« The Motu proprio Mitis iudex dominus Iesus. Opportunities, challenges and potential pitfalls »
by: Hildegard Warnink
On 27 August 2014, Pope Francis established a commission to study the reform of the canonical marriage annulment process. The mission of this special commission was: “to 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.”
During the 2014 Extraordinary Assembly of the Synod of Bishops, some synod fathers highlighted the need to make the procedure in cases of nullity more accessible and less time-consuming.
 Synod of Bishops, “Final Report of the Extraordinary Synod of Bishops on the Family,” Origins, 44/24 (13 November 2014),401. The same wish was already expressed by Pope Paul VI in 1971: Paul VI, “Motu proprio Causas matrimoniales”, 28 March 1971, AAS, 63 (1971), 441-442: “Cum autem huiusmodi causarum numerus temporibus nostris magis in dies augeatur, Ecclesia facere non potest, quin hac de re sit valde sollicita. Hic enim causarum auctus, quemad- modum ad Praelatos Auditores Tribunalis Sacrae Romanae Rotae diximus, ‘signum est pecu- hare imminuti sensus sacrae,quae legi inesntaturac, qua ut in fundamento familia christiana innititur; signum inquietae perturbatacque vitae hodiernae; signum incertarum condicionum socialium et oeconomicarum, in quibus illa degitur, ideoque periculi, quod firmitati, vigori, felicitati instituti familiae impendere potest.”: A.A.S. 58 (1966), 154.
The Motu proprio Mitis iudex dominus Iesus
On 15 August 2015, Pope Francis promulgated the Motu proprio Mitis iudex dominus Iesus and by doing so he “reformed” the canonical process for the declaration of nullity of marriage. The pope’s approach is declared to be highly pastoral. His chief ambition was – in line with the remarks of the synod fathers – to introduce provisions that would speed up and simplify the processes in certain cases without favouring nullity.
 Franciscus, Litterae apostolicae motu proprio datae. Mitis Iudex Dominus Iesus. Quibus canones codicis iuris canonici de causis ad matrimonii nullitatem declarandam reformantur, 15 August 2015. English version: Translation Copyright © 21 September 2015 Canon Law Society of America.
Principal novelties of this document are: a) the new regime removes the requirement of the second instance (the requirement for a double conformity of affirmative sentence) and b) the introduction of an abbreviated procedure under the responsibility of the diocesan bishop.
In the introductory remarks, the pope refers to the paramount principle of the salvation of souls as a key motive for revising the canons.
This direction was also indicated by the votes of the majority of our brothers in the episcopate, gathered in the recent extraordinary synod, who implored more flexible and accessible judicial processes. In full harmony with this desire I have decided to introduce, by this motu proprio, provisions that favour not the nullity of marriage but rather the speed of the processes, along with the appropriate simplicity, so that the heart of the faithful who await clarification of their status is not long oppressed by the darkness of doubt due to the lengthy wait for a conclusion.
The document makes eight propositions, which direct the reform of the annulment process according to this principle.
a) A single executory sentence in favour of nullity
A double conforming decision declaring the nullity of the marriage is no longer required and moral certainty, reached by the first judge, is considered to be sufficient.
b) A single judge acts on the responsibility of the bishop
 Canon 1673 §4: The bishop moderator, if a collegial tribunal cannot be constituted in the diocese or in a nearby tribunal chosen according to the norm of §2, is to entrust cases to a single clerical judge who, where possible, is to employ join two assessors of upright life, experts in juridical or human sciences, approved by the bishop for this task; unless it is otherwise evident, the same single judge has those things which are attributed to the college, the praeses, or the ponens.
c) The bishop himself is judge
As a sign of the conversion of ecclesiastical structures may not leave the judicial function in matrimonial matters completely delegated to the offices of his curia.
d) The briefer process
A form of a briefer process is to be applied in cases in which the alleged nullity of the marriage is supported by particularly clear arguments. To safeguard the principle of the indissolubility of marriage, the judge in this short procedure is to be the bishop himself who, due to his pastoral office, is with Peter the greatest guarantor of Catholic unity in faith and discipline in the Church.
