«BUT WE ARE REGULARLY DIVORCEED!». THE CANONICAL PROCESS OF MARRIAGE NULLITY: THE PHASE PRIOR TO THE INTRODUCTION OF THE LABEL AND TECHNICAL CONSULTANCY

The church, mother and teacher, as well as dispenser of grace and mercy, he never closed the door in my face, yesterday as today. If anything, they are certain Catholics, pass the expression to me: as obtuse as they are stubborn, who close doors in their own faces while in every way they are opened in front of them.

– Theology and canon law –

 

 

 

 

 

 

 

 

 

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As already explained above - but it is worth repeating - we canonists and pastors in the care of souls also find ourselves experiencing situations so disappointing that they often appear disarming, as well as difficult to correct, especially with regards to the canonical processes of matrimonial nullity. Let's try to give an idea: although the concept is easy to understand, it is difficult to make many people understand that marriages "cannot be annulled", they can only be "declared null" when the elements and circumstances exist to declare them as such. Explanation to which one happens to hear a reply: «…cancel… null… but it's the same thing, they're just priest puns!».

Affirm that marriage annulled e marriage declared null they are the same thing hidden behind puns, is equivalent to saying that going to the mountains at two thousand meters above sea level under the glaciers or going to the sea on the beach at a temperature that approaches 40 degrees is the same, because it's always a holiday. Faced with such a statement, anyone would immediately grasp the absurd and illogical element, because sea beaches under the scorching sun and mountain heights under glaciers are two substantially different things. No one has the right to "annul" a sacramental marriage, what the Church can do, if the foreseen circumstances apply, is to declare that marriage, however formally celebrated in compliance with all the external forms required, was lacking in one or more substantial elements that render it invalid, therefore effectively null. A quel point, the competent ecclesiastical tribunal, with a reasoned sentence of nullity he declares that that marriage, even if formally celebrated, essentially and in fact it never existed at all.

«But we are legally divorced!», we have heard it said several times by rather confused Catholics who are not easy to make understand that a Court can dissolve the civil bonds deriving from the marriage contract according to the dictates of the Code of Civil Law, but with that act of divorce the sacramental marriage is not "dissolved".. The Concordat between the then Kingdom of Italy and the Holy See (1929) and the one revised between the Italian Republic and the Holy See (1984) allows religious marriage to produce the related civil effects. The two distinct acts are carried out with a single ceremony: the religious one and the civil one, with the relative transmission of the documents to the Municipality which then transcribes the marriage in its registers for the so-called civil effects.

With the Law of 1 December 1970, n. 898 divorce comes into force in Italy. Four years later, the 12 e 13 May 1974 a repeal referendum took place, promoted by the Christian Democrats, in particular from the area headed by Amintore Fanfani, with which an attempt was made to cancel that Law, but to no avail, because the majority of voters voted against its repeal.

In one of our various private editorial conversations, Father Ariel S.. Levi di Gualdo asked me a stimulating and provocative question which I consider appropriate to make public:

"How come, after the entry into force of that Law in 1970 and after its confirmation given by the Italians with a popular referendum in 1974, Paul VI did not consistently ask for the reform of the Concordat in the part concerning marriage? Hadn't we perhaps just celebrated a great pastoral council, compared several times by Paul VI himself - perhaps with a little excessive emphasis - to the First Council of Nicaea? Is it possible that no one noticed - moreover in years in which there was only talk of pastoral care and where everything seemed to be solely and exclusively pastoral - that precisely on the pastoral and pedagogical level it was now very problematic to make two acts coexist together, the religious one and the civil one, aware that civil legislation was in conflict with religious legislation by virtue of the civil law on divorce? Because we didn't ask ourselves, precisely to avoid pastoral confusion, to return to two completely separate acts: religious marriage in church pertaining only to the Church, civil marriage in the Municipality pertaining only to the State? Or maybe, more simply, we couldn't or didn't want to give up keeping our foot in politics and administration at all costs?».

