"Mitis et misericors Iesus" The reformed Canonical Process for Declaration of Nullity of Marriage in the Canon codes of the Eastern Churches'
THE HOLY SEE
IN THE FORM OF MOTU PROPRIO
OF THE SUPREME PONTIFF FRANCIS
MITIS ET MISERICORS IESUS
ON THE REFORM OF THE CANONICAL PROCESS FOR DECLARATION OF NULLITY OF MARRIAGE IN THE CODE OF CANONS OF THE EASTERN CHURCHES
GENTLE AND MERCIFUL JESUS, the shepherd and judge of our souls, has entrusted to the Apostle Peter and to his successors the power of the keys to carry out in the Church the work of justice and truth; this supreme and universal power to bind and loose on earth affirms, strengthens, and vindicates that power of the Pastors of particular Churches, in accordance with which they have the sacred right and duty before the Lord to judge their own subjects
Our Venerable predecessor, Pope Saint John Paul II, when he promulgated the Code of Canons of the Eastern Churches, wished to note: “From the beginning of the codification of the canons of the Eastern Churches, the constant will of the Roman Pontiffs has been to promulgate two Codes: one for the Latin Church, the other for the Eastern Catholic Churches. This demonstrates very clearly that they wanted to preserve that which in God’s providence had taken place in the Church – that the Church itself, gathered in the one Spirit, breathes as though with the two lungs of East and of West, and burns with the love of Christ in one heart having two ventricles.”
Following the same path, while taking into account the special ecclesial and disciplinary ordering of the Eastern churches, I have determined by this separate Letter given motu proprio to reform the disciplinary regulations of the marriage procedures in the Code of Canons of the Eastern Churches.
Regarding marriage, over the course of the centuries the Church, acquiring a clearer awareness of the words of Christ, has understood and explained more profoundly the doctrine of the indissolubility of the sacred bond of marriage. It has worked out a system of the nullity of matrimonial consent and has structured the judicial process regarding it in a more adequate fashion, in such a way that ecclesiastical discipline is always more congruent with the truth of the faith. All of this is always guided by the salvation of souls as the supreme law.
In this perspective, the ministry of the Bishop is most important. According to the teaching of the Eastern Fathers, he is a judge and physician, since man, wounded by original sin and his own sins and fallen (πεπτοκός), having become sick, asks for healing and forgiveness from God through the medicine of penance and is reconciled with the Church. The Bishop in fact – constituted in the form and place of Christ by the Holy Spirit (εἰς τύπον καὶ τόπον Χριστοῦ) – is before all else the minister of divine mercy; therefore the exercise of judicial power is the privileged place in which, through the application of the principles of oikonomia and akribeia, he brings to the faithful in need the healing mercy of the Lord.
Therefore, whatsoever I have determined in this Letter, I have done following in the footsteps of my predecessors, who wished that the cases of nullity of marriage be treated in a judicial manner, and not an administrative one, not because the nature of the matter imposes this, but rather because the need to safeguard the truth of the sacred bond at the highest level requires it. And that is precisely what is guaranteed by the juridic order.
1. VATICAN COUNCIL II, Dogmatic Constitution Lumen Gentium, n.27
2. JOHN PAUL II, ap. const. Sacri canones, 18 October 1990, Prooemium, in AAS 82 , p. 1037.
There are certain fundamental criteria that guided the work of the reform:
It seems opportune, above all, no longer to require a double conforming decision in favor of the nullity of marriage in order that the parties may enter new canonical marriages, but that the moral certitude of the first judge, reached according to the norm of law, be sufficient.
The constitution of a single judge, who is nevertheless to be a cleric, is committed to the responsibility of the Bishop at first instance, who in the pastoral exercise of his own judicial power will make certain that there is no indulgence in any sort of laxism
In order that the teaching of the Second Vatican Council may be at last translated into practice in an area of great importance, it is declared publicly that the Bishop himself, in his own Church, of which he is constituted shepherd and head, is for this reason himself the judge of the faithful entrusted to him. It is hoped, therefore, that the in both large and small eparchies the Bishop himself would offer a sign of the “conversion” of ecclesiastical structures,3 and that he not leave the judicial function with regard to marriages completely delegated to the offices of the curia. This is especially true with regard to the abbreviated process which is established to resolve more evident cases of nullity.
