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Simplified annulment process coming from synod

Those expecting quick change in the church will be disappointed by the first day of the Synod of Bishops on the family. On the other hand, those who were present at the 1980 synod on the family will be amazed at how much things have already changed.

The biggest change is that open discussion is being encouraged by the pope. Under Pope John Paul II, raising controversial questions was frowned upon, but Pope Francis has told the bishops not to be afraid of saying what they think, even if they disagree with him. For more on this, see NCR Rome correspondent Joshua J. McElwee's piece.

The second big change is in attitudes toward the church's annulment process, by which the church declares that a marriage was invalid and therefore it is OK for the former spouses to marry new partners.

At the 1980 synod, the U.S. church came under heavy attack for granting many more annulments than the rest of the world combined. The American bishops had to defend their tribunals, which were efficient and staffed with well-trained canon lawyers.

Today, no such criticism is heard. Instead, the current annulment process is under attack as too complicated and legalistic. As Cardinal Péter Erdő reported to the bishops in his opening address to the synod, the preparatory document, the Instrumentum Laboris, "describes a rather broad consensus in favor of simplifying marriage cases from the pastoral view." 

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Erdő is the "relator" for the synod, appointed by the pope to organize and guide the bishops in their deliberations. His acknowledgement that the current annulment process needs improvement signals that this will probably be one of the major achievements of the synod. Last month, the pope announced a commission of canonists to look into this.

This change in attitude is fueled by a pastoral concern for the huge number of divorced and remarried Catholics who are not allowed to go to Communion unless they receive an annulment. The change is defended by acknowledging that many couples who marry are not prepared or do not enter marriage with the commitments required by the church. 

"It does not seem hazardous," Erdő said, "to believe that many marriages celebrated in the church may be invalid." He cites "the general principle that the validity of a sacrament requires that the party intends to do what the church does." Therefore, if one of the parties enters marriage with the idea of divorcing if it does not work out, then the marriage could be annulled. The same would be true if either party did not want to have children or was planning not to be faithful. Commitment to unity, fidelity, and fruitfulness in marriage is required for validity.

If many or even most divorced Catholics were in invalid marriages to begin with, then it makes sense to have a more simplified and quicker process of granting annulments to respond to the large numbers of divorced Catholics. This requires duly prepared priests "who can offer counsel, without charge, as a first step for the parties in ascertaining the validity of their marriage," Erdő said.

Simplification of the process, according to Erdő, could include the elimination of the current requirement of any sentence of nullity be confirmed by an appellate court,  especially if neither party is objecting to the annulment.

He also raised the possibility of an administrative process, as opposed to the current judicial process, to determine invalidity. Here the process could provide a simpler way to gather information about the invalidating circumstances that "could conclude with a declaration of nullity by the diocesan bishop." A simple administrative process could deal more quickly and more easily with many more annulments than the current judicial process.

Erdő also hinted that more cases today could qualify for Pauline and Petrine privileges. The Pauline privilege deals with a broken marriage between two non-Christians where one becomes Catholic. The Petrine privilege covers a marriage between a Christian and a non-baptized person. Allowing local bishops to grant these privileges could free many divorced Catholics for a new marriage.

None of this was fleshed out in his report, but the very fact that it was brought up shows how far the bishops have come in 34 years. In 1980, Vatican officials were looking for procedural roadblocks to slow down annulments in the U.S.

Erdő devoted only one paragraph in his report to the proposal of Cardinal Walter Kasper, who has suggested that the Catholic church could learn from the Orthodox churches, which allow a second or third civil marriage after the first sacramental marriage if the person involved repents of any contribution to the breakup of the first marriage. Here the first marriage is not annulled, and therefore there is no second sacramental marriage. Rather, after repentance, a second but civil marriage can take place and the spouses are permitted to go to Communion.

The Orthodox approach has been criticized by Cardinal Raymond Burke and other cardinals, but Pope Francis has encouraged Kasper. The critics fear it undermines the indissolubility of marriage. It is in this context that simplifying the annulment process become the "moderate" or even "conservative" alternative to Kasper's approach. But there is no intrinsic reason why the church could not adopt both approaches. Annulments for those who qualify, and the Orthodox approach for those who do not qualify for annulments.

No mention was made by Erdő of the "internal forum" solution, where a person in consultation with a priest reflects on his or her situation and then follows ones conscience. Although this is discouraged by the hierarchy, many Catholics are doing this rather than wait on the bishops to act.

Most Catholics will not be impressed by small steps being taken by the synodal bishops, but the church has never been known for the speed with which it acts.

This synod will be over in two weeks, but it begins a process of reflection and discussion that will last for a year until the conclusion of the 2015 synod on the family next October. During this time simplified annulment procedures will be fleshed out, but other proposals will also be debated.

Correction. My original article stated: "Simplification of the process, according to Erdő, could include eliminating the current requirement of two appeals of a declaration of nullity, especially if neither party is objecting to the annulment." This was based on the Vatican Press Office English translation, which referred to "the obligation for two appeals of confirmation on the declaration of nullity of the marriage bond."

When a couple of canon lawyers told me there was no current requirement of two appeals, we checked the original Italian and discovered the English translation from the Vatican press office was in error.

The Italian text is clear.  What is being proposed is the elimination of the requirement of "two conformed [affirmative] sentences" ("doppia sentenza conforme").  This requirement goes back to Benedict XIV's De Miseratione in 1756.  The requirement is that every affirmative sentence be confirmed by an appellate court before the parties are free to enter a new marriage in the church.  

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is treesesj@ncronline.org. Follow him on Twitter: @ThomasReeseSJ.]

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