The Jurist: Studies in Church Law and Ministry
Letters Clarifying Some Unclear Points of the motu proprio Mitis iudex Dominus Iesus: Pontifical Council for Legislative Texts
10.1353/jur.2015.0032
Letters Clarifying Some Unclear Points of the motu proprio Mitis iudex Dominus Iesus*Pontifical Council for Legislative Texts
1. Conversion of a Formal Canonical Proces into a processor brevior and Consent of the Petitioner and the Respondent for the Use of the processus brevior
Prot. N. 15138/2015
Dear Msgr.,
responding to your letter of 8th September with which you asked for two clarifications regarding the Motu Proprio Mitis Iudex, we observe the following:
The question about the conversion of a formal canonical process regarding the declaration of nullity of a marriage to the processus brevior introduced by the aforementioned Motu Proprio: If a process has begun in a formal way, there is—in a similar way as the passage from a formal process to the request of a dispensation super rato (cf. new canon 1678 §4)—the [End Page 663] possibility to suspend the formal process and ask the parties for their consent to continue the instruction under the rules of the brief process.
The new canon 1683 and Art. 15 of the procedural norms make clear that the consent of the petitioner and the respondent (whether given by a joint signature of the parties or by other means) is a preliminary condition to initiate the brief process. The consent of both parties required to initiate this procedure is a condition sine qua non. This explicit consent is foremost necessary because the brief process is an exception to the general norm.
If the whereabouts of a respondent are unknown, the case cannot be accepted for the processus brevior. While the legislator formulated a presumption regarding the disposition of the respondent in art. 11 §2 of the procedural norms, this presumption applies only to the ordinary process and not to the brief process. Though the consent of the respondent can be given by several means, those means must however guarantee publicly and unequivocally his or her will, also for the protection of the judge and the parties. Otherwise, the brief process cannot be introduced.
Hoping that this answer, which can be made known among other canonists will be helpful for your important work in the tribunal, I am
Yours sincerely in Domino,
✠ Francesco Card. Coccopalmerio
✠ Juan Ignacio Arrieta
Secretary [End Page 664]
2. Consent of the Petitioner and the Respondent for the Use of the processus brevior
responding to your letter of 13th September regarding a clarification of the presuppositions of the shorter process, introduced by the Motu Proprio Mitis Iudex we observe the following: The brief process cannot be used, if the respondent remains silent, does not sign the petition or declare his consent.
While the legislator formulated a presumption regarding the disposition of the respondent in art. 11 §2 of the procedural norms, this presumption applies only to the ordinary process and not to the brief process. Though the consent of the respondent can be given by several means, those means must however guarantee publicly and unequivocally his or her will, also for the protection of the judge and the parties. Otherwise, the brief process cannot be introduced.
3. Meaning of Senior Suffragan Bishop
Prot. N. 15155/20151
by letter of 17 September, which arrived here on the 12 of this month, you asked this Pontifical Council for an opinion about the new wording of can. 1687 §3, contained in the Motu Proprio Mitis Iudex on the reform of the procedure for the...