By Oswald Sobrino, J.D.; M.A. (Econ.); M.A. (Theo.); M.L. (Master of Latin), doctoral student, University of Florida.

Tuesday, September 8, 2015

What is Significant in Annulment Reforms

According to the cardinal (Francesco Coccopalmerio) involved in the process (source is America magazine):

II. The most significant changes introduced by the new norm.
I believe that it is interesting to outline, as rapidly as possible, the most significant changes introduced by the new norm that's aimed at speeding up the conducting of the processes of nullity of marriage. I will limit my attention to the text of the motu proprio relating to the Latin Code, the Code of Canon Law. I select three aspects.
Canon 1671 speaking of this.
§ 1. Presupposes the doctrine according to which the diocesan bishop is the judge in his particular Church and it therefore affirms that the tribunal can be constituted by the bishop alone.
§ 2. (Says) the diocesan bishop, however, is not the only judge in his particular Church:
- in fact, it says, the diocesan bishop can establish a tribunal that judges in his stead:
- However, it gives the bishop the faculty to accede to a nearby tribunal.
§§ 3-4. They deal with two problems that we can say are an issue:
- that of the collegial or one-only judge;
- that of the judge who is a cleric or a lay person:
And they resolve them with the following directives (dispositions):
- if it's possible, the tribunal should be collegial and formed of three members who are clerics:
- if it's not possible that all the members are clerics, it's permitted that one only need be a cleric and be the president of the tribunal, while the others can be lay people;
- if, moreover, it's not possible that the tribunal can be collegial, it's permitted that it be formed of one judge only, but he should be a cleric;
- that one only judge who is a cleric should avail himself, if possible, of two assistants (assessors) of upright life, who are expert in the legal and human sciences, and approved by the bishop for this purpose.
§ 5. The tribunal of the second instance should be collegial always, and should be formed according to the criteria given in § 3.
Canons 1679-1680 speak of this and touch the actual structure of the double confirming sentences and decree their abolition.
One can see this change clearly if one looks at the present norm that envisages the double conforming sentences (cann. 1682, § 1 e 1684 § 1) and compares it to the new norm that abolishes this (can. 1679).
The present norms states that “The sentence which for the first time declares the nullity of the marriage transmitted by an act of office (ex officio) to the tribunal of appeal” (can. 1682, § 1). And again, “After the sentence which declared the nullity of marriage for the first time was confirmed in the appeal instance... those whose marriage was declared null can contract a new marriage” (can. 1684, § 1).
The new norm disposes that: “The sentence that for the first time decreed the nullity of marriage, after the times (terms) established have passed...becomes executive” (can. 1679).
It is therefore no longer obligatory to appeal ex officio to the second grade. Nevertheless, the possibility to appeal the sentence is not denied, because the new norm at the same time disposes: “The part which feels burdened as well as the promoter of justice and the defender of the bond of marriage retain the right to challenge the sentence of nullity and appeal against the same sentence (can. 1680, § 1).
Attention, however, and here is the great novelty: “The collegial tribunal, if it concludes that the appeal is clearly only (a) prolonging (tactic), can confirm the decree of the first instance“ (can. 1680, § 2).
3.  THE SHORTER PROCESS ('Processus Brevior')
Another significant innovation, always with a view to speeding up the processes of nullity of marriage, is that contained in canons 1683-1684, and consists in the 'shorter process' (“processus brevior”).
Let's look schematically at the elements that structure this process:
- the diocesan bishop is the sole judge.
- the cause of nullity is introduced by both parties, who must however be convinced of the nullity of marriage;
- the testimonials or documentary proofs must be evident and make clear the nullity (canons. 1683-1684);
- the term (time) within which the 'shorter process' must be done is 30 days from the moment all the participants are convoked, and another 15 days can be added for further observations (canons 1685-1686);
- the sentence is issued by the diocesan bishop himself if he reaches the moral certainty of the nullity of the marriage, or else the case examined by him is assigned to the ordinary process (can. 1687, § 1);
- an appeal against the sentence is also envisaged here but, here too, it cannot be an appeal that is merely a delaying one, because in this case also it is rejected at the start.
As one can see, this 'shorter process' is a very agile structure, and therefore rapid.
However, it is the judicial praxis that will make this structure more precise and definitive. The same can be tranquilly said for the other innovations, and in particular those mentioned above.
We should remember too that since the church is extended in all continents, the experiences of the different surroundings will bring better understanding and eventual normative precisions.