Should annulment fees be ended?

His Holiness Pope Francis received in audience yesterday the participants of a course conducted by the Tribunal of the Roman Rota, the highest court within the Church (Dr. Edward Peters has a good explanation of the history and purpose of the Rota). Such an audience would normally receive very little media attention, but yesterday the Holy Father said a couple of things which caught the attention of the media, particularly because he spoke in reference to petitions for declarations of nullity (which are commonly called annulments).

He noted the desire of many of the Synodal Fathers "to simplify the procedures" for submitting a petition for a declaration of nullity and in making a judgment about such a petition (see nos. 48-49 of the Relatio Synodi of the III Extraordinary General Assembly of the Synod of Bishops [which for some bizarre reason is not yet on the web site of the Synod of Bishops in English translation, though the "midterm" that caused so much trouble is]).

I don't think anyone in the Church disagrees with this desire, but how it can be done while still ensuring that justice is done is a matter of some discussion, for which reason Pope Francis recently appointed a special commission (curiously even before the Third Extraordinary General Assembly of the Synod of Bishops began).

Now we come to the heart of what the Holy Father said, with my emphases:

Justice: how many people wait for years for a judgment. And, because of this, already before the Synod I constituted a Commission that would help to prepare different possibilities in this line: a line of justice, and also of charity, because there are so many people who are in need of a word of the Church on their matrimonial situation, for a yes or for a no, but it must be just. Some procedures are so long or so burdensome that they are not favorable, and people give up. An example: the inter-diocesan Tribunal of Buenos Aires – I can’t remember but I believe that, in the first instance, there were 15 dioceses; I believe the farthest was 240 kilometers away  … This cannot be, it is impossible to imagine that simple, ordinary persons can go to the Tribunal: they must make a trip, they must lose days of work, even the award … so many things … They say: “God understands me, and so I will continue this way, with this weight in my soul.” And Mother Church must do justice and say: “Yes, it’s true, your marriage is null – [or] No, your marriage is valid.” But it is just to say it. So they can go ahead without this doubt, this darkness in their soul. It is important that these courses take place, and I am very grateful to Monsignor the Dean for what he has done. And I also thank him because he, himself, presides over this Commission to find suggestions to simplify the procedures. Forward always. It is Mother Church that goes and seeks her children to do justice. And it is necessary to be very careful that the procedures are not in the framework of affairs: and I’m not speaking of strange things. There have also been public scandals. Some time ago I had to dismiss from the Tribunal a person that said: “10,000 dollars and I will do the two procedures for you, the civil and the ecclesiastical.” Please, not this! In the Synod there were also some proposals that spoke of gratuitousness, this must be looked at … For when spiritual interests are attached to the economic, this isn’t from God! Mother Church has so much generosity to be able to do justice gratuitously, just as we have been gratuitously justified by Jesus Christ. This point is important: detach the two things.

After these words, Pope Francis thanked the participants in the course and asked them to remember him in their prayers.

Others have addressed elsewhere what might be done to ease the process for these petitions - both on the part of the petitioners and on the part of the judges - so I do not wish to enter into that discussion (particularly since I have little direct experience of the process).

In terms of the Pope's concerns about the distances some people have to go to find a tribunal to which a petition can be submitted, I think he is right. But he is also speaking in terms of the extremes. For example, in the United States of America and in Canada (where some 80% of the world's petitions are made and judged), one would be hard pressed to find a situation where a person had to travel so far (150 miles) to find a tribunal.

Every diocese is required by the Code of Canon Law to have a tribunal:

Can.  1420 §1. Each diocesan bishop is bound to appoint a judicial vicar, or offcialis, with ordinary power to judge, distinct from the vicar general unless the small size of the diocese or the small number of cases suggests otherwise.

§2. The judicial vicar constitutes one tribunal with the bishop but cannot judge cases which the bishop reserves to himself.

§3. The judicial vicar can be given assistants who are called adjutant judicial vicars, or vice-officiales.

§4. Both the judicial vicar and adjutant judicial vicars must be priests, of unimpaired reputation, doctors or at least licensed in canon law, and not less than thirty years of age.

§5. When the see is vacant, they do not cease from their function and cannot be removed by the diocesan administrator; when the new bishop arrives, however, they need confirmation.

Can.  1421 §1. In a diocese, the bishop is to appoint diocesan judges, who are to be clerics.

§2. The conference of bishops can also permit the appointment of lay persons as judges; when it is necessary, one of them can be selected to form a college.

§3. Judges are to be of unimpaired reputation and doctors or at least licensed in canon law.

