Fr. MARTIN PALAMATTAM
Pontifical Oriental Institute, Rome
Pope Francis, the Pope of Mercy, has again surprised all the Catholic Faithful of the whole world with the two Motu Proprio as he has surprised the whole world when he announced the Year of Mercy. After becoming the Pope, almost all the messages, homilies and encyclicals express a great concern for showing mercy to whole mankind especially the poor, downtrodden, the sick, the afflicted etc.
On the previous day of publishing the Apostolic Letters in the form of motu proprio, the Holy See has convened a meeting for the next day to release two legal texts “On the reform of the Canonical Process for Causes of the Declaration of the nullity of Marriage”. On the next day, 8 September 2015, Pope has published the two new Motu Proprio (on the Pope’s own initiative) Mitis et Misericors Iesus for the Oriental Churches and Mitis Iudex Dominus Iesus for the Latin Church.
The Genesis of the new Motu Proprio
Pope Francis has given some expert canonists the task of doing a reform of the marriage Process on 20 September 2014 by constituting one special Commission. Pope has decided to constitute this Special Commission on 27 August 2014. A part of the message of the Pope by constituting the Committee follows: ” The works of the Special Commission will start at the earliest and will have as scope of preparing one project of reforming the Marriage process, searching to simplify the process, rendering more quickly and safeguarding the principle of Indissolubility of Marriage”.
Cardinal Peter Erdo during the third Extraordinary General Assembly of the Synod of Bishops (5-19 October 2014) mentioned the necessity of reforming the process: “Various fathers have underlined the necessity of rendering the processes more accessible and easy for the recognition of the cases of nullity. There were indications to overcome the necessity of the two conforming sentences; the possibility of determining one administrative way under the responsibility of the diocesan Bishop; one brief process to be conducted in the notorious cases of nullity…”
The synodal report of the 18 October 2014 relooks the text with some new elements. The elements are: “A great number of fathers has underlined the necessity of rendering more accessible and easy, possibly fully free, the procedure for the recognition of the cases of nullity. There were indications to overcome the necessity of the double conforming sentences; the possibility of determining one administrative way under the responsibility of the diocesan Bishop; one brief process to be conducted in the notorious cases of nullity. Some fathers however tell the contrary to these suggestions because they do not guarantee a faithful judgment…”
The same text has taken again in the Ordinary General Assembly of the Synod of Bishops(4-25 October 2015). In the Instrumentum Laboris of 23 June 2015 of the same synod we see one text on the Process of the Marriage Nullity: “It reveals an ample consent on the opportunity of rendering more accessible and easy, possibly free, the procedures for the recognition of the cases of the nullity of marriage. Some suggest to institute in the Diocese a stable service of free consultation. About double conforming sentences, wide is the convergence in order to overcome…”
The Key Elements of Discussion
From the above texts of the fathers, we can deduce the following elements under question and these elements were discussion points in the special Commission for reforming the Process:
- Simplification of the process of Marriage nullity?
- Safeguarding the Indissolubility of Marriage?
- A process more accessible and easy?
- Double conforming Sentences?
- The Administrative way?
- A short or brief Process?
- If possible, a free Process?
After one year of hard work, the Special Commission has prepared the final text and submitted to the Holy Father. He has signed it on 15 August 2015 and it was published on 8 September 2015. It enters in vigor on 8 December 2015, which is the day of the Inauguration of the Year of Mercy.
The Fundamental Elements of the Reform
- The Bishop becomes a true Judge in the causes of Marriage Nullity. Can. 1359 § 1 states “In each eparchy, the judge in first instance for cases of nullity or marriage for which the law does not expressly make an exception is the eparchical bishop,who can exercise judicial power personally or through others according to the norm of law”.
- The Causes of nullity of Marriage can be done only by Judicial process and not by Administrative act.
- It is not necessary to get a double conforming Sentence: Only one Sentence in favor of the nullity. Can. 1373 § 1.“After he has received the acts, the eparchical bishop, having consulted with the instructor and the assessor, and having considered the observations of the defender of the bond and, if there are any, the defense briefs of the parties, is to issue the sentence if moral certitude about the nullity of marriage is reached”.
- The possibility of constitution of a Tribunal with single Judge under the responsibility of the Bishop. Can 1359§ 4 explains:“The bishop moderator, if a collegial tribunal cannot be constituted in the eparchy or in a nearby tribunal chosen according to the norm of § 2, is to entrust cases to a single clerical judge who, where possible, is to employ two assessors of upright life, experts in juridical or human sciences, approved by the bishop for this task; unless it is otherwise evident, the same single judge has competency for those things attributed to the college, thepraeses, or the ponens”.
- The possibility of more brief form of the process; this process can be used in the cases in which the arguments are particularly evident. Can. 1369 declares: “The eparchical bishop himself is competent to judge cases of the nullity of marriage with the briefer process whenever: 1°the petition is proposed by both spouses or by one of them, with the consent of the other;
2° circumstance of things and persons recur, with substantiating testimonies and records, which do not demand a more accurate inquiry or investigation, and which render the nullity manifest”.
- Appeal in Metropolitan See or in the Roman Rota. Can. 1373§ 3. affirms:“An appeal against the sentence of the bishop is made to the metropolitan or to the Roman Rota; if, however, the sentence was rendered by a metropolitan or another eparchical bishop who does not have a superior authority below the Roman Pontiff, the appeal is made to a bishop selected by him in a stable manner after consultation with the Patriarch or Hierarch as indicated in can. 175”.
Pope Francis through the two new motu proprio affirms that mercy should be the attitude behind all our actions. Millions of people suffer out of not getting any decision from the Ecclesiastical Tribunals. By introducing a briefer process, Holy Father intends to speed up the process and to make it easy for all people. Salvation of souls is the prime aim of all ecclesiastical laws and Canon Law is specifically ordained for it.
Pope also affirms the role of Eparchial Bishop by the following words in the introduction of the new motu proprio: “From this perspective, it is a very important mission of the bishop – who, according to the teaching of the Eastern fathers, acts as judge and physician – that man, having been wounded and having fallen (peptokós) by original sin and his own faults, and thus having been weakened, attains healing and mercy from the medicinal means of penance offered by God and is reconciled with the Church. For indeed the Bishop – having been constituted a model of Christ and standing in his place (eis typon kai topon Christou) – is above all a minister of divine mercy; therefore, the exercise of juridical power is a privileged place where, using the laws of oeconomia or acribia, he himself imparts the Lord’s healing mercy to the Christian faithful in need of it”.