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." -Benedict XVI
Updated Version: This article was updated today, 10/12/15, in order to reflect additions that were made for the print edition of The Remnant. The two versions are now exactly the same. MJM
Editor’s Note: The following article is quite lengthy. But like Chris Ferrara’s other more lengthy contributions to this journal, it “reads short” while providing a clear and comprehensive overview of a complex situation. Francis’s Blitzkrieg “reform” of the annulment process is a turning point in Church and world history that deserves the thorough treatment it receives here.
At this point in the progress of Pope Bergoglio’s banana republic-style pontificate, no one should be surprised at the canonical sneak attack by which, on only 24 hours’ notice to the world, he destroyed the traditional exacting procedure for determining matrimonial nullity with a series of new canons whose drafting was hidden from the Congregation for the Doctrine of the Faith, the Apostolic Signatura, and every other Vatican dicastery that would ordinarily be involved in vetting proposed universal legislation for the Church. Francis gets what Francis wants. He wanted more and easier annulments in a hurry, knew he couldn’t get them with the cooperation of the CDF or the Signatura, and so he created a closed-door commission that threw together a few new canons to make it all happen right away.
We should have seen this coming at the very beginning of the pontificate when Francis declared during his in-flight press conference on the way from Rio to Rome:
The Orthodox follow the theology of economy, as they call it, and they give a second chance of marriage [sic], they allow it. I believe that this problem must be studied.
Francis likes the Orthodox heresy of “a second chance of marriage.” A “second chance of marriage” seems very good to him. The “problem” to be “studied,” as he intimated during the press conference, is how to introduce “a second chance of marriage,” or something like it, into the Catholic Church.
Another Bastion Demolished
Francis gets what Francis wants, and no Gospel or 2,000-year-old Catholic teaching and related discipline on the indissolubility of marriage will stand in his way. In Mitis Iudex Dominus Iesus (“The Gentle Judge, The Lord Jesus”—get it?), and a corresponding motu proprio for the Eastern churches, Francis pays lip service to what he pointedly describes as the “the principle of the indissolubility of the matrimonial bond” (Mitis, Preface) while making it all but a dead letter in practice. But that is what Modernists always do: affirm what they deny while denying what they affirm. And Francis is a Modernist. Full stop. There, I’ve said it. We all know it, of course, but the time has come to declare it openly and explicitly so that as many other members of the faithful as possible may awaken to the clear and present danger this dictatorial, megalomaniacal visionary poses to the Church.
Overly harsh? Way over the top? Anyone who thinks so should recall the alarming “dream”—more like a threat—that Francis unbosomed before the whole world in his sprawling personal manifesto, Evangelii Gaudium:
I dream of a “missionary option”, that is, a missionary impulse capable of transforming everything, so that the Church’s customs, ways of doing things, times and schedules, language and structures can be suitably channeled for the evangelization of today’s world rather than for her self-preservation....
More than by fear of going astray, my hope is that we will be moved by the fear of remaining shut up within structures which give us a false sense of security, within rules which make us harsh judges, within habits which make us feel safe…
With Mitis, then, Francis is only making good on his threat to wreak havoc on the Church. His canonically amateurish “reform” of the process for determining the alleged nullity of marriages demolishes the centuries-old safeguards erected by Benedict XIV in his Bull Dei Miseratione (1741), replacing them with what a professor of canon law at Catholic University of America called “a path that looks like the Catholic version of no-fault divorce.” Here are the generally applicable features of this canonical train wreck:
· The traditional three-judge marriage tribunal of canonist-priests is replaced by a panel that can consist of a majority of laymen or laywomen who need not have canon law training, or even by a single priest. The rubber stamps are ready and waiting. Can. 1673(4).
· The traditional confirmatory second sentence is abolished, eliminating any check on error at the diocesan level. Can. 1679.
· Appeals from a declaration of nullity may be denied summarily, without a hearing, if deemed “dilatory,” that is, interposed for alleged purposes of delay. Cann. 1680(2) and 1687(4). In practice, “dilatory” will mean simply that the opposing spouse, usually with children in view, is trying to prevent the precipitous nullification of the marriage by exhausting appeals. The potential for cruel oppression of spouses with children, fighting to defend marriages against spouses who have “moved on” to other “unions” and even other children, is obvious.
