HONG KONG (SE): The Reform Process for Canon Causes of Declaration of Nullity of Marriage (Mitis Iudex Dominus Iesus) issued by Pope Francis on August 15 this year simplifying the procedure of the marriage annulment processes in some circumstances may not be able to be used as widely as initially anticipated.
The document says that instead of the current requirement of a two-tiered judgement in a decision to grant nullity, a single tiered process may be used where there is sufficient moral certainty achieved at the first court level.
However, this requires that both parties to the marriage cooperate with and give consent to the process and the availability of sufficiently reliable testimony to substantiate the case for annulment.
In response to questions from the Canon Law Society of America during October, the president of the Pontifical Council for Legislative Texts, Francesco Cardinal Coccopalmerio, said that the simplified, or fast-track process as it is widely referred to, may only be applicable in a minority of cases.
Cardinal Coccopalmerio pointed out that since the fast-track procedure was introduced by the pope as an exception to the general norm, there are circumstances where it cannot be applied.
He said that the most common is where one party to the marriage remains silent and for whatever reason does not sign the petition or declare consent to the application.
“This explicit consent is foremost necessary because the brief process is an exception to the general norm,” the cardinal wrote in his reply.
A prominent canon lawyer, Edward Condon, said that Cardinal Coccopalmerio’s intervention is significant, as in approximately half of all applications in the United States of America and Great Britain, one partner is declared absent.
“Either because they will not respond to the tribunal or because they cannot be found,” Condon explained.
He said that at least half the petitions are made by only one partner to the marriage and the other partner does not wish to participate, which means that the fast-track process cannot be applied.
While the fact that only one partner lodges the petition does not pose a problem, the second partner must give their consent to the process going ahead to avail of the fast-track exemption.
Condon added, “It is also significant because there was considerable debate about exactly this point among many canonists.
“It shows that the reforms of Mitis Iudex, while very welcome in and of themselves, are not sufficient unto themselves—they need proper explanation for them to be put into practice.”
The clarification upholds the principle that consent must be a positive act of the will and cannot be presumed from silence.
However, while the 50 per cent that cannot avail of the pope’s new simplification is a sizeable number, so is the 50 per cent who may be able to take advantage of it.
Pope Francis says in The Reform Process for Canon Causes of Declaration of Nullity of Marriage that the reform is motivated by care for souls.
He explains that there is pressure to reform the process as many people, while wishing to provide for their own consciences are put off by the difficulty of the procedure, so mercy requires an outreach from the Church.
He notes that a majority of the bishops gathered at last year’s extraordinary synod voted to make the process more accessible and faster. However, he also points out that it is not the purpose of the document to broaden the scope of annulment or decrease the required level of certainty, but simply to speed up the process.
He points out that a delayed judgement increases the darkness of doubt people suffer in their minds.
Pope Francis stresses that he has been faithful to the desires of his predecessors in keeping the annulment process in the judicial arena and not redescribing it as an administrative matter.
He explained that this is not because a judicial process is required by the nature of annulment itself, but because it further protects the truth of the sacred bond.
The papal document also calls for the annulment process to be carried out free of charge. The cost of the annulment process in many countries can preclude vast swathes of the Catholic population from even thinking about it.
Migrant workers from The Philippines in Hong Kong, while not the highest paid people in their country do receive a much bigger salary than they could earn at home. But a Church annulment could still cost them around five month’s pay.
However, Church records reveal that many annulments are done free of charge.
One migrant worker in Hong Kong said, “My parents took me to the church for my first communion, then for confirmation and then to get married. And all this while really I was still a child. I did not want to get married and felt like it was something my parents did.”
She does not know where her husband is today.