(Tridentine South Africa)

Analytical Article by Marc Aupiais

An issue which recently caused some concern, and which resulted in our
service being contacted for comment, is the papacy's recent comments
about annulments. The Pope believes tribunals have not been strict
enough in applying the law. We were corresponded with due to concern
over his comments and their effects on valid annulment cases.

Firstly, the pope's comments:

"JUSTICE, CHARITY AND TRUTH MUST GUIDE THE ROMAN ROTA

VATICAN CITY, 29 JAN 2010 (VIS) - This morning in the Vatican, Benedict
XVI received the dean, judges, promoters of justice, defenders of the
bond, officials and lawyers of the Tribunal of the Roman Rota, for the
occasion of the inauguration of the judicial year.

In his address the Holy Father focused his attention on the role of
that institution, from the triple perspective of the justice, charity
and truth which must inspire it.

"It is necessary to take account of the tendency - widespread and
well-rooted though not always obvious - to contrast justice with
charity, almost as if the one excluded the other", said the Pope. "Some
people maintain that pastoral charity justifies any measures taken
towards the declaration of nullity of the marriage bond. ... Truth
itself ... would thus tend to be seen in a functional perspective,
adapting itself to the different requirements that arise in each case".

"Your ministry", he continued, "is essentially a work of justice, a
virtue ... of which it is more important than ever to rediscover the
human and Christian value, also within the Church. Canon Law ... must
always be considered in its essential relationship with justice,
maintaining an awareness that the Church's juridical activity has as
its goal the salvation of souls".

"In this perspective it must be borne in mind that, whatever the
situation, trial and sentence are fundamentally linked to, and at the
service of, justice", said Benedict XVI, and he went on: "Apart from
this 'objective' dimension of justice, there exists another
dimension ... which concerns the 'operators of the law'; that is, those
who make law possible. ... They must be characterised by their exalted
practice of human and Christian virtues, in particular those of
prudence and justice, but also that of strength".

This latter virtue "becomes more important when injustice seems the
easiest path to follow, in as much as it involves giving in to the
desires and expectations of the parties involved, or to the
conditioning of the social environment".

"Everyone who works in the field of the Law, each in his or her own
role, must be guided by justice", said Pope Benedict. "I am thinking in
particular of lawyers, who must not only take great care to respect the
truth of the evidence, but also to avoid taking on ... cases which they
know in their conscience to be objectively unsustainable.

"The action of those who administer justice cannot neglect charity", he
added. "A charitable perspective and charitable measures will help us
not to forget that those before us are always people marked by problems
and suffering. The principle whereby 'charity goes beyond justice' also
holds good in the specific field of the work of 'operators of justice'".

"Our dealings with people", the Pope explained, "must take account of
each specific case in order, with delicacy and attentiveness, to
facilitate the parties' contact with the tribunal". Likewise, "it is
important that effective efforts be made, whenever there seems to be
hope of a successful outcome, to encourage the spouses to convalidate
their marriage and restore conjugal cohabitation. It is also vital not
to stint efforts to establish a climate of human and Christian openness
between the parties, founded on the search for truth".

The Holy Father then highlighted another important question, "that of
avoiding pseudo-pastoral demands which place the issue on a merely
horizontal plain, in which what counts is satisfying subjective
requests in order to achieve a declaration of nullity at any cost, with
the aim of overcoming, among other things, the obstacles to receiving
the Sacraments of Penance and the Eucharist. ... It would however be a
false advantage", he said, "to ease the way towards receiving the
Sacraments, at the risk of causing people to live in objective contrast
with the truth of their own individual state".

"Both justice and charity require love for truth, and essentially
involve the search for what is true. ... Without truth charity slides
into sentimentalism. Love becomes an empty shell to be filled
arbitrarily. This is the fatal risk of love in a culture without truth".

This can happen, the Pope went on, "not only in the practical activity
of passing judgment, but also in theoretical studies which have such an
influence on concrete judgements. The problem arises when the essence
itself of marriage becomes more or less obscured. ... Examination of
the conjugal bond in existential, personalist and relational terms must
never be undertaken at the expense of indissolubility, an essential
property which in Christian marriage has, with unity, a special
firmness by virtue of the Sacrament".

"Marriage enjoys the favour of the law. Hence, in case of doubt, a
marriage must be held to be valid until the contrary is proven.
Otherwise we run the serious risk of remaining without an objective
point of reference for pronouncements of nullity, transforming all
conjugal difficulties into a symptom of a failed union whose essential
nucleus of justice - the indissoluble bond - is thus effectively
denied".
AC/.../ROMAN ROTA VIS 100129 (850)"
Having noted the comments of the Pope, we must note, he is talking
about the case where Canon law is ignored out of empathy or sympathy
for those seeking annulments. The Pope desires that marriages be
presumed rebuttably to be valid first and foremost, and for annulments
to only be granted when it is reasonable to believe there was not a
valid marriage. His comments have no bearing on a valid claim. one must
simply remember to argue correctly and to present the truth with the
correct evidence if need be. I am not a canon lawyer, and one follows
my advice at their own risk. I do not see any serious change in the way
canon law should be viewed.

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Posted By scripturelink to South African Catholic at 2/07/2010 09:20:00
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