In the past I have written concerning the annulment process as it is conducted in the Archdiocese of New York. Recent discussions between our officials and those of the Vatican.......
In the past I have written concerning the annulment process as it is conducted in the Archdiocese of New York. Recent discussions between our officials and those of the Vatican have raised certain issues which I think might be of interest. Additionally, recent comments made to the Sacred Rota by the Holy Father are deserving of reflection.
The Curia has been concerned for sometime that there has been an overuse of one ground for declaring a marriage null. That is lack of due discretion. The operative canon is 1095:2: “They are incapable of contracting marriage...who suffer from grave lack of discretion of judgment concerning essential matrimonial rights and duties which are to be mutually given and accepted.” This term refers both to the intellect and the will. Pope John Paul II cautioned in an allocution to mark the convening of the Rota in 1987: “For the canonist the principle must remain clear that only incapacity and not difficulty in giving consent and in realizing a true community of life and love invalidates a marriage. Moreover, the breakdown of a marriage union is never in itself proof of such incapacity on the part of the contracting parties.” A possible example might be a young woman living in an abusive situation might flee such circumstances to enter an idyllic relationship with a young man she barely knows.
When a petitioner is interviewed it is possible that such grounds might bear further investigation. However, as the Pope suggests, other avenues should be utilized so that a “morally certain” decision might be reached. For instance, there might be present strong evidence of ignorance, errors of fact or law, and force and fear. Our judges in New York have seen many cases which should be examined under the strictures of canon 1101: “The internal consent of the mind is presumed to be in agreement with the words or signs employed in celebrating matrimony. …But if either or both parties through a positive act of the will should exclude marriage itself, some essential element or an essential property of marriage, it is invalidly contracted.” Some examples are: the positive intention against having children; the rejection of the concept of fidelity; the belief that the marriage is designed a time, definite or indefinite and the failure to recognize the good of the spouses and realize the sacramentality of the committed relationship. As we have written before: definite proofs must be present which demonstrate that the impediments to a true marriage existed ab initio (from the beginning). It is not sufficient to see a man married for twenty years having an affair to proof an intention against fidelity. Such behavior to be helpful in reflecting on the question of validity must be seen and testified to revelatory of long-standing attitudes and actions from one’s upbringing, growth and adult formation.
After the case is heard in a Tribunal of the First Instance a decision is rendered which must be appealed. As on the primary level the case is read by three judges and the defender of the bond in what is called the Interdiocesan Appeals Tribunal. Appointed by our respective bishops we must decide that all procedures were properly followed and that the judges acted properly in view of the substance of the case. Examples of the former would be to ensure that the parties were notified properly and advised of their rights, were their witnesses heard, and did sufficient time pass before the decision was rendered. An example of the latter in terms of the substance of the case is the determination that the proper grounds were pursued. Difficulties arise if we disagree with the Court of First Instance or if the Petitioner or Respondent disagree with our decision on both levels. Then the Sacred Rota must enter into the situation and render a final verdict.
The Tribunal of the Roman Rota is the Court of the Apostolic See. Its existence dates back to the twelfth century. It is the chief source of canonical jurisprudence for all other courts. It has set the tone and creates precedents in interpreting laws. The Pope appoints the auditors of the Rota and names its dean. Like lower courts it adjudicates a case in a panel (called a turnus) of three auditors. The Rota’s main function is that of a third-instance appellate tribunal, ordinarily reviewing decisions of lower courts. Dominating the time and energy of this Vatican institution are petitions seeking the issuance of a decree of nullity, although it has jurisdiction to hear any other type of judicial and non-administrative case in any area of canon law. In certain instances, the Rota has exclusive original jurisdiction, such as any contentious case in which a bishop is a defendant. As dioceses go through the process of realignment, the Rota has been called upon to resolve questions of propriety.
On January 29, 2010 at an audience the Holy Father in his annual address stated that truth cannot be contrary to charity for this would be a disservice to the good of the spouses. “Some believe that pastoral charity might justify any step toward declaring null the marital bond, to meet persons who are in an irregular marital situation… The problem is posed when the very essence of marriage is more or less obscured…(T)he existential, personalist and relational consideration of conjugal union can never be done in defiance of indissolubility, an ‘essential property’ of Christian marriage… (O)ne runs the grave risk of remaining without an objective point of reference for pronouncements on annulment, transforming every conjugal difficulty into a symptom of non-realization of a union whose essential nucleus of justice – the indissoluble bond – is negated in fact…(The) virtue of truth become more relevant when injustice seems to be the easiest way to follow.. Canon law, at times, is underestimated as if it were a mere technical instrument at the service of any subjective interest, though not founded on truth…(T) his law should always be considered in its essential relation to justice, with the awareness that in the church juridical activity has at its end the salvation of souls.”
As I travel to Ars, France for retreat I promise my prayers for all of you and seek your prayers for our Archbishop and the priests with him.
Vivat Jesus
Fr. Brian