Formal Defection From the Catholic Church and it ...

UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW

FORMAL DEFECTION FROM THE CATHOLIC CHURCH AND ITS CANONICAL CONSEQUENCES IN MARRIAGE IN THE LIGHT OF THE MOTU PROPRIO OMNIUM IN MENTEM Rev. Fr. Danilo R. Flores*

PRELIMINARIES The absolute novelty of the ius vigens in the canonical order is that the legislation is imbued and thoroughly permeated with the ecclesiology of communion and ecumenism brought about by the Second Vatican Council.1 There is an intense desire to establish communion not only among Catholics but also with all the baptized persons, commonly known as the separated brethren. The Catholic Church through various forms of initiative, formal and informal, exerts every effort and uses every means and every power in her hand in order to reach individuals of every age and rank offering assistance in search of the truth that unites believers as well as non-believers. The Church, constituted and organized in the world as a society, is endowed with the power that embraces all the baptized Christians and, at times, is extended to the non-baptized persons. The true Church of Christ that subsists in the Catholic Church cannot renounce the exercise of the power that by its very nature is divine insofar as the Founder who is the Lord Himself has mandated it.2 Consequently, its exercise does not depend on the will of the human ecclesiastical legislator nor on any ecclesial organ but on the theological structure of the Church as established by the Divine Founder.3 The Church, however, through the Supreme Authority does not want to impose on all baptized the laws that are merely ecclesiastical but only on those who are in the Catholic Church or received into it as established in canon 11: Merely ecclesiastical laws bind those who have been baptized in the Catholic Church or received into it, possess the efficient use of reason, and, unless the law expressly provides otherwise, have completed seven years of age.

This canon with an exceptional audacity is an innovation of a larger scale, i.e., a product of the long theological and ecumenical reflection of the Council. With a substantial change from the Schema of 1980, the canon establishes that it binds only the baptized in the Catholic Church, excluding therefore the separated brethren who are baptized in other churches or ecclesial communities not in communion with the Church of Rome. It is a radical innovation taking into consideration the contrary opinion and doctrine usually upheld by                                                                                                                                     1  Cf. A. GIACOBBI, “Il Diritto nella storia della Chiesa sintesi di storia delle fonti: Capitolo III - La Chiesa del Vaticano II e L’attuale legislazione: il Codice del 1983,” in AA. VV., Il Diritto nel mistero della Chiesa. PUL, Roma, 1988, 205 -215.   2  Cf. LG 8b.   3  Cf. J. F. CASTAÑO, Introduzione al Diritto Costituzionale della Chiesa, Roma 1990, 171 -181.    

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW many canonists. In fact, in the paragraph three of the Schema of 1980, there was a provision exempting those who abandon the Catholic Church from their ecclesiastical obligations but was rejected by the Commission for the Revision of the Code.4 It should be noted that unlike the divine positive and natural law, the ecclesiastical law imposes an obligation coming from a competent ecclesiastical authority. As a consequence, the canon has an enormous juridico-canonical implication because the ecclesiastical law binds only the baptized in the Catholic Church while the divine positive and natural law binds ex se all those who received a valid baptism although not in full communion with the Church of Rome. In order to make the idea clearer, let us make some examples. By divine natural law, the valid consent of the parties that is legitimately manifested before eligible witnesses establishes a valid marriage. As it is “no human power is able to supply such consent”5; thus, all the spouses, whether baptized or not, are bound to observe the precepts of natural law under the pain of nullity of the matrimonial bond. The Church has no power to dispense from the prescripts of the divine positive and natural law; however, she possesses the power to establish other obligations and impediments that are merely ecclesiastical in order to ensure a valid and licit celebration of marriage, viz., can. 1108 on the canonical form and the exceptions from it like cann. 144, 1112, §1, 1116, and 1127, §§1-2 and the cann. 1086 §1 and 1124 on the conditions for the validity of the marriage bond between a Catholic and a nonbaptized and between a Catholic and a baptized non-Catholic. Three essentially required conditions The canon establishes three conditions that by nature are necessary in order to oblige a person to the observance of the merely ecclesiastical law. The following indispensible requirements should be present simultaneously in the person whenever he performs any act so that it may have valid and licit canonical and ecclesial effects. First, by virtue of divine positive law, a person should have received a valid baptism;6 second, by virtue of natural law, a person should have a sufficient use of reason; and third, by virtue of the ecclesiastical law, a person should have completed the age of seven years. The subjects of the ecclesiastical law                                                                                                                                     4  The third paragraph asserted: “Firmo praescripto §2, eaedem leges iis applicantur qui ab Ecclesia catholica defecerint, nisi aliud iure expresse caveatur.” This formula was criticized by one of the Fathers of the Commission on the Revision of the Code affirming that: “Quaestio poni potest utrum talis norma sit legitima et conformis spiritui Evangelii. Quoad eos qui actu formali manifestarunt suam voluntatem relinquendi Ecclesiam catholicam, talis norma potest intellegi et haberi uti medium coactionis, quod reiicitur can. 707, §2 et non congruit cum testimonio fidei. Proponitur ergo ut suprimatur §3 e ut §1 redigatur: «Legibus mere ecclesiasticis tenentur baptizati in Ecclesia catholica vel in eandem recepti, nisi actu formali (et publico) ab eadem defecerint, quique…»”. This proposal was clearly rejected by the other members of the Commission declaring that “Animadversio admitti nequit. Nititur conceptu ecclesiologice erroneo, secundum quem Ecclesia configuratur ut «Kirche der Freiegefolgschaft» (J. Klein) e qua unusquisque ad libitum egredi potest. Propositio duceret ad absurdas conclusiones et omnem vim legi ecclesiasticae aufert: sufficeret ut quis declaret formaliter se relinquere Ecclesiam, ut non obligaretur lege; obligatio legis penderet ab ipsa persona private; apostasia non amplius esset delictum punibile. Canon 707 §2 non applicator ad casum, nam respicit primum fidei amplexum seu incorporationem in Ecclesiam… Et §3 supprimitur” COMMUNICATIONES 14 (1982) can. 11, nn. 1-2, pp. 132-133.     5 Cf. can. 1057 §1.   6 The canon refers to the baptism of water, not the baptism of desire ex can. 849 and surely not the so-called baptism of the blood. In fact, the juridical personality is acquired only through the valid reception of the sacrament of baptism ex can. 204 §1 and especially of can. 96. This is the reason why can. 849 qualifies baptism as “ianua sacramentorum” (cf. CCC 1213), because it produces juridical effects. See also FLORES, D. R., “Natural Moral Law and Canon Law”, in AA. VV., A Symposium on Natural Moral Law – Theology Week 2008, UST, Manila, 2009, 126 - 128.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW From the conditions set by the canon, it is much easier to categorize those who are obliged to the observance of the law of «human ecclesiastical constitution»7. First: the passive subjects with full obligation 1) the Catholics who have completed the seventh year of age and have sufficient use of reason; 2) the baptized non-Catholics who previously belonged to other churches or ecclesial communities and who were successively received in to the Catholic Church and have completed the seventh year of age with sufficient use of reason; 3) the persons who were baptized in the Catholic Church although they are formally and informally separated from it;8 4) those who were baptized in the other churches or ecclesial communities and had been successively received into the Catholic Church but consecutively were separated again from her. Second: the passive subjects with exemptions 1) the Catholics and those who were received into the Catholic Church and who have completed the seventh year of age but without the sufficient use of reason. The «non sui compotes» suffering from severe mental diseases and disabilities and who are not considered responsible of their actions; 2) the Catholics and those who were received into the Catholic Church and who have completed the seventh year of age but are habitualiter amentes especially during their psycho-pathological status;9 3) the Catholics or who have been received in to the Catholic Church and who have completed seven years of age «nisi aliud iure expresse caveatur». In some exceptional cases, the person may exercise right or obligation under the age of seven, e.g., a child in danger of death may receive the Holy Communion10; or a required higher age for a fulfillment of an obligation like the law on fasting and abstinence11. Third: the passive subjects who are excluded from its observance 1) the non-baptized persons: non-believers and atheists;

