The reform of marital procedures backed by Pope Francis will multiply decrees of nullity from a few thousands to many millions. Obtainable very easily even in just 45 days. The synod on the family will open in October to a landscape already changed
by Sandro Magister
ROME, September 15, 2015 - As the days go by it becomes ever clearer how revolutionary is the scope of the two motu proprio published by Pope Francis on September 8 - the second for the Eastern Rite Catholic Churches - on the reform of procedures for marital nullity cases:
It is the pope himself, in the opening of the document, who presents the reason for the reform:
“The enormous number of faithful who, despite wanting to look after their conscience, too often are turned aside by the juridical structures of the Church.”
In the official presentation of the motu proprio the president of the commission that elaborated the reform, Monsignor Pio Vito Pinto, dean of the Roman Rota, turned the reason into an objective:
“To move from the restricted number of a few thousand findings of nullity to the enormous number of unfortunates who could have a declaration of nullity but are left out by the existing system.”
Francis has been absolutely convinced for some time that at least half of the marriages celebrated in church all over the world are invalid. He said so in the press conference on July 28, 2013 on the return flight from Rio de Janeiro. He said it again to Cardinal Walter Kasper, as Kasper in turn said in an interview with “Commonweal” of May 7, 2014.
And therefore these faithful unheeded in their anticipation of having the nullity of their marriages recognized are also part, in the vision of Francis as presented by Pinto, of those “poor” who are at the center of his pontificate. Millions and millions of “unfortunates” waiting for the assistance that is due them.
The procedural reform backed by Jorge Mario Bergoglio aims precisely at this: to allow these endless crowds easy, fast, and free access to the recognition of the nullity of their marriages. The synod of last October (see paragraph 48 of the final “Relatio”) expressed generic support for improvements in the procedures. But a good number of fathers said they were against one or another of the reforms proposed by various sides. Which however are precisely the ones now found in the motu proprio.
THE ORDINARY PROCEDURE
The reform delineates two main types of marital procedures. There is the ordinary one and the one - entirely new - called “shorter.”
In the ordinary procedure the main innovation is the abolition of the obligatory double decree of nullity. Only one is needed, as previously permitted in experimental form between 1971 and 1983 in the ecclesiastical tribunals of the United States, a concession that was revoked after the flood of nullity decrees issued by the tribunals and the bad reputation of “Catholic divorce” that was the result.
A single decree, without appeal, reduces the duration of an ordinary procedure to about one year.
Ecclesiastical tribunals, moreover, will have to be set up in every diocese of the world, no matter how small or remote, an objective from which the Catholic Church is very far today mainly because of the shortage of churchmen and laity who are experts in canon law.
But there is another more substantial innovation, presented in the new canon 1678 § 1, which will replace the corresponding canon 1536 § 2 of the existing code of canon law.
While in the canon being scrapped “the force of full proof cannot be attributed” to the statements of the parties, unless “other elements are present which thoroughly corroborate them,” in the new canon “the statements of the parties can have the force of full proof,” to be considered as such by the judge “if there are no other elements to refute them.”
One discovers in this an exaltation of the subjectivity of the party bringing the case that matches up neatly with the official presentations of the two motu proprio by Monsignor Pinto and the secretary of the commission he heads, Monsignor Alejandro W. Bunge, with regard to the “principle motivation” that in their judgment drives many Catholics - in the future a “mass” - to apply to their marriage tribunals:
“Nullity is requested for reasons of conscience, for example to live the sacraments of the Church or to perfect a new stable and happy bond, unlike the first one.”
It is therefore easy to foresee that the longstanding controversy over communion for the divorced and remarried will fizzle out amid the facts, replaced by unlimited and practically unfailing recourse to the certification of nullity of the first marriage.
THE “SHORTER” PROCEDURE
The biggest innovation of the reform backed by Francis is however the procedure called “shorter.”
Very short, actually. According to the new canons it can begin and end in the span of just 45 days, with the local bishop as the sole and ultimate judge.
Recourse to the abbreviated procedure is allowed “in cases in which the alleged nullity of the marriage is supported by particularly evident arguments.”
But there’s more. Recourse to this kind of procedure is not only allowed but encouraged, seeing the superabundant illustration of supporting circumstances furnished by article 14 § 1 of the “Procedural rules” attached to the motu proprio.
