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Cdl. Coccopalmerio on streamlining the annulment process, and a new idea

October 9, 2014

Francis Cdl. Coccopalmerio, head of the Pontifical Council on Legislative Texts (a very influential position in canon law), has weighed in on three ideas to streamline the annulment process.

1. Eliminate mandatory appeal of affirmative sentences (c. 1682). This has been suggested in many circles and it seems that almost no one is defending the double process requirement. As I have said for some time, mandatory appeal can be eliminated without damage to the natural law aspects of the tribunal process and it would speed up the annulment decision process.

2. Use sole judges to hear marriage cases instead of using collegiate tribunals (cc. 1425). This idea is already provided for in the law and is widely followed in the USA. Perhaps bishops in other nations did not give the option sufficient consideration. Because of restrictions against lay persons serving as sole judges, I always served on a collegiate tribunal, but I must say, I did not notice the collegiate panels moving more slowly than did the sole judges. Both kinds of panels heard cases with deliberate speed. Adoption of this idea will not have much impact on the overall pace of tribunal work.

3. Let bishops decide some annulment petitions administratively (c. 1419). This idea, too, requires very little canonical modification and would very likely increase the numbers of annulments being declared while shortening the time needed. But the several serious concerns I have expressed about this idea remain in place.

Now, for a new idea …

Given that elimination of mandatory appeal for affirmative sentences seems a virtual certainty, another idea to speed up the tribunal process without threatening the natural of elements of justice that must be present in any canonical process (whether that process is judicial or administrative, I might add), would be this: eliminate the requirement that, in marriage nullity cases, a formal, detailed sentence must be produced (see esp. c. 1612) and instead allow the judge who has attained moral certainty (c. 1608) of nullity to simply declare that finding in a short Memorandum of Decision.

Time and again I found in tribunal work that, after the careful investigation of the facts in a case and after the analysis of any unusual legal issues involved (though recall: most tribunal cases do not turn on obscure or complex questions of law, they turn on interpretation of facts read in light of the law), the sense of moral certainly regarding nullity came to the judge(s) but could not “published” until a lengthy sentence had been drafted (itself necessary in large part because that sentence had to be forwarded to second instance for assessment, meaning that extensive information had to be included in that sentence for second instance to be able to have an appreciation of the situation as assessed by first instance). If so much time were needed to gather and study the facts and to examine the law, then that much time or more would be needed to write the sentence reflecting the decision that came from that study. But sentence writing (something not required for justice under natural law!) adds nothing to the certainty of the decision.

So if, as seems likely, affirmative sentences need not be forwarded automatically to another tribunal, then a judge, or a panel of judges, could reach moral certitude of nullity in accord with the facts and the law and simply declare in a memorandum that said certitude has been found. Considerable time would, unquestionably, be saved, and the elements of justice would still be fully honored. Of course, in cases, whether going affirmative or negative, contested by either of the parties or by the defender of the bond, a normal sentence would still be drafted and all the usual norms for appeal be followed. But in the many cases not contested (including not contested by the DOB), a judicial Memorandum Decisionis would suffice.

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