Changes to the Annulment Process

On Tuesday, September 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 new changes to the declaration of nullity (annulment) process.

Pope Francis teaches exactly what Christ taught: that marriage is indissoluble. Indissolubility is part of the Good News! It tells us that God wants us to love and be loved unconditionally, and that he made us capable of that kind of love. Nothing that Pope Francis has said or done has changed or could change that. His concern is to eliminate any unnecessary, artificial, or unduly burdensome barriers toward obtaining a just and expeditious judgment. He also wants to minimize as much as possible the amount of time people spend in a state of uncertainty while their case is pending.

The revised laws take effect on December 8, 2015, three months from their promulgation. They contain a number of “tweaks” to the process, but there are five major changes: (1) new rules for tribunal competence, (2) new requirements for tribunal personnel, (3) the elimination of the requirement for a second conforming affirmative decision, (4) a change in the approach to recovering tribunal expenses, and (5) a shorter and more streamlined process, judged personally by the diocesan bishop, for certain rare and exceptional cases.

A. Every diocese has a tribunal, but not every tribunal can hear any marriage nullity case. The tribunal has to have some jurisdiction over the marriage in question. Currently, there are four ways that a tribunal can be competent: (1) if the marriage took place in that diocese, (2) if the Respondent lives in that diocese, (3) if the Petitioner lives in that diocese and certain other formalities and requirements are observed, and (4) if the majority of the relevant evidence is located in that diocese and certain other formalities and requirements are observed. The formalities and requirements for numbers 3 and 4 involve seeking the consent of the judicial vicar of the diocese where the Respondent lives. These requirements were designed to protect the rights of the Respondent, but increased mobility and mass communications made them practically obsolete; they can also be unduly time-consuming.

Under the revised law, there will be three ways that a tribunal can be competent, and none of them require any of those extra formalities and requirements: (1) if the marriage took place in that diocese, (2) if either party to the marriage lives in that diocese, and (3) if the majority of the relevant evidence or proof is located in that diocese.

If your case is already pending, or if you introduce it before December 8, 2015, the revised law for competency will not affect your case. If you introduce your petition on or after December 8, 2015, you may have one or more additional options where to introduce your petition.

A. Marriage nullity cases are normally tried before a “college” of three judges, all of whom meet to decide whether or not the marriage is proven invalid, but only one of them (the judge who writes the final decision) is responsible for most of the day-to-day handling of the case. Only one of these three judges can be a layperson. The college of three judges will remain the norm under the new law, but now up to two of the judges can be laypeople with degrees in canon law.

In certain infrequent circumstances where one of the judges has to recuse himself or herself due to a conflict of interest, the revised law will give the tribunal more flexibility in finding a substitute, which can help avoid delays. In the long run, it will make it easier for the tribunal to remain adequately staffed, which is the single most important factor in handling cases in a just, thorough, and expeditious manner.

A. The whole marriage nullity process leads up to the moment when the judges make their decision: has the marriage been proven invalid or not? If it has been proven invalid on a specific ground, the judges vote in the “affirmative.” If any doubt remains, the judges vote in the “negative.” As an extra protection against unfounded declarations of nullity, an affirmative decision does not become “executory” (meaning the parties can act on it, usually by getting remarried in the Catholic Church) unless it is upheld on the same ground by an appellate (or second) tribunal. This requirement holds even when no one appeals the sentence. Also, if there is a disagreement between the original tribunal and the appellate tribunal (affirmative/negative or negative/affirmative), the case must be heard by a third tribunal, so there will be two conforming decisions.

The requirement of a second conforming affirmative decision is a safeguard against unfounded declarations of nullity and other injustices, but it is not required by divine law or by the very nature of the matter. For the better part of the last several centuries, this requirement has been in place, but Pope Francis has discerned that the extra certainty it affords is disproportionate to the additional burden of time, energy, and resources that it entails. And since the right to appeal remains in force, everyone’s right to defend their marriage remains intact.