In fact, besides making the matrimonial process easier, a shorter form of the process has been outlined (in addition to the documentary process already in place) which is to be used in cases in which the alleged nullity of the marriage is sustained by arguments which are particularly obvious. It has not entirely escaped me that an abbreviated judgment can place the principle of indissolubility of marriage at risk. Precisely to this end, I wished the Bishop himself to be the judge in such a process, who because of his pastoral office is with Peter the greatest guarantee of Catholic unity in faith and discipline.
The appeal to the Metropolitan See is to be retained and encouraged, since this office of leadership of the ecclesiastical province, which has been stable through the centuries, is a distinctive sign of synodality in the Eastern Churches.
The Synods of the Eastern Churches, which which above all should be urged by apostolic concern to gather in the faithful who are dispersed, shall feel strongly the duty to share the abovementioned conversion and shall respect absolutely the right of the Bishop to organize the judicial power in his own particular Church. The restoration of the closeness between the judge and the faithful, in effect, will not be successful unless the stimulus for this, as well as the help to put into practice the reform of the marriage process, does not come from the Synods.
Insofar as is possible, together with the notion of the proximity of the judge and keeping in mind the just and fitting compensation of tribunal workers, let the Synods take care that the process is free of charge, so that the Church, showing herself to be a generous mother in a matter so bound up with the salvation of souls, might manifest the freely-given love of Christ by which we have all been saved.
However, it is appropriate that the appeal to the ordinary Tribunal of the Holy See, that is, the Roman Rota, remain possible, in respect of a most ancient right, in such a way that the bond between the See of Peter and the particular Churches is reinforced. Still, the Roman Rota will take care to contain any abuse in the discipline of such an appeal, in order that the salvation of souls not be damaged by it. The proper law of the Roman Rota, insofar as is necessary, will be adjusted to the rules of the reformed process as quickly as possible. Having seriously considered these things, I decree and establish that Title XXVI of the Code of Canons of the Eastern Churches, Chapter I, Article I, regarding cases for the declaration of the nullity of marriage (cann. 1357-1377) shall, from 8 December 2015, be completely substituted with the following:
ART 1. THE COMPETENT FORUM AND TRIBUNALS
Can. 1357 §1. Every marriage case of the baptized belongs to the Church by proper right.
§2. While retaining Personal Statutes, where they are in force, cases concerning the merely civil effects of marriage belong to the civil magistrate; but these cases can also be investigated and decided by an ecclesiastical judge on his own authority if done in an incidental or accessory manner.
Can. 1358. In cases concerning the nullity of marriage which are not reserved to the Apostolic See, the following are competent:
- The tribunal of the place in which the marriage was celebrated;
- The tribunal of the place in which either one or both parties have a domicile or quasi-domicile,
- The tribunal of the place in which, in fact, most of the proofs must be collected.
Can. 1359 §1. In every eparchy the judge of first instance for cases regarding the nullity of marriage for which the law does not make an express exception is the eparchial Bishop, who can exercise judicial power by himself or through others, according to the norm of law.
§2. The eparchial Bishop, for his own eparchy, is to constitute a tribunal for marriage nullity cases. However, this same Bishop retains the faculty of having access to another closer eparchial or intereparchial tribunal.
§3. Marriage nullity cases are reserved to a college of three judges. This is to be presided over by a judge who is a cleric; the other judges can even be laypersons.
§4. The Bishop Moderator, if it is not possible to constitute a collegial tribunal in the eparchy or in the nearby tribunal selected according to the norm of §2, may entrust the case to a single clerical judge who, where possible, will associate with himself two assessors of proven life, expert in juridic or human sciences, and approved by the Bishop for this task; to this same single judge belong those things which are attributed to the college, the praeses, or the ponens, unless something else has been established.
§5. For validity, the second instance tribunal always is to be collegial, according to the disposition of §3 above.
§6. Appeal is made from the tribunal of first instance to the metropolitan tribunal of second instance, with the provisions of canons 1064 and 1067 §5 remaining intact.
