If the Pope, remiss in his duties and neglectful of his and his neighbor’s salvation, gets caught up in idle business, and if moreover, by his silence (which actually does more harm to himself and everyone else), he nonetheless leads innumerable hoards of people away from the good with him, he will be beaten for eternity with many blows alongside that very first slave of hell [the Devil]. However, no person can presume to convict him of any transgressions in this matter, because, although the Pope can judge everyone else, no one may judge him, unless he, for whose perpetual stability all the faithful pray as earnestly as they call to mind the fact that, after God, their own salvation depends on his soundness, is found to have strayed from the faith.
Gratian, (Decretum, Part 1, Distinction 40, Chapter 6)
Sandro Magister at his blog Chiesa explains how revolutionary the Pope’s changes in regard to the annulment process are:
ROME, September 15, 2015 – As the days go by it becomes ever clearer how revolutionary is the scope of the two motu prorio published by Pope Francis on September 8 – the second for the Eastern Rite Catholic Churches – on the reform of procedures for marital nullity cases:
> Lettera apostolica “Mitis Iudex Dominus Iesus”
> Lettera apostolica “Mitis et Misericors Iesus”
It is the pope himself, in the opening of the document, who presents the reason for the reform:
“The enormous number of faithful who, despite wanting to look after their conscience, too often are turned aside by the juridical structures of the Church.”
In the official presentation of the motu proprio the president of the commission that elaborated the reform, Monsignor Pio Vito Pinto, dean of the Roman Rota, turned the reason into an objective:
“To move from the restricted number of a few thousand findings of nullity to the enormous number of unfortunates who could have a declaration of nullity but are left out by the existing system.”
Francis has been absolutely convinced for some time that at least half of the marriages celebrated in church all over the world are invalid. He said so in the press conference on July 28, 2013 on the return flight from Rio de Janeiro. He said it again to Cardinal Walter Kasper, as Kasper in turn said in an interview with “Commonweal” of May 7, 2014.
And therefore these faithful unheeded in their anticipation of having the nullity of their marriages recognized are also part, in the vision of Francis as presented by Pinto, of those “poor” who are at the center of his pontificate. Millions and millions of “unfortunates” waiting for the assistance that is due them.
The procedural reform backed by Jorge Mario Bergoglio aims precisely at this: to allow these endless crowds easy, fast, and free access to the recognition of the nullity of their marriages. The synod of last October (see paragraph 48 of the final “Relatio”) expressed generic support for improvements in the procedures. But a good number of fathers said they were against one or another of the reforms proposed by various sides. Which however are precisely the ones now found in the motu proprio.
THE ORDINARY PROCEDURE
The reform delineates two main types of marital procedures. There is the ordinary one and the one – entirely new – called “shorter.”
In the ordinary procedure the main innovation is the abolition of the obligatory double decree of nullity. Only one is needed, as previously permitted in experimental form between 1971 and 1983 in the ecclesiastical tribunals of the United States, a concession that was revoked after the flood of nullity decrees issued by the tribunals and the bad reputation of “Catholic divorce” that was the result.
A single decree, without appeal, reduces the duration of an ordinary procedure to about one year.
Ecclesiastical tribunals, moreover, will have to be set up in every diocese of the world, no matter how small or remote, an objective from which the Catholic Church is very far today mainly because of the shortage of churchmen and laity who are experts in canon law.
But there is another more substantial innovation, presented in the new canon 1678 § 1, which will replace the corresponding canon 1536 § 2 of the existing code of canon law.
While in the canon being scrapped “the force of full proof cannot be attributed” to the statements of the parties, unless “other elements are present which thoroughly corroborate them,” in the new canon “the statements of the parties can have the force of full proof,” to be considered as such by the judge “if there are no other elements to refute them.”
One discovers in this an exaltation of the subjectivity of the party bringing the case that matches up neatly with the official presentations of the two motu proprio by Monsignor Pinto and the secretary of the commission he heads, Monsignor Alejandro W. Bunge, with regard to the “principle motivation” that in their judgment drives many Catholics – in the future a “mass” – to apply to their marriage tribunals:
“Nullity is requested for reasons of conscience, for example to live the sacraments of the Church or to perfect a new stable and happy bond, unlike the first one.”
It is therefore easy to foresee that the longstanding controversy over communion for the divorced and remarried will fizzle out amid the facts, replaced by unlimited and practically unfailing recourse to the certification of nullity of the first marriage.
THE “SHORTER” PROCEDURE
The biggest innovation of the reform backed by Francis is however the procedure called “shorter.”
Very short, actually. According to the new canons it can begin and end in the span of just 45 days, with the local bishop as the sole and ultimate judge.
Recourse to the abbreviated procedure is allowed “in cases in which the alleged nullity of the marriage is supported by particularly evident arguments.”
But there’s more. Recourse to this kind of procedure is not only allowed but encouraged, seeing the superabundant illustration of supporting circumstances furnished by article 14 § 1 of the “Procedural rules” attached to the motu proprio.
The article says:
“Among the circumstances that can allow the handling of the marital nullity case by means of the shorter procedure […] there are for example:
– that lack of faith which can generate the simulation of consent or the error that determines the will,
– the brevity of conjugal cohabitation,
– abortion procured to prevent procreation,
– stubborn persistence in an extramarital relationship at the time of the wedding or immediately afterward,
– the malicious concealment of sterility or of a grave contagious disease, or of children born from a previous relationship, or of incarceration;
– the grounds of the marriage being entirely extraneous to conjugal life or consistent with the unexpected pregnancy of the woman,
– physical violence inflicted to extort consent,
– lack of the use of reason corroborated by medical documents, etc.”
The list is stunning in its disjointed variety. It includes circumstances, like physical violence inflicted to extort consent, that are actual grounds for the nullity of a marriage. But it includes others, like the brevity of conjugal cohabitation, that cannot in any way support a decree of invalidity. And it includes yet another, the lack of faith, that although difficult to evaluate is ever more frequently evoked as the new universal master key for nullity. And yet these circumstances are all listed on an equal footing, together with a final “etc.” that induces one to add other examples at will.
But in addition to being heterogeneous, the list appears to be misleading. In and of itself it lists circumstances that would simply allow one to access the “shorter” procedure. But it is very easy to interpret it as a list of cases that allow one to obtain the recognition of nullity. Many couples have experienced one of the circumstances illustrated – for example, pregnancy before the wedding – and it is therefore natural that the conviction should arise in them that, upon request, their marriage can be dissolved, seeing also the pressure that the Church exercises in suggesting – precisely in the presence of those circumstances – recourse to the procedure of nullity, and moreover to the quick one.