Not So Fast on ‘Fast-Track’ Annulments, Canonists Say

Changes to the annulment process stir hopes, but dioceses say the shorter process will apply to rare cases.

(photo: Shutterstock/Andrey Popov)

MADISON, Wis. — Pope Francis’ new directive on annulments has sparked headlines about a “fast-track” process for Catholics that has led couples to believe they can obtain a decision quickly.

But if the hopeful or the curious simply peruse a timely frequently asked-questions document (FAQ) posted on the Diocese of Madison’s website, the expectation of a speedy annulment will be deflated.

“The shorter process is designed only for those rare cases when it can be employed without injustice,” reads one portion of the document, “Frequently Asked Questions Re: Mitis Iudex, Dominus Iesus,” which clarifies Pope Francis’ motu proprio (document issued on his own initiative) on annulments that was released on Sept. 8.

To provide further context, the Diocese of Madison’s FAQ explained that of the 200 annulment cases processed in 2012, “only three or four appeared in retrospect to meet the qualifications for the use of the shorter process.”

The work of Tim Cavanaugh, a canon lawyer and the defender of the bond for the marriage tribunal in the Diocese of Madison, the fact sheet was designed to ground the faithful’s expectations in reality.


‘Bombarded With Questions’

“I tried to get the Q & A out as fast as possible, because we were being bombarded with questions,” Cavanaugh told the Register, noting that couples wanted to know if they qualified for a briefer process or whether the changes would affect their cases.

The Pope’s motu proprio does not change the grounds for declaring a marriage null. Rather, it modifies long-standing procedures for evaluating whether a marriage properly took place.

Mitis Iudex, Dominus Iesus (The Lord Jesus, Merciful Judge) addressed the norms specifically for the Latin-rite Church. The Eastern-rite Church’s norms were addressed in Mitis et Misericors Iesus (The Meek and Merciful Jesus).

At present, even straightforward cases require an automatic appeal and a second witness. But, on Dec. 8, with the start of the Jubilee of Mercy, those provisions will be dropped, and there will be more flexibility for establishing the diocese has jurisdiction for hearing the case — an issue that has also caused delays.

But the provision that has drawn most attention is the new option for a speedier process adjudicated by the local bishop. This provision, according to some news reports, would take just 45 days, a time frame that was challenged by Church officials contacted for this story.

Meanwhile, canonists are concerned about the practical and technical hurdles that will make it difficult for a bishop to properly adjudicate such cases.

“I have 800-plus emails that represent the conversation that canonists are having on this worldwide,” Father Roger Keeler, the executive coordinator of the Canon Law Society of America, told the Register.

“They are trying to get their heads around this. But do we know what this will mean one week after the fact? No. Are we in the process of developing a strategy? Yes.”

In October, the Canon Law Society of America will hold its annual meeting in Pittsburgh, and Father Keeler and other canonists expect that Pope Francis’ proposed reforms will generate considerable debate. Vatican departments and the U.S. Conference of Catholic Bishops are also expected to offer further guidance, and a number of canonists contacted for this story argued that the deadline for implementation should be extended.

According to the documents issued by Pope Francis, spouses seeking a speedier process may petition the diocese. Diocesan officials contacted by the Register for this story said the judicial vicar, assisted by his staff of canonists and assessors, would likely decide which cases qualify for the speedier process.

The Diocese of Madison’s frequently asked-questions document outlines the three qualifications that would be most likely to secure a faster annulment.

“Both spouses have to petition for it together, or, if not, then the other party must at least consent to it,” the Q & A explained.

“The nullity of the marriage must be manifest,” the document continues, noting that it can be difficult for either party to testify with certainty about an “invisible, internal act of the will placed by the spouses, often several years prior.”

Finally, all “the facts that make the marriage manifestly null have to be readily available.”

Readers learn that it is especially “rare” for both the facts surrounding the matter of consent to be readily apparent and to have all the required documentation and testimony in hand.


New Procedures, Same Grounds

But diocesan officials who assess such cases emphasize that a trial to establish nullity should not be confused with a U.S.-style civil trial.

“Oftentimes, we fall into the perspective that the parties are submitting a petition, as in a civil-law proceeding, and that they are just trying to find the strongest argument for the desired outcome,” Father Paul Beach, the judicial vicar of the Archdiocese of Louisville, Ky., told the Register.

“But Pope Francis, in the beginning of the motu proprio, says that the annulment process is aimed at getting at the truth. The indissolubility of marriage has not changed, and the grounds for nullity have not changed,” he said.

“It will still touch on knowledge, capacity or will,” said Father Beach, noting the three areas that shed light on marital consent.

He agreed that few cases would qualify for the fast-track process. But he suggested that the fresh attention paid to annulments will be a chance to explain that the “normal timeframe” for Louisville is one year.

Father Beach further noted that when the new provisions take effect, the elimination of the automatic appeal and the second witness will further reduce the length of the timeline for the 100-200 cases submitted to the archdiocese every year.

