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

Wednesday, September 23, 2015

El Papa en Cuba y Estados Unidos

Thursday, September 10, 2015

New Faster Annulment Process Not Necessarily a Burden on Bishops

As I read the Latin in the Pope's recent revision of canon law, the shorter process for declarations of nullity is not a burden imposed on and required of bishops, as some have said or implied, but is rather a discretionary power granted to bishops to be used for the benefit of the faithful in certain situations.

Latin: "Can. 1683. Ipsi Episcopo dioecesano competit iudicare causas de matrimonii nullitate processu breviore quoties:" (Source link);

English: "It is appropriate for the diocesan bishop himself to judge cases concerning the nullity of marriage with a shorter proceeding when: . . . ."

I take "competit" as empowering the bishop, not as requiring him to so act. Thus, the argument that this reform would crush a bishop with extra work is exaggerated. Bishops are smart enough to apply the reforms with assistance, as needed, in the particular situations envisioned.

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.
1.   THE COMPOSITION OF THE TRIBUNALS
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.
2.   THE ABOLITION OF THE DOUBLE CONFORMING (SENTENCES)
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 ...is 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.

Link: http://americamagazine.org/content/dispatches/cardinal-coccopalmerio-reform-process-declaring-nullity-marriage

Revolutionary



08-09-2015 - Year XXII - Num. 151  

Summary
Motu proprio “Mitis Iudex Dominus Iesus” and “Mitis et misericors Iesus”: the Pope reforms the procedures for declaration of marriage nullity 
Presentation of the Holy Father's Motu proprio on the reform of procedures for the declaration of marriage nullity 
Other Pontifical Acts 
Motu proprio “Mitis Iudex Dominus Iesus” and “Mitis et misericors Iesus”: the Pope reforms the procedures for declaration of marriage nullity
Vatican City, 8 September 2015 (VIS) - “Mitis Iudex Dominus Iesus” and “Mitis et misericors Iesus”, on the reform of canonical processes for the declaration of nullity of marriage, in the Code of Canon Law (CIC) and the Code of Canons of the Eastern Churches (CCEO) are the two letters issued “Motu proprio” by the Holy Father Francis, published today.
In the first, “Mitis Iudex Dominus Iesus”, the Pope writes that the Lord Jesus, “clement Judge, Pastor of our souls, has entrusted to the Apostle Peter and his Successors the power of the keys to fulfil in the Church the works of justice and truth; this supreme and universal power to bind and dissolve here on earth affirms, corroborates and vindicates that of the Pastors of the particular Churches, by virtue of which they have the sacred right and, before the Lord, the duty to judge their own subjects”.
“Throughout the centuries”, he continues, “the Church, in matters of marriage, acquiring a clearer awareness of the Words of Christ, has understood and explained in greater depth the doctrine of the indissolubility of the sacred conjugal bond, has developed the system for the annulment of matrimonial consent, and has more suitably disciplined the relevant judicial process, so that ecclesiastical discipline is more consistent with the truth of the professed faith”.
“All this has always been done with the supreme law of the salvation of souls as a guide. … Aware of the above, I have undertaken to reform the processes for the declaration of nullity of marriage, and for this purpose I have constituted a Group of persons eminent for their competence in legal doctrine, their pastoral prudence and their forensic experience who, under the guidance of the Most Excellent Dean of the Roman Rota, have drafted a plan for reform, without prejudice to the principle of the indissolubility of the marriage bond. … This Group has developed a framework for reform which, after thoughtful consideration with the assistance of other experts, has provided the basis for this 'Motu proprio'”.
“It is therefore the concern for the salvation of souls that, today as yesterday, remains the supreme objective of the institutions and laws, and drives the Bishop of Rome to offer to the Bishops this reform document, insofar as they share with him the task of the Church to protect unity in faith and in discipline regarding marriage, the cornerstone and origin of the Christian family. The drive to reform has been fuelled by the enormous number of faithful who, while wishing to be at peace with their conscience, are too often separated from the legal structures of the Churches due to physical or moral distance; charity and mercy therefore require that the same Church, as a mother, to be closer to her children who consider themselves separated”.