A seemingly provocative question played on hyperbole, but if understood and read well, More than provocative, it has much that is historical in itself, juridical and pastoral, enough to demand answers. Or perhaps it wasn't the masters of classical scholasticism who, in order to stimulate speculation and reasoning, resorted not only to provocative speeches, but even to deliberately absurd rhetorical figures? Today, however, we are ready to feel hit and offended by anything and everything, if not worse scared of everything and everything, this ancient wisdom risks ending up completely lost, and it is the wisdom of Anselm of Aosta, Alberto Magno, Thomas Aquinas … Pity, because this wisdom, based essentially and indispensably on the critical sense, over the centuries it has generated Holy Fathers and Doctors of the Church, theological schools and solid training criteria for priestly and religious life.

In this article we will focus on it on the phase of the canonical procedure for matrimonial nullity that precedes the introduction of the bill, i.e. the introductory document necessary to start the process itself. Owner of this first phase, pursuant to can. 1674 § 11, it can be both spouses, only one of them, or the promoter of justice, but only "when the nullity has already been disclosed" («When nullity has been published») and the marriage cannot be validated or is not appropriate («If the marriage can be validated or not to be expedient»). Incidentally, let us remember that the promoter of justice is a procedural figure who in the canonical system carries out the equivalent functions of a public prosecutor.

Let us therefore pay attention to the cases in which the initiative of the previous phase is taken jointly by the two spouses or by one or two: in agreement with the other spouse or completely independently, in the impossibility of contacting the other or in his indifference or even against his will. The choice to limit attention to this situation is motivated not only by the fact that it is certainly the most common case but because the delicate point of the phase prior to the introduction of the pamphlet is precisely what the person (or those) to which it belongs, may be able to discern when it is appropriate to introduce a cause of nullity and arrive at the definition of such a will with such a degree of precision that it can then be translated into the pamphlet. While the requirements to achieve these goals are easily accessible to the promoter of justice (for its own competence, can. 1435, and for the possibility of having the support of the court structure), they are normally lacking (except in the very exceptional case in which the spouses or one of them are competent in the canonical sphere) in the spouse. Failure to address this difficulty could result in a de facto denial of the very possibility of initiating a nullity case, to the detriment of the right of the faithful to appeal to the ecclesiastical forum which canon deals with. 221 § 1 which recites:

«It is up to the faithful to legitimately claim and defend the rights they enjoy in the Church at the competent ecclesiastical court according to the law».

The evaluations and choices that the spouse is called upon to make, in the phase preceding the libel, moreover, they are particularly relevant and complex to implement and can be summarized as follows:

– retrace your romantic and marital history, with truth (coherence of logical judgment is not enough, think for example of the cases involving the type referred to in can. 1095, 2°-3°) and a certain thirdness, to bring out the problematic points (which are not only those that led to the failure of married life, as the reasons for nullity sometimes pertain to causes that are in themselves extrinsic to the quality of the couple's life);

– acquire an adequately motivated awareness of the impossibility of overcoming the reasons for conflict that have arisen in married life e, in the event that the choice of separation has already been made (or even divorce), compare its coherence with the principles established by the moral teaching of the Church and by canon law (cf.. cann. 1151-1155);

– to verify, in comparison with an expert, one's ability to act as a plaintiff in a nullity case (cf.. can. 1476 e can. 1478);

– to verify, always in comparison with an expert, whether one or more of the problematic issues identified can fall within one of the heads of nullity provided by the canonical system or whether there are no other problematic issues that have escaped the first examination but which emerge from the better knowledge of the law of the Church (for example assistance at a wedding by a minister without valid delegation, can. 1111 e can. 144) or even if there are no elements that do not lead to nullity but open up the possibility of requesting the dissolution of the bond for non-consummation or for favor of faith;

– in the event that there are elements of possible nullity, define them accurately and assign responsibility for them;

– define an organic and orderly reconstruction of the story in which the elements of possible nullity emerge and verify the possibility of adequately proving what is alleged, possibly already acquiring the accessible evidence and indicating those whose acquisition will have to be requested from the court;

– if it hasn't been done yet, involve the other spouse or at least identify the elements for his availability;

– identify the competent ecclesiastical court to contact;

– identify the procedural form to choose: brief process, ordinary process or documentary process;

– in any of the phases considered so far or, if it hasn't been done before, at the conclusion of the previous actions, identify a patron who can assist the spouse as an actor (or the two spouses, if they act together) during the canonical proceedings (unless the party wishes to ask to be authorized to appear in court alone, as foreseen by can. 1481 §3).

