The Synod on the Family and Procedures of Charity


(photo: Wikipedia)

There is probably no newspaper in the world that did not over-cover the early meetings of the Holy See’s Synod of Bishops on the Family.

The coverage revealed a deeply contentious conversation going on in Rome. Still, though, the commentaries were unbalanced. Journalists lack fluency needed in discussing complex theological issues. And in the midst of the synod, the Church’s bishops publicly aired grievances and differences most often discussed in private.

At the center of this synod — and much of the controversial debate — is the question of what it means for the Church to be “pastoral” in the exercise of her ministry.  To some, it seems, “pastoral” approaches to the faith allow for significant deviation from the moral norms established by Christ and the natural law. Others believe that pastoral care is compassionate, honest and clear teaching of Christian anthropology and Christian morality, perhaps with a greater need for respect or sensitivity.

It seems unlikely that Pope Francis will endorse a notion of pastoral ministry that mitigates a call to fidelity, to virtue or to holiness. But the debate itself is, for many, discouraging. And the emphases and priorities established as the synod continues next year will impact the Church’s pastoral plan of evangelization, its ability to attract vocations and its role in the public square.

On the sidelines of the synod, and far from the headlines, still working in the quiet offices of the Pontifical Council for Legislative Texts, a small group of lawyers and theologians are working on another project concerned with pastoral ministry in the life of the Church. The group is a special commission, established in late September, to consider the process used by ecclesiastical tribunals in considering whether marriages were contracted invalidly. 

The Holy Father has asked the commission to suggest whether the tribunal process — the “annulment process,” as most people know it — could be made more simple and more streamlined, while remaining a fair, compassionate and impartial legal procedure.

Pope Francis asks the question because of his compassion for those who have had great difficulty with the tribunal process. I understand that compassion. I have worked as a canon lawyer for nearly a decade. I have encountered many people who have experienced great difficulties in the tribunal process. They may have feelings of resentment or anger; they may be disaffected or discouraged — many of them have been tempted to leave the practice of the Catholic faith.

Most often, those who are disaffected are hurt when their cases seem to languish — taking years to be completed, with very little communication about what is happening.

Justice comes from discovering and explaining the truth. But regardless of the outcome, the tribunal process is still capable of doing case parties injustice. There is a tremendous desire, on the part of all involved in tribunal ministry, to find ways to make the process more efficient and more pastorally sensitive.

I don’t know whether modifying the tribunal’s process will achieve that goal. I suspect it won’t, because the problem isn’t necessarily with the process itself.

If the Holy Father wishes for the annulment process to be more pastoral, the best thing he can do is insist on faithful application of the law in tribunals across the world.

For example, at every step of the tribunal process, the Code of Canon Law and Dignitas Connubii, a supplemental and detailed procedural manual published by the Holy See, establish time limits that judges and other tribunal personnel are bound to respect. Each stage requires action in a reasonable amount of time and the opportunity for recourse when the time limits are ignored.

Similarly, the Code of Canon Law prescribes a particular process for the examination of witnesses. Case parties and witnesses are to be generally examined in the tribunal, in an oral deposition, in a process designed to ensure that the truth is uncovered, without the possibility of confusion, miscommunication or coercion.

But the fact is that most time limits are not met. And most witnesses and parties are examined by written questionnaires. Tribunals are overworked and understaffed, and tribunal personnel have little support and little accountability. Because few case parties contract canon lawyers, they’re rarely aware of the procedural laws their cases should follow. And because many bishops are not trained in canon law, they’re often uncertain how to ensure that their tribunals are acting in accord with the law.

The Church’s tribunals strive to work with integrity — but without investment in assisting them, and without oversight, shortcuts can very easily become hardships. If new laws are no more likely to be enforced than old ones, they’re not likely to help those who suffer injustice.

When the law is not followed, people suffer. They may wait too long — for years, often — for resolution to their questions. They may go unheard, or the truth may lay undiscovered. They may be treated with niceness, but not with the authentic charity of respect and of truth.

A special commission to modify the procedural law for tribunals may make small differences for a few, if modified laws are enforced. But insisting that tribunals are properly staffed, properly trained and accountable to the law, as written, would make a great deal of difference for a great many people.

So would creative approaches to inviting people to the tribunal process. Would a priest and canon lawyer, missioned to reach out to the divorced and remarried, be effective in visiting with families and inviting them to the tribunal process? Would assisting bishops in developing metrics of accountability improve efficiency? Would training laity to assist Catholics in the tribunal process be helpful?

All of these approaches could be tried without discarding the wise tenets of the Church’s procedural law. They would be pastoral without undermining the pursuit of justice or holiness or truth.

Application of the law — charitably, fairly and truthfully — is always the best kind of pastoral ministry. May the Church succeed in pastorally reaching those who have suffered the pain of divorce. But may the sentiments of pastoral compassion always be served by the charity of pastoral justice.

Canon lawyer J.D. Flynn writes from Lincoln, NE Nebraska.