“This direction was also indicated by the votes of the majority of my Brothers in the Episcopate, gathered in the recent extraordinary Synod, who called for faster and more accessible processes. In full harmony with this desire I have decided to introduce, by this Motu proprio, provisions that favour not the nullity of marriage but rather the speed of processes, along with the appropriate simplicity, so that the heart of the faithful who await clarification of their status is not long oppressed by the darkness of doubt due to the lengthy wait for a conclusion”.
“I have done so following in the footsteps of my predecessors, who wanted procedures for the declaration of nullity of marriage to be treated by judicial rather than administrative means, not because the nature of the matter imposes this but because it is demanded by the need to protect to the greatest extent possible the truth of the sacred bond; and this is precisely what is ensured by the guarantees of the judicial order”.
The Pope goes on to indicate a number of fundamental criteria that guide the reform:
“1. A single judgement in favour of executive nullity: it would appear appropriate to no longer require a double conforming decision in favour of the nullity of the marriage to enable the parties to be able to contract a further canonical marriage, instead considering sufficient the moral certainty reached by the first judge in accordance with the rules of law.
2. A single judge under the responsibility of the bishop: the constitution of the single judge, in any case clerical, is in the first instance the responsibility of the bishop, who in the pastoral exercise of his judicial power must ensure that the former does not engage in any form of laxity.
3. The same bishop is the judge: … The bishop in his Church, of which he is constituted pastor and head, is for this reason judge among the faithful entrusted to him. It is hoped, therefore, that in both large and small dioceses the same bishop may offer a sign of the conversion of the ecclesiastical structures, rather than completely delegating the judicial function in matters of marriage to the offices of the curia. This is especially relevant to the shorter procedure, established to resolve the most evident cases of nullity”.
4. Short procedure: Indeed, aside from streamlining processes for the declaration of nullity, a form of shorter process is designated – in addition to the current documentary procedure – to be applied in cases in which the alleged nullity of the marriage is supported by particularly clear arguments”. The Holy Father observes that “it does not pass unnoticed that a shorter procedure may endanger the principle of the indissolubility of marriage; for precisely this reason I have required that in such a procedure the judge be the bishop himself who, due to his pastoral office, is with Peter the greatest guarantor of Catholic unity in faith and in discipline”.
5. Appeal to the Metropolitan See: it would be appropriate to restore the faculty of appeal to the Metropolitan See, since this office of the head of the ecclesiastical province, stable throughout the centuries, is a distinctive sign of the synodality of the Church.
6. The competence of the Episcopal Conferences: the Episcopal Conferences, which must be above all driven by the apostolic eagerness to reach the lost faithful, are strongly aware of their duty to share in the aforementioned conversion, and fully respect the right of the bishops to organise the judicial power in their own particular Churches. … Along with their proximity to the judge, the Episcopal Conferences, to the extent possible, must ensure just and dignified retribution to tribunal staff, ensuring that the processes are free, since the Church, in a matter so closely linked to the salvation of souls, demonstrates the gratuitous love of Christ by which we have all been saved”.
7. Appeal to the Apostolic See: It is convenient, in all forms, to maintain the appeal to the ordinary Tribunal of the Apostolic See, that is the Roman Rota, respecting an ancient judicial principle, so as to strengthen the bond between the See of Peter and the particular Churches, in any case taking care, in the discipline of such appeal, to limit any abuse of the right, so that it does not jeopardise the salvation of souls.
The law of the Roman Rota will be adapted as soon as possible to the rules of the reformed procedure, within the limits of necessity.
In the eighth point the Pope mentioned that, given the specific ecclesial and disciplinary order of the Eastern Churches, the norms for the reform of the discipline of marriage processes have been issued separately in the Code of Canons of the Eastern Churches.