                                                                                                                                    7  Cf.  Ibidem, 99 – 102. 8  In fact, after their formal or informal separation from the Catholic Church, these persons (cf. can. 96) lose their rights but not the obligations basing on the canonical doctrine and principle «semel catholicus, semper catholicus». 9 Cf. can. 99: “Whoever habitually lacks the use of reason is considered not responsible for oneself (non sui compos) and is equated with infants.” These are considered not responsible of their actions and are consequently likened to infants; thus, they are exempted «in foro externo» from the merely ecclesiastical law even during the interval of lucid moments. This is likewise confirmed by can. 1322: “Those who habitually lack the use of reason are considered to be incapable of a delict, even if they violated a law or precept while seemingly sane.” In fact, they are not subject to any penalty whenever they violate a law (cf. can. 1323, 6º). 10 Cf. cann. 913 §2 and 920. 11 Cf. can. 1252: “The law of abstinence binds those who have completed their fourteenth year. The law of fasting binds those who have attained their majority, until the beginning of their sixtieth year.”  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW 2)

the catechumens although they are already considered “united with the Church which already cherishes them as its own” and are enjoying “various prerogatives that are proper of the baptized”;12 3) the baptized Christians who still belong to the non-Catholic churches and ecclesial communities and who are commonly referred to as our «separated brethren».13 For the persons belonging to the third category, it should be noted that there is an indirect obligation on their part, i.e., whenever they enter in a relationship or a transaction whose terms and conditions are governed by ecclesiastical law. It usually happens in a marriage between a Catholic and a non-baptized and between a Catholic and a baptized but not in the Catholic Church.14 The «exception clause» The exception clause of canon 11 - «nisi aliud iure expresse caveatur» -, stricto sensu, is applied to the third condition, i.e., to the completion of seventh year of age. However, it may and, at times, can also be properly applied to the first condition, i.e., to the reception of baptism inasmuch as it may have as many exceptions as the case may be. In fact, can. 1059 establishes that “the marriage of Catholics is governed not only by divine law but also by canon law” even if “only one party is Catholic.” The wording used in can. 11 is slightly different - “baptized in the Catholic Church or received into it” - but it nevertheless expresses the same ecclesial reality. In fact, whether a person is baptized in the Catholic Church or is received into it, it always deals with a specific person who has received a valid baptism in one of the twenty-two Churches sui iuris of the Universal Catholic Church15 or in one of the ecclesial communities whose baptism is considered to have taken place respecting the required Trinitarian formula, and thereby, considered to be one and the same baptism that incorporates a person into the Mystical Body of Christ.16 This general canonical doctrine and norm, however, has its exceptions especially when dealing with the ecclesiastical law on impediments. One exception refers to a marriage between a Catholic and a non-Catholic of an Eastern rite (e.g., an Orthodox); in this case the observance of the canonical form is required ad liceitatem, whereas, the intervention of an ordained minister (Catholic or Orthodox) is required ad validitatem together with the observance of other norms prescribed ex can. 1127 §1.                                                                                                                                     12 Cf. cann. 206 §§1-2; 788 §§1-3; 1170; 1183. 13 Some of these ecclesial communities whose baptism is recognized by the Catholic Church as valid in the Philippines are the following: Lutheran Church in the Philippines, Philippine Episcopal Church, United Church of Christ in the Philippines, Iglesia Evangelica Metodista en las Islas Filipinas, United Methodist Church, Convention of Philippines – Baptist Church, Presbyterian Church and Seventh-day Adventist. The Mormons, otherwise known as the Church of Jesus Christ of Latter-day Saints,   do not have a valid baptism as declared by the CONGREGATION FOR THE DOCTRINE OF FAITH, Risp. ad dubium, 5 iun. 2001, in AAS, 93 (2001) 476. 14 Cf. cann. 1059; 1086 and 1117. 15  The Universal Catholic Church is composed of the Latin Rite and the other twenty-one Eastern Catholic Rites or Churches sui iuris, namely, 1. Coptic; 2. Ethiopian; 3. Syriac; 4. Maronite; 5. Syro-Malankara; 6. Armenian; 7. Chaldean; 8. Syro-Malabar ; 9. Belarussian; 10. Bulgarian; 11. Greek; 12. Hungarian; 13. Italo-Albanian; 14. Melchite; 15. Romanian; 16. Ruthenian; 17. Slovenian; 18. Ukranian; 19. Yugoslavian; 20. Albanese; 21. Russian (cf. Enchiridion Vaticanum, vol. 12, pp. 893-894). 16   Cf. can. 96: “By baptism one is incorporated into the Church of Christ and is constituted a person in it with the duties and rights which are proper to Christians in keeping with their condition, insofar as they are in ecclesiastical communion and unless a legitimately issued sanction stands in the way.” See also LG 11, 14, especially 15 and 32.    

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW There were other three exceptions before the motu proprio of Benedict XVI Omnium in mentem of 26 October 2009 that modified some provisions of the Code of Canon Law of 1983.17 In fact, can. 1086 §1 establishes an obligation for the dispensation on «disparitatis cultus» when a marriage is to be celebrated between a non-baptized and a Catholic or received into the Catholic Church; however, such obligation is expressly suspended when the same Catholic is separated from the Church with a formal act. This was a clear exception from the general norm of can. 11 which was likewise applicable to cann. 1117 and 1124. In spite of the reception of baptism in the Catholic Church, he who decided to leave it with a formal act was no longer subject to the impediment of the disparity of cult and of the canonical form. In these three cases, the canonical norms did not oblige the Catholic party who abandoned the Church with formal act to observe what was established by the merely ecclesiastical law. In other words, these specific exceptions established by the three canons suspended the obligations of the law arising from the impediments of disparitatis cultus, the mandatory canonical form of marriage celebration and the prescription on mixed marriages. Albeit the difficulties created by these exceptions, the intention was to open the door to ecumenical dialogue toward unity by not compelling those who abandon the Catholic Church to observe, under the pain of nullity of their marriage, the obligations established by the ecclesiastical law.18 However, it is very clear from these three canonical norms that the exception highly favored not so much the one who is baptized in the Catholic Church and faithfully perseveres in it, neither the one who was received into it but previously belonged to another ecclesial community, nor the unbaptized person who is indirectly obliged to its observance for one reason or another, but the Catholic who decided to formally abandon the mother Church. With these three provisions, the question that immediately triggered to challenge the mens iuridica was: could these exceptions be considered as a special prerogative of those who decided to leave the Church of Christ? If it is so, what are the conditions in order to formally abandon the Catholic Church and benefit from it? I.

