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 TRIBUNALSCan. 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.
ART. 2 THE RIGHT TO CHALLENGE THE MARRIAGECan. 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.
ART 3. THE INTRODUCTION AND INSTRUCTION OF THE CASECan. 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.
ART. 4 REGARDING THE CHALLENGE AND EXECUTION OF THE SENTENCECan. 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 BISHOPCan. 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.
- 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.
ART. 6 THE DOCUMENTARY PROCESSCan. 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 NORMSCan. 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.
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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.