The article says:
“Among the circumstances that can allow the handling of the marital nullity case by means of the shorter procedure […] there are for example:
- that lack of faith which can generate the simulation of consent or the error that determines the will,
- the brevity of conjugal cohabitation,
- abortion procured to prevent procreation,
- stubborn persistence in an extramarital relationship at the time of the wedding or immediately afterward,
- the malicious concealment of sterility or of a grave contagious disease, or of children born from a previous relationship, or of incarceration;
- the grounds of the marriage being entirely extraneous to conjugal life or consistent with the unexpected pregnancy of the woman,
- physical violence inflicted to extort consent,
- lack of the use of reason corroborated by medical documents, etc.”
The list is stunning in its disjointed variety. It includes circumstances, like physical violence inflicted to extort consent, that are actual grounds for the nullity of a marriage. But it includes others, like the brevity of conjugal cohabitation, that cannot in any way support a decree of invalidity. And it includes yet another, the lack of faith, that although difficult to evaluate is ever more frequently evoked as the new universal master key for nullity. And yet these circumstances are all listed on an equal footing, together with a final “etc.” that induces one to add other examples at will.
But in addition to being heterogeneous, the list appears to be misleading. In and of itself it lists circumstances that would simply allow one to access the “shorter” procedure. But it is very easy to interpret it as a list of cases that allow one to obtain the recognition of nullity. Many couples have experienced one of the circumstances illustrated - for example, pregnancy before the wedding - and it is therefore natural that the conviction should arise in them that, upon request, their marriage can be dissolved, seeing also the pressure that the Church exercises in suggesting - precisely in the presence of those circumstances - recourse to the procedure of nullity, and moreover to the quick one.
In short, if to this one adds that in every diocese there will have to be a preliminary service of consultation to put on this track those who are seen as fit for it, once a “shorter” procedure thus constituted is underway a decree of nullity will be practically guaranteed. Which according to the common understanding is a divorce, as Pope Francis himself seems to foresee and fear when he writes in the introduction to the motu proprio:
“It has not escaped me how much an abbreviated judgment could put at risk the principle of the indissolubility of marriage."
And he continues:
“For precisely this reason I have determined that the judge in such a procedure should be the bishop himself, who by virtue of his pastoral office is together with Peter the greatest guarantee of Catholic unity in faith and discipline."
Monsignor Pinto, in the official presentation of the reform, admitted however that “a bishop with millions of faithful in his diocese could not personally preside over the decision of nullity for all the faithful who request it.”
Nor must it be overlooked that there are few, very few bishops with the juridical competence necessary to act as judges in such procedures.
AS IN THE EAST
Improvised in less than a year and intentionally published before the synod on the family meets in October, the revolution of marital procedures decided by Pope Francis therefore shows itself to be a colossus with feet of clay, the implementation of which promises to be long and difficult, but which has already produced immediate effects on public opinion inside and outside the Church.
Of these effects, the main one is the widespread conviction that now even the Catholic Church has made room for divorce and the blessing of second marriages.
In the official presentation of the reform Bishop Dimitrios Salachas, apostolic exarch of Athens for Greek Catholics of the Byzantine rite, pointed out this other innovation of the motu proprio:
“As it seems to me, this is the first time that a pontifical document of a juridical nature has had recourse to the patristic principle of pastoral mercy called ‘oikonomia’ among the Orientals, to address a problem like that of the declaration of the nullity of marriage.”
Evidently, pope Bergoglio also had this result in mind when two years ago he said, during the flight from Rio de Janeiro to Rome:
“The Orthodox follow the theology of economy, as they call it, and they give a second chance of marriage, they allow it. I believe that this problem must be studied.”
MY COMMENTARY
‘Either it wasn’t a marriage, and this is nullity — it didn’t exist,’ he told reporters. ‘And if it did, it’s indissoluble. This is clear.’ (Pope Francis on the plane to the US)
On March 13th, 2013, the college of cardinals elected Jorge Begoglio to become Pope Francis. I have been an enthusiastic follower of the last two popes, have drunk in all that they have said, and this has been an enormous help in my vocation "to seek God" as a Benedictine monk. But there was one thing missing, the wisdom that can only be gained on the streets. It seems that the college of cardinals agreed with me, so they elected Pope Francis. It is the strength of the Jesuits that they seek and find God in whatever set of circumstances that Divine Providence has placed them, in the sacrament of the present moment, in the here and now; and Jorge Bergoglio had found God on the streets of Buenos Aires. We are now "suffering" the consequences of the cardinals' choice. If I am especially happy at the cardinals' choice, it is because I found God in the streets of Peru.