· Mere uncorroborated statements or admissions by parties seeking nullity will now qualify as “full proof” of a fact asserted or self-servingly “admitted,” even though, under the superseded provision of the 1983 Code of Canon Law (can. 1536, § 2), such assertions did not have the status of full proof unless “there are other elements which wholly corroborate them.” Can. 1678 (1) Now, for example, the mere claim or self-serving “admission” that one never intended to be bound for life in Holy Matrimony could be accepted as fully probative of lack of consent. The potential for abuse in this provision alone is staggering.
With these general norms Francis has vastly facilitated the abuse of the annulment process, reversing precisely what Benedict XIV put in place centuries ago to prevent its abuse. And that is just the beginning.
Smuggling the Orthodox Practice into the Catholic Church
The primary novelty of this brutal and disgraceful “reform” is a “fast-track annulment” proceeding that can be completed in as little as 45 days and can be based, as noted above, on nothing more than the uncorroborated statements of the very party seeking the annulment. The new canons provide a mere 30 days’ notice of the evidentiary hearing, now to be limited to a single session whenever possible, and a piddling 15 days for the defender of the bond to present arguments and defenses in favor of the marriage. Cann. 1685-1686
The “fast-track” proceeding is available to couples who agree upon using it—that is, couples who collude in obtaining a speedy annulment. The provision that the parties’ agreement should determine the speed and thus the thoroughness of the manner in which claims of nullity are examined stealthily imports into canon law the civil law concept of consensual divorce. Given the parties’ already suspect agreement to get the annulment over with quickly, the “fast-track” procedure is allowed when one of the following criteria are present:
· lack of faith [!] that results in simulation of consent or an error that determines the will;
· brevity of married life;
· abortion procured to prevent procreation [?];
· stubborn persistence in an extramarital affair at the time of or just after the wedding;
· improper concealment of sterility or of a serious and contagious disease;
· concealment of children from a previous relationship;
· concealment of incarceration;
· entering marriage for reasons completely foreign to married life;
· unplanned pregnancy of the woman;
· physical violence inflicted to extort consent;
· lack of use of reason proved by medical documents;
· and so on. [!]
Cf. Art. 14, § 1.
In view of the astonishing phrase “and so on”—which has no place in a legal document, especially one affecting the eternal welfare of souls—the result is no fixed criteria whatsoever for invoking the “fast-track” procedure. The list is merely suggestive, not prescriptive, and creative bishops will supply any number of other grounds for allowing quickie annulment proceedings. As the internationally respected canonist and civil lawyer Edward Peters, a consultant to no less than the Apostolic Signatura, observes: “Of course, in no time, this list of reasons to hear nullity cases quickly will lengthen greatly. And why not? If physical violence to extort marriage consent justifies a speedy hearing from a bishop, should not physical violence inflicted during the marriage also qualify? If pregnancy at the time of the wedding is grounds for a quick process, should not drug or alcohol or sexual abuse qualify as well?”
Worse, the jumble of criteria for fast-tracking annulments lumps certain traditional grounds for annulment together with novel reasons for invoking the speedy process, thereby creating the impression that all the listed criteria would constitute grounds for annulment. What do such matters as an “unplanned pregnancy,” an abortion to “prevent procreation,” the “brevity of married life” or “an extra-marital affair” have to do with annulment proceedings as a search for the truth about the objective existence of a sacramental marriage bond arising at the time of vows, regardless of whether parties to a marriage currently feel aggrieved or have a subjective belief that the marriage has “failed”?
And what does “lack of faith” mean? Granted, one who feigns consent to marriage—that is, one who recites the marriage vows with a hidden intention not to be bound and is thus simply a liar—does not validly contract a marriage. Can. 1101, § 2. But this is not a question of “faith” as opposed to veracity, for the Church has never required more than that the party to a marriage “at least not be ignorant of the fact that marriage is a permanent partnership between a man and a woman, ordered to the procreation of children through some form of sexual cooperation.” Can. 1096 § 2. That is precisely why a non-Catholic, with a special dispensation, can marry a Catholic in the Catholic Church and be perpetually bound by the sacrament without any obligation to profess the Catholic faith. Cann. 1124-1125. My own wife married me under such a dispensation, converting shortly after our marriage and receiving the Sacrament of Confirmation from Archbishop Marcel Lefebvre before his alleged excommunication. (Naturally, she is a better Catholic than I will ever be.)
