Annulment reform seems to cultivate change of culture

After nearly 30 years of watching a decline in the number of Catholics applying for marriage annulment, diocesan officials are reporting increases following Pope Francis' 2015 reform of church law on nullity procedures. Regardless of whether the apparent turnaround is a short-term phenomenon spurred by the canonical changes or not, some marriage tribunal staff and canon lawyers say the revised process is cultivating a "real change of culture."

While more precise numbers will not be known until required reports to the Vatican can be tallied later this year, several dioceses responding to NCR inquiries reported growth — some remarkable — in annulment case filings for 2016 compared to 2015.

Indianapolis, San Diego and Alexandria, Louisiana,* for example, received 70 percent and higher increases in the number of new requests in 2016 over 2015, even while having to set aside time to retool tribunal procedures in response to the reforms.

Francis' reform of canon law on granting declarations of marital nullity, popularly known as annulments, was announced Sept. 8, 2015, and went into effect Dec. 8, 2015, the opening day of the churchwide Year of Mercy. The revisions were outlined in two documents issued moto proprio.

Mitis Iudex Dominus Iesus ("The Lord Jesus, Clement Judge") addresses annulment protocols in the Latin-rite Catholic Church. The second, Mitis et misericors Iesus ("Clement and Merciful Jesus"), contains reforms for the Code of Canons of the Eastern Churches.

Canonists are often uneasy with the colloquially used term "annulment." The U.S. bishops' website explains, " 'Annulment' is an unfortunate word that is sometimes used to refer to a Catholic 'declaration of nullity.' Actually, nothing is made null through the process. Rather, a Church tribunal ... declares that a marriage thought to be valid according to Church law actually fell short of at least one of the essential elements required for a binding union."

Three high-profile changes are elimination of a previously required review of all positive declaration of nullity, authorizing bishops to be sole judge in an abbreviated process where neither spouse contests the annulment and evidence of nullity is indisputable, and a plea that "insofar as possible" charge no fees.

However, redefining how a tribunal may assume authority over a nullity request might have at least as much impact as those three changes, indicate tribunal staffers.

In the past, if spouses lived in different dioceses, the petitioner's tribunal would have to seek permission of the respondent tribunal's judicial vicar to proceed. The reform establishes jurisdiction if:

• The marriage took place in that diocese;
• If either party lives in that diocese;
• Or if the preponderance of evidence exists in that diocese.

This provides petitioners more options on where to file. It also allows tribunals to proceed more readily when a respondent's location is unknown.

Ann Tully, coordinator of the tribunal in the Indianapolis Archdiocese, praised the new understanding of "tribunal competence." The changes "are very pastoral in that we can now better serve our immigrant brothers and sisters who, in the past, had to submit cases to countries that may or may not have truly functional tribunals," she said. "I believe this change has made a tremendous impact in our archdiocese and has provided a path of justice for many who were excluded before the reforms."

Reasons for the increase cited by tribunal officials and others included:

• Media-generated awareness of the historic reforms, heightened further by coverage of Francis' apostolic exhortation Amoris Laetitia on marriage and family;
• Amoris Laetitia itself, which encouraged pastoral sensitivity and action in regard to divorced and civilly remarried Catholics;
• Francis' appeal to dioceses to eliminate annulment fees;
• Indication that the streamlined process could take much less time;
• Diocesan-level efforts to get the word out about the revised canons.

None of the more than two dozen dioceses contacted by NCR reported a continued decrease, even though the number of U.S. nullity filings has dropped steadily from 72,308 in 1989 to 22,767 through 2015, according to the Center for Applied Research in the Apostolate (CARA), based at Georgetown University in Washington, D.C.

Fr. Bruce Miller, president of the Canon Law Society of America and judicial vicar for the Diocese of Alexandria, Louisiana,* said the marriage tribunal in his diocese accepted 107 new filings in 2016 compared to 50 in 2013, 51 in 2014, and 40 in 2015. He said that after Francis made changes, the diocese did not accept any other cases after Oct. 8 for the rest of the year.

 "It would be very premature" to conjecture if the apparent reverse of the long slide in annulment filings "is more than a flash in the pan," Miller said. Still, he added, he heard tribunal workers use the word "inundated" multiple times to describe case-loads during the Canon Law Society of American's national convention held October 2016 in Houston.

"It will be very interesting to compare 2016 to 2017," he said, "but the best two years to compare will probably be 2017 and 2014."

Oblate Fr. Francis Morrisey also counseled, "Give it a couple of years to let things settle down."

"It took three or four years for the 1983 canon law revision to establish a mindset. So we need to give the new code changes a chance, and then we will find a good way to apply them without going to any extremes," said Morrisey, a member of the Special Commission for the Study of the Reform of the Matrimonial Processes in Canon Law established by Francis to draft the proposed changes.

Morrisey, a canon law professor at St. Paul University in Ottawa, Canada, is the lone North American representative on the commission.

The priest described the commission work as "a wonderful experience" and "very intense."

