Fr Anthony Malone, OFM, is an associate judicial vicar for the Tribunal of the Catholic Church, based in Auckland. This means that, as a canon lawyer, he helps
resolve matters involving both pastoral care and church-law processes. The Tribunal
deals with a wide range of juridic and pastoral matters, including marriage annulment.
In the article below, Fr Malone responds to some of the findings in the survey for the Synod and explains why there are some gaps between many people’s understanding of the Church’s annulment processes, and the reality of what
Article 20: People who have been through the Tribunal’s annulment process have found it long
and difficult, despite the best efforts of the Tribunal staff to make the process pastoral and efficient. The need to interview witnesses is particularly distressing for both plaintiffs and respondents.
Comment: Yes there are those people who have experienced this. However,
a) All offices of the NZ Tribunal report an overwhelming response of appreciation and gratitude
at the professional and expeditious manner in which their cases were processed from people
who have had annulments.
b) Most delays in processing a case are due to the lack of cooperation from both parties
and their nominated witnesses.
c) On average the full nullity process in New Zealand is completed within 10 to 12 months.
Other processes vary between four working days and several months.
d) How then does the Church establish the truth of past events, issues and common law tradition
their effects impartially? The same methods are used by state and private agencies when they also need to accurately as possible establish the truth.
e) Internal rules of the Tribunal ensure total confidentiality and at the same time guarantee
transparency of the process for both parties.
Article 21: The responses revealed that many Catholics see the annulment process as a form
of legal dishonesty, and for this reason they would not engage in the process themselves or advise family members to do so. The process is viewed as a means of getting around the rules rather than accepting that the rules don’t always work.
f) Unfortunately this whole article reflects the great ignorance of the vast majority of Catholics (bishops, priests and laity) and almost total ignorance of all non-Catholics about the processes of the Tribunals of the Catholic Church. This can only be addressed by making information more readily accessible. Calling the annulment process a “form of legal dishonesty” is wholly unwarranted, questioning the integrity of those who work in the Tribunals and
suggests that the leaders of our Church (including pope and bishops) are complicit in travesties of injustice.
Article 22: A more pastoral process would allow greater privacy for the couple by involving as few people as possible outside the couple themselves. Simplification of the process will be of limited assistance if the nullity process retains dominance of its juridical nature and form.
g) At present there is among many Catholics the perception of a dichotomy which is false.
Thus many see “pastoral” as being opposed to “canonical”. However, in the Catholic Church what is truly “pastoral” must at the same time be properly “canonical” and vice versa. The appearance of this false dichotomy as expressed by Catholics can be traced to the misuse of casuistry [drawing distinctions and trying to classify exceptions to the rule and/or quibbling], legal positivism in civil law and an antinomian reaction to past minutelyregulated rules of secular and religious institutions.
h) “Privacy” in this context ignores the teaching of the Catholic Church that marriage is
a social sacrament. Undoubtedly the right of every person to privacy (canon 220) must never
be unlawfully harmed.
However, the sacrament of Matrimony involves all within our community of faith as: a vocation, a witness, a catechesis, a source of grace, and an invitation to genuine holiness.Thus in the Catholic Church marriage is never a “private matter”.
i) The process of formal annulment procedure can be simplified and canon lawyers here in
New Zealand have offered for consideration a range of ideas for the Synod Fathers to debate and/or recommend.
j) New Zealanders are familiar with the common law tradition. It is this tradition that is the foundation of New Zealand’s secular legal system — civil and criminal. The common law tradition
has the following characteristics: It is adversarial and punitive. However, the Catholic canonical tradition is: inquisitorial and remedial.Therefore, to denigrate the nullity process of the Catholic Church by stating that it is dominated by “its judicial nature and form” is to perhaps associate canon law too clearly with our familiar common law tradition.
Furthermore, reliance upon criteria other than objective, verifiable and susbtantive matters can easily denigrate into arbitrary, relativistic and emotional reactions.
There is therefore the need for a juridic form of assessing the status of a marriage if we as a
Church are to be faithful to the Gospel of Christ.
In conclusion, and commenting as a practising canon lawyer, I welcome the opportunity that Pope Francis is offering for an honest and compassionate examination of the Catholic Church teaching and practice in relation to family life. Our Catholic history is replete with many instances where teaching and pastoral practice have developed and have been improved upon. In this regard, such improvements and developments have also been mirrored in the legal system operated by the Church.
Let us pray that the Holy Spirit will guide the Church we love and belong to so that we may all
better live out the Gospel of Jesus Christ.