Finally, he decrees and institutes that the Book VI of the Code of Canon Law (part III, title I, chapter I) on processes for the declaration of the nullity of marriage (canons 1671 to 1691) will be entirely substituted by the new norms, with effect from 8 December 2015.
In the Motu proprio “Mitis et misericors Iesus”, addressed to the Eastern Churches, Pope Francis notes that his venerated predecessor, St. John Paul II, in promulgating the Code of Canons of the Eastern Churches, affirmed that “since the beginning of the canonical codification of the Eastern Churches, the same consistent will of the Roman pontiffs to promulgate two codices, one for the Latin Church and one for the Eastern Catholic Churches, has shown very clearly that these latter wish to conserve what has occurred by divine providence in the Church, that is, that reunited by a single Spirit, she must breathe with the two lungs of East and West, and burn with Christ's charity like a single heart composed of two ventricles”.
“Following in the same path, and taking into account the particular ecclesial and disciplinary order of the Eastern Churches, I have decided to issue in a separate Motu proprio the norms for the reform of the discipline of marriage processes in the Code of Canons of the Eastern Churches”.
The Pope goes on to emphasise the importance of the ministry of the bishop, with according to the teachings of the Eastern Fathers, is “judge and physician, since man, wounded and fallen, owing to original sin and his personal sins, sickens and with the medicine of penitence obtains healing and forgiveness from God, and is reconciled with the Church. Indeed, the bishop, constituted by the Holy Spirit as the figure of Christ and in the place of Christ, is first and foremost the minister of divine mercy”.
The Bishop of Rome emphasises that appeal to the Metropolitan See is “a hallmark of the fundamental synodality in the Eastern Churches, which should be supported and encouraged”, and addresses to the Synods of the Eastern Churches the recommendations which in the Motu proprio “Mitis Iudex Dominus Iesus” are addressed to the Episcopal Conferences.
Finally, he decrees and establishes that in Title 26 of the Code of Canons of the Eastern Churches (Chapter 1, article 1). Cases for the declaration of the nullity of marriage, canons 1357-1377) is entirely substituted by the new norms, with effect from 8 December 2015.
Presentation of the Holy Father's Motu proprio on the reform of procedures for the declaration of marriage nullity
Vatican City, 8 September 2015 (VIS) – This morning in the Holy Press Office a press conference was held for the presentation of the two letters issued “Motu proprio” by the Holy Father Francis, “Mitis Iudex Dominus Iesus” and “Mitis et misericors Iesus” on the reform of canonical processes for the declaration of nullity of marriage in the Code of Canon Law (CIC) and the Code of Canons of the Oriental Churches (CCEO) respectively.
The speakers at the conference were Msgr. Vito Pinto, dean of the Roman Rota and president of the Special Commission for the Reform of Matrimonial Processes in Canon Law; Cardinal Francesco Coccopalmerio, president of the Pontifical Council for Legislative Texts and member of the Special Commission; Bishop Dimitrios Salachas, apostolic exarch of Athens for Greek Catholics of Byzantine Rite and member of the Special Commission; Archbishop Luis Francisco Ladaria Ferrer, S.J., secretary of the Congregation for the Doctrine of the Faith and member of the Special Commission; Msgr. Alejandro W. Bunge, prelate auditor of the Roman Rota and secretary of the Special Commission; and Fr. Nikolaus Schoch, O.F.M., substitute promoter of Justice at the Supreme Tribunal of the Apostolic Signatura and secretary of the Special Commission.
Cardinal Coccopalmerio specified that the reform regards the canonical process for the declaration of nullity of marriage. “It is a process that leads to the declaration of nullity, or in other words, which leads first to establish whether a marriage may be declared null and, if so, to declare its nullity. It is not, therefore, a process that leads to the annulment of the marriage. Nullity is distinct from annulment, and declaring the nullity of a marriage is entirely different to decreeing its annulment.
Archbishop Luis Francisco Ladaria Ferrer, S.J., recalled the necessary requisites according to canon law for the validation of a marriage between Catholics which, aside from the absence of diriment impediments and the observance of canonical form, including the free consent of the spouses.
