After 6 years, are Francis' tribunal reforms working?
Analysis: 'Mitis iudex'
When Pope Francis announced in September 2015 changes to the canon law governing marriage cases — “annulment cases,” as they’re usually known — he did so to global interest and curiosity about the Church’s tribunal system, and to a mix of praise and skepticism within the Church about the impact his reforms might actually have.
The changes themselves are mostly the stuff of inside baseball — adjustments to the procedural rules by which local tribunals judge petitions for declarations of nullity, commonly called “annulments.”
Six years since they were introduced, the changes defined in Mitus iudex dominus Iesus may have already proven to be among the most consequential pieces of canonical legislation promulgated during the Francis pontificate — at least in the sense of impacting more people than other motu proprio legislation promulgated by the pope, and in ways that have immediate and tangible impact in some of their lives.
The document’s effects, however, are not evenly distributed across the Church.
In fact, the effect of Mitis iudex is mostly seen in countries that already had developed tribunal processes, most especially the United States. In other parts of the world, it remains unclear whether the motu proprio has achieved many of its goals, or whether it can do so.
Mitis iudex said its goal was to make it easier to approach ecclesiastical tribunals for “the great number of Christian faithful who, as they seek to assuage their consciences, are often kept back from the juridical structures of the Church because of physical or moral distance.”
That goal would be accomplished by streamlining procedures, which, in theory, would make it simpler to operate tribunals in dioceses with fewer resources, including those in the developing world. At the same time, Mitis iudex aimed to make it simpler for tribunals in developed nations to hear the cases of divorced Catholics with complex cases, including migrants from the developing world.
You know it and we know it. You won’t find smart, informed, serious analysis of the Church anywhere else. We think it’s work worth paying for. Do you?
But diocesan tribunals in the developing world are still challenged by a lack of personnel and funding, even while Mitis iudex has reduced staff demands. While there are signs the situation is improving in some large developing Catholic nations, the pope’s reformed procedure is still beyond the reach of tribunals in some parts of the world.
In a 2018 study of tribunals in Nigeria, 83% of Catholic dioceses said they had some tribunal setup, and 50% of dioceses with tribunals said they believed their tribunals were well-equipped to hear marriage cases. Most tribunals in the country said they were not sufficiently funded, and nearly half said they were not sufficiently staffed.
The situation led a Nigerian expert on the issue, Fr. Ambrose Olowo, to conclude that “A process without canonical experts cannot implement the reforms introduced by Mitis iudex.”
Olowo also added that a much-celebrated recommendation of Mitis iudex, that tribunals stop the practice of assessing administrative costs to petitioners, “will be a challenge to the implementation of this document.” While he acknowledged that many divorced Nigerian Catholics find themselves unable to pay the administrative costs of tribunal proceedings, many dioceses themselves are not better positioned to absorb those costs.
There are, Olowo’s study concluded, a “dearth of tribunals in Nigeria, and where they exist they are sometimes ill-quipped, lack adequate personnel or lack qualified personnel. They are encumbered with paucity of fund and ill-informed laity. Even the probable lack of proper understanding of the document itself has been identified. These and many other challenges addressed above constitute the challenges faced by the marriage tribunals in their responsibility to implement the document Mitis iudex.”
In the three years since the study was published, there is little indication the situation has improved. And canonists say the same problems plague tribunals in African countries with even fewer resources than Nigeria, and in Catholic dioceses across Oceania, and Latin and South America. In short, while Mitis iudex has lowered the bar for tribunal functionality, in many parts of the developing world it remains mostly out of reach.
In the United States, however, the reforms enacted by the document have mostly been implemented, and to some tangible effect — but not by use of all the options made available by Pope Francis.
More petitions for declarations of nullity are filed annually in the United States than in any other country of the world. That number has been steadily on the decline, however, and has continued to drop since the promulgation of Mitis iudex. In 2015, the year Mitis iudex was issued, tribunals initiated 23,202 nullity proceedings. In 2020, that number had declined by 16 percent; tribunals initiated 19,500 cases.
The drop does not seem to be because fewer Catholics are divorcing, but is probably instead because fewer divorced Catholics practice the faith, or intend to remarry in the Church.
In either case, the fact that many American tribunals announced the end of tribunal fees after the promulgation of Mitis iudex does not seem to have encouraged Catholics uncertain about applying for the process to do so. That should not come as a surprise. In a 2015 survey, only seven percent of divorced Catholics who decided not pursue an annulment said the cost had been a deterrent.
On the other hand, Catholics who have petitioned for declarations of nullity since 2015 have seen the practical effect of the pope’s reforms, especially in the length of time their cases actually take.
The pope’s reform eliminated a long-standing canonical requirement that required affirmative decisions — cases in a which an attempted marriage was declared null, or invalid — to be confirmed by a “second instance” court. That step could add somewhere between several weeks or several months to a tribunal process, stretching the length of time petitioners and respondents would have to wait for a tribunal decision.
When Mitis iudex was promulgated, canonists expressed concern that without the requirement of ratification at second instance, there would be no check on judges inclined to give only affirmative decisions. Some continue to raise that concern.
But other canon lawyers have since told The Pillar that Mitis iudex has made them feel more comfortable giving negative decisions than they were before — and the reason is because while the appeal process for a negative decision used to be a nearly interminable one, involving the Vatican in every case, the pope’s changes have made the appeal process much easier.
Knowing that a negative decision won’t consign petitioners to an expensive and often fruitless appeal process, some tribunal judges say, has made a negative decision a prospect with far less ecclesiastical pushback. On the other hand, some express concern about the relative autonomy of appeal courts since Mitus Iudex was promulgated. While “pushback” should not be a factor in the administration of justice, it can be, in every court system of every sovereign entity in the world.
On the whole, both the elimination of “second-instance” ratification and a streamlined appeal process have generally been met with favor by tribunal judges with whom The Pillar has spoken. Some say they have sometimes made courts more just, and they have made the process easier for petitioners and respondents to understand, and to endure. Those effects — shorter processes, and potentially more just outcomes — have immediate consequence in the lives of petitioners, their parishes, and their families.
Another reform with immediate consequence is the text’s changes to the rules regarding case competence. Before Mitis iudex, it was an onerous, and often impossible, slog for an American tribunal to gain legal competence to hear the cases of immigrants to the United States married elsewhere. Reforms which simplified that issue have made it much simpler for immigrants to make petitions in American tribunals, and see their cases adjudicated without interminable waits on the front end.
Of note, many tribunal judges have told The Pillar that one aspect of the pope’s reforms — the so-called processus brevior, or short process, which allows diocesan bishops to judge some cases personally using an abbreviated procedure, has gone mostly unused in their dioceses; in some cases because the circumstances under which it can be used are rare, and in others because diocesan bishops have not made it a priority. In 2018, the most recent year for which numbers are available, fewer than 4% of petitions for nullity were handled by the short process.
Even before Mitis iudex was promulgated, tribunals in America were in a period of transition. Many are undergoing periods of serious reform, aiming to more precisely follow the norms delineated by the Vatican, especially as a younger crop of canon lawyers, which tends to be more observant of procedural requirements, begins to take the reins in many dioceses.
At the same time, with a declining number of petitioners, budgets have shrunk in some places, or staffing has become difficult. Some developed countries, including Canada, have in recent years consolidated tribunals, eliminating the need to staff them fully at the level of every diocese. It seems unlikely that wholesale consolidation will be on the horizon in the U.S., but some tinkering with appeals tribunals or in rural areas may be inevitable.
As to Mitis iudex, its norms likely remain aspirational in many parts of the world. But whether dioceses in those places will invest in their tribunals, especially if divorce rates climb amid trends of secularization, remains to be seen.