On 8 September 2015, the Feast of the Nativity of Mary, Pope Francis released motu proprio, the Apostolic Letter, Mitis Iudex Dominus Iesus detailing steps to reform the juridical process for petitioning grants of nullity for marriages. Pope Francis makes clear that the goal is the “salvation of souls” and intends the reforms to mitigate barriers blocking or delaying people from full communion within the Church – especially those already in second civil marriages who might be eligible to obtain a decree of nullity for the first marriage.
Already, we have seen exaggerated interpretations of the impact these reforms will have – that they will make decrees of nullity fast, easy and free. These hyperbolic criticisms unwittingly serve as straw-man arguments and deflections away from more sober, but legitimate concerns with the reforms. Taking each in turn we will briefly rebut the overstated effect of the reforms and present perhaps lesser but substantial reservations.
A preliminary clarification. This is not intended to comment on any particular petition for nullity nor it is meant to deny that there are legitimate cases for a decree of nullity. This commentary is about the posture of a process for decrees of nullity that is streamlined and inexpensive.
The first exaggerated criticism is that the reforms will make decrees of nullity fast. In some cases, you can find interpretations claiming the reforms require a tribunal response within 45 days. One of the explicit objectives of the reforms is shortening the process but nowhere does it specify 45 days. This looks to be derived from a calculation adding the 30 days requirement to hold a session plus the 15 days requirement for the presentation of arguments. But this does not account for other legitimate processing time such as writing the sentence and window for appeal.
The reforms do not say that decrees of nullity should be fast and do not specify 45 days. This criticism makes for an easy reply – that the Apostolic Letter itself does not say that. End of discussion. But the fast/45 day argument is not what really needs attention.
The reforms do call for a shortened process overall and especially so in certain cases, and the overall thrust of the reforms is for a streamlined process. This posture does violence to the gravity of the matter. The process to potentially decree a solemn vow null should be slow and deliberate. It should be slower, not faster. It need not be unnecessarily slow; but if we are to err on a matter of such gravity, it should err slow and not fast. Moral certainty demands it. A shortened process is not commensurate with the solemn vow “until death do us part.”
It is understood that in some parts of the world, it is virtually impossible to get a response to a petition for nullity or it takes an inordinate amount of time. This needed to be addressed, but could have been addressed separately. Comprehensive and universal reforms to streamline the process may resolve that specific problem while also unduly accelerating the process in parts of the world where it is operating at a healthy pace, or already too fast.
We also must consider the mentality this will foster for future marriages. A streamlined process sends the message that the Church will continue to expect invalid marriages – and possibly even in increasing numbers – and so needs a process to accommodate the steady flow of petitions. Invalid marriages will be seen as common and normal.
The second exaggerated criticism is that the reforms will make decrees of nullity easy. Most commonly, this criticism stems from a confusion of the triggers for fast-track cases and the actual causes for nullity. The list of triggers for fast-track cases is not the same as the list of causes for nullity. A case may satisfy the criteria for a fast track case (for example a brief marriage) but not have sufficient cause for a decree of nullity. Cursory reviews of the reforms have led some to consider fast-track triggers (such as a brief marriage) as grounds for a decree of nullity.
But the reforms do not say that brevity of marriage, for example, is a cause for nullity. This criticism makes for an easy reply – that the Apostolic Letter itself does not say that. End of discussion. But this confusion is not what really needs attention.
The reforms do call for the elimination of the automatic appeal. The automatic appeal was introduced in 1741 by Pope Benedict XIV because he thought decrees of nullity at that time had become too easy. Eliminating the automatic appeal makes a decree of nullity easier. Given the gravity of the matter – determining that a solemn vow was invalid – it is reasonable to question removing this safeguard to moral certainty.
We also must consider how this will affect future marriages. A streamlined process not only means faster; it also means easier having eliminated a layer of protection again false positive grants of nullity. Rather than the traditional posture of an absolute marriage-is-for-life, future generations – having heard of an easier, streamlined process as well as “success” stories – will be more inclined to put in a petition. Couples who in the past would have weathered the difficulties – and possibly created a beautiful, hard-won marriage – will be more inclined (even counseled) to submit a petition for nullity. Even if nullity is not granted in all cases, petition counts alone can be expected to rise.
The third exaggerated criticism is that the reforms mandate that a petition for a decree of nullity in all cases be completely free of charge. Again, there is no evidence for this in the Apostolic Letter itself and so the answer to this specific charge is easy and superficial. But the reforms do call for petitions to be inexpensive and if possible free.
There is further evidence of the thinking of Pope Francis on this point from a Jan 2015 interview in which he said, “The sacraments are free. The sacraments give us grace. And a matrimonial process (decree of nullity) pertains to the sacrament of matrimony. How I wish that all processes were free.”
