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A first look at Mitis Iudex

September 8, 2015

The Latin text of Pope Francis’ Mitis Iudex is here. The document comes in four discernible parts: introductory remarks, an eight-point summary, new canonical norms (for Canons 1671-1691), and a “Procedure for cases declaring the nullity of marriage”. Looking, for now, ONLY at the eight Roman numeral headings summarizing the pope’s introductory remarks, my observations are:

I. Una sententia pro nullitate exsecutiva. This portends a significant change in the law, eliminating the current requirement that all affirmative cases (i.e., nullity was declared) be reviewed by a “second instance” tribunal, essentially, a careful re-examination of the first decision. Canon 1682. Optional appeal remains in place. Canon 1628. I have always said that mandatory review is not required for justice under natural law and that it serves, in my opinion, little practical value in canon law. Some respected voices in canon law would disagree with me on that. The delays associated with mandatory review were, in my opinion, exaggerated by tribunal critics, but this step will certainly shorten the overall process.

II. Iudex unicus sub Episcopi responsabilitate. This represents little or no change in the law. Bishops have always appointed tribunal judges. Canons 1420-1421. With routinely-granted episcopal conference permission, bishops could already assign marriage cases to sole, clerical (including deacons) judges. Canon 1425 § 4. It appears that such permission need no longer be sought.

III. Ipse Episcopus iudex. This represents little or no change in the law. Bishops have always been the first judges in their dioceses. Canon 1419 § 1. Exhortational language that bishops play a greater role in hearing actual cases is to be followed in light of, among other things, the demands already made on bishops’ time and their personal training and/or aptitude for technical juridical work.

IV. Processus brevior. This represents a very, very significant change in the law. I must address it separately.

V. Appellatio ad Sedem Metropolitanam. This will be a minor change in the law made practicable by the elimination of mandatory second instance. The canonical tradition has long preferred judicial appeals to be made to the metropolitan (usually, the archdiocesan) tribunal. Canon 1438. The current burdensome system of special appellate tribunals, handling mostly affirmative marriage cases, was an expedient for the processing of mandatory nullity appeals. Eliminate those, and this reform follows.

VI. Episcoporum Conferentiarum officium proprium. Beyond some exhortational language that might portend further local reforms, this implies what would actually be a minor change in the law and practice of the US. Setting fees for tribunal services is the responsibility of bishops. Canon 1649. Such fees, charged (if at all) only in first instance, covered, by my estimation, less than half of the real expenses incurred by US tribunals for marriage cases. What other countries might have charged for their annulment cases or what marriage cases actually cost in Rome, I do not know. But charging any fees for annulments was a constant public-relations problem for the Church. Myths of high fees and the innuendos associated with payments to Church figures abounded. While Francis seems to leave room for tribunals to charge “administrative expenses”, it seems like annulments are now supposed to ‘look free’. Whatever that means in the practical order it appears that tribunal fees will now be a matter of episcopal conference concern.

VII. Appellatio ad Sedem Apostolicam. This represents no change in the law. Appeal to Rome has always been a fundamental right of the faithful. Canons 331, 333, 1417, and 1442. The complex norms regulating appeals to Rome are not changed herein.

VIII. Provisiones pro Ecclesiis Orientalibus. Canonical housekeeping, alerting readers that separate norms for marriage cases in Eastern Catholic Churches apply to those churches.

More, when I can.

Update: A second look at Mitis.

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