THE «ACTUS FORMALIS DEFECTIONIS AB ECCLESIA CATHOLICA»

Aside from the fact that the exceptions from the obligations set forth by can. 11 is clearly motivated by ecumenical demands on Christian sensitivity geared toward a deeper and more visible communion among the baptized; still, there was another reason more legal than pastoral that persuaded the legislator of 1983 Code to grant such exceptions, i.e., to facilitate the exercise of the «ius connubii». In fact, the legislation on canonical marriage vigorously demands, under the pain of nullity, the observance of the canonical form for the marriages of the baptized who are not separated from the Catholic Church «cum actu formali». On the contrary, those who formally abandoned the Church were assured ex can. 1117 that, while ignoring the precept of the canonical form, their marriage would have been considered legitimately celebrated and therefore valid. The motu proprio Omnium in mentem undeniably states this fact by declaring that “underlying aim of this exception from the general norm of can. 11 was to ensure that marriages contracted by those members of the faithful would not be invalid due to defect of form or the impediment of disparity of cult.”19 It should be noted that                                                                                                                                     17 Cf. BENEDICT XVI, Ap. Lit., data m.p. Omnium in mentem, 26 oct. 2009, in AAS, 102 (2010) 8 – 10. 18 The Code of 1917 was more rigid when it came to the canonical form. In fact, can. 1099 §1, established that “ad statutam superius formam servandam tenentur: 1º Omnes in catholica Ecclesia baptizati et ad eam ex haeresi aut schismate conversi, licet sive hi sive illi ab eadem postea defecerint, quoties inter se matrimonium ineunt.”   19 Cf. BENEDICTUS PP. XVI, Ap. Lit., data m.p. Omnium in mentem, 26 oct. 2009, in: AAS, 102 (2010) 9.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW this kind of exemption clause is new and does not echo the canonical tradition; in fact, the Code of Canons of the Oriental Churches does not contain any exemption of this kind.20 To have a certainty that the marriage celebrated without the observance of the canonical form and the impediment on the disparity of cult is valid, the Catholic party should have defected from the Church not by any means but cum actu formali. The defection, therefore, should be executed with ecclesiastical formality that will eventually result to a true delict committed by the same person whose action is consequently punished with a corresponding canonical penalties contemplated by the penal law of the Church he abandoned.21 Some forms of defection from the Catholic Faith The formal defection ab Ecclesia catholica is sufficient in order to assure that he who is already separated is no longer bound to observe the prescripts of the ecclesiastical law, at least before the promulgation of the motu proprio. It was not an easy task to identify with precision who really was formally separated from the Catholic Church until March 13, 2006 when the Pontifical Council for Legislative Texts issued an official document about the canonical procedure that should be followed in order to ascertain the actus formalis defectionis ab Ecclesia catholica.22   The defection from the Catholic Church cum actu formali required by the three canons in order to be exempted from the obligations of ecclesiastical law is “new to canonical legislation and is distinct from the other forms of notorious or publicly abandoning the faith (cf. cann. 171, § 1, 4°; 194, § 1, 2°; 316, § 1; 694, § 1, 1°; 1071, § 1, 4° and § 2).”23 It is not an act of abjuration of the Catholic faith manifested through an affiliation in any Christian sects or an active membership in an association whose teachings and principles are completely contrary to the Catholic doctrine, «contra Ecclesiam machinatur»24. Likewise, it is far from the concept of de facto defection insofar as it is a personal and subjective decision that does not necessarily imply any particular canonical penalty. In fact, a formal act is not simply an act of the will or intention, i.e., purely subjective, to leave the Catholic Faith; rather, it should be accompanied with an external act considered to be in conformity with the solemnity required by the ecclesiastical provision on formal defection.                                                                                                                                     20 “Si tratta di un inciso, che non appartiene alla tradizione canonica e non è riportata nemmeno nel Codice dei Canoni delle Chiese Orientali, con il quale si intendeva stabilire una eccezione alla regola generale del can. 11 CIC circa l’obbligatorietà delle leggi ecclesiastiche, col proposito di facilitare l'esercizio dello "ius connubii" a quei fedeli che, a causa del loro allontanamento dalla Chiesa, difficilmente avrebbero osservato la legge canonica che esige una forma per la validità del loro matrimonio” (PONTIFICAL COUNCIL FOR LEGISLATIVE TEXTS, Presentation of the motu proprio Omnium in mentem, Dec. 15, 2009 in The Vatican Website at http://www.vatican.va/roman_curia/pontifical_councils/intrptxt/documents/ rc_pc_intrptxt_doc_20091215_omnium-in-mentem_it.html, January 9, 2013). 21 Cf. can. 1364, § 1: “Without prejudice to the prescript of can. 194, §1, n. 2, an apostate from the faith, a heretic, or a schismatic incurs a latae sententiae excommunication; in addition, a cleric can be punished with the penalties mentioned in can. 1336, §1, nn. 1, 2, and 3.” 22 Cf. PONTIFICAL COUNCIL FOR LEGISLATIVE TEXTS, Lett. Circ. Quad verba actus formalis defectionis ab Ecclesia catholica, 13 mar. 2006 in COMMUNICATIONES 38 (2006) 170-172. From here onward, this document will be cited as Prot. N. 10279/2006. 23 Ibidem, 170. 24 Cf. can. 1374; the masonic associations hostile to the Catholic Church. In CIC 1917, can. 2335: “Nomen dantes sectae massonicae aliisve eusdem generis associationibus quae contra Ecclesiam vel legitimas civiles potestates machinantur, contrahunt ipso facto excommunicationem Sedi Apostolicae simpliciter reservatam.” In CIC 1983, the wording “association which plots against the Church” corresponds to the general criteria used in the drafting of the legislative text, however, nothing is changed regarding the negative judgment against the masonic associations. See also the declarations of the Congregation for the Doctrine of Faith on November 26, 1983 in AAS 76 (1984) 300.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW Prof. Aznar asserted that the defection from the Catholic Faith in order to be formally recognized qua talis requires a declaration of the intention in a written form, or manifested before a competent ecclesiastical authority, or in another form that is obviously accepted as defection from the Catholic Church because of its publicity.25 A formal act is not a virtual defection manifested externally through any behavior against the precepts of the Church like a regular attendance on Sunday masses. “The juridical-administrative act of abandoning the Church does not per se constitute a formal act of defection as understood in the Code, given that there could still be the will to remain in the communion of the faith.” 26 Thus, it is not the «Kirchenaustritt» usually practiced by many Catholics in Germany in order to be exempted in paying the so-called «Kierchensteur», the tax for the cult.27 There are lay movements in Italy (Associazione per lo Sbattezzo), France (Subsociety) and Belgium (Fédération des Amis de la Morale Laïque) promoting the practice of «Debaptism or Debaptization» i.e., a personal declaration before a duly authorized civil authority of the intention and of the fact that he is no longer affiliated to the Catholic Church.28 In most cases, especially in central and northern Europe (Switzerland, Austria, Denmark, Finland, Iceland, Sweden et cetera),29 the declaration of a Catholic before a civil authority is sufficient in order to produce a simultaneous effect: exemption for the church tax and cancellation from the membership to the Catholic Church.30 This juridicoadministrative act executed before the civil authority is not to be considered defection from the Catholic Church cum actu formali. In line with the Prot. N. 10279/2006 of the Pontifical Council for Legislative Texts, the formal act of defection required by the three cannons cannot be considered as a form of notorious defection in its dual acceptation: notorious defection with notoriety of the law and notorious defection with notoriety of the fact. The former is established by a judicial sentence or by a personal declaration of the person, while, the latter is ascertained through public knowledge of the obvious fact and by this neither deceit nor excuses can conceal its manifestation in the light of the provisions of the law.31 It should be noted that notorious defection from the communion to the Catholic Church has canonical sanctions that radically affect the rights and obligations of the faithful who incurred into it, viz., inability to cast vote                                                                                                                                     25 Cf. G. F. AZNAR, Il Nuevo derecho matrimonial canónico (Salamanca 1985) pp. 188-190. 26 Prot. N. 10279/2006, 3. 27 Cf. M. NELLES, “Der Kirchenaustritt – kein «actus formalis defectionis»”, in Archiv für katholisches Kirchenrecht, 175 (2006) 353 – 373; L. MÜLLER, Die Defektionsklauseln im kanonischen Eherecht. Zum Schreiben des Päpstlichen Rates für Gesetzestexte an die Vorsitzendem der Bischofskonferenzen vom, 13 März 2006 in Archiv für katholisches Kirchenrecht, 175 (2006) 374 – 396. There is a similar provision recently introduce for those belonging to the Jewish communities in Germany, the so-called «Kultussteuer» (tax of the cult). In Italy, taxpayers are obligated to pay the so-called Otto per Mille tax. This tax amounts to 0.8% of the total income tax (IRPEF); however, every taxpayer has a choice of the recipient of the contribution, namely: Catholic Church, Waldenses, Italian State, Jewish communities, Lutherans, Seventh-day Adventists, Assemblies of God in Italy (Cf. Eight per Thousand at http://en.wikipedia.org/wiki/Eight_per_thousand, January 9, 2013). 28 Cf. Sbattezzo at http://it.wikipedia.org/wiki/Sbattezzo, January 9, 2013. 29 Cf. Church tax at http://en.wikipedia.org/wiki/Kirchensteuer, January 9, 2013. 30 F. COCOPALMERIO, Le ragioni di due modifiche. Presentation of the motu proprio Omnium in mentem, in L’Osservatore Romano, 16 november 2009. 31 Professor Andres explains the concept clearly: “No es sufficiente haber renegado privada y ocultamente. Tampoco es del todo suficiente la publicidad en el abandon de la fe, es decir, la divulgación o la facil y probable divulgabilidad. Debe tratarse de defección o apostasía notoria: 1) tanto con notoriedad de derecho, es decir, después de una sentencia judicial o de una confessión admissiva del mismo delincuente; 2) como de hecho, es decir, por ser publicamente conocido el hecho y por no ser posibles los subterfugios ni excusas, respecto del mismo, al amparo del derecho” D. J. ANDRES, El derecho de los religiosos (Madrid 1983) 622, n. 940, 6.3.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW in an election 32 , removal from an office 33 , impossibility of admittance into a public association34, ipso facto dismissal from a religious institute35 and the necessity of the license from the ordinary in order to licitly enter into marriage with a Catholic36. It is noticeable that the defection cum actu formali may be easily considered almost similar to the aforesaid forms of abandoning the Church, but it is not especially when we take into serious consideration its eventual consequence ad normam can. 11. In fact, “in the latter circumstances, those who have been baptized or received into the Catholic Church continue to be bound by merely ecclesiastical laws” 37 while those who abandoned the ecclesial communion cum actu formali were exempted from them. «Actus formalis defectionis ab Ecclesia Catholica» At the request of a considerable number of bishops, judicial vicars and other personnel working in the field of canonical science, the Pontifical Council for Legislative Texts together with the competent dicasteries of the Apostolic See carefully examined the question on the essential elements in order to determine when a particular act of defection is to be canonically considered as an actus formalis defectionis ab Ecclesia catholica in view of its effects ad normam can. 11 and the eventual validity or invalidity of the marriage contracted by the Catholics in this condition. On March 13, 2006 the Pontifical Council issued a declaration on the criteria to be used and the procedure to be followed in solemnizing the formal defection from the Catholic Church. First and foremost, the actus formalis defectionis ab Ecclesia must be a valid juridicocanonical act to be accomplished by a christifidelis who is canonically capable (iure habilis) in conformity with the provision of canon law: cann. 124-126. There are three essential requirements so that it may be considered as a formal act of defection: 1) the subjective element: internal decision to leave the Catholic Church; 2) the objective element: the materialization and external manifestation of that decision; and 3) the formal element: the verification of that decision by the competent ecclesiastical authority and its formalization.38 The first two elements are considered to be the theological element and requirement while the last element is the canonical element and requirement to effect the defection with formality. These requirements must be accomplished personally, consciously and freely. The Pontifical Council for Legislative Texts requires that the formal element must be executed in person and in a written form before the competent ecclesiastical authority of the Catholic Church.39 Either the ordinary or the parish priest (pastor) is the only competent ecclesial authority whose task is to ascertain and judge whether in both the subjective and objective elements the effective intention to severe the bonds that unite him in perfect and full ecclesial communion exists and perseveres, i.e., the rupture from the profession of faith, the participation to the sacraments and the obedience to the sacred pastors. In fact, can. 205 is clear on this obligation of the faithful affirming that “those baptized are fully in the                                                                                                                                     32 Cf. can. 171 §1, 4º. 33 Cf. can. 194 §, 2º. 34 Cf. can. 316 §1. 35 Cf. can. 694 §1, 1º. 36 Cf. can. 1071 §1, 4º. 37 Prot. N. 10279/2006. 38 Cf. Prot. N. 10279/2006, 1. 39 Cf. Ibidem, 5.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW communion of the Catholic Church on this earth who are joined with Christ in its visible structure by the bonds of the profession of faith, the sacraments, and ecclesiastical governance.”40 Therefore, “the substance of the act of the will must be the rupture of those bonds of communion – faith, sacraments, and pastoral governance – that permit the faithful to receive the life of grace within the Church.”41 Sic et simpliciter, the defection cum actu formali is no other but “a true separation from the constitutive elements of the life of the Church that presupposes, therefore, an act of apostasy, heresy or schism.”42 “On the other hand, heresy (whether formal or material), schism and apostasy do not in themselves constitute a formal act of defection if they are not externally concretized and manifested to the ecclesiastical authority in the required manner.”43 Once the competent authority has ascertained the convergence of the two elements – the theological content of the interior act and its manifestation in the manner defined above – ; he has to formalize that such act truly constitutes the actus formalis defectionis ab Ecclesia catholica. Consequently, the christifidelis must be informed that his intention, ascertained and proven in the external forum, shall thereby exclude him from the full and perfect ecclesial communion, and eventually, he shall incur the corresponding canonical penalties ex can. 1364, § 1:44 §1. Without prejudice to the prescript of can. 194, §1, n. 2, an apostate from the faith, a heretic, or a schismatic incurs a latae sententiae excommunication; in addition, a cleric can be punished with the penalties mentioned in can. 1336, §1, nn. 1, 2, and 3.