Nor does the use of contraception, while mortally sinful, ipso facto mean that the marriage as such was invalidly contracted, unless—at the time of the vows and not afterwards—one or both parties had the intention of never having children. Indeed, if the use of contraception alone were grounds for nullity, then the vast majority of Catholic marriages would be null despite the presence of a certain of number of children, and any permitted remarriages following a Francis-style annulment would also be invalid for the same reason. Not even Francis the Merciful would go that far.
To quote Peters regarding Francis’s grab bag of fast-track criteria: “[C]onfusion will—and already has, judging from questions I have already received from the faithful—erupt as to whether these factors are not just reasons to hear a case speedily, but are themselves proof of matrimonial nullity.” Are we now to think that whoever violates the marriage vow in some egregious manner has ipso facto given rise to grounds for an expedited ex post facto “annulment”—in other words, simply a divorce? Is Francis thus implicitly endorsing the false Protestant and Orthodox interpretation of Matthew 19:9 according to which a spouse’s adultery justifies divorce and remarriage by the offended party? Is he going even further, attempting to insinuate into the Church a functional Catholic equivalent of what he first mentioned during the flight from Rio to Rome: “a second chance of marriage” according to the Orthodox “theology of economy [oikonomia]”?
As the USCCB notes concerning the Orthodox: “the Orthodox Church, following Mt 19:9 (“whoever divorces his wife except for unchastity, and marries another, commits adultery”), permits divorce under certain circumstance[s], not only in the case of adultery but also of other serious assaults on the moral and spiritual foundation of marriage…” By means of a potentially illimitable enumeration of fast-track annulment criteria, Francis would appear to be in the process of establishing de facto in the Catholic Church the Orthodox practice of permitting divorce and then a second or even third marriage where one party has committed some kind of grave offense against the prior marriage. The only brake on the process would be the conscientiousness of a particular bishop-judge, which in many cases will be nonexistent. I agree with Michael Brendan Dougherty that “Francis deliberately conflates reasons to question the validity of vows undertaken with instances of failure to live up to them. This is ludicrous.”
Amazingly, Francis all but admits in his own motu proprio that he has knowingly endangered the indissolubility of marriage with his speedy annulment scheme: “It did not however escape me that a shortened procedure may endanger the principle of the indissolubility of marriage…” Introduction at IV. And what is Francis’s only safeguard against the danger he has caused? Believe it or not, the local bishops! They will act as sole judges in the new quickie annulment proceedings. Can. 1683. Francis assures us that all will be safe in the hands of “the Bishop himself, who by virtue of his pastoral office is, with Peter, the greatest guarantor of Catholic unity in faith and discipline.” Introduction at IV.
Can Francis really have expected this contention to be met by anything but derisive laughter? Many of the bishops to whom he has entrusted the operation of his hastily constructed annulment factory (including Cardinal Kasper and the German cabal) have been agitating for the Church’s outright acceptance of civil divorce and remarriage even without canonical “reform.” Now each of their dioceses can begin churning out pro forma annulments in numbers that will dwarf even the American annulment mills at their peak operation under the American “provisional norms” of the 1970s which, among other things, eliminated the safeguard of the diocesan-level double judgment.
Francis versus John Paul II and Pope Ratzinger
What concerned John Paul II and Benedict XVI was an excess of annulments, which is why the 1983 Code of Canon Law restored the double judgment and John Paul II and the former Cardinal Ratzinger at the CDF made various interventions aimed at curbing the trend toward “Catholic divorce,” including addresses to the Roman Rota. In consequence, the number of annulments declined drastically during their pontificates, especially in America (whose marriage tribunals nevertheless still grant nearly as many annulments as those of all the rest of the world combined). By the time Francis appeared on the balcony of Saint Peter’s to declare “Good evening!”, the total annual number of annulments worldwide was in the low five figures.