There was "pressure to get it done" by just after Easter of 2015 so suggested revisions could be sent to Francis for review and adjustment prior to convening of the second synod on family and marriage in October 2015.

"The most intense areas of discussion," Morrisey said, "included whether there would have to be an appeal of every case or whether that could be eliminated; and whether a tribunal could be entirely lay or if there would have to be at least one cleric — deacon, priest or bishop — on a tribunal."

At least one ordained person is required on a tribunal, but two are no longer mandated.

Easier geography

Miller said he and many U.S. tribunal officials see the revised process cultivating "a real change of culture."

Even more cases might have been processed if tribunals had not been compelled to revise long-standing modes of operation to adapt to the revisions, several sources said.

"One of our hardest tasks has been to learn and implement the new procedures since we have been so used to the older ones," Fr. Michael Ibach, the judicial vicar of the Diocese of Yakima, Washington, said in an email. "Making adjustments has been hard, but gradually we are getting our act together."

Other dioceses experienced the same early demands, but also similar collateral benefits. Tully said it was a "challenge ... to revise our forms to accommodate the procedural changes of Mitis Iudex. However, this proved fruitful because our intake forms are now more clear and precise."

While the Little Rock, Arkansas, Diocese has not yet experienced "a huge increase in cases," wrote judicial vicar Fr. Greg Luyet in an email, the reform has "allowed us to accept any case presented."

"Prior to Dec. 8, 2015," he explained, "we could not accept certain cases where the marriage, respondent, and witnesses lived in another country. Now we can. This has allowed us to better minister to our immigrant and refugee communities."

Others also expressed appreciation for the reforms' pastoral path for immigrants and cases involving overseas elements.

"The change in procedural norms now allows us to do a case when a petitioner lives here and the former spouse lives in another part of the country, when previously we had to obtain consent from the tribunal where the former spouse lived," explained Msgr. Steven Callahan, San Diego vicar general and judicial vicar. "If a former spouse lived outside the country, we couldn't do the case, whereas now we can. We see a significant number of cases where the former spouse lives in Mexico, so this is a big help to us."

Dreamstime/Maria Dryfhout

Judging procedures

How diocesan bishops function as judges under the reformed procedures has been one of the leading issues to surface during the seminars, conferences, workshops and presentations being directed around the world by Morrisey.

"This is new to them, and they want to make sure they are doing it right," he explained.

Canonists consistently cautioned that conditions for the condensed, bishop-as-sole-judge process are rare and it "should not be viewed as a get out of jail free card," in the words of two judicial vicars.

"There seemed to be a conflation, thinking the Year of Mercy was a year of amnesty," Tully observed. "Many petitioners seem misinformed about the changes, particularly the possibility of the briefer process before the bishop."

Even if a case does not qualify for the short process, its existence has "helped pique interest" in pursuit of annulments, said Fr. Paul Appel, judicial vicar of the Davenport, Iowa, Diocese, where 2016 filings showed nearly a third increase over 2015.

"Anything that gets people talking about it is good," said Appel. "I think the pope's heart is in the right place, and he wants people to feel comfortable to approach the church."

"The goal is not to just deal with the past," the priest added, "but with the future and healing. Too often, people think there is no way forward for them."

Msgr. Tony Bawyn, Seattle Archdiocese judicial vicar, told NCR that he thinks many petitioners delayed their petitions to await the effective date of Mitis Iudex, "perhaps hoping that they would qualify for the new processus brevior," a Latin reference to the condensed process involving a bishop.

"In this regard," Bawyn continued, "they were disappointed. In most cases, the other party is not willing to co-petition or to join the petition after being cited. Even in cases where they are willing to do so, the facts in most cases are not sufficiently manifest to qualify for that process."

Regardless, the Seattle Archdiocese did have "a marked increase in cases in 2016, once the new law was in effect," Bawyn said.

Some bishops have become comfortable with the revised procedures and are working with their tribunals to expedite undisputed cases where nullity grounds are obvious. Others have not, said Morrisey, who has directed presentations on Mitis Iudex Dominus Iesus in several countries.

San Diego Bishop Robert McElroy would appear to be one of the "comfortable with" group.

During 2015, a single bishop-as-judge case was handled by the San Diego tribunal in a brief window of time, but in 2016, 19 filings were accepted, 16 of which were adjudicated by the end of the year.

"I wouldn't characterize it as giving the bishop a lot of latitude, but rather there are clear-cut cases where it is obvious the consent [to marry] is invalid," explained Callahan.

Overall, the San Diego tribunal took in 312 new cases during 2016 compared to 203 in 2015, Callahan said. He underscored that the streamlined process for regular cases works, adding that in 2016, the total number of completed cases more than doubled, from 139 to 300.

"I attribute the increase to three factors," Callahan said. "Simplifying the process with no more automatic appeal … elimination of the fee for the process, and I simplified our petition, which is easier for people to start and complete the process — less intimidating."