I've frequently said, though probably not on this blog, that if bishops and priests would simply follow canon law most of the problems we have today would not exist.

So far as I know, every Diocese in the U.S.A. has an established tribunal, but this is not always the case in some parts of the "developing" world, especially in parts of South America and in Africa.

The most common reasons for a lack of tribunals is the cost of maintaining them and/or a lack of qualified priests on the tribunal (either because of a lack of foresight or a lack of funds to send priests for the necessary studies). This, though, seems a very different question than the one raised by Pope Francis, and one that should rightly be raised. 

Tribunals in North America tend to work with great efficiency once all of the necessary documentation is submitted to the tribunal (this often takes the longest amount of time), especially considering the number of cases tribunals in the United States of America receive. 

Take, for example, the year 2012 (the most recent year for which I have data) when 16,191 new petitions were submitted to 164 tribunals, an average of 98 cases per tribunal.

In the same year, 14,781 cases were decided, an average of 90 cases per tribunal or almost 2 cases per week per tribunal. Between the time required to process and request documentation for new cases, read through pending cases, and attend to pastoral duties, that isn't a bad rate (though, of course, there's always room for improvement).

This is why the lack of even one North American on the special commission to review the laws regarding the process is curious.

Now, on to the next concern. I agree with Pope Francis that we should try to "detach" the process of petitioning for a declaration of nullity from economics and, hence, make the process free for the petitioner. Within recent months, the Diocese of Fort Wayne-South Bend and the Diocese of Cleveland have done just this.

I think this is wise because it completely dispels the urban legend that receiving "an annulment" depends on how much money you pay (as I'm sure you've heard). This, of course, is not true. If a tribunal did not require or request a fee for the processing of the petition, this common misconception would necessarily fade away.

The lack of such fees, however, would require dioceses to make up for these fees elsewhere, probably through greater annual appeals. If properly presented, though, I think the faithful would gladly make up this new shortfall because the benefit gained in the popular imagination would outweigh the financial constraint.

Others, though, disagree and can rightly do so as a matter of prudential judgment. They point out that if people contribute something financial toward such a petition, they are more likely to engage the process in a serious and timely manner. This may or may not be true and, for me, is unsatisfactory.

Why do most tribunals, then, require a fee associated with petitions for declarations of nullity? The principle answer is really quite simple and can be traced to the words of Our Lord: "the laborer deserves his payment" (Luke 10:7).

This principle is recognized in the law of the Church under canon 231 (with my emphases):

§1. Lay persons who permanently or temporarily devote themselves to special service of the Church are obliged to acquire the appropriate formation required to fulfill their function properly and to carry out this function conscientiously, eagerly, and diligently.

§2. Without prejudice to the prescript of can. 230, §1 and with the prescripts of civil law having been observed, lay persons have the right to decent remuneration appropriate to their condition so that they are able to provide decently for their own needs and those of their family. They also have a right for their social provision, social security, and health benefits to be duly provided.

One way to provide decent remuneration for those employed in the tribunals is to assess a fee for the services they render (dioceses often make an annual assessment of parishes to cover the other expenses of the chancery and diocesan offices). To ensure this remuneration is given, canon 1649 states that the bishop "is to establish norms concerning" (again, with my emphases):

1º the requirement of the parties to pay or compensate judicial expenses;

2º the fees for the procurators, advocates, experts, and interpreters and the indemnity for the witnesses;

3º the grant of gratuitous legal assistance or reduction of the expenses;

4º the recovery of damages owed by a person who not only lost the trial but also entered into the litigation rashly;

5º the deposit of money or the provision furnished for the payment of expenses and recovery of damages.

Truth be told, nearly every diocese in the U.S.A. already subsidizes every petition. Take the Diocese of Springfield in Illinois, for example, where each petition is subsidized by some 75% (meaning the fees received only account for about 25% of the expenses of the tribunal). Even so, the web site for our Tribunal states (with, once again, my emphasis):

As in any court of law, there are court costs. Petitioners are asked to pay a fee in order to meet these costs. The fee can be paid at once or in installments. It must be stressed, however, that this court administers justice regardless of the payment or nonpayment of fees. No one should delay petitioning for a declaration of nullity because of money concerns.

I believe most tribunals in the U.S.A. - if not all - have a similar "disclaimer" when mentioning the fee requested to help cover the expenses the tribunal incurs with the petition.

Could Pope Francis change the canons and require petitions for declarations of nullity to be processed without any fee? Yes. Would it be wise to require this by law? Maybe, but maybe not. Different dioceses have different financial burdens and these must somehow be taken into account.