What concerns Francis, however, is the lack of annulments following the pontificates of his two merciless predecessors—Francis being the First Merciful Pope, as his courtiers in the Vatican and the adoring mass media endlessly proclaim. Francis wants vastly more annulments as part of his “mercy” offensive, according to which adherence to perennial Church law and discipline in keeping with the Gospel injunctions constitutes cruelty. The head of Francis’s semi-secret commission, Msgr. Pio Vito Pinto, Dean of the Roman Rota, openly admits that Francis demands a huge increase in the number of annulments. Read the following while trying to restrain yourself from throwing something against the wall:
Pinto’s explanation of Francis’s motives will shame the Church until the end of time: Francis makes a beginning of his “reform” by setting up the framework for a worldwide annulment mill. He has done this for the benefit of the divorced and “remarried,” whom he characterizes as “the poor.” People who put away their spouses and purport to marry another, often leaving devastated children behind, are placed on a par with the naked, the sick and the imprisoned (cf. Matt. 25:34-40).
The megalomania at work is as shameless as it is frightening: We are asked to believe that Christ Himself, acting through Francis, is commanding the entire world episcopate to increase annulments immediately by an “immeasurable number.” In “humble obedience” to Francis, all the world’s bishops must undergo a “conversion” that will impel them to open the floodgates of merciful annulment, closed for too long. The “Bishop of Rome” suddenly becomes “the Pontiff” again and is elevated to the status of a gnostic oracle of “the Spirit,” announcing God’s latest instructions. (Not even Pinto has the audacity to place the word Holy in front of “Spirit.”)
This same “Spirit” has informed Francis that the Bishops must apply the nebulous new criterion of “aHow
This will open the door, without a doubt, for millions of annulments. Millions! Since when did you need to be a saint or have a university degree in theology from the Gregorian to get married?
The Church, in order to recognize a sacramental marriage, has always simply asked for the free decision to marry, according to the characteristics of natural marriage. Further, She has always taught that the spiritual disposition of the spouses (their personal holiness) influences the fruits of the sacrament but certainly not its validity.
Even the resolutely “normalist” and mainstream Catholic Herald has just published an article entitled: “We’re heading for ‘Catholic divorces’”. That’s the Catholic Herald!
The question now looms large before us: Has this Pope lost his reason?
As he declared during the airborne press conference quoted above, to his mind half of all marriages—that’s all marriages, anywhere in the world—are invalid due to “lack of faith”:
How does Francis know that half of all couples who exchange vows in the presence of a priest, usually after a marriage preparation course followed by the signing of a statement that they know what marriage entails, have no idea that “it’s for an entire lifetime”? Francis knows nothing of the sort. He simply feels that half of all couples aren’t, you know, really married, even if they were married in the Church, have children, and have held themselves out as man and wife for many years. After all, someone else told him it was so. No further investigation is necessary.
By cavalierly presuming the invalidity of half of all marriages, Francis tosses overboard a fundamental principle of canon law and natural justice: the presumption that a marriage was validly contracted. Can. 1060 (“Marriage enjoys the favor of the law. Consequently, in doubt the validity of the marriage must be upheld until the contrary is proven.”) Indeed, the whole point of an annulment proceeding on any grounds, including lack of consent, is to attempt to overcome the presumption of validity. Overcoming the presumption requires positive proof giving rise to rise to a moral certainty that the marriage was invalid. As John Paul II explained in a 1980 address to the Rota (citing Pius XII), moral certainty means “the exclusion of well-founded or reasonable doubt,” not just any conceivable doubt. Accordingly, he continued:
[p]robability alone is not enough to decide a case. To any compromise in this connection, there could be applied what has wisely been said of other laws concerning marriage; any relaxation contains within it an impelling dynamic: ‘if the custom obtained, the way is paved for the toleration of divorce in the Church, although covered by another name’…
Francis is indeed paving the way for toleration of divorce in the Church, covered by another name. He has been paving the way almost from the moment of his election. As he himself warned us more than two years ago:
Where alleged lack of consent in particular is concerned, as already noted all that is required is that the parties “be at least not ignorant of the fact that marriage is a permanent partnership between a man and a woman, ordered to the procreation of children through some form of sexual cooperation.” Can 1096, § 1. Moreover, “[t]his ignorance is not presumed after puberty.” Can. 1096, § 2. In a 1987 address to the Rota, John Paul II aimed to stem abuse of the theory of lack of consent in precisely the way Francis is now abusing it. John Paul insisted that “[f]or the canonist the principle must remain clear that only incapacity and not difficulty in giving consent and in realizing a true community of life and love invalidates a marriage.” John Paul continued with remarks on incapacity that demolish Francis’s half-baked notions:
Moreover, the breakdown of a marriage union is never in itself proof of such incapacity on the part of the contracting parties. They may have neglected or used badly the means, both natural and supernatural, at their disposal; or they may have failed to accept the inevitable limitations and burdens of married life, either because of blocks of an unconscious nature or because of slight pathological disturbances which leave substantially intact human freedom, or finally because of failures of a moral order. The hypothesis of real incapacity is to be considered only when an anomaly of a serious nature is present, which, however it may be defined, must substantially vitiate the capacity of the individual to understand and/or to will.