After the processing and completion of the formal act of defection, the same ecclesiastical authority has the obligation to make the proper annotation in the Baptismal Registry ex can. 535, § 2 with the exact wording of what has been administratively formalized, i.e., “defectio ab Ecclesia catholica actu formali”.45 “It remains clear, in any event, that the sacramental bond of belonging to the Body of Christ that is the Church, conferred by the baptismal character, is an ontological and permanent bond which is not lost by reason of any act or fact of defection.”46 This should be clearly stated in the Certificate of the Act of Defection from the Catholic Church issued by the diocesan curia.47 The juridical nature of the Protocol N. 10279/2006 The declaration issued by the Pontifical Council on March 13, 2006 is to be considered as an authentic and authoritative source of reference, a juridico-canonical guideline, i.e., a vademecum and instruction 48 on the proper procedure that should be followed in order to arrive with certainty that the defection has canonically taken place ex cann. 124 -126; in other words, the separation from the Catholic Faith, that has been considered a fait accompli is formally established with and after the intervention of the ecclesiastical authority. In fact, the annotation in the baptismal registry implies that the formal defection has                                                                                                                                     40 Cf. LG 14. 41 Prot. N. 10279/2006, 2. 42 Cf. Ibidem, 2. 43 Ibidem, 3. 44 Cf. Ibidem, 5. 45 Cf. Ibidem, 6. 46 Ibidem, 7. 47 Cf. Appendix 3. This is a sample of a certificate released by a diocesan curia of an Italian diocese after the formal defection, see the web copy at http://en.wikipedia.org/ wiki/File:Atto_di_sbattezzo.jpg   48  Cf. can. 34.    