ART. 2 THE RIGHT TO CHALLENGE THE MARRIAGE
Can. 1360 §1. The following are qualified to challenge a marriage:
- The spouses;
- The promoter of justice when nullity has already become public, if the convalidation of the marriage is not possible or expedient.
§2. A marriage which was not accused while both spouses were living cannot be accused after the death of either one or both of the spouses unless the question of validity is prejudicial to the resolution of another controversy either in the ecclesiastical forum or in the civil forum.
§3. If a spouse dies while the case is pending, can. 1199. is to be observed.
ART 3. THE INTRODUCTION AND INSTRUCTION OF THE CASE
Can. 1361. The judge, before accepting the case, must be certain that the marriage has irretrievably broken down, such that the spouses are unable to resume conjugal life.
Can. 1362 §1. Once the libellus is received, the Judicial Vicar, if he feels it has some foundation, admits it, and by means of a decree placed at the bottom of the libellus, orders that a copy be sent to the Defender of the Bond, and, if the libellus is not signed by both parties, to the respondent, giving him or her fifteen days to state his or her mind about the petition.
§2. When the above-mentioned time has passed, with the other party again admonished to make known his or her position regarding the matter, and having heard the Defender of the Bond, the Judicial Vicar is to formulate the doubt by decree and determine whether the case is to be handled by the ordinary process or the shorter process, according to cann. 1369-1373. The parties and the defender are to be notified immediately of this decree.
§3. If the case is to be handled by the ordinary process, the Judicial Vicar is, by the same decree, to decide the constitution of the college of judges or of the single judge with two assessors according to can. 1359 §4.
§4. If the shorter process is to be followed, the Judicial vicar is to act according to can. 1371. §5. The formulation of the doubt ought not only to establish whether the marriage in question is null, but must also determine under what heading or headings the nullity of the marriage is to be challenged.
Can. 1363 §1. The Defender of the Bond, the advocates of the parties, and the Promoter of Justice, if he or she has taken part in the process, have the right:
- To be present at the examination of the parties, witnesses, and experts (with the provisions of can. 1240 remaining intact),
- To view the judicial acts, even those not yet published, and to examine the documents produced by the parties.
§2. The parties cannot be present at the examination mentioned in §1, 1.
Can. 1364 §1. In marriage nullity cases, a judicial confession and the declarations of the parties, upheld by witnesses to the credibility of the parties, can have the force of full proof, once the judge has considered all the indications [indicia] and supporting factors [adminicula], unless there are other elements present which weaken them.
§2. In these same cases, the deposition of a single witness can be granted full faith, if it is a matter of a qualified witness who gives testimony regarding actions carried out ex officio, or if circumstances connected to persons and things suggest it.
§3. In cases of impotence or a defect of consent due to mental illness or an anomaly of a psychic nature, the judge is to use the services of one or more experts, unless it is clear from the circumstances that it would be useless to do so; in other cases the prescript of can. 1255 is to be observed.
§4. Whenever, during the instruction of a case, a very probable doubt emerges that the consummation of the marriage did not occur, the tribunal may, having heard the parties, suspend the nullity case and complete the instruction for dispensation super rato and then transmit the acts to the Apostolic See together with a petition for a dispensation for either one or both of the spouses and the votum of the tribunal and the eparchial Bishop.
ART. 4 REGARDING THE CHALLENGE AND EXECUTION OF THE SENTENCE
Can. 1365. A sentence by which the marriage is first declared null, after the time limits of cann. 1311-1314 have elapsed, is executive.
Can. 1366 §1. A party who considers himself or herself to be aggrevied, and also the promoter of justice and the defender of the bond, retain the full right to propose a complaint of nullity of the sentence or an appeal against the sentence itself, according to the provisions of cann. 1302-1321.
§2. When the times established by the law for an appeal or its prosecution have elapsed and the judicial acts have been received by the tribunal of higher instance, a college of judges is to be constituted, a defender of the bond is to be named, and the parties are to be admonished to propose their observations within the established time. If, once this time has passed, the appeal evidently appears to be a merely dilatory one, the collegial tribunal may confirm by decree the sentence of the prior instance.
§3. If the appeal is admitted, the tribunal is to proceed in the same way as in first instance, the appropriate adaptations having been made.
§4. If a new ground of nullity of the marriage is alleged at the appellate level, the tribunal can admit it and judge it as if in first instance.