Francis, to quote Dougherty, is engaged in “a dramatic reversal of the Church’s traditional position on marriage, which presumes the validity of first marriages made inside the Church or outside it.” Francis’s novel presumption of invalidity appears to involve two alternative and equally dubious personal views he has no right to impose on the Church.
The first view would be that half of the time either one of the parties is lying to the priest and to the other party by feigning a willingness to enter into Holy Matrimony, or that both parties are lying to the priest. The lying would go on throughout marriage preparation, where this is required, including the individual interviews with the priest out of the presence of the other party and the signing of a statement acknowledging that the party understands what marriage entails and will raise any children in the Faith. The lying would continue on the altar with the utterance of the solemn vow before God: “I, ____, take you, ____, to be my lawfully wedded (husband/wife), to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.”
The basis of the petition for nullity in such cases would thus reduce to the contention: I lied during marriage preparation and on the altar, but I am not lying now when I tell you that I lied before. There will be no need to corroborate that inherently suspect claim under the new Canon 1678, noted above, which allows the acceptance of such statements, standing alone, as “full proof.” As Francis would have it, there are millions of such liars, who go through the motions of being married, pretend to be married for some years, even having one or more children, and then decide to divorce and remarry civilly. But now that they have acquired a new wife or a new husband, they have supposedly discovered a deep and abiding Catholic faith and are yearning to have their second “marriages” blessed by the Church so they can satisfy their desperate hunger for Holy Communion, from which the Church has mercilessly excluded them for so long. And this time, most assuredly, we can believe them when they say: “until death do us part.” According to the law of the Church as stated in Canon 1101, § 1: “[t]he internal consent of the mind is presumed to conform to the words or the signs used in the celebration of marriage.” But Francis blithely presumes exactly the opposite, without even bothering to repeal Canon 1101 with a wave of his papal magic wand.
Alternatively, Francis seems to think that millions of seemingly married people were too “immature” to “realize” that “until death do us part” means that marriage is for life, even though the still-effective Canon 1096, reflecting common sense, mandates that such abysmal ignorance is not to be presumed after puberty. Yet, according to Francis, these millions of simpletons wised up after getting divorces and remarrying civilly, so that now, conveniently enough, they are sufficiently “mature” to “realize” that the words “until death do us part” mean what they say.
As Dougherty observes, Francis’s opinions about the validity of Catholic marriages are “a deeply condescending insult to average Catholics.” The first sentence in Dougherty’s article unmasks what he rightly calls the “vandalism on the sacrament of marriage” involved in this ham-fisted abuse of papal power: “Are you married? You may think so, but the Pope has other ideas.” Other ideas, indeed! Unlike John Paul II, Benedict XVI, or any other Pope going back to Peter, Francis the Merciful is a man of feeling and action as opposed to all those bothersome intellectual “analyses,” as Msgr. Pinto calls them. Francis the Merciful is determined to deliver untold numbers of Catholics from what he just knows are invalid marriages. Surpassing all 265 of his predecessors, he will now undertake the “more profound pastoral care” he promised during the plane ride from Rio. He will come to the rescue of the huddled masses yearning for the annulments so cruelly denied them until now. And what Francis wants, Francis gets. Let no one interfere.
Dougherty assesses what Francis has done with the utter contempt this mockery of “mercy” deserves:
Pope Francis has navigated to his preferred merciful form of laxity on marriage by becoming a marriage perfectionist. He gets to a Catholic version of no-fault divorce by adopting the exacting standards and skepticism about human virtue that characterizes a heresy like Jansenism. This is a common error in the history of the Christian Church: Exalt standards of virtue to such lofty heights that sin becomes inevitable and justified.