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW been processed, ascertained and proven with the official document signed by the defected christifidelis and issued by the competent diocesan authority.49 For this purpose, the official document certifies the effective intention of the petitioner who executed in persona and in scriptis the formality of the defection from the Catholic Church. Nota bene: if it is to be examined carefully, the declaration of the Pontifical Council for Legislative Texts known as Prot. N. 10279/2006 does not introduce a canonical procedure under the pain of “invalidity of the act of defection” in case of non-compliance with the dictate of the guidelines. This will surely open the door to many theological and canonical questions. Is the formality given by the Pontifical Council be considered integral part of the ius vigens; in other words, will it be a part of the law enforced on specific matter (iure condito) like the defection from the Catholic Faith or applicable only for the separation cum actu formali in force of cann. 1086 §1, 1117 and 1124? Can it be considered a peremptory norm (ius cogens) and therefore mandatory with no possible derogation? Another «crux interpretum» There are already many canonical provisions with difficult interpretation; this will surely be added to the list of the crux interpretum of the pastoral workers in the field of canonical science.50 The first question will be the appropriateness to choose between the interpretations in the strict or broad sense. The interpretation in the strict sense implies extreme difficulty to formalize the defection from the Catholic Church because it requires the formal element. In fact, the separation cum actu formali is always an initiative of he who intends to severe his ties with the Mystical Body of Christ (subjective and theological element); it is never an initiative of the competent ecclesiastical authority whose task is to verify and formalize the defection required by the Protocol n. 10279/2006 n.5 (formal and canonical element). The refusal of the person to act in conformity with the formal element will eventually facilitate the unilateral defection in case the theological element is ascertained through a written request forwarded formally and publicly to the competent ecclesiastical authority. 51 In fact, the Pontifical Council for Legislative Texts was compelled to admit the possibility of unilateral defection                                                                                                                                     49 It is already presumed that the competent ecclesiastical authority, ordinary or pastor, after the formality has taken place, should forward the document of formal act of defection to the diocesan curia for processing and releasing of the ecclesiastical certification for legal purposes. A certified true copy should be kept, unless established otherwise, in the secret archive; another copy should be sent to the parish where the faithful was baptized; another one to the parish of residence or domicile and the original and personal copy for the defected faithful. 50 The suggested reading materials are the following M. A. ORTIZ, “Abbandono della Chiesa e forma del matrimonio”, in AA.VV. (curator J. Carreras), La giurisdizione della Chiesa sul matrimonio e sulla famiglia, Milano 1998, 181-214; ID., “La forma”, in AA.VV. (curators di P.A. Bonnet e C. Gullo) in Diritto matrimoniale canonico, vol. III, (Città del Vaticano 2005) 25- 56; V. DE PAOLIS, “Alcune annotazioni circa la formula «actu formali ab Ecclesia Catholica deficere»”, in Periodica 84 (1995) 579608; T. RINCÓN-PÉREZ, “Alcance canónico de las fórmulas «“abandono notorio de la fe católica y apartamiento de la Iglesia por acto formal»”, in AA.VV., Forma jurídica y matrimonio canónico, (Pamplona 1998) 94-114; J. FORNÉS, “La forma en el matrimonio de un católico con un no católico”, in Ius Canonicum 37 (1997) 13-31; P. Moneta, I soggetti tenuti ad osservare la forma canonica: il canone 1117”, in AA.VV. (curator di J. Carreras), La giurisdizione della Chiesa sul matrimonio e sulla famiglia op. cit., 149-179; P. ETZI, “Considerazioni sull «actus formalis defectionis» di cui nei cann. 1086 § 1, 1117 e 1124 del C.I.C.”, in Ibidem, 215-250; A. RIBOT, La exención de la forma canónica del matrimonio de quienes han abandonado la Iglesia mediante acto formal (can. 1117), Roma 2004. 51 This is one of the difficulties presented by the Italian and Spanish Bishops Conferences in the exchange of letters between these conferences and the Pontifical Council for Legislative text (cf. COMMUNICATIONES 38 [2006] 186 – 188).  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW whenever the faithful refuse to accept the invitation of the ordinary or pastor for a further clarification about his intention to leave the Catholic Church. “If in case the invitation, whether personal or written, has been refused – or the letter sent remains without answer – (per via documentaria) this correspondence should be enough to prove the intention of the person to put himself formally in a canonical situation of rupture with the ecclesial communion and by that act, he thereby incurs the corresponding penal consequences; eventually, one proceeds (the 52 ordinary or pastor) with the requested annotation (of formal defection).”

