- Letters Clarifying Some Unclear Points of the motu proprio Mitis iudex Dominus Iesus*
1. Two Questions about the Application of the Motu Proprio Mitis et misericors Iesus
Prot. N. 15170/2015
Vatican City, 25 November 2015
with the present I respond to your letter of 20 October of this year, with which you asked for the opinion of this Pontifical Council on two questions about the new motu proprio Mitis et misericors Iesus.
Paragraph 2 of can. 1372 CCEO, hitherto in force, establishes that the premarital inquiry mentioned in can. 748 is sufficient to demonstrate the free state of the person who was to observe the form of celebrating matrimony prescribed by the law, but who had attempted marriage before a civil official or a non-Catholic minister. [End Page 287]
The new can. 1374 of the motu proprio Mitis et misericors Iesus, instead, makes no reference to the content of said paragraph 2 of can. 1372 and mentions the cited case among the causes that constitute a defect of the legitimate form, requiring for all a declaration of nullity of the marriage by judgment in the documentary process.
As a consequence, with the entry into force of the motu proprio Mitis et misericors Iesus, the premarital inquiry will no longer be sufficient to demonstrate the free state of those who have attempted marriage in the aforementioned circumstances, but the nullity of the previous marriage must be declared while observing the norms of the new can. 1374 on the documentary process.
The second question you presented emerges from a conflict between can. 1087 §2 CCEO and the new can. 1359 §3. Can. 1087 §2 is a norm concerning judgments in general, while the new can. 1359 §3 of the motu proprio Mitis et misericors Iesus is incorporated in the part on the special processes, and regards only matrimonial processes.
Although the text of paragraph 3 of the new can. 1359 is not explicit in indicating whether, for the appointment as judges alii christifideles, the permission mentioned in can. 1087 §2 CCEO is needed, the overall logic of the provisions of the motu proprio on the broad power that is given to the eparchial Bishop, one must conclude that in the processes of marriage nullity the eparchial Bishop can appoint judges that are other Christian faithful without the previous permission of the authority indicated in can. 1087 §2 CCEO.
In the hope to have given you a useful opinion, I take this opportunity to confirm me,
yours sincerely in the Lord
✠ Francesco Card. Coccopalmerio
✠ Juan Ignacio Arrieta
Secretary [End Page 288]
2. Further Appeal to the Third Instance Tribunal
Prot. N. 15264/2015
12 January 2016
by letter of 17 December 2015, you have asked this Pontifical Council for an opinion on the question if, in a cause of the declaration of the nullity of a marriage, the petitioner after an affirmative decision in first instance and a negative decision in second instance can appeal to the tribunal of third instance, namely to the Roman Rota. The matter has been examined by the Dicastery with the assistance of its own experts.
The motu proprio Mitis iudex on the reform of the process for the causes of declaration of the nullity of a marriage has confirmed the prior discipline (cf. can. 1683 §3 CIC) according to which the Roman Rota remains the tribunal of third instance for the entire Church (cf. also can. 1444 §1, 2, CIC). When it is deemed appropriate, however, there is the possibility for the Bishop to ask the Apostolic Signatura for the so-called Pontifical Commission, that is the entrustment of the case in third instance to a tribunal other than the Roman Rota for a just and reasonable cause (cf. art. 124 a.c. Pastor bonus and art. 115 Lex propria if the Apostolic Signatura). This possibility is now supported by the criteria that inspire the reform in question of the matrimonial process in favor of the proximity of the tribunals and the greater involvement of the Bishop in judicial activities.
Hoping to have given an answer which will be useful for the correct application of the motu proprio Mitis iudex...