Francis has done this in a way that unmasks the pretensions of his pontificate. He has put himself forward as the defender of “collegiality” in decision making in line with the Second Vatican Council’s call for a church in which bishops truly govern alongside the Roman pontiff. But Francis has short-circuited the Synod with his own extraordinary legal authority.
It also puts to lie his pretensions to be anti-clericalist. Marriage is the vocation most Catholics are called to live in, and yet the pope has taken it upon himself to view their marriages as no more certain than betting red in roulette.
A Palace Revolt?
The more orthodox members of the Roman Curia have had enough of Francis’s reckless stomping on everything he does not like. The redoubtable Edward Pentin has just reported on the emergence of a seven-page dossier in which curial officials—doubtless including one or more members of the CDF—“juridically ‘picked apart’ the Pope’s motu proprio… accuse the Holy Father of giving up an important dogma, and assert that he has introduced de facto ‘Catholic divorce.’” These officials deplore what Pentin describes as “an ecclesialized ‘Führerprinzip,’ ruling from the top down, by decree and without any consultation or any checks.” The same officials, recounts Pentin (based on the dossier) fear that “the motu proprio will lead to a flood of annulments and that from now on, couples would be able to simply exit their Catholic marriage without a problem.” They are “‘beside themselves’ and feel obligated to ‘speak up’…” Hence the dossier.
But Francis doesn’t care. Our Lord condemned the Pharisees because, being hard-hearted casuists, they devised tricky arguments allowing divorce and thus attacked the indissolubility of marriage. Francis, however, condemns as Pharisees present-day Catholics who, following our Lord, defend the indissolubility of marriage and reject the tricky arguments of such latter day Pharisees as Cardinal Kasper and Cardinal Marx. This is pure lunacy.
Fifty years after the imaginary “renewal of Vatican II” began, the episcopal ideologues who have presided over an unprecedented collapse of faith and discipline confront what John Paul II admitted is “silent apostasy” in the once Christian West. Led by Francis, the First Merciful Pope Ever, the same hierarchs are now contriving to accommodate the very apostasy their own negligence has fomented. Having allowed their sheep to wander to the edge of the pit of iniquity in blissful ignorance of the danger, the shepherds now invite them to dive in.
Yet, it is fair to ask, what can we do about it? Considerably more than nothing—more even than prayer and penance, as important as they are. Saint Robert Bellarmine, a Doctor of the Church, tells us what we must do when faced with a Pope who is causing grave harm to souls and the ecclesial common good:
Just as it is licit to resist the Pontiff that aggresses the body, it is also licit to resist the one who aggresses souls or who disturbs civil order, or, above all, who attempts to destroy the Church. I say that it is licit to resist by not doing what he orders and by preventing his will from being executed….” [Ryan Grant. De Controversiis: On the Roman Pontiff (Mediatrix Press: 2015), Book II, Chapter 29, p. 303].
It is no longer possible honestly to deny that Francis, having aligned himself with the Modernists now infesting almost the entire hierarchy, many of whom are his closest advisors, is the very sort of Pope that Bellarmine envisioned: one who “aggresses souls” and “attempts to destroy the Church,” no matter what he thinks he is doing or is subjectively guilty of. Our duty, therefore, which is above all the duty of bishops and cardinals, is to resist this Pope by not doing what he wants or approving of it, by objecting to it and militating against it publicly, and by using any licit means at our disposal in “preventing his will from being executed.” And even if we fail, that duty remains—a sacred duty to Christ and His Holy Church, infinitely surpassing mere human loyalty to a wayward and dangerous pope the likes of which the Church has not seen in twenty centuries.
Christopher A. Ferrara: President and lead counsel for the American Catholic Lawyers Inc., Mr. Ferrara has been at the forefront of the legal defense of pro-lifers for the better part of a quarter century. Having served with the legal team for high profile victims of the culture of death such as Terri Schiavo, he has long since distinguished him a premier civil rights Catholic lawyer. Mr. Ferrara has been a lead columnist for The Remnant since 2000 and has authored several books published by The Remnant Press, including the bestseller The Great Façade. Together with his children and wife, Wendy, he lives in Richmond, Virginia.