Dr. John Smythe

An Academic Opinion on the Reform of Canon Law on Marriage Annulments

In Semaine juridique no. 39, September 2, 2015 (pp. 1662 – 1663), under the heading
“The reform of the Church’s legal process, a revolution that does not say its name,” can be read these very accurate words of Cyrille Dounot, associate professor of the University of Auvergne, canon lawyer registered with the ecclesiastical authority of Lyon:

“On September 8th last, Pope Francis presented two Motu Proprios that profoundly changed canon law relative to the annulment of marriage, Mitis Iudex Dominus Iesus, for the Latin Church, and Mitis et Misericors Iesus for the Eastern Churches. They come into effect December 8thnext. The changes established in both are similar, although specific to each legal order (Latin vs. Eastern). Essentially, they aim to suppress the principle of collegiality of the tribunal, to return to the system of the bishop-judge, to create a new process of “increased brevity,” to abandon the principle of a second conforming judgement, to limit the possibilities for appeals, and to introduce new criteria for nullity. In short, it is a reform of process that looks a lot like a legal revolution. (…)

“This reform of legal process has been slyly introduced before the second session of the Synod on the Family has even opened, whereas the Synod was expected to examine this procedural issue, according to paragraphs 114 and 115 of Instrumentum laboris (preparatory document) presented by the Holy See on June 23, 2015. It appears to be an awkward attempt to throw off the increasingly loud criticisms of certain cardinals in advance, opposed as they are to any overturning of religious practice in this question of marriage annulments. (…)

“What strikes the reader first is the tone set by the legislator. We are leaving the traditional structure, where the institution of marriage holds pride of place, and entering the very modern structure where the individual predominates. In this respect the disappearance of the article on “the duty of the judges” is sufficiently eloquent. The former canon 1676 had it that “Before accepting a case and whenever there is hope of a favorable outcome, a judge is to use pastoral means to induce the spouses if possible to convalidate the marriage and restore conjugal living.” This was legalese for the adage matrimonium gaudet favore iuris (marriage enjoys the favour of the law, canon 1060) according to which one presumes the validity of a marriage until proof of its nullity. The new Canon 1675 starts on the contrary with the individual: “The judge, before accepting the case, must have the certainty that the marriage has irreparably failed, such that it is impossible to reestablish conjugal life together.” This is a new perspective (…),” which the author of the article examines in the changes regarding the judge, the process and the appeal. In conclusion he states, “Definitively, under anodyne appearances, this profound devaluation of the process in the nullity of marriage risks the conflation of nullity (declared) and annulling (performed). It is not certain that this supports the indissolubility of Catholic marriage.”

NOTE: This September 30 at 4 pm, at the Pontifical University of St. Thomas Aquinas (Rome, Largo Angelicum, 1) an international symposium will take place in preparation for the Synod on the family. Cardinal Carlo Caffarra, archbishop of Bologna, and Cardinal Raymond Burke, patronus of the Order of Mala, will both speak. Cardinal Caffarra wrote last year in the book Remaining in the Truth of Christ (Ignatius), “It is the Church whose mission it is to guide man, to teach him to overcome the ‘divergence between what is on the surface and what is the mystery of love.’ In other words, She has the mission of announcing the Gospel of marriage; such is the urgent priority that cannot be avoided. The Church announces the Gospel—I repeat the Gospel—of indissolubility, the true treasure that She keeps in vessels of clay.” (p. 175). At the end of the symposium an “Appeal to the Fathers of the Synod” will be presented, asking them to reaffirm with clarity and integrity Catholic tradition as it relates to issues of life, family and education.

(Sources: Semaine juridique – Homme Nouveau – DICI no. 321, 25/09/15)

[image: The Marriage of the Virgin (1485-1490) by Domenico Ghirlandaio, Church of Santa Maria Novella, Florence (Italy).]