e) The appeal to the metropolitan see
In the motu proprio the Pope insists on the restoration of the appeal to the metropolitan. As the office of head of the ecclesiastical province, the metropolitan is a distinctive sign of collegiality in the church.
f) The proper task of episcopal conferences
The episcopal conferences are to provide a stimulus to the individual bishops and help in implementing the necessary reform/revision of practice in the matrimonial process. Whenever possible, the episcopal conferences shall take care to ensure that cases are free of charge.
g) An appeal to the Apostolic See
The right to appeal to the ordinary Tribunal of the Apostolic See, the Roman Rota is retained.
h) In favour of the Eastern Churches
The norms to reform the discipline of matrimonial processes in the Code of Canons of the Eastern Churches are issued separately: Franciscus, Litterae apostolicae motu proprio datae. Mitis et misericors Iesus. Quibus canones codicis canonum ecclesiarum orientalium de causis ad matrimonii nullitatem declarandam reformantur, 15 August 2015.
From 8 December 2015 onwards, the canones 1671-1691 of the Code of Canon Law of 1983: Book VII Part III, Title I, Chapter I, Cases to Declare the Nullity of Marriage,are replaced by the canones of the Motu proprio Mitis iudex dominus Iesus.
After this general introduction, we can now engage with some aspects of The Motu proprio Mitis iudex dominus Iesus, in order to identify some elements that are likely to require further reflection amongst practitioners.
1. We are presented with the prospect of the diocesan bishop’s increased involvement and personal responsibility in marriage procedures
A bishop exercising judicial power is not new in canon law. Also in the CIC 1983, canon 1419 §1, the diocesan bishop is the first judge in his diocese. He can exercise his judicial power either personally or through suitably qualified judges appointed by him.
 See also: Burke, Raymond L., “The Service of the Apostolic Signatura in the Church and the Ministry of Justice of the Diocesan Bishop,” The Jurist, 74(204), 10-13.
CIC 1983 canon 1419 §1: In each diocese and for all cases which are not expressly excepted in law, the judge of first instance is the diocesan Bishop. He can exercise his judicial power either personally or through others, in accordance with the following canons.
Some might consider it strange that the Diocesan Bishop’s increased involvement in marriage nullity cases, according to Mitis iudex, nr. 3 of the fundamental propositions, must be seen as a sign of the conversion of ecclesiastical structures:
MI, nr. 3: It is greatly hoped that in large as well as in small dioceses the bishop becomes a sign of the conversion of ecclesiastical structures and does not leave the judicial function in matrimonial matters completely delegated to the offices of his curia. This is especially true in the briefer process which will be established to resolve the most evident cases of nullity.
Is this a positive or a rather dangerous development? A few question arise concerning the burden this places upon the Diocesan Bishop:
a) What is the level of legal education and legal knowledge of an average diocesan Bishop? Do they have the necessary training and discipline to instruct a case?
b) What of the credibility of Canon Law in a secular context? In every democratic society separation of powers (into three branches: executive, legislative, and judicial) is the guarantee for a real balance of power and due processes (Pouvoir arrête pouvoir). Will civil counterparts take a system of Canon Law, in which a legislator acts as his own judge, seriously? Does this place at risk the credibility which has been hard won over many years?
2. Accessibility of the procedure in cases of marriage nullity and common confusion about the processus brevior (canon 1685)
Is the processus brevior a first step toward a divorce by mutual consent, a no-fault Catholic divorce? This appears – at least – to be the impression and the expectation of many Christian faithful and this interpretation has been promoted by the media. The Reason why can be located in the new canon 1683, 1°:
whenever the petition is proposed by both spouses or by one of them, with the consent of the other.
Sufficient ground for a short process can be: circumstances that do not demand a more accurate inquiry or investigation, and which render the nullity manifest (canon 1683, 2°). This raises profound questions about: rule of law (legal security), arbitrariness? pre-determination? How can the nullity of a marriage be “manifest” before the forensic investigation in a legal system where the validity of the marriage enjoys the favour of law?
