• Italiano
nullità matrimonio

Shorter processes, broader episcopal powers, new reasons for the appeal. These are some of the innovations introduced by the reformation of the canonical process launched by Pope Francis with the Motu ProprioMitis judex Dominus Iesus” and “Mitis et Misericord Ieusu“, that intervene respectively on the ordinary code of canon law and on that of the oriental churches. Two guidelines have been followed: those that emerged from the work of the former Cardinal Ratzinger during the last years of John Paul II’s Pontificate (never officially published) and the outcomes of the last Synod on the family, held in 2014. One of the goals pursued by this measure is to stretch an arm towards the divorced and remarried couples who want to create a new stable union. The Pontiff has decided, in fact, to give “with the Motu proprio legal measures which shall not encourage the nullity of marriages, but rather speed up the processes and encourage their simplification. Thus, the delayed definition of judgment shall not oppress with the darkness of doubt the hearts of the faithful who are waiting for clarifications on their state”. To guarantee this result, it is planned to endow the Bishop-judge with ability to decide directly the invalidity when the causes are “obvious”.  Besides,  two equal judgments will no longer be needed. One will suffice considering that “moral certainty reached by the first judge on the basis of the law” will be enough.

With reference to the first point, the new paragraph 5 of the can. 1683 establishes the following: “The diocesan bishop has the competence to judge the causes of a marriage’s nullity through a shorter process whenever the application is presented by both spouses, or by one of them with the other’s consent; or in “cases when facts and people, that are supported by testimony or documents and do not require investigation or a more accurate situation, make manifest the nullity”. Obviously, the prelate can delegate those duties to the diocesan agencies, but he is invited to monitor closely their progression. In compliance with the Second Vatican Council, it is hoped “that in large and small dioceses, the Bishop will offer his support to the conversion of ecclesiastical structures and will not delegate entirely to the offices of the curia the judicial function in matrimonial matters”. For this purpose, the constitution of “the single judge, a cleric in any case”, in the first instance, is episcopal responsibility, “who has the pastoral responsibility for  his own judicial power and will ensure that no delay nor laxity will be tolerated”. It restores also the appeal to the metropolitan see “since this office of head of the ecclesiastical province, stable over the centuries, is a distinctive sign of the synod’s authority inside the Church”.

The new discipline introduces changes also as far as the reasons of nullity are concerned, to which shall be added “lack of faith that can generate simulation of consent or the error that determines the will, the short term of conjugal living, a procured abortion in order to prevent procreation, the stubborn permanence in extramarital relation during the wedding or immediately afterwards, intentional concealment of sterility, a serious contagious disease, children born from a previous relationship, or of a detention”.  Among the other reasons are include also “physical violence inflicted to extort consensus” and “lack of use of reason attested by medical documents”. In the Pope’s intention, still in order to ease the process, shall be provided free trials “as far as possible – recites the text – the episcopal Conferences, except for the right remuneration of the court’s operators, free procedures shall be provided, because the Church, manifesting to its faithful as a generous mother, in a matter so closely linked to the salvation of souls shall manifest Christ’s gratuitous love, that saved all of us”.

“The canonical process on the declaration of invalidity is not a process leading to the annulment of marriage” stresses the card. Francesco Coccopalmerio, President of the Pontifical Council for Legislative Texts and member of the special committee, explaining that “nullity is different from the annulment”. The first one is, in fact, simply determined by the judge with the result that the legal transaction has no effect since it has been contracted. The second one, on the other hand, interrupts the relationship between the parties due to the discovery of less serious defects and is applied from the moment in which it is pronounced.

Mons. Pius Vito Pinto, Dean of the Roman Rota has highlighted the historical significance of the Motu Proprio. The process for obtaining nullity “has remained unchanged for three centuries”, he has commented, since the times of the reforms made by Benedict XIV.  Pope Lambertini “introduced the necessity of two equal judgments which has been now overcome with Pope Francis’ reform. Another reform was made by Pius X, then a reform of the code of canon law in 1983, but even in those cases the process was left as Lambertini had created it”.

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