly one with consequences for the reception of doctrine.

Nevertheless we hope that before long, canon lawyers will band together to press Rome in a public and organized fashion to delay the implementation of Mitis Iudex. No less than the historic consistency and credibility of the Catholic Church and its teaching on marriage is at stake. It will be a great and terrible irony should the Feast of the Immaculate Conception this year become the day when this teaching takes a massive blow from which it might not recover for many generations, if not centuries.