A year since Pope Francis reformed the marriage annulment process in his motu proprio Mitis Iudex Dominus Iesus, dioceses across the United States are figuring out how to implement all the changes.
In keeping with the spirit of the pope’s desire to improve access to the annulment process, some dioceses have waived their fees while others still ask people to pay but emphasize that financial hardship does not prevent anyone from petitioning their tribunal and having their case heard.
Diocesan judicial vicars and canon lawyers across the country told Our Sunday Visitor that the motu proprio’s elimination of the automatic review of a declaration of nullity has shortened the process by several months, and also said they can now easily adjudicate annulment cases where the petitioner was married in a different country.
The motu proprio also created a new briefer process where the bishop himself can decide annulment cases with especially clear grounds. However, several judicial vicars told OSV that such cases are rare because of the strict conditions that accompany them.
Tribunals in transition
“We’re still working this all out, trying to figure out what it’s going to look like and how it’s going to be applied,” said Father Roger Keeler, executive coordinator of the Canon Law Society of America.
Father Keeler told OSV that canonists in the United States and Canada have been studying and discussing the motu proprio, and he added that the jurisprudence related to the changes — especially the briefer process — is still in the early stages of development.
“Not everyone has moved into working with the briefer process,” Father Keeler said. “Those that have have been very pleased with how it’s evolved.”
The motu proprio — simply referred to as “Mitis” by several canonists — took effect on Dec. 8, the Solemnity of the Immaculate Conception. Pope Francis also signed a motu proprio — Mitis et misericors Iesus — outlining annulment changes for the Eastern Churches. That motu proprio also took effect on Dec. 8.
Pope Francis said the new procedures were created with pastoral intentions, to reach out to families suffering from broken marriages by streamlining the annulment process, making it more accessible and less time-consuming.
“The Holy Father is trying to find a way to respond with authentic pastoral care to the needs of Catholics in the Church without compromising what is true about marriage,” said JD Flynn, communications director for the Diocese of Lincoln, Nebraska, who is himself a canon lawyer.
The pope’s efforts, Flynn added, also are a “reflection of what it means to reach out in faith with the fullness of the Gospel and the fullness of truth, but to reach out in a way that responds to the pastoral needs and situations of people in their lives.”
As Pope Francis noted in promulgating the motu proprio, the 2014 Synod of Bishops requested that the annulment process be amended to be more accessible, quicker and without expense if possible. The synod proposed eliminating the automatic review and creating the briefer process where nullity is clearly evident and can be decided without a full canonical trial.
Before “Mitis,” if a tribunal determined a marriage was null, the case was automatically sent to a court of second instance, usually in a nearby diocese, for review, and the annulment would be granted only if that court agreed with the finding. The automatic review could lengthen the process by as long as six months in some dioceses.
“It does eliminate work for us and it does quicken the time of the proceedings,” said Msgr. Ronald P. Simeone, the judicial vicar for the Diocese of Providence, Rhode Island, Marriage Tribunal, who also told OSV that the wisdom of eliminating the automatic review remains to be seen.
“Personally, I think it could open the door to abuses eventually,” he said. “With the automatic appeal, someone was checking on what we were deciding and what we were writing in the decision. In the end, that’s important, especially if the respondent has been involved. That’s why they started the automatic appeal, to avoid the possibility of a lax approach to the decisions.”
Father Truc Nguyen, judicial vicar of the Los Angeles Archdiocesan Metropolitan Tribunal, admitted to OSV that the elimination of the court of second instance is a “very divisive” issue among canonists.
“You can see the argument that there is no oversight, especially in areas where you don’t have functional tribunals,” Father Nguyen said. “Letting go of the mandatory review also can theoretically affect the understanding of marriage indissolubility and respect for marriage.”
However, Father Nguyen noted that the elimination of the automatic review saves time and work for understaffed and busy tribunals, adding that it has reduced most of his tribunal’s annulment cases by three months, and six months in some instances. He also expressed confidence that canonists across the country take their jobs seriously to protect the integrity of marriage.
Father Nicholas E. Kastenholz, judicial vicar for the Archdiocese of St. Louis Metropolitan Tribunal, told OSV that the defender of the bond — the person in an annulment case who argues for the validity of the marriage — has the right to appeal declarations of nullity.
“Our defender has (appealed) in a couple of cases and I think it’s an appropriate way that recognizes the role of the defender of the bond and raises the seriousness of their position,” said Father Kastenholz, adding that the defender’s role has been discussed at several law conferences.
Also, doing away with the automatic appeal, Father Kastenholz said, has made it critical for tribunals to notify the involved parties because they have 15 days from the notification to appeal the decision.
“We’re now sending more of the notices by certified mail so we can verify what the timeline is when people are notified,” Father Kastenholz said.
Another major change “Mitis” instituted was allowing a tribunal to accept an annulment case where the petitioner was married outside the local episcopal conference. Beforehand, judicial vicars told OSV that they often could not accept those cases because the respondent — the ex-spouse — as well as most of the witnesses were outside the country.
“I often had the sad task of sending the petitioners back to a tribunal that was non-functioning, knowing that their needs could not really be satisfied. Now I can do the process here, and that’s a huge benefit to immigrants,” said Bishop Mark W. O’Connell, the judicial vicar for the Archdiocese of Boston’s Metropolitan Tribunal.
Bishop O’Connell also told OSV that immigrant communities in Boston have benefited greatly from the briefer process. He said many of them have obvious and clear cases for an annulment, such as marrying someone for immigration purposes.