All these complex obligations must obviously be satisfied at the time of introduction of the pamphlet. The burdensomeness of the formalities that a spouse must undergo when he intends to ask the Church for verification of the nullity of his marriage is therefore truly remarkable. In this sense, one can ask whether there is not an exaggerated disproportion between the number (unfortunately still very high) of divorces (at least in the Western world) and the very small number of canonical causes of nullity introduced (a number that remains decidedly small even if we also consider the dissolutions). Obviously this aspect must be considered with some caution, without falling into superficial conclusions deduced from the simple numerical disproportion between the two data: consider in this regard that not all marriages (already numerically limited in themselves, for example, the marriage rate in Italy is that of 2,2-2,3 annual weddings per thousand inhabitants: half that of Europe, in turn, however, modest compared to other parts of the world) they are canonical, not all canonical marriages that end in separation or divorce are therefore null and not all those who have contracted a null marriage have an interest in a nullity case, because they do not have the interest or strength to create a new union or because for various reasons they are not interested in an objective judgment on past experience.

Despite such observations, it is a fact that the faithful find themselves in great difficulty when they find themselves evaluating whether it is appropriate to ask for a judgment of nullity on their marriage and this is attested by the numerous responses collected from the episcopal conferences - but also from other ecclesial subjects who were involved in the consultation - on the occasion of the two Synods of Bishops on the family: the extraordinary one of 2014 and the ordinary one of 2015. In particular, the data collected in the consultation highlighted, even before the difficulty in completing all the necessary formalities, a marked and widespread distrust of the faithful towards ecclesiastical tribunals, which leads to the choice to previously refuse its contribution. There are various aspects of this distrust:

– the excessive cost attributed to such proceedings: although for the most part these are much lower costs than other judicial proceedings and some countries have long provided significant forms of economic support, this continues to be the common belief;

– the belief that these are very long and tiring processes (unfortunately in many cases it is not just an impression, although this does not apply to all processes and all locations);

– the impression that these are very cold structures and distant from the experience of the faithful, sometimes strengthened by the fact that the court seat itself is geographically distant (and not all countries have the same ease of travel);

– the psychological difficulty in thinking of entrusting the reinterpretation of one's life to third parties and thought of as potentially disrespectful of the individual (in this the experience of some civil courts sometimes appears prejudicial);

– the conviction (sometimes excessive and out of place) that ecclesiastical tribunals are arbitrary in their actions and ultimately compromised with economic interests.

The malicious judgments just exposed and the operational difficulties previously mentioned ultimately add up to distancing the faithful from ecclesiastical courts and making the path of requesting verification of the nullity of one's marriage appear difficult to many. The work of many lawyers and patrons - including stable patrons in a special way - has been and is undoubtedly of support in overcoming these difficulties, working alongside the faithful and dispelling their doubts and pre-understandings but this is not enough, and because these figures also fall into some of the prejudices mentioned above - ecclesiastical lawyers are often not known or are feared for the fee they can request and which many consider prejudicially exaggerated, although in some countries, like in Italy, There are very specific criteria for limiting expenses in advance (cf.. Gentle Judge Lord Jesus, WE) ―, and because in any case they do not meet the objective of making the uncertain and doubtful faithful available to a judicial reading of their story. It therefore follows the duty to outline some further steps in favor of a freer and more serene approach of the faithful to ecclesiastical judgment, as Benedict XVI already recalled:

«[…] it is a serious obligation to bring the institutional work of the Church in the courts ever closer to the faithful".

The prior consultancy is divided into three possible levels:

1. Generic information on the progress of the process, costs, timing, competent courts, centers or people appointed to provide preliminary advice, stable patrons and lawyers to turn to for specific advice;
2. Listening more in depth to the story, with a discussion on moral or spiritual aspects as well, referring more specific advice to designated centers or people;
3. Prior investigation in which the pastoral investigation collects useful elements for the possible introduction of the case by the spouses or their patron before the competent court. Investigate whether the parties agree to request nullity. Collect all the items, the investigation ends with the libel, to present, I know the case, to the competent court.

