WASHINGTON — In the lead-up to October’s Ordinary Synod of Bishops on the Family, Cardinal Walter Kasper’s controversial pastoral proposal to allow some divorced-and-remarried Catholics to receive the Eucharist has roiled many.

Meanwhile, the ensuing headlines have left the impression that the German cardinal’s proposal, which would allow some divorced-and-remarried Catholics to receive the Eucharist after a period of penitential reflection, is the only one under review.

Several influential canon lawyers contacted by the Register said that Pope Francis, a commission established by him to evaluate such proposals and the synod fathers themselves could all weigh other options, particularly those designed to streamline the annulment process.

“Certainly, the annulment process can be examined in terms of its speed and efficiency, while respecting the principle of the indissolubility of marriage,” noted Bishop Thomas Paprocki of Springfield, Ill.

But Bishop Paprocki, like other canonists who spoke with the Register, emphasized that every step of the annulment process serves a vital purpose, and thus Church leaders must proceed carefully before approving any changes.

At present, a trial conducted by the marriage tribunal examines whether the marriage was valid in the eyes of the Church, and it weighs testimony and other evidence provided by the spouses and others that support the grounds for nullity. Once the sentence is handed down, it is automatically appealed, and the case is reviewed by a second tribunal.

Towards the end of the process, a key role is played by the “defender of the bond,” who looks for every reason to protect the marriage bond, and thus clearly signals the Church’s commitment to Christ’s teaching on the indissolubility of marriage.

As Church leaders respond to criticism about a lengthy juridical process, which leads some Catholics in irregular marriages to dismiss the need for an annulment, the automatic appeal and the role of the defender of the bond have drawn particular scrutiny.

The U.S. Conference of Catholic Bishops website states that the annulment process “can vary from diocese to diocese, often taking 12 to 18 months or longer in some cases. The diocesan tribunal may be able to give you a more exact estimate.”

“It has become fashionable in many ecclesiastical circles to call for ‘streamlining’ the annulment process,” observed Ed Peters, who holds the Edmund Cardinal Szoka Chair at Sacred Heart Major Seminary in Detroit.

“Such calls overlook the fact that, whatever technical canonical terminology is used in the annulment process, it already contains little that is not required by the natural law itself to achieve a just result.”

 

Causes of Delay

Yet Peters, who blogs at In the Light of the Law, suggested that the automatic appeal could be reconsidered, at least in some cases.

“While natural law requires that a true legal system offer an opportunity for appeal of initial decisions, it does not require that every decision made at trial be automatically appealed,” Peters told the Register.

“Yet Canon 1682 currently requires every ‘first instance’ annulment to be appealed to ‘second instance.’”

Peters said there are good reasons both to retain and to discard the “review requirement, and these are the kinds of issues that policy-makers must weigh. But automatic appeal is not a necessary element of natural justice, and so it could be dropped without damaging the integrity of the canonical process.”

Some canonists have debated whether the role of the defender of the bond could be dropped, but Peters expressed strong reservations about this proposal.

“Some might add that the requirement of a defender of the bond (c. 1432) taking part in every annulment case is also not required by natural law,” he said.

“At the level of theory, I agree. But the unique nature of annulment cases, including that they look into what are essentially contracts, but contracts that turn on highly personal factors and yet carry profound social implications, means that if we did eliminate defenders of the bond we would, sooner or later, simply have to reinvent them.”

For that reason, Peters concluded that he would retain the role of the defender of the bond and instead drop the automatic appeal provision, “although I recognize strong prudential arguments for retaining it.”

In contrast, while Bishop Paprocki said he would not endorse any particular proposal, he judged that the defender of the bond played a less critical role than the second appeal and could be eliminated.

“[T]he defender of the bond is only advisory and can be ignored or at least overruled by the judge,” whereas the appellate court can overrule the judge of first instance, he noted.

 

A Question of Tone: Formal or Evangelical?

Other canon lawyers agree that delays in the process should be scrutinized, but they suggest that better staffing and training should be considered first. And they point to a critical need for stronger catechetical and pastoral outreach to Catholics in irregular marriages.

“I would train many more people to help do the initial intake and assessment,” suggested J.D. Flynn, a canon lawyer who is special assistant to Bishop James Conley in the Diocese of Lincoln, Neb. “Cases come to the tribunal, and canon lawyers have to do the intake. A broader training and participation, in the initial process by priests, deacons, religious and the laity, would be good.”

He observed that delays in obtaining depositions from witnesses add time to the process, and suitable people could be trained to reach out to witnesses and help explain the need for their testimony.

Like many specialists contacted by the Register, Flynn emphasized that pastoral outreach and evangelization were more important than shortening the annulment process.

The Diocese of Lincoln, for example, is developing a new initiative, which will be launched during the Year of Mercy, to encourage interaction between the marriage tribunal and local Catholics who may be confused or unaware of the annulment process.

“Priests and canon lawyers from the tribunal will reach out to each parish and pastor and invite people in irregular marriages to meet with them,” said Flynn.

“Many don’t know what the tribunal is all about and need to be evangelized.”

This new initiative, said Flynn, was inspired by Pope Francis’ call to reach out to the periphery. It will be a time for pastors to reflect on how they approach alienated Catholics.

“Is the way we interact with people formal and juridical or pastoral and evangelical?” asked Flynn.

 

Skeptical of Streamlining

That perspective is shared by other canon lawyers, who are skeptical about adopting proposals that alter the annulment process.

“If I was going through a civil process and the judge said to me, ‘I want to streamline this case,’ I would get nervous,” said Ben Nguyen, the canonical counsel and theological adviser to the Diocese of Corpus Christi, Texas.

“In the annulment process, we want a thorough and truthful process, not just a quick one.”

Nguyen suggested that the Church should give priority to maintaining high standards for staffing tribunals, even as pastors look for opportunities to engage Catholics in irregular marriages.

“That kind of proposal won’t get into The New York Times, but it is important,” Nguyen told the Register.

Father Gerald Murray, a pastor and canon lawyer in the Archdiocese of New York, who briefly served on its marriage tribunal, agreed that catechizing the faithful about the Church’s teaching on marriage should be the first order of business. Shortening the annulment process might send the wrong signal.

“We are talking about something serious that ultimately has an impact on a person’s soul,” Father Murray told the Register. “If we can’t invest an extra two weeks, then our priorities are wrong.”

 

Papal Commission Update

Father Murray is waiting to see how a commission established by Pope Francis to study annulment issues will address such questions.

“The commission was formed last summer, and members were named, but we have not received any updates on the status” of its deliberations, he noted.

But Nguyen said it wasn’t entirely clear how the papal commission will interact with the synod or which entity might establish a framework for discussion.

“The synod seems to be doing a general overview, and the commission is charged with something more specific,” Nguyen suggested.

Meanwhile, as canonists await the response of the commission and the synod on Cardinal Kasper’s plan, as well as proposals designed to shorten the wait for an annulment, Bishop Paprocki offered the following caveat: “It is essential that efforts to ‘streamline’ the annulment process not fall into the trap of ‘no-fault divorce,’ where it is so easy to escape from the marital commitment that the bond of marriage is itself put in peril.”

Joan Frawley Desmond is the Register’s senior editor.