Can. 1367. If an executive sentence has been issued, recourse can be had at any time to a third grade of tribunal for a new proposition of the case according to the norm of can. 1325, if new and grave proofs or arguments are brought forward within the peremptory time of thirty days from the date the challenge is proposed.
Can. 1368 §1. After the sentence which declared the nullity of the marriage becomes executive, the parties whose marriage has been declared null can contract new marriages unless there is a prohibition attached to the sentence itself or established by a local Hierarch.
§2. As soon as the sentence becomes executive, the Judicial Vicar is to notify the local hierarch where the marriage was celebrated of the fact. This Hierarch is to take care that, as soon as possible, a notation in the marriage and baptismal records is made of the decree of nullity and of any prohibitions that may have been placed.
ART 5. THE SHORTER MARRIAGE PROCESS BEFORE THE BISHOP
Can. 1369. The eparchial Bishop is himself competent to adjudicate marriage nullity cases using a shorter process whenever:
- A petition is proposed by both parties or by either of them, with the other consenting;
- The circumstances of persons or things, supported by testimonies or documents, are such as to not demand a more accurate inquest or investigation, and render the nullity evident.
Can. 1684. In addition to what is listed in can. 1187, the libellus by which the shorter process is introduced ought to:
- Put forth in a brief, comprehensive and evident manner the facts on which the petition is based;
- Indicate the proofs, which can be collected by the judge at once;
- Present as attachments the documents on which the petition depends.
Can. 1371. The Judicial Vicar, by the same decree in which the formulation of the doubt is determined, when the instructor and the assessor have been named, cites all who must be involved in the matter for a session which is to take place not more than thirty days hence, according to can. 1372.
Can. 1372. The instructor, insofar as is possible, is to collect the proofs in a single session and establish a period of fifteen days for the presentation of observations in favor of the bond and the responses of the parties, if there are any.
Can. 1373 §1. Once the acts are received, the eparchial Bishop, having taken counsel with the instructor and the assessor, and having weighed the observations of the Defender of the Bond, and, if there are any, the responses of the parties, is to issue the sentence if he has arrived at moral certitude of the nullity of the marriage. Otherwise he is to send the case to the ordinary process.
§2. The complete text of the sentence, with the reasons expressed, is to be made known to the parties as soon as possible.
§3. The appeal against the sentence of the Bishop is to be made to the Metropolitan or to the Roman Rota; if, however, the sentence was pronounced by the Metropolitan himself or by another eparchial Bishop who has no superior authority below the Roman Pontiff, appeal is made to the bishop who has been chosen by him in a stable manner, after the Patriarch or the Hierarchy mentioned in can. 175 has been consulted.
§4. If the appeal seems to be merely dilatory, the Metropolitan or Bishop mentioned in §3 or the Dean of the Roman Rota is to reject it at the outset [a limine] with a decree. If, however, the appeal is admitted, the case is sent to the second grade of the ordinary process.
ART. 6 THE DOCUMENTARY PROCESS
Can. 1374. Once the petition which is made according to the norm of can. 1362 is received, the eparchial Bishop or the Judicial Vicar or a designated Judge can, with the solemnities of the ordinary process omitted, but the parties having been cited and the defender of the bond having intervened, declare the nullity of marriage by means of a sentence, if from a document to which no exception can be made it is certain that a diriment impediment existed or there was a defect of legitimate form, as long as [dummodo] it is clear with equal certitude that a dispensation was not given, or that there was a lack of a valid mandate for a proxy.
Can. 1375 §1. The Defender of the Bond, if he or she prudently judges that the defects or the lack of a dispensation is not certain, must appeal the sentence mentioned in can. 1374 to a judge at second instance, to whom the acts are to be sent however with a notice in writing that this regards the documentary process.
§2. For the party who considers himself or herself aggrieved, the right of appeal, remains intact. Can. 1376. The judge of second instance, after the defender of bond has intervened and the parties have been heard, shall decide whether the sentence is to be confirmed or whether it is preferable to proceed in the case according to the ordinary route of law; in which case he is to remand it to the first instance tribunal.
ART. 7 GENERAL NORMS
Can. 1377 §1. In the sentence the parties are to be reminded of the moral and even civil obligations which may bind them both toward one another and toward their children to furnish support and education.
