- Editor’s Introduction
The Extraordinary General Assembly of the Synod of Bishops held in Vatican City this past October 2014 and the Ordinary General Assembly scheduled for October 2015, both on the pastoral challenges to the family in the context of evangelization, have generated quite some interest in their subject matter. The results are visible in this second issue of The Jurist for 2014: three of the six contributions deal with the teaching on marriage, or some practical consequences for Tribunal practice.
The issue opens with a reflection by His Eminence, Velasio Cardinal De Paolis, President Emeritus of the Prefecture for the Economic Affairs of the Holy See, on appropriate pastoral approaches for the divorced and remarried. His Eminence remarks that the phenomenon of irregular marriages has been on the rise for decades. The phenomenon highlights the crisis of marriage and the family. Civil society, however, does not seem to take any notice, nor think it worth its attention. The reason for this neglect is that civil society itself is in a crisis and the crisis of the family is its mirror image. It is a crisis that has its roots in the same anthropological vision: civil society and the family suffer from the same disease; a crisis of the vision of humanity. The Church on the contrary makes the family the object of her assiduous pastoral action, particularly in this time of crisis. A large part of her faithful however no longer seem to live in accord with her teaching and discipline on marriage and the family. What has aroused the special concern and pastoral care of the Church is the situation of [End Page 149] irregular unions, particularly the situation of divorcees, who after divorce, have entered into a second, merely civil marriage that may have given rise to a new family. These unions have raised doctrinal and pastoral problems of great importance, in particular the alienation of the couple from certain parts of the life of the Church, and especially their exclusion from the Eucharist. Cardinal De Paolis reflects on this important issue and offers some solutions.
In recent years, the ground of invalid convalidation of a merely civil marriage entered into by a Catholic party who was bound to the canonical form has been appearing with greater frequency in cases submitted to Tribunals, especially in the English speaking world. Monsignor Kenneth E. Boccafola, Prelate Auditor Emeritus of the Roman Rota, intends to determine whether or not, when used in the context of rectifying a merely civil union celebrated by a Catholic party, invalid or defective convalidation constitutes a legitimate autonomous ground of marriage nullity. The discussion centers first on what is meant by the term and why it is proposed as an autonomous ground of nullity. At the same time the strict limits of the inquiry are clearly delineated. The thesis that this ground is a legitimate and autonomous caput nullitatis seems to be based on two presuppositions, which Msgr. Boccafola evaluates as either erroneous or at least dubious. The first is that the canonical ceremony rectifying a Catholic’s merely civil union can be considered as coming under the canonical institute of simple convalidation. The second is that the requirement for renewed consent contained in canons 1156 and 1157 is also necessarily applicable in the case of the ceremony rectifying the civil union of a Catholic. The author concludes that invalid convalidation is not an autonomous ground of nullity and should not be accepted as a legitimate ground by Tribunals. The proper ground of nullity for the circumstances envisioned is simulation. Recent jurisprudence would seem to be in accord with this view.
Despite the traditional appreciation for the supernatural importance and proper finality of the administration of justice in the Church, the 1960s witnessed the introduction of a new juridical culture in American Tribunals that undermined the nature of the marriage nullity trial as a search for the objective truth about the alleged nullity. William L. Daniel shows how the application of the American Procedural Norms of 1970 eroded the proper meaning of moral certitude and de facto eliminated the obligation for the double conformity of sentences. Despite their abrogation by the [End...