We arrived, all three of us, at the small town of Tambogrande on the feast of St Bernard, 1981, with the object of founding a monastery and with the charge, by the Archbishop of Piura, of running a parish the size of an English county, with about 80,000 souls, in a town of 20,000, with masses on Sundays and feastdays, and the rest distributed among a large number of villages, eighty with a chapel and, therefore with mass on great feasts, when we arrived, and one hundred and twenty when left in 1990. Since the arrival of the Spanish, there had been no systematic attempt to catechise. The parish priest before our arrival was the first parish priest to live in the town. All the rest preferred to live in Piura, the city a day's donkey ride away, and only came for Sundays and when they were paid on feastdays. Every fifty ir sixty years, a team of Dominicans, Franciscans, Redemptorists or whatever, would go from town to town, village to village, and stay for two weeks, marrying, baptising, hearing confessions and preaching and teaching. What they taught was handed down by parents and grandparents; so we came across many people who really knew their faith, but they were a minority. Parish priests were content to sacramentalise, but not to evangelise. The last priest before us was parish priest for over forty years. There was much evidence of his youthful zeal and apostolic fervour; but, without any system of support provided by his bishop, he abandoned his post after forty years, leaving behind a few children, fruit of his occasional lapses from a life of celibacy; but this was hardly noticed in a community where very few are married in church.
The people greeted our arrival with great enthusiasm completely lacking in decorum. Children crowded into the sanctuary during Mass, sitting on the floor. People came to communion in droves - as Graham Green wrote, "like hungry dogs," - and would jostle each other and say, "A mi, Padrecito, a mi!!"
They wanted Jesus, but their sexual lives were a porqueria. It is true that few were divorced, because they weren't married in the first place. Men often had more than one family, a custom the Spanish had learnt from the Moors before they came over to Peru, and many women brought up children alone except for the occasional visit of their man. Homosexuals had a recognised place in society because they served the needs of the adolescents. Every effort was spent to protect female adolescents from boys because, when they were of an age to marry, girls needed to be virgins.
We gave communion to all comers; but, gradually, people began to go to confession. We came to realise that many of the people were living quietly heroic lives, especially women, bringing up their children in a macho world. Many could not escape from their irregular unions, had tried to be married but their husbands wouldn't agree, even if they were free to do so. One great problem was that a church wedding entailed giving food and entertainment to the whole neighbourhood, and many, perhaps most, could not afford it.
We began having "matrimonios masivos" during fiestas, when everybody was feasting anyway, and we charged very little. We also had mass baptisms at fiesta time too. Each matrimony was prepared for by a course that the couple had to attend, as was each baptism; and we trained catechists in each village and in the town. First Communion, traditionally a great social event, eventually had a course for parents and children that lasted two years; but that was later. The more instructed and regular became the community, the more the rules were followed; but our first job was to let them see that God loves them.
We didn't always succeed. On one occasion, I was receiving the kids of the 5th year of secondary for confession in my house, a couple of hundred of them, who came to my house in their own time over a week. One day, a group of homosexuals came - they were not preparing for Confirmation like the rest - but confession was in the air. I will always remember the first sentence of the first homosexual who came, "Padrecito, mi pecado mas grande es que soy." (Father, my greatest sin is that I exist.) I felt utterly, completely inadequate. What could I say? It was so wrong, but how could I put it across that he is very precious because God loves him? I absolved the lot, and have never forgotten it.
Little by little, the Catholic community began to normalise. The rules of the Church were being obeyed; but there were still people in irregular unions who were allowed to go to communion. We asked ourselves the question, did we want the irregular union to be dissolved, si o no? Usually the answer was "No", because it was the only stability the children had, and the only way the mother could feed them: it was the place where they experienced love. We decided it was illogical of us to want the union to continue and stop the mother from going to communion for doing what we wanted her to do.
