Francis delivered a speech which was remarkable for its continuity with St John Paul II and Benedict XVI

On Friday, Pope Francis gave his annual address to the Roman Rota. The Rota is the final court of appeal in marriage nullity cases and, as such, it is traditional that the Holy Father’s annual addresses to the court serves as his opportunity to speak directly to the Church’s legal community on the subject of marriage. In the past, popes have used the occasion to lay out particular concerns, highlight areas of jurisprudence they would like to see developed, or correct what they see as flawed application of the law.

One year, Pius XII supposedly addressed a member of the Rota as “Mgr No” before delivering an address on how the Rota had become reflexively negative in their decisions. St John Paul II used an address to the Roman Rota to deliver a brilliant treatise on human reason, the capacity to consent, and how tribunals should treat clinical mental illness and psychiatric reports in weighing the evidence of a case.

Given that this was Francis’s first address to the court since both the Synod on the Family, and the reforms to tribunal practice brought in by Mitis Iudex, it was widely anticipated. While the more technical, procedural, aspects of the reform have, more or less, made it smoothly into the everyday life of most tribunals, the clear area of concern for many canonists was contained in the procedural guidelines which were published along with Mitis Iudex. These were not part of the formal changes to the Code of Canon Law and, within the context of the document itself, they appeared below the Papal signature, not above, meaning that they were of unclear legal weight.

Within these guidelines, in article 14, were a number of suggested grounds which could be considered by Tribunals employing the new, briefer, trial process. These generated significant discussion among canonists as they seemed to suggest the Pope favoured a broader understanding of the some grounds. In particular, the guidelines mention a “defect of faith which can generate simulation of consent or determining error”. While both John Paul II and Benedict XVI had indicated that a defect of faith was a theoretical ground which needed development, there was no consensus on what this meant, still less what would constitute proof in the course of a trial.

Marriage between two baptised people is, of course, a sacrament and sustained by divine grace. To have a faith so defective or undeveloped that one of the parties did not leave themselves open to having their union sustained by grace, or even believe that God intended their union to be intrinsically indissoluble, could, it has been theorised, lead to an invalid exchange of consent. This line of argumentation is in tension with the Church’s understanding that, while sacramental marriage between the baptised is open to special mutually beneficial graces, marriage between any man and any woman is a function of the natural law and that its essential properties of unity and indissolubility are instinctively understood by all people, regardless of their religions formation or belief.

Within the broader context of the Synod on the Family, and the defeat of the so-called Kaspar proposal for legitimising second marriages, many had shifted their hopes to a “pastoral solution by the back door” in which the jurisprudence of the courts would be developed in such a way as to understand a defect of faith as a new ground which would make many more marriages qualify as null, and thereby freeing more couples to marry again.

In the end, Pope Francis delivered an address which was remarkable for its continuity with the previous addresses of St John Paul II and Benedict XVI. If we were to insist on using political terms for a theological and legal address, it would be easy to characterise it as strikingly conservative.

Francis began by highlighting the essential work of the Rota, and by extension all tribunals, as focused on objective truth. While the work of Church courts is often concerned with serving families in difficult situations, this service is essentially grounded in the reality of marriage as an indissoluble union between one man and one woman – guarding the integrity of this understanding is central to how the Church serves those approaching tribunals:

“In addition to the definition of the Roman Rota as Tribunal of the family, I would like to highlight another prerogative, namely, that it is the Tribunal of the truth of the sacred bond. And these two aspects are complementary.

“The Church, in fact, can show the indefectible merciful love of God to families, in particular those wounded by sin and by the trials of life and, at the same time, proclaim the inalienable truth of marriage according to God’s plan.”

Far from proposing a new or reinterpreted ground of nullity as a means for regularising the situations of those who, even through no fault of their own, have found themselves in irregular unions or other situations, Francis clearly stated that the first service of the Church’s judiciary is to announce the truth of their situation, with love, and help them to come to understand the reality of their situation.

“With this same spiritual and pastoral attitude, your activity — be it in judging be it in contributing to permanent formation – assists and promotes the opus veritatis. When the Church, through your service, decides to declare the truth about marriage in a concrete case, for the good of the faithful, she has present at the same time those who by free choice and unhappy circumstances of life, live in an objective state of error, [but] continue to be the object of the merciful love of Christ and therefore of the Church herself.”

On the specific ground of a lack or defect of faith, Pope Francis, while admitting the reality of the ground, insisted upon the highest possible standard of proof and ruled out the possibility of simple poor formation providing the grounds of nullity:

“It is good to state clearly that the quality of the faith is not an essential condition for marital consent, which, according to the everlasting doctrine, can be undermined only at the natural level. In fact, the habitus fidei is infused at the moment of Baptism and continues to have a mysterious influence on the soul, even when the faith has not been developed and, psychologically, seems to be absent. It is not rare that the parties contracting marriage, driven to true marriage by the instinctus naturae, have, at the moment of the celebration, a limited awareness of the fullness of God’s plan, and only later, in family life, they discover all that God the Creator and Redeemer has established for them. The lack of formation in the faith and also the error about unity, indissolubility and the sacramental dignity of marriage vitiate the marital consensus only if they determine the will. Precisely because of this, errors that regard the sacredness of marriage must be assessed very carefully. Therefore, with a renewed sense of responsibility, the Church continues to propose marriage in its essential elements – offspring, the good of the spouses, unity, indissolubility, sacredness – not as an ideal for a few, despite modern models centred on the ephemeral and the transitory, but as a reality that, with the grace of Christ, can be lived by all the baptised faithful.”

This passage, which extensively quotes the Catechism and the Code of Canon Law, could just as easily be a quote from an address by St John Paul. The underscoring of marriage as an intuitive part of the human condition, and not something which must be either explicitly taught or received to be validly contracted, echoes the bold and confident assertion of the Church’s teaching on marriage and the family which was articulated in the Synod on the Family’s final relatio, but which was widely ignored by those championing a breach with traditional teaching.

While some still insist, despite their rapidly vanishing grounds to do so, that the post synodal exhortation could contain some pastoral mechanism for regularising those in invalid second marriages, Francis ended his allocution with a clear indication of his pastoral priority. He called for a new catechumenate, especially for couples preparing for marriage, with an emphasis on better formation for all the laity and a path towards a deeper appreciation of the faith, which is a marriage of truth and mercy, rather than the construction of some kind of accommodation for situations of failure, be they personal or structural.

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Dec 2 2016 cover