In line with the reply of the Pontifical Council for Legislative Texts to the question of the Italian Bishops Conference, it is clear that the unilateral defection is to be considered as another form of separation cum actu formali:53 a personal declaration that is formalized as requested even without the eventual verification and ascertainment by the competent ecclesiastical authority. Therefore, this personal declaration, formalized, i.e.., annotated in the Baptismal registry as requested, is already sufficient to effect the exemption from the obligations of the three canonical provisions. Instead, the interpretation in broad sense implies a greater facility on the exercise of ius connubii exempting those who incurred into it from the obligation of the disparity of cult and the canonical form of marriage. It denotes multiplication of valid marriages for those Catholic who are not even aware of the existence of the provision and its social and canonical                                                                                                                                     52 NOTIZIARIO DELLA CONFERENZA EPISCOPALE ITALIANA, Atto formale della separazione dalla Chiesa cattolica, n. 1, 31 gennaio 2007, on page 6 especially on page 9: “Qualora questo invito orale o in scriptis non sia accolto – o la lettera ricevuta rimanga senza risposta -, sarà evidente per via documentaria la volontà dell’interessato di porsi formalmente in una situazione cano- nica di rottura della comunione ecclesiale con le relative conseguenze penali e si potrà quindi procedere alla richiesta annotazione.” See also the this article in the CEI Website at http://www.chiesacattolica.it/documenti /2007/02/00012464_atto_formale_di_separazione_dalla_chiesa_.html, January 9, 2013. 53 Ibidem. This is very clear on page 9 in the answer of Julian Card. Herrans, the former president of the Pontifical Council for Legislative Texts, to Camillo Card. Ruini, the former president of the Italian Bishops Conference. “In caso di rifiuto di un incontro di persona da parte del fedele (ciò che avrebbe permesso al sacro pastore far riflettere sulla gravità e conseguenze dell’atto, e magari motivare un cambiamento della decisione), si dovrà necessariamente ricorrere all’invio di una lettera personale in cui si spieghi con chiarezza e delicatezza che un vero atto di defezione rompe i legami di comunione con la Chiesa che esistevano dal momento del battesimo. Sarà necessario chiarire che tale gesto, qualificato come un atto di vera apostasia (oppure di eresia o di scisma, a seconda delle eventuali ragioni che abbia dato il fedele), è così grave che viene considerato non soltanto un grave peccato ma un delitto nell’ordinamento ecclesiastico, per cui è prescritta la più onerosa delle pene canoniche, cioè la scomunica. Per far capire la gravità di tale pena sarà conveniente illustrare in modo concreto gli effetti più pratici della scomunica (ad esempio, che senza l’eventuale remissione della pena non si può ricevere la comunione o l’assoluzione sacramentale, che non si può essere padrino nei battesimi o nelle cresime, che non saranno celebrate le esequie ecclesiastiche, ecc.). Insomma, la comunicazione dovrebbe essere un motivato invito a ponderare ed eventualmente mutare la decisione di uscire dalla Chiesa Cattolica. Qualora questo invito orale o in scriptis non sia accolto – o la lettera ricevuta rimanga senza risposta -, sarà evidente per via documentaria la volontà dell’interessato di porsi formalmente in una situazione canonica di rottura della comunione ecclesiale con le relative conseguenze penali e si potrà quindi procedere alla richiesta annotazione. Comunque, se fosse ancora possibile, converrà fargli sapere che in vista del carattere battesimale rimane un legame ontologico con la Chiesa e sarà sempre desiderato un suo ritorno alla Casa paterna (cfr Lc 15,11-33).” Thus, the unilateral defection is a possible form of defection from the Church cum actu formali. Many authors expressed the same possibility like F. R. AZNAR GIL, “Consejo Pontificio para los Textos Legislativos. Carta circular sobre el actus formalis defectionis ab Ecclesia catholica, 13 marzo 2006 (Prot. no. 10279/2006). Texto y comentario”, in Revista Española de Derecho Canónico 63 (2006) 125-196; O. DE BERTOLIS, S.J., “L’Atto di Defezione dalla Chiesa, Quaderno” N°3776 del 20/10/2007 in Civiltà Cattolica, IV, 105 -208.F. MARTI, “Quali novità riguardo all‟atto formale di defezione dalla Chiesa cattolica di cui ai cc.1117, 1086 §1 e 1124? Un commento alla Lettera Circolare del PCTL del 13 marzo 2006”, in Ius Ecclesiae 19 (2007) 247-268; M. MOSCONI, “L'abbandono pubblico o notorio della Chiesa e in particolare l'abbandono con atto formale”, in Quaderni di diritto ecclesiale 20 (2007) 35-59.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW implications. Likewise, the civil marriages celebrated under this condition, in conformity with the requirements of the civil legislation, would be considered valid canonically and if one party is a Catholic, it would likewise be considered sacramental. Indeed, this was the intention of the Coetus for the Revision of the Code when it introduced the clause on can. 1117: so that “matrimonia invalida non sunt multiplicanda.”54 With the Protocol n. 10279/2006, the intention of the Pontifical Council for the Legislative Texts is to provide a clear procedure for the formal defection ex can. 11 in view of its effects on the validity and invalidity of marriage ex cann. 1086 §1, 1117 and 1124. Will the aforesaid procedure be still observed after the modification of the three canonical provisions brought about by the motu proprio Omnium in mentem? If the answer is yes, we will always encounter the same difficulties of interpretation; if no, there will always be difficulties on the interpretation of informal and formal manner of abandoning one’s faith. In fact, the objective and subjective elements di per se are sufficient to bring about the defection from the Catholic Faith in a notorious manner but the Protocol requires the formal element in order to consider it a true defection from the Church. Another difficulty which is even greater compared with what we already have mentioned is the justification of inflicting canonical sanctions upon those who formally abandoned the Catholic Church in line with the Protocol. The concept of imputability in penal law is juridical, not moral.55 This distinction is necessary so that a particular delict should not be identified with the sin being committed: all delicts are sins but not all sins are to be considered delicts that imply canonical sanctions. The problem arises when the act of defection cum actu formali should eventually be accompanied by delicts like apostasy, heresy and schism, even if the only intention of those persons was to avail of the exemption from the canonical form of marriage.56 For some, therefore, there will be neither external violation of a penal precept nor the objective element, i.e., the penal sanction connected to the violation. In the first place, the defection cum actu formali was formulated in view of its effects in cann. 1086 §1, 1117 and 1124, i.e., to facilitate the exercise of ius connubii and not to inflict penal sanctions for those who defected from the Catholic Faith. In fact, L. Chiapetta asserts that “it is not necessary that the apostate, heretic and schismatic is separated from the Catholic Church with a formal act by enrolling himself in an association or heretic, schismatic or non-Christian sect. The separation with formal act has relevance for other effects (cf. cann. 1086 §1; 1117; 1124), but not for the penal ones.”57

                                                                                                                                    54 The proposal to suppress the clause nec actu formali ab ea defecerit, was rejected during the last phase of the revision in order to avoid that numerous celebration of marriage would be considered invalid, cf. PONTIFICIA COMMISSIO CODICI IURIS CANONICI RECOGNOSCENDO, Relatio complectens synthesim animadversionum ab Em.mis Patribus Commissionis ad novissimum Schema Codicis Iuris Canonici exhibitarum, cum responsionibus a Secretaria et Consultoribus datis, Typ. Pol. Vat. 1981, 252 s., 261. «Maiori enim parti coetus placuit ut illi, qui Ecclesiam catholicam palam reliquerunt ideoque formam canonicam celebrationis matrimonii numquam observent, nihilominus validum matrimonium contrahere possint, servatis utique aliunde servandis» (P. HUIZING, relatore del coetus De matrimonio, in COMMUNICATIONES 3 (1971) 80). See also COMMUNICATIONES 8 (1976) 58ff.; COMMUNICATIONES 10 (1978) 96. 55 Cf. can. 1321, §§ 1-2. 56 This is also the criticism expressed by another author on the Protocol of the Pontifical Council for Legislative Texts, cf. M. MOSCONI, “L’abbandono pubblico e notorio della Chiesa catolica e in particolare l’abbandono con atto formale” in Quaderni di diritto ecclesiale (Milano 2007) pp. 51 – 52. 57 L. CHIAPPETTA, Il Codice di diritto canonico. Commento giuridico-pastorale, Napoli 1998, vol. II, p. 657, n. 4978. The translation from Italian text to English is ours.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW Whether the choice is between interpretation in broad and strict sense, we must take into consideration that marriage for the Church is a public contract and as such has a social significance. For this reason, the supreme legislator can intervene on the nascent marriage not only by establishing a legal solemnity that regulates the proper manner of exchanging consent that constitutes the canonical form of marriage but also by enacting laws that restrict the free exercise of the right to marry, a natural right that is not absolute.58 This is done in order to guarantee the good of the entire community and to avoid that damage may be inflicted either personally or directly to a partner. However, it should be noted that the impediment, natura sua, is a law that restricts the free exercise of ius connubii; thus, it must undergo a strict interpretation ad normam can. 18. Likewise, this principle is applicable to the interpretation on the process of ascertainment and declaration of defection cum actu formali. II.