Under the revised law, if no one (i.e., neither party nor the defender of the bond) appeals an affirmative decision within fifteen days, it becomes executory. That is true at the first instance level or at any appellate level: one un-appealed affirmative decision definitively establishes the nullity of the marriage. This applies to cases whose final sentences are published on or after December 8, 2015.

A. Tribunals do not charge for a declaration of nullity. Justice can’t be bought or sold. What many tribunals do as a matter of fairness, fully in keeping with canon law, is pass on some portion of their expenses (salaries, supplies, office space) to the parties who request their services. If the cost of the process isn’t borne by the parties, it must be borne by the Church, which ultimately means by the other people in the pews. No one is ever denied their rights due to difficulty or inability to pay the requested fee. Anyone who demonstrates the need for a partial or total reduction of fees receives one. Sometimes one hears complaints that “annulments” are just a racket for the Church to make money; the truth is that from a strictly monetary standpoint, Church tribunals operate at a heavy loss.

Pope Francis didn’t eliminate all tribunal fees, but he said that the process should be gratuitous whenever that can be done without harming the right of tribunal workers to a just and dignified wage. He is asking bishop’s conferences and local bishops to do their best to make the process gratuitous to the parties (of course, they are never free; the costs are paid from elsewhere). He has two reasons for this. First, he wants to make sure that no one is ever discouraged from exercising their rights due to cost. Even though partial or total reductions have always been granted liberally to anyone in need, Pope Francis doesn’t even want the misconception about expense to be an obstacle. Secondly, he wants to be sure that tribunals are immune from even the slightest suspicion of financial corruption.

A. The marriage nullity process is not something that can be rushed: marriages are complex and unique, and in order to know with moral certitude whether a marriage is invalid from the start, it is necessary to gather a great deal of information. That means questioning the parties, interviewing witnesses, and collecting documents and possibly other evidence. All the while, both parties’ rights must be carefully protected, and all of this takes time. The law says that the process should normally be completed within a year in the first tribunal, but when delays arise it can take even longer. In many cases, it can be completed significantly sooner, and every tribunal aims at maximum efficiency, but never at the expense of the integrity of the process in a search for the truth.

Even before the reforms of Pope Francis, there exist shorter processes that can be used in special cases when the nullity of the marriage is obvious and indisputable. For example, one type of process involves cases when official documents (e.g., a Catholic baptismal certificate, a marriage certificate, and a divorce degree) can prove the nullity of a marriage with moral certitude. In some cases this type of process can be finished in a matter of weeks. This so-called “lack-of-form” process, which deals with Catholics who marry outside the Catholic Church without a dispensation and did not later have the marriage “validated” in the Catholic Church, is not a judicial process, but a verification of proofs (documents). There are other types of documentary cases that are judicial processes. However, there are certain cases—rare and exceptional—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 judicial 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 for a declaration of nullity.

The shorter process is designed only for those rare cases when it can be employed without injustice. Three strict qualifications must be met. (1) Both spouses must petition for it together, or if not, the other party must at least consent to it. (2) The nullity of the marriage must be manifest or evident. 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 formed several years prior to marriage. (3) All the facts that make the marriage manifestly null must be readily available. Unlike the documentary process, this shorter process can involve the questioning of both parties and knowledgeable witnesses, but this is to be done all in one session when possible. The fact that the diocesan bishop must oversee this process personally is an indication of how rare and exceptional Pope Francis envisions the shorter process to be. The diocesan bishop is also the sole judge in this shorter process.

A number of news outlets reported that the shorter process will only take 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. 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. First of all, the law allows up to 30 days to review and admit a petition. The law also allows up to 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 up to 120 days from start to finish, not counting the possibility of delays. If nullity is not proven in this shorter process, and the Bishop as judge, has not been able by the proofs presented, to reach an affirmative decision, then the case must go into the ordinary process for a declaration of nullity.