“We’ve done many of them, maybe 35 or 40,” Bishop O’Connell said, adding that the tribunal staff has given talks at several local parishes to reach out to people who may qualify for the briefer process.
“The pope wants us to go out and find them,” Bishop O’Connell said. “And that’s what we’re doing.”
The story is different in other dioceses where canonists told OSV that the reason is because the requirements are pretty strict. Both ex-spouses have to submit and sign the petition, agree to the grounds of the annulment, provide readily-available witnesses as well as any supporting evidence. In several dioceses, the tribunal’s judicial vicar screens the cases to determine if they qualify for the briefer process.
“I think there is a question in some dioceses whether they will do it at all because they turn out to be rare,” Msgr. Simeone said.
Msgr. Paul DiGirolamo, judicial vicar for the Archdiocese of Philadelphia’s Metropolitan Tribunal, told OSV that the briefer process is also rare because it is not too often in the United States when both ex-spouses participate in an annulment case.
“The simplified process is an attempt on the part of the Holy Father to not only alleviate the challenges associated with the tribunal process in some places, but also to give a signal that the Church wants to be as approachable and as responsive to people’s needs as is possible,” Msgr. DiGirolamo said.
Another signal the pope sent for the Church to be accessible was asking dioceses to waive their annulment fees, which help offset the administrative costs of operating a tribunal. Some dioceses have completely lifted their fees, including Boston, Philadelphia, Pittsburgh, and Providence.
“It does put a strain on the diocese. The Catholic Appeal now has to pay the full load,” said Bishop O’Connell, estimating that the Archdiocese of Boston will have to absorb $125,000 in added expenses. But he said Cardinal Seán P. O’Malley, the archbishop of Boston who is a close adviser to Pope Francis, wanted to follow the pope’s wishes.
“That’s what the pope wants, and we’re doing it,” Bishop O’Connell said.
Dioceses that still have fees emphasize that they work with petitioners who have difficulty paying, adding that annulment cases are not rejected because of an inability to pay. The fees, other canonists said, help offset the real expenses of operating a tribunal. “It’s good that the fees can be waived, but there is still a cost to the diocese, and ultimately to the people of the diocese, since these funds would have to come out of a general fund of some sorts in order to keep the tribunal going. People have to realize not everything is free,” said J. Michael Ritty, the primary litigator for Canon Law Professionals, a New York-based canon law firm.
Despite their differences on some of the implementation details, one thing that dioceses across the board are seeing, according to what the canonists told OSV, is an increase in Catholics petitioning their local tribunal for an annulment. And that is something that the canonists agree is a positive sign.
Said Father Keeler, of the Canon Law Society of America: “Anything we can do to inform the people of God and help them along is a good thing.”
Brian Fraga writes from Massachusetts
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Approaching one’s pastor to begin the annulment process is a big enough mental hurdle for some Catholics.
Writing a petition that recounts the history of the failed marriage, and making the case to the local diocesan tribunal as to why the Church should declare the marriage to be null, can be a daunting task for even those Catholics who are somewhat knowledgeable of the process.
Two years ago, the Archdiocese of Denver established a program to provide trained advocates to the parties in an annulment case. The advocate essentially presents the party’s position to the tribunal and helps the individual throughout the annulment process.
“In the Code of Canon Law, the advocate is envisioned as really the one who helps the party to make a canonical argument in favor of the nullity of marriage,” said Father Giovanni Capucci, the judicial vicar for the Archdiocese of Denver.
Father Capucci said several dozen advocates have been trained to not only fulfill the requirements of canon law, but also to help the parties navigate canonical procedures, which he said are often overwhelming for many Catholics.
The advocates help the petitioner — the party who applies for the annulment — with drafting the petition, also known as the libellus. The advocate assists the petitioner to identify the grounds that the tribunal should investigate when examining the validity of the marriage.
For example, if the petitioner says there was a lack of openness to children, the advocate will try to ascertain why the petitioner or respondent did not want children, and why then they decided to marry in the Catholic Church.
“These would be legitimate questions for the advocate to ask,” Father Capucci said.
An advocate will also accompany the petitioner when he or she is called to provide a deposition to the tribunal and will submit questions to the court on the petitioner’s behalf. The advocate will later submit a brief to the tribunal making a final argument in favor of the marriage being declared null.
The respondent — the petitioner’s ex-spouse — also has the right to an advocate if they choose to participate in the process. Father Capucci said the advocate’s primary loyalty is to the truth.
“One of the things we teach (the advocates) is that helping the petitioner does not mean to coach them. We don’t tell the petitioner, ‘You should say that’ or ‘You should say this.’ That is unethical and that is against what an advocate should be doing,” said Father Capucci, who explained that advocates attended a three-hour weekend class, once a month, for eight consecutive months.
Since the program began, Father Capucci said petitions are often better written and clearly identify the proposed grounds for nullity, which makes it easier for the tribunal to accept the annulment case in a quicker manner. Previously, Father Capucci said petitions were often written as a summary of the petitioner’s life, and tribunal staff had to read through it to identify the proposed grounds for nullity.
“These advocates put in a lot of effort into drafting really good (petitions),” Father Capucci said, adding that some advocates are civil attorneys who know how to present arguments in legal briefs.
Pastors have identified potential advocates and referred them to training. Father Capucci said the tribunal is hosting a series of weekend workshops for the advocates.
“They’ll talk about what’s working, what’s not and what can be done to help them,” Father Capucci said. “It’s important for us to keep the education going.”