Pope Francis greets Msgr. Pio Vito Pinto, dean of the Roman Rota, during an audience with participants in a course on marriage annulment changes in Paul VI hall at the Vatican March 12, 2016. The course focused on changes Pope Francis approved in September 2015 in regard to marriage annulments. The Roman Rota is a Vatican court that deals mainly with marriage cases. (CNS/L'Osservatore Romano)

Return to prior norms

In general, Morrisey said, he has been "pleasantly surprised" by how bishops and priests he has tutored "warmly embrace" the revised canons and grasp "the possibilities that are there."

He has heard criticism "that was also apparent during the synods [on the family], all the complaints that you get about any change."

"Some say they have gone too far, that they are too lax," he explained. He views that camp as a small, if vocal, minority.

"Much is going to depend on where you are," he said. "If a bishop is not interested, he won't do anything."

Diocesan officials described grassroots clergy reaction as generally favorable.

"I have presented to the presbyteral council and deanery meetings of the priests," Luyet said. "They have seemed receptive to the changes. The majority of the changes do not impact pastors in parishes as much as they impact tribunals and judicial vicars."

Luyet lauded the reforms for "underscoring the role of the diocesan bishop as the chief judge in his diocese" and for "restoring the proximity of the judge and the faithful."

Morrisey told NCR that "by far" the reforms will have their most profound effect in less developed nations.

"A lot of mission countries just do not have established tribunals nor the finances" to handle marriage nullity proceedings, he explained. "In North America, Ireland, Canada, Australia, Europe and so on, we have working tribunals, but in other places, even if they have the rudimentaries of a tribunal, it could have taken six or seven years to get a case through which was one of the major complaints before the reform."

The U.S. has historically issued more decrees of nullity than nearly the rest of the world combined, even though American Catholics make up only about 6 percent of the global church.

A marked upsurge in U.S. annulments began when deliberations of the Second Vatican Council came into full effect in the late 1960s, further propelled by 1971 Vatican approval of experimental norms in the U.S. Those norms mirror the current reforms. They allowed for one judge to hear most cases. There was no mandatory appeal. Short time frames were employed.

In 1968, there had been 338 decrees of nullity in the U.S. In 1970 the number hit 5,403, and by 1984 it reached 60,691. The U.S. trial was quashed in 1983, however, with promulgation of the new Code of Canon Law under Pope John Paul II.

Catholic marriage math would dictate against a long-term increase in U.S. annulment filings simply because fewer Catholic weddings are occurring here, several sources noted.

According to CARA, more than 426,000 Catholic Church weddings were celebrated in 1969 compared to just under 146,000 in 2015. Meanwhile, CARA reports that the U.S. self-identified Catholic population during that span increased from 51 million to 74.2 million.

Tribunal officials were in agreement that only time will tell if the current apparent reversal of the annulment filing decline will continue, or if it might reflect a temporary flow from a reservoir of interest previously dammed by the replaced procedures.

Michael Brown, communications director for the San Francisco Archdiocese, said he has been told that the trend of decline in annulments will eventually resume, while Tully said their increasing caseload shows "no let-up in sight."

"This is good news," she said. "Our work in the tribunal is one of ministry and justice that is tremendously challenging and equally rewarding."

About the money

To what degree fee reduction or elimination contributed to the larger number of annulment cases is unclear.

In Seattle, for example, Bawyn said, "Anecdotally we have been advised that parishes have seen increased inquiries due to the removal of all fees. However, they were removed in mid-2015, and we did not see an increase immediately at that time. Some of the delay in seeing the increase may have been due to the announcement of the new law and its implementation date."

The Oklahoma City Archdiocese "has never charged a fee," said Diane Clay, archdiocesan communications director. Nonetheless there was a roughly 10 percent rise in filings in 2016 over 2015.

The San Francisco Archdiocese experienced "a slight uptick" of numbers in 2016 over 2015, even though it has not altered its fee policy, said Msgr. Michael Padazinski, judicial vicar.

Annulment processing fees "are not that big of a deal" in the U.S., Padazinski feels, but called them "almost extortion" in other parts of the world, notably Central and South America, "with which Pope Francis would be familiar from his days there."

"It is a misconception that fees are exorbitantly high" in the U.S., said Padazinski. Formal cases in the San Francisco Archdiocese "cost about $600," he added, but "we make an effort to make sure that cost is never a discouraging factor," and "at times we have waived fees."

Others agreed. "It's not about the fees, and it never has been," Miller said.

Critics have charged that the reforms, especially in light of Amoris Laetitia, appear to dilute church teaching on the indissolubility of marriage and create a kind of back-door divorce process.

"If the concern is that people will now just employ internal forum, then how do we explain the very pronounced interest in seeking the external forum?" Tully said. "I believe ... that Pope Francis has created an environment of trust and people have responded. I believe Pope Francis has reached people where they are in life by being very real and open about the challenges many face in marriage and the pain of divorce. His consistent message of outreach is strong and clear."

*An earlier version of this story referenced an incorrect state for the Diocese of Alexandria, Louisiana; the story has been corrected throughout.

[Dan Morris-Young is NCR West Coast correspondent.]