'Mitis iudex', 10 years later

Have Pope Francis' tribunal reforms worked?

More than four months after Pope Francis’ death, the big picture of the late pontiff’s place in history is still far from clear. The Church is still unpacking the Francis papacy, and is not yet far enough removed to know what it will mean for the Church in decades or centuries to come.

Commentaries and translations of the Church’s Code of Canon Law. Credit: Ed. Condon/Pillar Media.

But some elements of the late pontiff’s legacy will be shaped by how Francis’ successor, Pope Leo XIV, chooses to engage with the teaching and governing decisions of Pope Francis.

From the day he was elected, at least some Catholics have asked how Leo might address controversial Francis topics, like the liturgical restrictions of Traditionis custodes, or the issues raised in Amoris laetitia.

But another key piece of Francis’ leadership — which turns 10 years old this month — has not been as broadly discussed: Mitis iudex dominus Iesus, a reform of the process for adjudicating marriage nullity petitions in ecclesiastical tribunals around the world.

Mitis iudex did not generate nearly so much controversy as some of the late pope’s other initiatives, at least outside of canonical circles. But it did introduce monumental changes to the praxis of a key component of Church life. And 10 years after those changes were initiated, canon lawyers mostly say they’ve been for the good.

While there remain some ongoing legal criticisms about the structures created by Francis, most U.S. tribunal personnel say the Francis changes have led to both a faster and a more just tribunal process.

—When Francis issued his tribunal reforms in 2015, the pope emphasized a desire to simplify legal structures in the hope of aiding Catholics who felt alienated from the Church, or who were kept from full participation in the Church’s life, because of impediments of a procedural or practical nature.

The pope emphasized that his changes were meant to be “provisions that favor not the nullity of marriage but rather the speed of 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.”

At the time, two elements were emphasized in most coverage of the papally mandated changes. The first was the pope’s exhortation that tribunals should do all that they could to reduce the costs associated with the tribunal process. The second was the introduction of the processus brevior, a shorter process allowing diocesan bishops to judge some cases personally using an abbreviated procedure.

Indeed, with the pope’s encouragement, many U.S. tribunals did announce that they would eliminate or begin to waive the administrative fees they had typically assessed to help cover personnel costs. In the U.S., at least, it is not clear whether that has had much of an impact on tribunal ministry — surveys on the subject show that very few American Catholics say that costs are a meaningful deterrent to beginning the tribunal process.

And indeed, while more petitions for declarations of nullity are filed annually in the United States than in any other country of the world, the number of new petitions has been on the decline for more than a decade, and is now estimated to be less than 20,000 annually

It is also not clear how much of an impact the introduction of the “shorter process” has had on tribunal functionality, or on the number of petitions submitted. The pope said he wanted a brief process — when both parties would agree to waive procedural formalities — so that couples could be “helped to navigate the path as quickly as possible.”

But in 2018, the last year for which data is available, fewer than 5% of petitions for nullity were handled by the briefer process. Anecdotes passed among canonists suggest that some U.S. dioceses have since begun using the process with considerably more frequency — but its use remains inconsistent, with some dioceses hardly using the process at all.

Instead, the most significant aspects of the Mitis iudex reforms seem to be those which are the most technical.

The document streamlines the process by which tribunals may gain formal legal competence to hear cases in which parties live in different episcopal conferences — before Mitis, hearing in U.S. tribunals the cases of immigrants, in which the respondent remained in his home country, required a time-consuming back-and-forth, which often ended in frustration if ecclesiastical bureaucracy in the home country was not helpful or well-functioning.

While such cases constitute only a small part of work for some tribunals, in others, particularly in places with high concentrations of immigrants, the changes have made many cases much much faster than they once were — and freed up administrative personnel from a once time-consuming task, even if it impacted only a few cases.

But more important, canonists say, is the elimination of the need for confirmation by a court of second instance for affirmative decisions.

That elimination has had a few positive effects, canonists say. First, it means the timeline of the process is more predictable — that parties to cases are not waiting months after an initial affirmative decision to see it be ratified by another court.

But also, canonists say, the elimination of a requirement for ratification of affirmative decisions has actually made the conferral of negative sentences in tribunal processes considerably more common.

That might seem counterintuitive. But before Mitis, some U.S. canonists say they experienced a kind of soft pressure — or even overt expectation, in rare cases — to avoid negative decisions in marriage cases. The reason given was that if the parties appealed the negative, the only way to see it overturned would be for the case eventually to be heard at the Supreme Tribunal of the Roman Rota, at the Vatican. That process could take years, and was often expensive.

Rather than formally giving negative decisions, some tribunals developed the practice of simply pulling cases without evidence of marriage nullity from adjudication, allowing them to abate or be withdrawn by the parties, with the idea that if new evidence presented itself in the future, the case could be taken up again.

But to many canonists, that seemed a misuse of the law, and unfair to case parties who had a right to a ruling from the Church’s court on a critically personal question — “was my marriage invalid” — rather than indefinite delays and uncertainty.

In the Mitis era, when the appellate process is not nearly so onerous — and does not necessarily involve the Vatican — many tribunal canonists say that negative decisions are given more freely, with confidence that parties will be able to appeal them in a more efficient legal system, if they desire.

Further, because the Church’s second instance courts are now less taxed by ongoing ratification work, some canonists say, tribunals are better able to staff with experts appeal cases when they are made, raising the quality of judgment in the appeals filed by petitioners, respondents, or defenders of the bond at first instance.

Of course, critics of Mitis iudex say that without a process of ordinary ratification for affirmative sentences, judges are not monitored to ensure integrity to the Church’s theology and jurisprudence on marriage, and may thus be tempted to give affirmative decisions even without basis, out of a desire to be “pastoral.”

But some tribunal canonists counter that in many cases, the ratification process in the U.S. was often unpredictable, not rigorous, and not an effective deterrent against sloppy standards anyway.

So what might be? How might tribunals be better assessed for the quality of their work? At present, the Apostolic Signatura engages in a kind of spot-checking of tribunal practice, which can lead to corrections for tribunals perceived to lack rigor. But that system is probably not enough, some observers say.

Instead, Leo’s opportunity might be building on Mitis Iudex, to develop a more coherent and rigorous mechanism of accountability for tribunal work, without undermining the reportedly positive effects of Pope Francis’ reforms.

That might well require resources, however, which are beyond the financial capacity of the Vatican itself, especially if Pope Leo wants to maintain Francis’ view that tribunal processes should not lead to fees for case parties.

Ultimately, it’s not clear that the Church has the capacity to exercise scrupulous oversight over diocesan courts — unless diocesan bishops themselves have legal training and a yen to look in on what their tribunals are up to.

The integrity of the tribunal process — both before and after Mitis — therefore depends largely on the integrity of judges themselves, and on the creation of a kind of self-policing canonical community, which sets the expectation of virtuous conduct, rigorous standards, and exacting application of the law.

Pope Leo himself, being a canonist, may well be in a position to reinforce Mitis not through new norms, but through an effort to cement the importance of the rule of law in the life of the Church — with judges keeping only God, and the facts and the law, before their eyes.

Click to view from original source: Vatican News