I am sure that Pope Francis has had similar experiences. What the people want is Jesus. You don't meet them with a rule book: you meet them with Jesus. It is only after they meet Jesus that the rules make any sense and they have the spiritual strength to observe them. That is my conviction, and it is also that of Pope Francis. As he said to an International Theology congress in the Catholic University of Argentina by video link recently:
There are people who cannot escape from irregular situations, sometimes because of the fault of others, sometimes because they would be breaking up a viable community of love that is giving a stable background for her family.
I have a king-size bone to pick with Cardinal Burke and his ilk. They take the book of Canon Law, which is the Gospel teaching and that of the Church turned into laws. They think that, once Christ's teaching is turned into laws, that makes the laws equivalent to the Gospel, which they aren't. It belongs to the pre-Vatican II understanding of the Church. It was thought that by defining its political institution as a divinely founded perfect society united by papal jurisdiction, and by simply concluding that this perfect society is the mystical body of Christ, they had arrived at an adequate understanding of the Church: they hadn't, as Vatican II has shown us.It is in keeping with the view that the value of the liturgy is found in its official status over against other forms of prayer, which is a highly inadequate understanding of the liturgy when measured beside Sacrosanctum Concilium. By the side of the Fathers of the Church, the pre-Vatican II ordinary teaching on the Church, as we learnt in Fundamental Theology, was very poor stuff. In the same way, so much is left out of Catholic teaching on marriage in the Canon Law books that it has only limited value. It is not profound enough to analyse theologically the value or lack of it of a marital union that started with adultery but was tranformed by conversion; just as the legalistic view of the Church could not do justice to Protestant communions which also irregular and outside Christ's normal arrangement.
We gave communion to all comers; but, gradually, people began to go to confession. We came to realise that many of the people were living quietly heroic lives, especially women, bringing up their children in a macho world. Many could not escape from their irregular unions, had tried to be married but their husbands wouldn't agree, even if they were free to do so. One great problem was that a church wedding entailed giving food and entertainment to the whole neighbourhood, and many, perhaps most, could not afford it.
We began having "matrimonios masivos" during fiestas, when everybody was feasting anyway, and we charged very little. We also had mass baptisms at fiesta time too. Each matrimony was prepared for by a course that the couple had to attend, as was each baptism; and we trained catechists in each village and in the town. First Communion, traditionally a great social event, eventually had a course for parents and children that lasted two years; but that was later. The more instructed and regular became the community, the more the rules were followed; but our first job was to let them see that God loves them.
We didn't always succeed. On one occasion, I was receiving the kids of the 5th year of secondary for confession in my house, a couple of hundred of them, who came to my house in their own time over a week. One day, a group of homosexuals came - they were not preparing for Confirmation like the rest - but confession was in the air. I will always remember the first sentence of the first homosexual who came, "Padrecito, mi pecado mas grande es que soy." (Father, my greatest sin is that I exist.) I felt utterly, completely inadequate. What could I say? It was so wrong, but how could I put it across that he is very precious because God loves him? I absolved the lot, and have never forgotten it.
Little by little, the Catholic community began to normalise. The rules of the Church were being obeyed; but there were still people in irregular unions who were allowed to go to communion. We asked ourselves the question, did we want the irregular union to be dissolved, si o no? Usually the answer was "No", because it was the only stability the children had, and the only way the mother could feed them: it was the place where they experienced love. We decided it was illogical of us to want the union to continue and stop the mother from going to communion for doing what we wanted her to do.
I am sure that Pope Francis has had similar experiences. What the people want is Jesus. You don't meet them with a rule book: you meet them with Jesus. It is only after they meet Jesus that the rules make any sense and they have the spiritual strength to observe them. That is my conviction, and it is also that of Pope Francis. As he said to an International Theology congress in the Catholic University of Argentina by video link recently:
In this context, the Pope concluded, doctrine can never be separated from the pastoral context. He pointed to the great fathers of the Church, like Irenaeus, Augustine, Basil or Ambrose, who were great theologians because they were great pastors too. Encountering families, the poor and those who live on the margins of society, he said, is the path to a better understanding of our faith.
There are people who cannot escape from irregular situations, sometimes because of the fault of others, sometimes because they would be breaking up a viable community of love that is giving a stable background for her family.
