Vatican marriage commission could drop mandatory appeal for annulments

Detroit, Mich., Sep 23, 2014 / 01:12 am

After it was announced that Pope Francis had appointed a commission to study a reform of the process of marriage annulment, a canonist in the U.S. has suggested that dropping the requirement for mandatory appeals could preserve justice in the process.

"Mandatory appeal" is the requirement that to have a supposed marriage recognized as in fact null, when one tribunal finds it to be null, the case must be sent to an appeals tribunal to affirm the decision, before it is official.

Mandatory appeal "seldom results in reversing affirmative decisions made in first instance and amounts therefore in a many-month delay in completing cases for no obvious reason," wrote Dr. Edward Peters, professor of canon law at Sacred Heart Major Seminary in Detroit, in his Sept. 22 blogpost, "The annulment argument: a quick guide to the two sides."

"Besides," he continued, "if one does not trust the officers of first instance to reach a sound result, why should one trust the officers of second? While they sit on different cases they are often the very same people."

The Vatican announced Saturday that on Aug. 27 – nearly a month ago – Pope Francis had established the commission to study reform of the annulment process. It is chaired by Msgr. Pio Vito Pinto, dean of the Roman Rota, a sort of appeals court of the Roman Curia, and other members are fellow tribunal members; the head of the pontifical council which interprets canon law; the rector of the Angelicum; canon law professors; the secretary of the Congregation for the Doctrine of the Faith; and a Greek Catholic bishop.

The commission will "focus on the preparation of a proposal for the reform of the marriage annulment process, seeking to simplify and streamline the procedure, while safeguarding the principle of the indissoluble nature of marriage," the Holy See press office stated.

The announcement comes amid preparations for the Oct. 5-19 extraordinary synod of bishops on "pastoral challenges to the family in the context of evangelization."

As part of its preparations, Cardinal Walter Kasper of Germany has proposed that there be "other more pastoral and spiritual procedures" for determining the validity of a marriage than the use of tribunals.

Several other cardinals quickly opposed Cardinal Kasper's suggestions, including Mueller, Caffarra, Brandmueller, Bagnasco, Sarah, Re, Ruini, and De Paolis.

In his Monday blogpost serving as a guide to the two sides in the argument, Peters suggested that the side taken by those such as Cardinal Kasper "seeks not so much reform of the annulment process as its effective abolishment," and that those like Cardinal Caffarra are "mistaken if (they) think the annulment problem lies in the annulment process."

Those wishing to uphold the indissolubility of marriage, he said, must remember that "nothing about current canon and special law makes declaring marriage nullity easy," and that nullity must be proven on the basis of sworn testimony.

This group, Peters suggested, may actually think that the members of marriage tribunals may be "too naive, too heterodox, or just too lazy" to be trusted in deciding nullity, but such a judgment is hasty.

"Nevertheless that is essentially their claim: the process needs no major reform, processors do," Peters wrote.

Peters then said that those such as Cardinal Kasper, were they pushed "to be clear" about what they seek, would admit it "is the 'de-juridicization' of the annulment process."

"It's their right, of course, to make such a proposal, but one should not confuse calls tantamount to elimination of a process with calls for reform of a process," Peters noted.

He added that the present aspects of the annulment process are necessary to make it a just process, though he suggested two which are not necessary: the defender of the bond, and mandatory appeal.

The defender of the bond must propose and explain everything which is reasonably evidence against a marriage's nullity. Peters stated that the office was instituted by Benedict XIV, who had "decades of legal experience dealing with real human beings gained within a Church drawing on centuries of pastoral experience dealing with real human beings," and added, "I would be loath to see that office abolished."

He did, however, object less to the abolition of mandatory appeal, though he also noted that no one "thinks that members of the second group [i.e Kasper's] would be satisfied with … such ancillary reforms."

"No, what the second group really wants, I think, is to eliminate the annulment process precisely as a juridic process."

Peters wrote that such suggestions would place the determination of nullity in the hands of the couple themselves, or their pastor, or their marriage counselor.

"Inescapably, though, such a proposal requires this: dropping the canonical presumption that when people wed they marry validly, so we don't need a canonical process to determine whether that presumption withstands objective scrutiny; alternatively … dropping the idea that Jesus meant everything he said about marriage, divorce, fornication, and adultery."

Accepting that Christ meant his teachings about marriage and divorce, Peters urged, means that "people who wed should be accorded the presumption that they are married, and – no matter what one finally calls it – a juridic process to test that presumption and, in turn, to respect those teachings, is going to be required."