§2. Cases for the declaration of the nullity of a marriage cannot be treated in the summary contentious trial mentioned in cann. 1343-1356.
§3. In other procedural matters, the canons on trials in general and on the ordinary contentious trial must be applied unless the nature of the matter precludes it; the special norms for cases concerning cases pertaining to the public good are to be observed.
* * *
The disposition of can. 1365 will apply to sentences declaring the nullity of marriage which are published beginning from the date in which this motu proprio will go into effect. A ratio procedendi is attached to these canons, which we hold necessary for the correct and accurate application of the renewed law, which is to be carefully observed in order to foster the good of the faithful. We order all which has been decreed by us in this letter to be fixed and firm, anything else to the contrary notwithstanding, even those things worthy of most special mention. We faithfully entrust to the intercession of the glorious and blessed Virgin Mary, who is quite rightly called “Θεοτόκος” and shines forth as the Mother of mercy of the universal Church, and of the blessed Apostles Peter and Paul, the present execution of this new matrimonial process.
Given at Rome, at St. Peter’s, the fifteenth day of August, the feast of the Assumption of the Blessed Virgin Mary, in the year 2015, the third of our pontificate.
Procedural Rules for the Handling of Marriage Nullity Cases
The III Extraordinary General Assembly of the Synod of Bishops, which was held in the month of October 2014, recognized the difficulty of the faithful in approaching the tribunals of the Church. Since the Bishop, as a Good Shepherd, is bound to go out to find his subjects who have need of special pastoral care, and given the sure collaboration between of the Successor of Peter and the Bishops in spreading the knowledge of the law, it has seemed opportune that certain tools should be offered, together with detailed norms for the use of the matrimonial process, so that the work of tribunals may respond to the needs of the faithful, who have asked for verification regarding the truth of the existence or non-existence of the bond of their failed marriage.
Art. 1. The eparchial Bishop, according to can. 192 §1, is held to seek out, with an apostolic heart, those separated or divorced spouses who, because of their state of life, have perhaps abandoned religious practice. Thus he shares with the pastors (see can. 289 §3) a pastoral solicitude towards these faithful in difficulties.
Art. 2. The pretrial or pastoral investigation, which in the context of parish or eparchial structures receives those separated or divorced faithful who have doubts regarding the validity of their marriage or who are convinced of its nullity, is directed to understanding their situation and to gathering useful elements for the eventual judicial process, either the ordinary or the shorter process. Such an investigation is to take place within the ambit of unified eparchial pastoral care of marriage.
Art 3. This investigation is to be entrusted by the local Hierarch to those considered suitable, although not exclusively to those enjoying juridical-canonical expertise. Among these there will first of all be the proper pastor or the one who prepared the parties for the celebration of marriage. This task of giving expert advice may be entrusted also to other clerics, consecrated persons, or laypersons approved by the local Hierarch. An eparchy, or several eparchies together, according to their present groupings, may constitute a stable structure through which this service may offered and which, if appropriate, may compose a handbook of the elements essential for an appropriate handling of the investigation.
Art 4. The pastoral investigation collects elements useful for the introduction of the case before the competent tribunal, either by the spouses or perhaps by their advocate. It is necessary to discover whether the parties are in agreement about petitioning for nullity.
Art. 5. Once all the elements have been collected, the investigation culminates in the libellus, which, if appropriate, is presented to a competent tribunal.
Art. 6. Since the Code of Canons of the Eastern Churches is to be applied in all matters, with the exception of special norms, even in marriage cases, as is noted in can. 1377 §3, this present ratio does not intend to set forth in detail a summary of the whole process, but above all to illustrate the principal innovations of the law and where necessary, to complete it.
1° The competent forum and tribunals
Art. 7 §1. The titles of competence mentioned in can. 1358 are equivalent, observing as much as possible the principle of proximity between the judges and the parties.
§2. Through the cooperation between tribunals mentioned in can. 1071, care is to be taken that a person, either a party or a witness, can take part in the process with a minimum of cost.