I have a king-size bone to pick with Cardinal Burke and his ilk. They take the book of Canon Law, which is the Gospel teaching and that of the Church turned into laws. They think that, once Christ's teaching is turned into laws, that makes the laws equivalent to the Gospel, which they aren't. It belongs to the pre-Vatican II understanding of the Church. It was thought that by defining its political institution as a divinely founded perfect society united by papal jurisdiction, and by simply concluding that this perfect society is the mystical body of Christ, they had arrived at an adequate understanding of the Church: they hadn't, as Vatican II has shown us.It is in keeping with the view that the value of the liturgy is found in its official status over against other forms of prayer, which is a highly inadequate understanding of the liturgy when measured beside Sacrosanctum Concilium. By the side of the Fathers of the Church, the pre-Vatican II ordinary teaching on the Church, as we learnt in Fundamental Theology, was very poor stuff. In the same way, so much is left out of Catholic teaching on marriage in the Canon Law books that it has only limited value. It is not profound enough to analyse theologically the value or lack of it of a marital union that started with adultery but was tranformed by conversion; just as the legalistic view of the Church could not do justice to Protestant communions which also irregular and outside Christ's normal arrangement.
Synod’s Turn To Speak. But Decisions Will Be Up To Francis
The last exchange of fire before the opening of the work. The uncertainty about the procedure. The appeals to the pope. Why in the end it will be he alone who will draw the conclusions
by Sandro Magister
ROME, September 28, 2015 – Back in Rome after his journey to Cuba and the United States, culminating with the world meeting of families in Philadelphia, Pope Francis is now facing the much more exacting challenge of the synod that will open on October 4, the Sunday of the liturgical year on which - as if by a jest of providence - Catholic churches all around the world will resound with these words of Jesus: “Therefore what God has joined together, no human being must separate.”
The synod will last for three weeks, and the procedures that will be adopted have not yet been made known, despite having a big influence on the outcome of the work.
What is certain is that there will not be a final message, no commission having been set up to write one.
Another definite feature, preannounced by Pope Francis, is that “each week there will be a discussion of one chapter” of the three into which the preparatory document is subdivided:
So this time there will be no “Relatio post disceptationem” halfway through the work, after a first phase of free discussion on everything, as at the synod of October 2014. The discussion will be broken up right away into narrow linguistic groups, each of which will sum up its perspectives in reports destined to remain confidential. At the end of the three weeks there will be a vote on a final “Relatio,” and the pope will give the concluding talk.
Also unlike in the past it is not expected that after a few months there will be a postsynodal apostolic exhortation to cap everything off. The discussion will remain open to future developments. The only embodiment of the provisory conclusions will be the pope’s talk at the end of the work, which will as a matter of course overtop and obscure all the other voices.
In spite of the much-heralded emphasis on collegiality, in fact, the next round of the synod will also see at work in Francis a monocratic exercise of papal authority, as in last year’s session, at the end of which the pope kept alive propositions that had not obtained the votes necessary for approval. And they were precisely the ones on the most controversial points, divorce and homosexuality.
*
One undisputed sign of this monocratic exercise of papal authority was the publication, last September 8, of the two motu proprio with which Francis reformed annulment procedures (see above)
A reform of marital cases had been expected for some time. But Francis set it in motion while keeping out the family-centered synod, which he knew was not inclined to approve what he had in mind. He set up the preparatory commission in August of 2014, before the convocation of the first session of the synod. And he signed the motu proprio last August 15, before the second session, scheduling its implementation for next December 8.
The most substantial innovation of the new procedures is that in order to obtain a declaration of nullity, the mere word of the applicant will have the “force of full proof,” without the need for other evidence, and the presumed “lack of faith” will act as a universal master key not just for thousands but for millions of marriages to be declared null, with an ultra-fast procedure and with the local bishop as the sole judge.
