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Holy See: New Procedural Rules on Nullity of Marriage

(Nov. 4, 2015) As we previously reported (Dante Figueroa, Holy See: Amendments to Latin Code of Canon Law on Nullity of Marriage, GLOBAL LEGAL MONITOR (Oct. 22, 2015)), on September 8, 2015, Pope Francis issued an Apostolic Letter, titled Mitis Iudex, on the Amendment of the Canonical Procedure for the Causes on the Declaration of Nullity of Marriages in the Code of Canon Law of 1983. (Lettera Apostolica in Forma di “Motu Proprio” del Sommo Pontefice Francesco, Mitis Iudex Dominus Iesus Sulla Riforma del Processo Canonico per le Cause di Dichiarazione di Nullità del Matrimonio nel Codice di Diritto Canonico (Mitis Iudex) [Apostolic Letter in the Form of “Motu Proprio” Issued by the Supreme Pontiff Francis, Jesus Lord Merciful Judge, on the Amendment of the Canonical Procedure for the Causes of the Declaration of Nullity of Marriage in the Code of Canon Law (Mitis Iudex)] (Aug. 15, 2015), The Vatican website.)

The Vatican also approved, along with Mitis Iudex and appended to it, the New Procedural Rules for the Substantiation of Marriage Nullity Cases, which are designed to implement the new canonical rules on marriage nullity procedures. The objective of the new Rules is to “offer some tools for the operation of the [marriage nullification] tribunals so that they may respond to the demands of the faithful who require a determination of the truth” as to whether the matrimonial bond has failed or not, that is, whether there are grounds for the nullity of the marriage. (Procedural Rules, Preamble.) The Procedural Rules clarify that because the Code of Canon Law applies to all nullity of marriage procedures, the Rules themselves do not attempt to cover the procedure in detail, but seek “above all to clarify the main legislative changes and, where appropriate, to fill in legal vacuums.” (Id. art. 6.)

Pre-Trial or Pastoral Investigation 

According to the Procedural Rules, the purpose of the pre-trial or pastoral investigation is to determine the validity of the marriage of separated or divorced spouses who hold doubts about the validity of their own marriage or are convinced of its nullity. (Id. art. 2.) This investigation is used to gather evidentiary information that would be valuable for an eventual judicial procedure. (Id.) The investigation must be performed by persons considered suitable by the respective bishop; such persons do not need to possess exclusively legal-canonical skills, and bishops have ample leeway to appoint these persons from among clerics, consecrated persons, or laypeople. (Id. art. 3 ¶ 1.) A single diocese or several dioceses acting jointly may create a stable organization that would provide such services and such diocese or dioceses may approve their own regulations on the matter. (Id. art. 3 ¶ 2.) The investigation serves to determine whether the parties have agreed to petition for the nullity of their marriage. (Id. art. 4.) The libellum (claim) may be submitted by the spouses once the investigation is completed. (Id. art. 5.)

Rules Applicable to the Tribunal 

Ecclesiastical tribunals now must ensure that all petitioners have access to procedures at a minimal expense. (Id. art. 7 ¶ 2.) In dioceses that do not have their own tribunal, the bishop must provide for the prompt formation of a group of persons who will work on marriage nullity cases. (Id. art. 8 ¶ 1.) The nullity procedure may be initiated orally when a party is unable to submit a written libellus, but the ecclesiastical notary must write the minutes of the oral libellus and read it to the party who dictated it for his/her approval. (Id. art. 10.)

A standard of “preponderance of the evidence” is not necessary to obtain the moral certainty required to decide that a marriage is null; the new standard of proof is that any prudent positive doubt about the nullity of a marriage must be excluded in order to declare the marriage null. (Id. art. 12.) A positive doubt does not include the mere possibility that a finding is contrary to the stated facts. (Id.)

Other Rules Applicable to the Parties 

A party is presumed not to oppose the libellus if he or she submits to the jurisdiction of the tribunal or, if summoned for a second time, fails to submit a response to the libellus. (Id. art. 11 ¶ 2.) It is presumed that a party who has refused to receive any information about the case also refuses to receive a copy of the final decision. In this situation, only the dispositive part of the decision may be served to that party. (Id. art. 13.) Each party, with an attorney, may attend the deposition of the other party and the witnesses, unless the instructing canonical judge decides otherwise. (Id. art. 18 ¶ 1.) The procedure is suspended if one of the spouses dies before it is concluded and is renewed if the surviving spouse or someone else possessing a legitimate interest requests its continuation. (Id. art. 9 ¶ 1.)

Rules Concerning an Abbreviated Procedure Before the Bishop 

The Procedural Rules list examples of circumstances that may trigger the use of an abbreviated procedure for the nullity of marriage as contemplated in Mitis Iudex, which include:

  • lack of faith of one or both spouses that may generate the simulation of consent or the error that determines the will;
  • brevity of married life;
  • abortion procured to avoid procreation;
  • stubborn persistence in an extramarital affair at the time of or immediately after the wedding;
  • fraudulent concealment of sterility or of a serious and contagious disease;
  • fraudulent concealment of children born from a previous relationship;
  • fraudulent concealment of incarceration;
  • entering marriage for reasons completely foreign to married life or because of the unplanned pregnancy of the woman;
  • use of physical violence to extort consent to the marriage;
  • lack of ability to use reason, as proven by medical documents;
  • etc. (Id. art. 14 ¶ 1.)

Aspects of the abbreviated procedure have been controversial among canon law scholars.  (See, for example, Edward Peters, A Second Look at Mitis, Especially at the New Fast-Track Annulment Process, IN THE LIGHT OF THE LAW: A CANON LAWYER’S BLOG (Sept. 8, 2015).)