Another question concerns the quality of a legal investigation to be undertaken within 30 days? How robust can such an investigation be? Our experience suggests that our ecclesiastical tribunals did and do not waste time. They are not lazy and are working most conscientiously. Despite this, they are in most cases not able to gather all proofs concerning the validity of marriage within 30 days. This is what they are now required to do so according to the new canon 1685: citation of the parties and witnesses, both giving evidence, collecting proofs, […] the advice of medical experts […] within 30 days. And canon 1686 adds the time limit of fifteen days to present the observations in favour of the bond and the defence briefs of the parties,“insofar as possible”.
And finally an authentic concern for many practitioners will be: whether the right of defence has a place in such a short process? In 2001, the European Court for Human Rights in Strasbourg already ruled that the ecclesiastical procedure did not meet the minimum standard of a due process.
3. Elements in the new norms that increase the accessibility of the procedure and simplify the process
Increasing the accessibility of the procedure are first of all the changed norms concerning the competent tribunal. Canon 1672 added as a competent tribunal the diocese of the place in which the petitioner has a domicile or a quasi-domicile without consultation of the respondent and without consent of the judicial vicar of the domicile of the respondent (as imposed by the code of 1983 in canon 1672, 3°).
Secondly we meet with the introduced option, choice to be made by the judicial vicar, to treat a case within an abridged process of this kind: the processus brevior (Canon 1675 §2 and canons 1683-1687).
Then, a judicial confession and the declarations of the parties are now (canon 1678 §1) given probative value (the force of full proof). Is canon 1678 §1 (lex specialis) compatible with canon 1536 §2 (lex generalis), which states that the force of full proof cannot be attributed to declarations of the parties?
Canon 1536 §2: In cases which concern the public good, however, a judicial confession, and declarations by the parties that are not confessions, can have a probative value that is to be weighed by the judge in association with the other circumstances of the case, but the force of full proof cannot be attributed to them unless there are other elements which wholly corroborate them.
One of the most striking novelties of Mitis Iudex is exactly the removal of a compulsory second instance decision and two unanimous judgments pro nullitate before a new marriage can be contracted (as mentioned in the CIC 1983 canon 1682). The sentence that first declared the nullity of the marriage gets executed (canon 1679).
4. Profile of the instructor and assessor in the processus brevior and securing the legal quality of judicial decisions
What about the need for well-trained, properly degreed canon lawyers? At the annual business meeting of the Canon Law Society of America (CLSA) in Pittsburg in October 2015, a canon lawyer concerned presented a resolution proposal to recommend to the president of the United States Conference of Catholic Bishops the use of well-trained, properly degreed canon lawyers to assist with the implementation of the new procedural norms, in particular the new processus brevior. The resolution proposal was rejected. Nevertheless, the lack of well-trained and degreed canon lawyers is considered to be a matter of serious concern by many practitioners in church tribunals. Roch Pagé argues:
In my considered opinion, the major problem of first instance tribunals does not concern the procedure itself… Actually, the problem resides with personnel concerns, i.e. the number of qualified persons, the availability of those who are qualified and the financing of the operations of the Tribunal. There is a serious decline in the number of canonists in Canada… The time and costs for sending a person to study canon law has been a major obstacle. Thus, we find ourselves with a lack of competent personnel to deal with marriage nullity cases.
 Pagé, Roch, “Reflections of a Judicial Vicar of an Appeal Tribunal on Proposed Reform of Canonical Matrimonial Process”, The Jurist, 75(2015), 59-69, 62.
What is the impact of the canonical background and degree of the instructor and assessor on the quality of judicial judgments? Doing interviews in a canonical process requires proper training and skills. That’s what we can offer in our training for the degree of “licentiatus iuris canonici” or “doctor iuris canonici”. The interview is intended to be an occasion for gathering evidence in a professional and neutral manner; testimony obtained from the witness not the other way round: this should not be confused with a merciful pastoral talk.
5. Destiny of lay judges
The following new canons speak for themselves:
Canon 1673 §3: Cases of nullity of marriage are reserved to a college of three judges. A clerical judge must preside, the remaining judges can even be laypersons.
Canon 1673 §4: The bishop moderator, if a collegial tribunal cannot be constituted in the diocese or in a nearby tribunal chosen according to the norm of §2, is to entrust cases to a single clerical judge who, where possible, is to employ join two assessors of upright life, experts in juridical or human sciences, approved by the bishop for this task; unless it is otherwise evident, the same single judge has those things which are attributed to the college, the praeses, or the ponens.