On this the synod fathers therefore find themselves facing a fait accompli. But it is hard to imagine that they are not discussing it. Church historian Roberto de Mattei has even hypothesized that some synod fathers may ask for the abrogation of this act of governance on the part of Pope Francis, “up to now his most revolutionary.” And he has cited the historical precedent of the retraction made in 1813 by Pius VII - imprisoned by Napoleon Bonaparte - of his act of subjection of the Holy See to the sovereignty of the emperor: a retraction invoked publicly by Cardinal Bartolomeo Pacca, pro-secretary of state, and by other “zealous” cardinals, as well as by the great spiritual master Pio Brunone Lanteri, a future venerable:
*
Meanwhile, an appeal has been issued in the American magazine “First Things” by a hefty number of theologians, philosophers, and scholars from various countries, asking the synod fathers to reject paragraph 137 of the preparatory document, judged as contrary to the magisterium of the Church and a portent of confusion among the faithful:
The appeal concerns the teaching of Paul VI’s encyclical “Humanae Vitae” on birth control - an encyclical that Pope Francis himself has called “prophetic” - and numbers among its authors and signatories a good number of professors from the Pontifical John Paul II Institute for Studies on Marriage and Family: Stephan Kampowski, Livio Melina, Jaroslav Merecki, José Noriega, Juan José Pérez-Soba, Mary Shivanandan, Luigi Zucaro, as well as luminaries like the German philosopher Robert Spaemann and the Swiss ethicist Martin Rhonheimer.
In the judgment of the signatories of the appeal, paragraph 137 of the preparatory document assigns absolute primacy to the individual conscience in the selection of the means of birth control, even against the teaching of the Church’s magisterium, with the added risk that such primacy could also be extended to other areas, like abortion and euthanasia.
In effect, it is precisely on the primacy of the individual conscience “beyond what the rule might say objectively” that the supporters of communion for the divorced and remarried rely, as one of these, cardinal of Vienna Christoph Schönborn explained in an interview with “La Civiltà Cattolica” of September 26:
“There are situations in which the priest, the guide, who knows the persons, can come to the point of saying: ‘Your situation is such that, in conscience, in your and in my conscience as a pastor, I see your place in the sacramental life of the Church.’”
The split between the individual conscience and the magisterium of the Church is analogous to that which separates pastoral practice from doctrine: a danger that in the judgment of many looms over the synod and has been the object of very strong words from Cardinal Gerhard Müller, prefect of the congregation for the doctrine of the faith, in a lecture given on September 1 in Regensburg on the occasion of the release of the German edition of Cardinal Robert Sarah’s book “God or Nothing”:
According to Müller, “the separation of teaching and practice of the faith” was precisely that which in the 16th century led to the schism in the Western Church. With the deceptive practice of indulgences, the Church of Rome was in fact ignoring doctrine and “the original protest of Luther himself against the negligence of the shepherds of the Church was justified, because one may not play with the salvation of souls, even if the purpose of the deception would be to bring about a good deed.”
And today – the cardinal continued – the question is the same: “We may not deceive the people, when it comes to the sacramentality of marriage, its indissolubility, its openness toward the child, and the fundamental complementarity of the two sexes. Pastoral care must keep in view the eternal salvation, and it should not try to be superficially pleasing according to the wishes of the people.”
*
As can be seen, the proponents of “openness” are very active, but the stances of those who oppose it are also numerous and strong.
On September 29 there will be a repeat presentation in Rome, backed up with 800,000 signatures including those of 201 cardinals and bishops, of the “Filial Appeal” to Pope Francis that he pronounce “a word of clarification” against the “widespread confusion arising from the possibility that a breach has been opened within the Church that would accept adultery—by permitting divorced and then civilly remarried Catholics to receive Holy Communion—and would virtually accept even homosexual unions.”
This appeal to the pope is not far from what was said by Cardinal Angelo Scola, archbishop of Milan and a father at the next synod, in an interview with “Corriere della Sera” of Sunday, September 27:
“The urgent priority, for me, is that the synod would suggest to the Holy Father a magisterial statement that would unify by simplifying the doctrine on marriage. A statement aimed at demonstrating the relationship between the experience of faith and the sacramental nature of marriage.”
The complete text of the interview:
> Scola: "I miei timori sulla famiglia. Ci si sta pensando poco"
On September 30, at the Angelicum University, cardinals Carlo Caffarra and Raymond Leo Burke, two of the five cardinals who on the verge of the synod of 2014 took a stance against their colleague Walter Kasper with the book “Remaining in the Truth of Christ,” will reassert their ideas together with Archbishop Cyril Vasil, secretary of the congregation for the Oriental Churches and also a coauthor of the book.
No comments:
Post a Comment