Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

Papal power to dissolve a non-consummated marriage was established mainly during the pontificates of Popes Alexander III and Innocent III. Since the beginning, this institution has faced significant objections from both theologians and canonists. First, this article focuses on the elements required for an adequate understanding of such papal authority, including the underlying sacramental theology of marriage. Second, a historical overview of the origin and evolution of this power will be outlined, setting the so-called «consent theory» and «coital theory» in their proper context. Special attention will be paid to the distinction between matrimonium initiatum and matrimonium ratum in the Decretum Gratiani, taking into account the different stages of its composition. Finally, there is a brief discussion of the degree to which such papal authority is coherent with the indissolubility of marriage.

The extent of primatial power is an ancient problem that has ongoing relevance both from an ecumenical standpoint and in the face of the pastoral challenges of evangelization. This contribution starts from a synthesis of the speculation of classical and modern Canon Law regarding the plenitudo potestatis and the main, recent declarations of the Magisterium in this regard (Vatican I and II, the encyclical Ut unum sint, Considerations of the CDF on Primacy, etc.) so as to offer a greater understanding of the constitutional importance of this figure. Contemporary research has, in fact, reached a common and shared paradigm (the limits of divine and natural law), but neither the content of the notion nor the fundamental, epistemological issue involved have been muchexplored. The sapiential approach helps to combine the traditional, prudential configuration with modern ecclesiological developments. Thus, the limits of primatial power express the fidelity and reasonableness of the divine plan for the Church; the Petrine service, in fact, closely shapes the goods of communion and the structure of the community.

The third reform of the post-Vatican II Roman Curia is currently underway. Pastor Bonus, the law governing the Curia, has already been amended several times and Pope Francis has not only proposed new legislation, but has also set out some basic criteria. The reform is to affect the organization of Dicasteries and, above all, working methods and the participation of various people. At the same time, important issues arise here, such as the relationship between diocesan bishops and the Curia, the position of titular bishops, and greater recognition of the participation of lay faithful in the Dicasteries.

The recent motu proprio Mitis Iudex Dominus Iesus reforms the procedures for the declaration of marriage nullity, in order to streamline the proceedings and to facilitate the faithful’s access to justice. Procedural timeliness is the faithful’s right, and its delivery a duty in the administration of ecclesiastical justice; it may also have a positive bearing on the pastoral care of remarried divorced persons. There has been doctrinal debate for a number of years concerning the adequacy of canonical procedural law, as well as about other factors which may cause unjustifiable delays in nullity cases. This article examines such doctrinal concerns and the changes brought about by the new legislation on marriage processes. It also points out some critical reflections for further improvements in the activity of ecclesiastical courts.

Pre-judicial inquiry is an authorized, optional service, established by the diocesan bishop as part of marriage pastoral work as whole. In this way, the Bishop shows his concern for separated or divorced persons who question the existence of their marriage bond. Firstly, this service offers the resources required to attempt to overcome the crisis in the marriage and restore it, by reaffirming the marriage if necessary. Secondly, should reconciliation prove impossible, the purpose of the prejudicial inquiry turns to the viability of the marriage nullity process, collecting the elements necessary for the presentation of the case before a competent tribunal. Clearly, a vademecum consolidating standards of practice in the pre-judicial stage would be a very useful resource; it would be also a way to grow in the missionary outlook of a Church which «goes forth» (EG 46).

The motu proprio Mitis Iudex entails a series of challenges from the point of view of its canonical application. The first such challenge is to effect a real «transformation of legal-pastoral structures» so that judicial activity ultimately becomes part of pastoral work with the family, in accordance with the «outgoing» Church Pope Francisco speaks of in Evangelii Gaudium. The second is the requirement that the diocesan bishop incorporate nullity processes into episcopal ministry as a whole, as one of the key tasks and responsibilities that the Bishop has towards God’s people. Such responsibility extends far beyond the immediate and personal exercise of the judicial function. The third challenge is to place the search for truth and the defense of the indissolubility of marriage at the center of judicial activity. The final goal is to ensure that the nullity process proceeds in line with the criteria of due diligence and speed.

This article examines the requirements and structure of the abbreviated process according to current legislation. Analysis of the different stages of the process in current law discloses that some questions, difficulties and loopholes may arise in processing cases according to the new procedure. Potential solutions are proposed.

This paper analyzes the figures of Judicial Vicar and Instructor in the marriage annulment process, in light of the amendments enacted by Mitis Iudex. The various stages of the process are discussed, focusing on the role of the Judicial Vicar in each: admission of the application, notification, determining the formula of doubt, decision about the appropriate procedure, execution of the judgment. Special attention is paid to the abbreviated process before the bishop, the key novelty brought about by the Pope Francis reform; and the first instances of its application in ecclesiastical courts are taken into account. The final part of the paper addresses the role of the Instructor.