OMNIUM IN MENTEM CANONICAL MARRIAGE

AND THE

MODIFICATION

OF THE THREE CANONS ON THE

In its formal aspect, the motu proprio Omnium in mentem introduced another modification in the Code of Canon Law after its promulgation in 1983. This is the second modification of the legislative text for the Latin Church. The first one took place on May 18, 1998 through the motu proprio Ad tuendam fidem of St. John Paul II who modified can. 750 by insertion of §2 and consequently changing also can. 1371, º1 that is related to it.59 The Juridical Nature of the motu proprio Unlike the CIC 1983, the CIC 1917 had never undergone any single formal revision notwithstanding the promulgation of considerable number of norms that modified the individual provisions contained therein. In fact, by the passing of time, numerous provisions were accumulated outside the code making the consultation of the ius vigens an arduous task for everyone.60 This difficulty will not be encountered with the new Code because of the formal and juridical instrument of modification used by the supreme legislator. In fact, the Omnium in mentem is the second formal instrument in modifying the provisions of the codified legislative text by insertion, alteration and removal of some phrases and clauses. In so doing, the unity and coherence of the canonical provisions remains intact in spite of the changes introduced; consequently, the consultation is easier and faster because they are found inserted, rephrased or otherwise, removed if it had been suppressed. It is worthy of mention that with this kind of aggiornamento of the promulgated Code, the Catholic Church as an ecclesiastical society makes use of the modern technical and legal instrument commonly practiced in most of the contemporary legal systems. In its formal aspect, Omnium in mentem is a special legislation on specific canonical provisions of the ius vigens, inserted into the codified text in order to become an integral part of the whole legislation. It follows the formative processing of the ecclesiastical law that ends with the promulgation, an essential legislative act executed by the legislator or by his delegate in order for the provision to acquire the force of law. Since the law is established with its promulgation ex can. 7, the supreme ecclesiastical legislator, Benedict XV ordered it so:                                                                                                                                     58  Cf.  BENEDICT XVI, Allocutio addressed to the members of the Roman Rota, 22 ian. 2011 in AAS, 103 (2011) 109.   59 Cf. JOHN PAUL II, Ap. let. Motu proprio data, Ad tuendam fidem, 18 maii 1998, 4, in AAS, 90 (1998) 459-460. 60 An example of this is one of the provisions of old Code we are discussing in this paper, i.e., CIC 1917 can. 1099 §2. The paragraph remained in the codified text in spite of the fact that Pius XII already suppressed it in 1948 with the decree Ne Temere.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW “All that I have laid down in this Apostolic Letter issued Motu Proprio, I now order to have the force of law, anything whatsoever to the contrary notwithstanding, even if worthy of particular mention, and I direct that it be published in the official gazette Acta Apostolicae Sedis.

With its publication in the official gazette on October 26, 2009; it juridically effected the modification of those specific provisions of the Code beginning January 7, 2010, three months after its promulgation.61 Modification of some phrases and insertion of a paragraph on Holy Order The motu proprio effected two major variations that are found in two distinct areas: in the Holy Order, where the can. 1008 and can. 1009 were changed in order to make necessary adjustment in the theological content of number 1581 of the Catechism of the Catholic Church about the ministerial functions of the deacons and in the Matrimonial Law with the suppression of the exemption clause «actus formalis defectionis ab Ecclesia Catholica» in can. 1086 §1, can. 1117 and can. 1124. Prior to this, there was a modification in the number 1581 of the first edition of the Catechism of the Catholic Church that affirmed: «Per ordinationem recipitur capacitas agendi tamquam Christi legatus, Capitis Ecclesiae, in eius triplici munere sacerdotis, prophetae et regis». The Congregation for the Doctrine of Faith deemed it proper to avoid the possibility that the faculty of «agere in persona Christi Capitis» might also be extended to the deacons, and consequently decided to modify the same text into: «Ab eo (= Christo) Episcopi et presbyteri missionem et facultatem agendi in persona Christi Capitis accipiunt, diaconi vero vim populo Dei serviendi in ‘diaconia’ liturgiae, verbi et caritatis». Saint and Pope John Paul II approved the changes and recommended the eventual modification of the corresponding canons in the Code of 1983.

                                                                                                                                    61 “In conformità con quanto stabilito dal can. 8 del Codice di Diritto Canonico, il Motu proprio "Omnium in mentem" sarà formalmente promulgato con la pubblicazione negli Acta Apostolicae Sedis ed entrerà in vigore compiuti tre mesi dal giorno apposto al numero degli Acta.” F. COCOPALMERIO, “Le ragioni di due modifiche.” Presentation of the motu proprio Omnium in mentem”, in L’Osservatore Romano, 16 november 2009.

   

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW Can. 1008 (old text)

Can. 1008 (new text)

By divine institution, the sacrament of orders establishes some among the Christian faithful as sacred ministers through an indelible character which marks them. They are consecrated and designated, each according to his grade, to nourish the people of God, fulfilling in person of Christ the Head the functions of teaching, sanctifying and governing.

By divine institution, some of the Christian faithful are marked with an indelible character and constituted as sacred ministers by the sacrament of holy orders. They are thus consecrated and deputed so that, each according to his own grade, they may serve the People of God by a new and specific title.

Can. 1009

Can. 1009 (added as the third paragraph)

§1 The orders are the episcopate, the presbyterate, and the diaconate. §2 They are conferred by the imposition of hands and the consecratory prayer which the liturgical books prescribe for the individual grades.

§ 3 Those who are constituted in the order of the episcopate or the presbyterate receive the mission and capacity to act in the person of Christ the Head, whereas deacons are empowered to serve the People of God in the ministries of the liturgy, the word and charity.

Benedict XVI clearly expressed the ratio of the rephrasing of the text and insertion of the paragraph: “with this modification of the texts, the essential distinction between the common priesthood of the faithful and the ministerial priesthood is reaffirmed, while the difference between the episcopate, the presbyterate and the diaconate is made clear.”62 The removal of the «exemption clause» As what we already have said, the introduction of the clause “and has not defected from it by a formal act” in can. 1086 §1, can. 1117 and can. 1124, was to facilitate the exercise of the natural right to marry. This is a novelty introduced by the new Code but in reality can. 1099 of the old Code contemplated a similar provision. In fact, can. 1099 §2 considered the baptized in the Catholic Church exempted “qui ab infantili aetate in haeresi vel schismate aut infidelitate vel sine ulla religione adoleverunt”. Pius XII with the motu proprio Ne Temere suppressed the last part of the paragraph because the exemption to the obligation of the canonical form would entail much difficulty in the practical application.63 Since then, the principle «semel catholicus, semper catholicus» had been applied; the defection from the Catholic Church as well as a celebration different from the obligation of form were considered to be a remote possibility. After the promulgation of the new Code, the difficulty of interpretation and the juridical uncertainties generated by the act of defection prompted concerned workers in the field of canonical science to solicit for an authoritative indication on the juridical significance                                                                                                                                     62 BENEDICT XVI, Apostolic Letter Motu Proprio data Omnium in mentem, 26 oct. 2009 in AAS, 102 (2010) 8. From here onward the motu proprio will be cited as Omnium in mentem. 63 PIUS XII, Decretum Ne Temere, 1 aug. 1948, in AAS, 40 (1948) 305; X. OCHOA, Leges Ecclesiae, II, n. 2006, col. 2510.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW of the defection cum actu formali64 and some even dared to recommend its suppression65. Meanwhile, canonical jurisprudence and doctrine preferred to have recourse on the strict interpretation that usually took place whenever a christifidelis decided to petition the ecclesiastical authority to formalize such defection. In fact, the intervention of the competent authority assures the juridical certitude on the formality of the defection. The ecclesiastical jurisprudence considered the defection as an exemption from ecclesiastical law only when it is manifested and ascertained with formality by an ecclesiastical authority: “Hoc, igitur, in sensu videntur intellegi verba "actu formali", non materiali aut virtuali, scilicet quo intenderetur vera intentio defectoris discedendi ab Ecclesia Catholica coram Ecclesiae legitima auctoritate legitime manifestata et accepta, non, contra, coram auctoritate novae selectae confessionis.”66