“According to the teaching of the Church”, he said, “marriage is one, only a man and a woman may unite in marriage, and it is impossible to undertake a new matrimonial union during the life of the spouse. Marriage is indissoluble, as Jesus taught, and we have many examples of this teaching in the Gospel. The Letter to the Ephesians explains to us that sacramental marriage cannot be broken as it is the image and expression of Christ's love for His Church. … Marriage must be open to the transmission of life”.
“In our traditional civilisation, it was possible to suppose that these teachings of the Church were known and shared. In recent times there has emerged the doubt, that would seem not without basis, as to whether all those who marry in the Church are sufficiently aware of these teachings and, therefore, as to whether their consent truly refers to them. If it is not the case, their marriage would be null; that is, it would not exist in fact. And precisely because there are these doubts, many would like to be able to offer a rapid but reliable means for resolving the problem and contributing to pacifying the conscience of many Catholics”.
The key points of the reform were explained by the prelate auditor of the Roman Rota, Msgr. Bunge: “1) the central role of the diocesan bishop, to be applied in the spirit of collegiality.
As well as the regional, interdiocesan and synodal tribunals, according to the various methods of the Church and taking into account the good of the faithful and the appropriateness of accessibility of pastoral remedies for wounded faithful, the diocesan bishops are enabled to have their own diocesan tribunals, and if necessary, also to decide that in this tribunal, if it impossible to have a collegial tribunal (always chaired by a member of the clergy), there may be a single judge (again clerical).
2) Short procedure (avoiding the terms 'summary' or 'administrative') for clear cases of nullity of marriage, to render it more accessible to the 'masses'. In these cases the judge would be the bishop, assisted in ascertaining the facts by two assessors, with whom he will discuss in advance the moral certainty of the facts adopted in deciding on the nullity of the marriage. If the bishop is convinced of the moral certainty, he will pronounce the decision; otherwise the case will be referred to the ordinary process.
It may be objected that a bishop would be unable to decide a high number of cases, to which there is a dual response: in a region there would be not only the regional and interdiocesan tribunals, but also the bishop in each diocese for cases that are obviously clear; secondly, the bishop would be assisted by the staff of his tribunal. Ongoing formation would ensure that each bishop, with his tribunal for these cases of marriage nullity, would discover the ministry appropriate to him, entrusted to him in his holy ordination, as the judge of his faithful.
3) Appeal would be rare, as there would exist agreement between the parties and there would be evident facts regarding nullity; in the presence of elements that would lead the appeal to be considered merely dilatory or instrumental, it would be rejected a limine.
4) Ordinary process:
- Fast (a maximum of one year)
- Abolition of the double conforming decision (that is, the need according to canon law in the procedures for the declaration of nullity of marriage to have two conforming decisions to enable the spouses to be free to contract a new marriage. This implies that two tribunals of distinct grade declare the nullity of the marriage for the same reasons in fact and in law, Ed.).
- The affirmative non-appellate judgement ipso facto becomes executive.
- If an appeal is sought following an affirmative judgement this can be rejected a limine due to an evident lack of supporting arguments.
This may occur in the case of instrumental appeal, intended to harm the other party; often the non-Catholic appellant has already undertaken a civil remarriage.
There emerges in the reform the situation which is by now the reason why the majority of Catholics seek the declaration of nullity of marriage: 'consulere conscientiae', that is, aside from the civil law aspects, for reasons of conscience (to partake in the sacraments of the Church and to perfect a new bond which, unlike the first, is stable and happy).
5. The speed of the procedure favours the limitation of appeals to the Holy See and therefore to the Roman Rota, or appeals to the Apostolic Signatura to newly present a case previously rejected by the Rota.
In conclusion; the glory of God s living man, and may I add, man saved by the diligent ministry of the justice and mercy of the Church”.
Other Pontifical Acts
Vatican City, 8 September 2015 (VIS) – The Holy Father has appointed Bishop Raymond Poisson, auxiliary of Saint-Jerome, Canada, as bishop of Joliette (area 8,800, population 281,000, Catholics 256,000, priests 113, permanent deacons 7, religious 230), Canada.
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