The new canonical legislation on marriage contained in Mitis Iudex Dominus Iesus is troubling in many ways . Pope Francis clearly meant it to be an instrument of mercy and of service to families, but the means he has chosen may not produce the very ends he seeks. I have been discussing the changes with a few canonists, one of whom drew my attention to a particular problem in the new canons establishing the Shorter Marriage Process before the Bishop.
This new shorter process results in a quicker judgment of a claim of nullity of marriage by the diocesan bishop himself with the assistance of tribunal officials who put together the evidence for him. The time limits specify that once the petition for a declaration of nullity has been accepted by the judicial vicar (chief judge of the tribunal), the hearing of the case in a court session is to take place within thirty days. The new law specifies that, if at all possible, only one court session is to take place.
Once the case materials have been collected by the instructor (the tribunal official preparing the case materials for the bishop), the parties (the husband and wife) and the defender of the bond have fifteen days to offer their observations, which are then included in the file for the bishop, who is advised by an expert called an assessor.
What happens next is set forth in Canon 1687 § 1: “After receiving the acts, and consulting with the instructor and the assessor, and weighing the observations of the defender of the bond, and the defenses of the parties, if there are any, the Diocesan Bishop, if he reaches moral certainty about the nullity of the marriage, issues the sentence. Otherwise the case is remitted to the ordinary process.”
Setting aside, for the moment, the hastiness of this process, especially given the importance of the matter being judged, the nature of this shorter process appears to be inherently flawed. I say this because the only determinative resolution of a petitioner’s claim permitted by this process is a declaration of the nullity of the marriage. If the diocesan bishop does not find that the claim of nullity is proven, then the case is automatically remitted to the ordinary process.
So in the shorter process, a judgment that the marriage is invalid has the immediate effect of allowing the parties to marry once again in the Catholic Church, unless the bishop issues a prohibition to marry (a rare occurrence nowadays), or one of the parties or the defender of the bond, who is appointed by the bishop, lodges an appeal (unlikely). The matter is decided then and there.
If the judgment by the bishop is in favor of the validity of the marriage, however, that judgment has no effect and the petition for a declaration of nullity is automatically submitted to the ordinary process, as if nothing had happened. In sports, we call that a do-over, as in: we now will pretend that Sammy really did not hit his ball out of bounds, and that his second attempt to land in the fairway is really the first attempt.
A basic tenet of justice is that the judge must have no interest in a particular outcome in a dispute. Rather, he should apply the law fairly and let the facts that emerge in the course of the judicial proceedings dictate his application of the law. Similarly, the rules governing the process should not tilt towards one outcome as opposed to another.
In this canon, only one outcome – nullity – is permitted for the process to have any determinative result. If the bishop decides that the marriage is null, the matter is put to rest and the parties are free to marry again in the Catholic Church. If the bishop does not find the marriage to be null, then that decision has no determinative result. Here we have, for all intents and purposes, the only automatic “appeal” left in marriage law, as the new canon (1682 § 1) has done away with the automatic appeal of a judgment declaring the nullity of a marriage in the ordinary process.
This new shorter process cannot be described as impartial set of rules aimed at arriving at an informed and fair determination by the diocesan bishop as to whether a petitioner’s claim that his/her marriage was null is proven or not proven. If the rules were impartial, then either outcome would have equal legal force. That is not the case here.
The unmistakable aim of this kind of legislating is clear: declare marriages null whether it takes a shorter time or a longer time. The shorter process is clearly not thought of by its authors as possessing sufficient integrity to arrive at a determinative finding upholding the validity of a marriage, since such a finding has no legal effect, but is rather simply an automatic cause for re-hearing the case in the ordinary process.
One is left to ask: why should the Church institute a process that can only be trusted when it produces one outcome – a declaration of nullity? In fact, such a process does not respond to the demands of justice, and does harm to the Church’s effort to uphold the indissolubility of marriage. This flawed innovation is just one of many reasons why it would be best simply to set aside this new legislation.