Like any organization or household, the Church has to choose what to fund, subsidize, or leave to the burden of others. Pope Francis cites the “gratuitous love of Christ” as the impetus to press for a decree of nullity process that is inexpensive for the couple or even free if possible. Instead of further subsidizing pre-Cana and marriage counseling such as Retroville, the Church will subsidize decrees of nullity.
Again we turn to the impact on future marriages. Over time future generations will enter marriages knowing that the Church has in place a decree of nullity process that is designed to be faster, easier and inexpensive. Couples will spend tens of thousands on a wedding day and then expect to petition a decree of nullity for little or no money.
The point here is not about begrudging wasted money. The point is the mentality this provision will foster – that petitions of nullity are commonplace enough to be made inexpensive. It will feed into what Pope Francis has called “a throw-away culture.”
Mitis Iudex Dominus Iesus does not call for fast, easy and free annulments. We need not discuss those objections anymore. But it does call for a shortened, easier and inexpensive process within the universal Church.
María Inés Narvaja, the niece of Pope Francis, in an August 2014 interview said that the Church in Argentina informed her that the process for a decree of nullity would take four years. So she married civilly instead and then later married in the Church once a decree of nullity was obtained. She also indicated that her uncle – then Archbishop Bergoglio, the future Pope Francis – was close to her during this time. So he would have been keenly aware of this “burden” on his niece. Therefore, it is likely that this and similar situations informed Pope Francis in his writing of Mitis Iudex Dominus Iesus – a sincere empathy for those in irregular relationships, “outside” the Church and an authentic desire to reconcile them. However, as much as this reform focuses on existing irregular relationships, it looks to be blind to the negative impact on future marriages. Mitis Iudex Dominus Iesus looks backward but not forward.
A streamlined and inexpensive process favors the thinking of Cardinal Kasper, “…heroism is not for the average Christian.”
Expect little and you get little; expect high standards and some will miss but many will rise to it. Making the process for decrees of nullity streamlined and inexpensive dumbs down the institution of marriage. There will be an impact on future marriages. A streamlined and inexpensive process for decrees of nullity will take the wind out of the sails of marriage vows, and will even be self-fulfilling. A future marriage may be decreed null precisely because one or both of the partners did not take the vow seriously knowing the Church now has a streamlined and inexpensive process for decrees of nullity. The net effect over time will be a mentality that virtually every marriage potentially is able to be decreed null. Today, everyone knows someone who is divorced and remarried. Tomorrow everyone will know someone who has a null first marriage and is in a new marriage.
We also must address responsibility with respect to the Church – the process and officials who approve marriages. A streamlined and inexpensive process of decrees of nullity is an enabler for inadequate discernment and counseling prior to the marriage. Every decree of nullity underscores a failure on the part of marriage preparation to prevent the marriage in the first place. By definition, it should not have happened. It should not have been allowed to happen. Decrees of nullity should be rare, not streamlined and inexpensive. Of course this means telling some people they cannot get married and the risk they will leave the Church and get married elsewhere – a hard truth.
"Without truth, charity degenerates into sentimentality.” – Pope Benedict XVI
There is some talk of a catechumenate for marriage which looks to be a step in the right direction. But regardless, a streamlined and inexpensive decree process fosters an entitlement mentality. Couples will feel entitled to “get married” (to pronounce those superlative vows!) and also entitled to have those vows decreed null – as Chesterton put it, “to have their wedding cake and eat it too.”
Another way of looking at it is this. What is the end goal? What is ideal marriage landscape within the Church? I would argue zero or very few decrees of nullity – odd and rare. Yes unrealistic right now, but the point is that it is the ideal. A streamlined and inexpensive process trends away from that ideal. It looks backward and not forward.
Recently Pope Francis reiterated that a decree of nullity is not just Catholic divorce – and that point is understood. Divorce breaks apart a valid marriage. A decree of nullity looks back in time and determines there never was a valid marriage. It is a crucial distinction, but not the essential point being made regarding the reforms. Already in the United States in 2012, 95% of petitions were granted. Introducing the fast-track, eliminating the automatic appeal, and making it inexpensive will only serve to close that remaining 5% so that in effect we have something indistinguishable from divorce – except, I suppose, that divorce will not be inexpensive.
In this regard, the Church will become indistinguishable from the world. But we must remember the almost monotonous pattern of this sort of thing in the Old Testament. The Israelites would adapt to the nations around them, worshiping false gods and not following the laws of God. They would conform to the world. Then they were punished – sometimes very severely – and would repent.
The Church should not conform to the world. Future couples are entitled to an unmitigated, triumphant vow “until death do us part” and despite what the world does, within the Church hold ourselves to these vows. As our Load said, “let your speech be, Yea, yea; Nay, nay: and whatsoever is more than these is of the evil one.”