Art. 8 §1. In eparchies which lack their own tribunal, the Bishop is to take care that as soon as possible, persons are formed who are capable of zealously undertaking the work of constituting a tribunal for marriage cases. This is to be accomplished by permanent and ongoing courses, promoted by eparchies or their groupings and promoted by the Apostolic See, with a common purpose.
§2. The eparchial Bishop may withdraw from an intereparchial tribunal constituted in accord with can. 1067 §1.
2° The right to challenge a marriage
Art. 9. If a spouses dies during the process, with the case not yet finished, the instance is suspended until the other spouse or another person, who has an interest in the case, insists upon its continuation; in this case, a legitimate interest must be proven.
3° The introduction and instruction of cases
Art. 10. The judge may admit a petition made orally, whenever a party is prevented from presenting a libellus; however, he is to order the notary to draw up the act in writing, which is to be read and approved by the party, which takes the place of a libellus written by the party with regard to all the effects of law.
Art. 11 §1. The libellus is to be presented to the eparchial or intereparchial tribunal chosen according to the norm of can. 1359 §2.
§2. The respondent who entrusts himself or herself to the justice of the court, or who when properly cited a second time, makes no response, is considered not to object to the petition.
4° The challenge and execution of the sentence
Art 12. With regard to the moral certitude required by law, a preponderant weight of proofs and indications does not suffice. It is required than any prudent, positive, probable doubt of making a mistake, either in fact or in law, be removed, even though the simple possibility of the contrary is not excluded.
Art.13. If a party expressly declares that he or she objects to receiving any notices about the case, this is held to be a renunciation of the opportunity of obtaining a copy of the sentence. In this case, he or she may be notified of the dispositive part of the sentence.
5° The shorter process before the Bishop
Art 14 §1. Among the circumstances of things or persons which can allow a case for the nullity of marriage to be handled by way of the shorter process according to cann. 1369-1373, are, for example: that defect of faith which can engender the simulation of consent or an error determining the will; a brief conjugal life; an abortion procured with the purpose of avoiding procreation; an obstinate persistence in an extraconjugal relationship at the time of the marriage or immediately following; the deceitful concealment of sterility or of grave contagious illness or of children from a previous relationship or of imprisonments; a situation in which the reason for entering marriage is completely extraneous to conjugal life; the unplanned pregnancy of the woman; physical violence which is inflicted to extort consent; a defect of the use of reason which is proved by medical documents, etc.
§2. Among the documents which support the petition are to be considered all medical documents which can evidently render useless the requirement for ex officio expertise.
Art 15. If the libellus was entered in order to introduce it in the ordinary process, but the Judical Vicar believes that the case can be handled in the shorter process, in the notification of the libellus according to can. 1362 §2, he is to invite the respondent who has not signed the libellus to make known to the tribunal whether he or she intends to enter and take an interest in the process. As often as is necessary, he is to invite the party or parties who have signed the libellus to complete it as quickly as possible, according to the norm of can. 1370.
Art. 16. The Judicial Vicar can designate himself as an instructor; however, as often as possible he is to name an instructor in the eparchy where the case originated.
Art. 17. In the citation which is to be sent according to can. 1371, the parties are to be informed that they are able to furnish the Tribunal, at least three days prior to the session for the instruction of the case, with those points of the matter upon which the parties or the witnesses are to be questioned, unless they were attached to the libellus.
Art. 18. The parties and their advocates may be present for the examination of other parties and of witnesses, unless the instructor, according to the circumstances of things and person, decides to proceed in a different way. §2. The answers of the parties and witnesses are to be rendered in writing by the notary, but in a summary fashion, and only that which pertains to the substance of the disputed marriage is to be noted.
Art. 19. If the case is instructed in an intereparchial tribunal, the Bishop who must pronounce the sentence is the bishop of that place according to which competence is established, according to the sense of can. 1358. But if there are several, let the principle of proximity between the parties and the judge be observed as much as possible
Art 20 §1. The eparchial Bishop is to establish the method by which the sentence is pronounced, according to his prudence.
§2. The sentence, signed by the Bishop together with a notary, is to expound briefly and in an orderly fashion the reasons for the decision. Ordinarily the parties are to be notified within one month of the day of the decision.
6° The documentary process
Art. 21. The competent eparchial Bishop and the Judicial Vicar are determined according to the norm of can. 1358.