Characteristics of the preliminary investigation:

1) have the essential style of listening and accompaniment;

2) help the faithful to understand their concrete situation;

3) help the faithful to retrace their own experience and that of the other spouse, trying to overcome personal beliefs that do not facilitate an as objective reading of the story as possible, thus also helping him to travel the the way of charity indicated by the post-synodal apostolic exhortation (cf.. The joy of love n. 306);

4) to better understand the canonical procedure and the difficulties that the person may encounter in correctly understanding its development;

5) possibly lead to the preparation of the pamphlet, introducing the cause of nullity.

6) It is possible/appropriate for a Court judge to provide a consultancy service? What is referred to the judge can be reported, with the necessary adaptations, to the defender of the bond, to the listener, to the stable patron. As for the lawyer, the possible problem could concern its identification between a professional figure and the one who seems to be "officially" designated to follow the causes of nullity of marriage.

Pastoral investigation proper.

As the art already indicates in a certain sense. 1 RP the preliminary investigation clearly falls within that pastoral concern towards the faithful in difficulty that the diocesan Bishop is called to exercise by virtue of the canon. 383 § 1 (expressly referred to in the art. 1 RP, who however reports the norm to the Bishop in general). This concern is also among the tasks that canon law specifically refers to parish priests in the aforementioned canon. 529 § 1, where the methods of exercising the care of souls are remembered[1]. In this phase major problematic aspects emerge, which make it difficult to imagine a pastoral investigation entrusted to a court judge (even if this raises the question of being able to train more people for a qualified service). For this purpose, since the entry into force of Motu proprio Mild judge of the Lord Jesus with which the Holy Father Francis introduced, for causes of marital nullity, the “short trial” formula, were identified at the time, based on the implementation notes, the figures of the parish priests as the main interlocutors of the investigation prior to the introduction of the process of nullity of canonical marriage. In this regard, it has been established that the path for the procedure for the declaration of nullity of marriage in light of The motion of a gentle-minded Lord Jesus the 15 August 2015, concerning the reform of matrimonial nullity processes envisages two preliminary phases:

1. After the applicant has contacted and had an initial conversation with the parish priest of residence, the latter asks for an appointment with the legal consultant of the diocesan Tribunal who, the validity of the application has been ascertained but above all the desire to start a nullity process, will prepare the pamphlet to be presented to the Judicial Vicar. To the same consultant, the parties will be able to deliver the information grid previously filled in by the Parish Priest.
2. The Judicial Vicar, after having examined the situation, will be able to admit the libellus through the form of The process is too short (can. 1683-1687) or, through the form of the ordinary trial[2], direct the judicial proceedings to a collegial court of first instance.

To those who argue «…but we are legally divorced!», as explained so far by the Church, mother and teacher, as well as dispenser of grace and mercy, he never closed the door in my face, yesterday as today. If anything, they are certain Catholics, pass the expression to me: as obtuse as they are stubborn, who close doors in their own faces while in every way they are opened in front of them. Then today, con i social media, which many draw upon as a source of undisputed truth, our ministry has become further complicated, very much! And as has been explained several times in the columns of our Island of Patmos, when the typical Catholic to whom you try in every way to explain, in response he replies to you, or rather he disproves you precisely by affirming: «… it's not like that because I read on the internet that…», at that point the terrible warning that Dante and Virgil read at the gate of Hell risks ringing in our ears:

«Abandon all hope, you who enter».

Velletri of Rome, 18 June 2024

 

 

NOTE

[1] See. Costantino-M. Fabris: Preliminary investigation or pastoral investigation in the motu proprio Mild judge of the Lord Jesus. Regulatory news and problematic profiles, in: The right of the church, XXVIII, 2016, pp. 479-504.

[2] To delve deeper into the matter: Zambon, A, The preliminary investigation and the process of nullity of marriage, Torino, 24 February 2024, Inauguration of the judicial year.

 

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