Does the ‘Judicial Path’ for Annulments Avoid ‘Catholic Divorce’?

(photo: CNA)

On the papal plane back from the United States, French journalist Jean-Marie Genois of Le Figaro asked Pope Francis to respond to those who fear that his recent annulment reform, which streamlined the process of obtaining a declaration of nullity, has de-facto created ‘Catholic divorce’.

The Holy Father responded by saying that regarding the “procedure and the method, I closed the door to the administrative path, which was the path through which divorce could have entered.”

He added: “You could say that those who think this is ‘Catholic divorce’ are wrong because this last document has closed the door to divorce by which it could have entered. It would have been easier with the administrative path. There will always be the judicial path.”

Some, including myself, were not quite sure what the Holy Father meant by an “administrative path” so I asked both Vatican spokesman Father Federico Lombardi and a canon lawyer and former official at the Roman Rota.

Father Lombardi stressed the importance of distinguishing between the "administrative" and "judicial" paths, adding that this distinction was made in paragraph no. 48 of the final report of the Extraordinary Synod, and paragraphs 114 and 115 of the Instrumentum Laboris, the working document of the upcoming synod. He stressed that the Pope’s motu proprio on annulment reform, Mitis Iudex Dominus Iesus “introduces a ‘shorter process’, which is a real (judicial) process," but recommended talking to a canonist for more precise details.

The “administrative path” was actually proposed by Cardinal Angelo Scola prior to last year’s synod, and detailed here in an article by Sandro Magister.

Cardinal Scola suggested that the Pope “give a broader endorsement to the ministry of the bishop” in annulment cases. “Specifically, it could suggest that he examine the feasibility of the proposal, which is no doubt complex, to create a non-judicial canonical procedure which would have as its final arbiter not a judge or a panel of judges, but rather the bishop or his delegate.”

He elaborated that this would mean a procedure “regulated by the law of the Church, with formal methods of gathering and evaluating evidence.”

Cardinal Scola added:

“Hypothetically, one could explore recourse to the following options: the presence in every diocese or in a group of small dioceses of a counseling service for Catholics who have doubts about the validity of their marriage. From there one could start a canonical process for evaluating the validity of the bond, conducted by a suitable appointee (with the help of qualified personnel like notaries as required by canon law); this process would be rigorous in gathering evidence, which would be forwarded to the bishop, together with the opinion of the appointee himself, of the defender of the bond, and of a person who is assisting the petitioner. The bishop (who may also entrust this responsibility to another person with delegated faculties) would be called on to decide whether or not the marriage is null (he may consult several experts before giving his own opinion). It would always be possible for either of the spouses to appeal that decision to the Holy See.”

Magister pointed out in a Sept. 29 blog post that this is not so different from the judicial powers given to the bishop in the motu proprio. The administrative-judicial distinction could therefore be argued to be irrelevant, and the new procedures do in fact favor so-called “Catholic divorce”.

Marc Balestrieri, president and senior canonical counsel for Canonical Aid, Inc. and a former official of the Roman Rota, believes that in principle, what the Pope is saying is entirely correct, but with some qualifications.

First, the “administrative path” proposed by Cardinal Scola for nullity of marriage cases would have involved the issuing of a decree by one person, the diocesan bishop, not a judgment (“sentence”) by a panel of three judges required to be expert in canon law.  Secondly, the Pope could have legislated that all ordinary cases of nullity be handled in this way.  Instead, he maintained the judicial process which by nature is more “rigorous”, Balestrieri said, because it “ordinarily provides  greater safeguards for the exercise of the right of defense, requires more officials licensed in Canon Law and a more pronounced dialectic vertically and horizontally between the judges themselves, the parties, their advocates and witnesses” which the administrative path would not have.

However, Balestrieri noted that the new judicial process, with new canon 1678, has “tempered significantly the quantity and nature of evidence needed for the burden of proof required to prove the nullity of a marriage to be overcome.” In other words, he argued, one major aspect of the ordinary rigor of a judicial process “has been greatly reduced because judicial confessions and declarations of the parties now can obtain the ‘force of full proof’ even if they not be wholly corroborated as until now required by can. 1536, § 2 of the Code of Canon Law.”

Ironically, Balestrieri said, this means that “the burden of proof required to be overcome in nullity of marriage cases is now weaker than in any other kind of judicial process being held, be they other contractual matters, or even penal cases.” He said that even a spouse using the judicial process to obtain temporary separation now has a higher burden of proof to overcome than if he were to try to obtain a declaration of nullity.

“Why,” Balestrieri asked, “does the most sacred of contracts in the Church’s theology require less of a burden of proof to declare it invalid?”

The Pope's motu proprio on annulment procedures, announced Sept. 8, recently drew praise from Nigeria's bishops, and has provoked a good deal of debate among canon lawyers. Here below are links to some of the latest reactions: