On November 26, 2021, a new apostolic letter motu proprio establishing “The Pontifical Commission for the Verification and Application of the M.P. Mitis Iudex in the Churches of Italy” was issued by Pope Francis to encourage the application of the standards set out in Mitis judex Dominus Jesus, the 2015 motu proprio that upset the marriage nullity proceedings.
It should be remembered that, in the 2015 document, Pope Francis envisioned the possibility of declaring a marriage null and void via a single judgment, based only on the declarations of the bride and groom, and eventually with a faster formula allowing the bishop to issue a sentence within one month.
The 1983 Code of Canon Law had already facilitated declarations of matrimonial nullity, with the rule allowing nullity “for lack of judgment” (can. 1095) of one or both spouses, de facto assimilating any imprudence in consent to the nullity of the sacrament.
However, a regular legal process, which must include at least two sentences, continued to be the rule to prove the existence of grounds for nullity; such a process became almost symbolic with the 2015 reform.
In Italy, since the motu proprio Qua Cura (1938) of Pius XI, regional ecclesiastical tribunals have been created because small dioceses, especially in the South, have been unable to maintain their own tribunals, both due to lack of funds and lack of expertise.
Pope Francis considered this measure to be abolished by his motu proprio, as he had already stated at the Italian Episcopal Conference (CIS) in a speech on May 20, 2019. Despite this, the implementation of the 2015 decree was slow in Italian dioceses, and regional tribunals are still largely active.
In addition, the apparatus of judicial vicars and lawyers tends to avoid the new regime and to apply the procedure with a semblance of rigor - while making extensive use of Canon 1095 - in particular because in Italy these judgments then have a value to the civil court, to which they are communicated. (Just as Catholic marriage has civil value in Italy.)
Pope Francis wants to control the activity of Italian ecclesiastical tribunals, by creating a commission whose members are the dean and two auditors of the Rota – the supreme court in the Church - as well as the bishop of Oria, in Puglia.
They will have full powers for a “full and immediate application” of the 2015 motu proprio, including the dismantling of regional tribunals and the establishment of diocesan tribunals that will apply the reduced and rapid procedures envisaged by the pope.
Paradoxically, the much-hoped-for decentralization is taking place through the massive intervention of commissioners of the Roman Curia, without giving any importance to local circumstances and the Episcopal Conference itself.
While it was acknowledged that it would be great for each diocese to have its own tribunal, it must not be forgotten that regional tribunals were created precisely to ensure juridically serious trials everywhere, administered with rigor and competence, by joining forces, including economic.
The Pope, who rightly insists on free trials, at least for the needy - which, incidentally, has always existed - actually runs the risk of multiplying expenses.
The Pope's view of the nullity process, on the other hand, is loosely legal, and it is clear, as he said in the CIS speech in 2019, that the best would be a discussion of the spouses with the bishop, who would then personally grants them the desired nullity.
That’s why there is no need for competent tribunals, working legally, even if the rules are deficient today. In Pope Francis’s mind, as manifested so many times, the legal aspect of the Church is not a constituent element of a perfect society, but a human superstructure and a cage that imprisons the Christian spirit, with which he would be done if possible.
In his homilies, Pope Francis often reminds us that the organization and the external structure of the Church are not a sign of the presence of God (cf. his homily in Santa Marta on September 30, 2013); thus, the formalities of marriage cannot simply be a sign of sacramental grace.
In his speech of June 16, 2016 at the Lateran for the opening of the Ecclesial Conference of the Diocese of Rome, Francis affirmed on the one hand that “most [text then transformed into “part,” Editor's note] of our sacramental marriages are null, because they [the spouses] are of good will, but they are not aware of it.”
On the other hand, in the same speech, he considered as “real marriages” nourished by “the grace of marriage” the simple cohabitations in use in the Argentinian countryside, where one founds a “family” when one is young and where they get married later.
There are therefore formally celebrated marriages which are insignificant, and de facto unions which would even produce the grace of the sacrament. We could therefore say that legal or even sacramental formalities - which coincide in marriage - are a defect, a disadvantage.
The serious errors of Lumen gentium still present
The document contains, and this is perhaps the most serious, an assertion that comes directly from Lumen Gentium with the doctrinal errors it contains, errors theorized and developed by Cardinal Ratzinger, then inscribed in the 1983 Code of Canon Law.
Indeed, in the new moto proprio, we read in Point 1: “by episcopal consecration the Bishop becomes, among other things, iudex natus (cf. can. 375, §2). He receives the potestas iudicandi to guide the People of God even when it is necessary to resolve controversies….”
According to Catholic doctrine, reaffirmed as explicitly as possible in dozens of papal acts up to and including Pius XII, the bishop's power of jurisdiction does not derive from his episcopal consecration - which only confers powers of sanctification, i.e., ordination and confirmation; but flows from the Pontiff who appoints him ordinary bishop of a diocese.
Bishops who are consecrated but who do not have a diocese have no power of governance, according to traditional doctrine.
On the basis of such a theory, contrary to Church definitions, one can wonder what would happen if a member of the faithful submitted his marriage to an “emeritus” or titular bishop - or schismatic, or heretic. Would a possible judgment of nullity only be unlawful or also invalid? After all, a consecrated bishop remains such even without a diocese, and has, according to them, the power to judge.
The Nota praevia in Lumen Gentium already foresaw the problem, and explicitly avoided taking sides, in these terms: "Without hierarchical communion the ontological-sacramental function [munus], which is to be distinguished from the juridico-canonical aspect, cannot be exercised. However, the Commission has decided that it should not enter into question of liceity and validity. These questions are left to theologians to discuss—specifically the quest of the power exercised de fact among separated Eastern Churches, about which there are various explanations.”
This measure by Pope Francis for Italy, beyond its canonical aspect, is an indictor of a deformed vision of the Church, which is rooted in the conciliar documents, and which emphasizes that the external and legal structure of the Roman Church is purely human, preventing the manifestation of the divine.