At present, he said, the appeal typically takes just a month in the Louisville Archdiocese, but can take up to six months elsewhere. Yet he also stressed that while these changes will make the process less cumbersome, and more inviting, they should not be used to finesse the facts of the case.


The Local Bishop’s Role

Meanwhile, canonists also are weighing another key element of the new, speedier process — the local bishop’s role in adjudicating the case.

“The bishop will need to be more active, and marriage tribunals and dioceses will have to look at how that will play out procedurally,” said Benedict Nguyen, who serves as the canonical counsel for the Diocese of Corpus Christi, Texas.

“Will he solely rely on their assessment of the juridical vicar, canon lawyers and assessors, or will he have to take time to engage in the actual testimony and other briefs that are gathered?” Nguyen told the Register.

Such questions may not concern couples seeking a speedier annulment. But they are of great concern to canonists, who say that many local bishops have little time and, in some cases, no canon-law expertise to adjudicate such cases without a great deal of assistance.

“This may make the process more efficient, but it will be only as good as the people implementing it,” said Nguyen.

He pointed to news stories that said the new process would take just 45 days, placing additional pressure on dioceses to move through the case quickly.

“The shorter process, in my calculations, still requires four months to complete, so there may be a misperception here,” said Nguyen, who said a typical mid-size diocese may receive 100 or more petitions a year.

The new role envisioned for the local bishops draws scrutiny precisely because of the legal nature of the annulment process.

“The inescapably legal character of annulment cases explains why nearly every significant tribunal officer must have a degree in canon law. Legal training matters for those treating legal issues,” stated Ed Peters, the professor of canon law at Sacred Heart Major Seminary in Detroit, in Sept. 8 post about the motu proprio, on his blog, In the Light of the Law.

In a subsequent post, Peters argued that the Pope’s new procedural norms would make it difficult for bishops to delegate this responsibility.

“First, the new duties to be imposed on arch/bishops under Mitis [Iudex, Dominus Iesus] seem plainly judicial (as opposed to legislative or executive) in nature,” stated Peters in a Sept.14 post, and, generally, “judicial duties in the Church may not be delegated to others (Canon 135 § 3).”

“The Holy Father might be making his desire felt, in a more concrete way, that bishops be more in touch with people who quality for this briefer process,” said Msgr. Michael Padazinski, the judicial vicar and chancellor for the Archdiocese of San Francisco.

“But, humanly speaking, each bishop is unique. Some will take to this, and some will not. Archbishop Cordileone is very busy, but he would be interested in taking a firsthand look at this, and he is a canon lawyer,” Msgr. Padazinski told the Register. Archbishop Salvatore Cordileone serves on the U.S. bishops’ Committee on Canonical Affairs and Church Governance.

“These cases are supposed to be cut and dried,” Msgr. Padazinski said. “But the danger is that it will be applied unevenly.”


No Appeals Tried Before

Dominican Father Joseph Fox, the vicar for canonical affairs in the Archdiocese of Los Angeles, echoed this judgment, but he also noted the practical hurdles bishops face.

The Pope “depends on the bishop to sort this out, but can you imagine Archbishop Gomez managing these cases himself?” asked Father Fox. Archbishop Jose Gomez of Los Angeles leads the largest diocese in the United States.

“We have priests working in parishes, and they can’t handle it all,” Father Fox added.

He also noted that Pope Francis had not changed the grounds for granting a nullity decree, but he fears the changes could threaten the integrity of the annulment process.

Some provisions, including the elimination of the automatic appeal, have been tried before, he said, and resulted in the “rubber-stamping” of annulments in some dioceses during the 1970s.

“In the ’70s, the U.S. bishops, with a tribunal system already staffed and operating, asked the Holy See if they could be dispensed from an automatic appeal,” Father Fox recalled.

“They received special procedural norms that allowed them to do this.”

The new provisions were supposed to be used selectively, “but after a few years, it became clear we had disregarded the rigor of the process,” Father Fox told the Register.

“Because of what happened,” he added, the special norms adopted in the U.S. were rejected when then-Pope John Paul II approved revisions for the Code of Canon Law.

“So canonists are saying, ‘We have been here before; why is the Pope doing this?’” Father Fox said.

Taken all together, the new procedural norms allow more opportunities for abuse, in his judgment. But once they take effect, it will be up to local bishops and a “highly developed tribunal system” to provide the necessary oversight — even as they adopt a new process that will likely encourage more couples to obtain a decree of nullity.

But for now, while local bishops await further guidance, one message seems clear enough: Pope Francis wants them directly involved in the annulment process.

States one striking passage of Pope Francis’ directive, translated by Vatican Radio: “It is desired that, in dioceses both great and small, the bishop himself should offer a sign of the conversion of ecclesiastical structures and not leave the judicial function completely delegated to the offices of the diocesan curia, as far as matters pertaining to marriage are concerned.”

Joan Frawley Desmond is the Register’s senior editor.