In summary, we can reasonably state that, from now onwards, in a college of three judges laypeople may make up the majority among the judges. However, they cannot preside.
6. Moral certainty and the presumption of validity
In the introductory remarks of the document is listed:
I. – A single executory sentence in favor of nullity. – It seemed appropriate, in the first place, that there is no longer required a double conforming decision declaring the nullity of the marriage to enable the parties to be able to contract a new canonical marriage. Instead, moral certainty, reached by the first judge under the norm of law, is considered sufficient.
What about the obligation of the search for the truth based on the indissolubility of marriage? Roch Pagé has rightly expressed concern about the simplification of the canonical process on the one hand and the unmodified presumption of validity of marriage and indissolubility on the other hand.
How can the procedure in cases of marriage nullity be made more accessible and less time-consuming without however undermining the indissolubility of marriage? Would doing away with the requirement of second instance serve justice? If such a measure was to be applied together with a simplification of the procedure in first instance, to what extent would our processes be taken seriously regarding the presumption of validity of marriage?
 Pagé, Roch, “Reflections of a Judicial Vicar of an Appeal Tribunal on Proposed Reform of Canonical Matrimonial Process”, The Jurist, 75(2015), 59-69, 60.
The fourth introductory principle of Mitis iudex recommends a short process in cases in which the application for the nullity of the marriage is supported by particularly clear arguments. What are clear arguments?
Moral certainty and particularly clear arguments are rather moral notions. Aren’t we hovering over the hinterland between law and pastoral or moral theology? Being too pastoral in procedures leads to inequality and juridical uncertainty. It reminds me of Otto Ter Regen, former judicial vicar in the Netherlands in his article about “la jurisprudence Hollandaise” where he argued in favour of a more pastoral and less juridical approach in marriage annulment cases. This point of view was common in the eighties. Law wasn’t popular at all in the church. Bishops and law were like water and fire.
But, a marriage annulment process, (as long as it is called “a process”) must serve as a juridical tool and not as a pastoral solution to remedy painful, difficult or complex human experiences. A mere change in the procedural norms neither solves problems of this kind nor avoids their repetition. The search for real merciful solutions for such failed relationships, might have been addressed by different juridical measures. It would be hoped that theology and canon law experts would be sufficiently informed to consider new interpretations and revisions of certain elements of the sacrament of marriage. To come closer to the experienced reality of married people, they might preferably show some creativity in enlarging conditions and possibilities justifying dissolution of the bond of marriage, instead of trying to declare null what de facto failed.
Above all we may not forget that even after Mitis iudex the final decision in a marriage annulment case remains: “constat aut non constat de nullitate”.
It is too early for conclusions on Mitis iudex. This new process law raises more questions than it answers and encourages reflection and discussion. Convinced about the crucial role of canon law in the daily life of our church I would like to draw the attention of the readers to three elements that seem important to me:
- the need for a proper training of all people involved with procedures and the undeniable value of an academic degree in canon law;
- the importance of equal treatment for all Christian faithful and the need for legal stability (certainty and predictability);
- the inevitable distinction between pastoral care and legal decisions.
The cornerstone of every due process is still the aphorism: “Not only must Justice be done; it must also be seen to be done.“
Hildegard Warnink studied Philosophy (Bachelor of Arts in Philosophy), Theology (Master of Theology and Religious Studies) and Canon Law (JCD) at the KU Leuven and Studio Rotale in Rome (1994-1995). She has been teaching Canon Law at Theologische Universiteit Amsterdam (NL) (1989-1992), Fontys Hogeschool Theologie Levensbeschouwing Tilburg (NL) (2005-2006) and Radboud Universiteit Nijmegen (NL) (2005-2005 and 2006-2007). Since 1990 she is connected to the Faculty of Canon Law in Leuven. She has been teaching Marriage Law and Basic Concepts of Canon Law since 2001. In 2015 she became dean of the faculty of Canon Law of the KU Leuven. She is a visiting professor at Stellenbosch University (SA). Since 1991 she works as a judge at the Ecclesiastical Tribunal of the Archdiocese Mechelen-Brussels (B) and between 1997 and 2013 also at the tribunal of the Diocese Rotterdam (NL).