It is clear that the formality of the act of defection from the Catholic Faith has always implied a real intention that should be externally manifested before an ecclesial authority. In fact the doctrine has always emphasized this requirement. “This formality can be a declaration of the intention in written form, or performed before an ecclesiastical authority.”67 At any rate, “it is absolutely necessary that the separation is executed through any kind of formality or solemnity acknowledged by the ecclesiastical legislation.”68 Since there was no clear procedure in order to ascertain the formal act of defection ex cann. 1086 §1, 1117 and 1124, the doctrine had solicited the competent ecclesiastical authority, i.e., the Pontifical Council for the Legislative Texts, to determine the manners of defection cum actu formali.69 The Pontifical Council for Legislative Text in its Plenary Session on June 3, 1997 finally decided to proceed with the formulation of dubium and the pertinent responsum for the release of an eventual authentic interpretation about the exact juridical relevance of the exemption clause. 70 However, prudence prevailed when it decided to conduct a prior consultation with the episcopal conferences in order to acquire systematic evaluation on the effective pastoral and canonical utility of the clause based on the practical and first hand experiences of the different diocesan institution involved in marriage causes. In two years time, there were more or less fifty replies submitted to the Pontifical                                                                                                                                     64 Cf. COMMUNICATIONES 27 (1995) 31; M.A. ORTIZ, Sacramento y forma del matrimonio. El matrimonio canónico celebrado en forma no ordinaria (Pamplona 1995) 256; R. NAVARRO VALLS, “Commento al can. 1117”, in AA.VV., Comentario exegético al Código de Derecho Canónico, vol. IV (Pamplona 1996) 1468; J. F. CASTAÑO, Legislación matrimonial de la Iglesia, (Salamanca 1994) 379; V. DE PAOLIS, Alcune annotazioni circa la formula “actu formali ab Ecclesia Catholica deficere” in Periodica 84 (1995) 607-608; J. FORNÉS, “La forma en el matrimonio de un católico con un no católico” in AA.VV., Forma jurídica y matrimonio canónico, (Pamplona 1998) 86; T. RINCÓN-PÉREZ, Alcance canónico de las fórmulas “abandono notorio de la fe católica” y “apartamiento de la Iglesia por acto formal” in AA.VV., Forma jurídica y matrimonio canónico, (Pamplona 1998) 113. 65 Cf. P. LÓPEZ GALLO, “Formal defection from the Catholic Church”, in Monitor Ecclesiasticus 123 (1998) 620646; S. VILLEGGIANTE, “Dispensabilità della forma di celebrazione del matrimonio e problematica inerente all‟abbandono della fede con atto formale”, in AA.VV., I matrimoni misti, Città del Vaticano 1998, 159-173. 66 Coram Verginelli, Camden, n. 11, February 25, 2005. 67 G. F. AZNAR, Il Nuevo derecho matrimonial canónico (Salamanca 1985) 188-190. 68 Cf. L. Örsy, Marriage in Canon Law, Texts and Comments. Reflections and Questions (Wilmington-Delaware 1986) 172-173; J. F. Castaño, Gli impedimenti matrimoniali, in Aa.Vv., Il Codice del Vaticano II. Matrimonio canonico (Blogna 1990) 101-122. 69 “Thus, we believe that it is the duty of the competent ecclesiastical authority to determine other concrete manners… of abandoning the Catholic Church with formal act. For the competent ecclesiastical authority we refer to: a) the Pontifical Council for the Legislative Text; b) the Congregation for the Doctrine of Faith…” J. F. CASTAÑO, Il Sacramento del Matrimonio, (Roma 1992), 286. 70  Cf.   F. COCOPALMERIO, Le ragioni di due modifiche. Presentation of the motu proprio Omnium in mentem, in L’Osservatore Romano, 16 november 2009.    

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW Council for Legislative Texts coming from the episcopal conferences of the five continents. Again, in most of the recommendations, there was clear manifestation of the real need to make necessary clarifications on the juridical relevance of the clause and the well-founded petition for its complete derogation.   F. Cocopalmerio, during the presentation of the motu proprio enumerated some of the reasons based on the juridical experience of those who had responded: “the convenience of not having a different treatment extended to civil unions of baptized who have not formalized their defection, the necessity of witnessing with coherence the identity of marriage-sacrament, the risk of encouraging clandestine marriages, various consequences in those countries where canonical marriage acquires civil effect, etc.”71 Taking into serious considerations these practical experiences, the Pontifical Council for Legislative Texts decided with unanimity to propose the suppression of the aforesaid clause during the Plenary Session on June 4, 1999. St. John Paul II confirmed the decision and instructed the dicastery to prepare an appropriate normative text on the matter. In its plenary session presided over by the Cardinal Secretary of State on June 16, 2009, the Pontifical Council for the Legislative Texts examined the text of the motu proprio and on October 26, 2009 Benedict XVI with the motu proprio Omnium in mentem modified the can. 1086 §1, can. 1116 and can. 1124. The ratio of the elimination of the clause: to ensure the juridical certainty Benedict XVI enumerated at least five major problems created by the introduction and application of the clause.72 First, in individual cases the definition and practical configuration of such a formal act of separation from the Church has proved difficult to establish, from both a theological and a canonical standpoint. Second, many difficulties came out both in pastoral matters and the practices of tribunals. Third, the clause indirectly pave the way and, even worse, encouraged apostasy especially in those places where the Catholic faithful are not numerous or where unjust marriage laws discriminate between citizens on the basis of religion. Fourth, it hindered the return of baptized persons who greatly desired to contract a new canonical marriage following the failure of a preceding marriage. Finally, among other things, many of these marriages in effect became, as far as the Church is concerned, "clandestine" marriages. It was then clear that the objectives of the exemption clause in the new Code were to facilitate the exercise of ius connubii by limiting the cases of nullity because of the defect of form and to ensure the juridical certainty, i.e., that the celebration of marriage was valid without the observance of the ecclesiastical law for those who defected formally. However, it seemed that the application of the clause defeated not only the juridical but also the pastoral purpose of the provisions. Many of those who defected without observing the canonical form validly celebrated marriages that eventually failed and resulted to broken homes. The spouses with children have to carry the burden of the rearing and educating of the offspring, a natural obligation that cannot be derogated.73 However, those whose marriages did not generate children could not enter into another one because of the validity of the previous bond. Moreover, the exemption clause created irregular matrimonial situations because the civil marriage between he who defected and with non-baptized was considered canonical; likewise the marriage of the separated Catholic with a baptized non-Catholic was considered sacramental, thus, intrinsically indissoluble if it is ratum et consumatum. Consequently, the                                                                                                                                     71 Ibidem. 72 Omnium in mentem, 8. 73 Cf. Digesta I, 1, 3: “Hinc descendit coniunctio viri et feminae, quam matrimonium appellamus. Hinc liberorum procreatio, hinc educatio.” See also GS 48, 50 and Can. 1071 §1, 3º should be taken into serious consideration.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW return to the Catholic fold of those who would like to enter anther canonical or sacramental marriage is hindered by the effectivity of the exemption clause of cann. 1086 §1 and 1117. The legislator, therefore, decided to formally end the legal uncertainties created by the exemption. By repealing the exemption clause in the three canons, the juridical certainty is established: every Catholic or he who is received in the Catholic Church – whether defected in whatever manner or still remains in ecclesial communion – he is semper et ubique bound to observe the ecclesiastical law on disparity of cult and canonical form under the pain of invalidity of marriage. It is expected that this certainty of the law will avoid the “entrapment” of the christifideles in valid but failed marriages caused by the previous exemption. Consequently, this offers another possibility of “forming a new family” and another chance for those who, although did not observe the obligations, yet are still “canonically free” to enter a new marriage after the previous one should have failed to work. Juridical and pastoral relevance of the modification The provision on the modification will have substantial juridico-canonical implications that are likewise pastorally relevant. It follows that those who celebrated their marriages from the promulgation of the CIC 1983 until midnight of the 26th of January 2010 without the observance of the obligation on the canonical form have valid canonical marriages. Likewise, if the marriages were celebrated between a Catholic and baptized nonCatholic, these are to be considered sacramental bond. In both cases, the validity of matrimonial bond is assured provided that that at least one of the Catholics before the celebration of marriage has defected from the Church cum actu formali. The pastoral relevance is verified by considering that none of these should have incurred canonical sanctions, unless otherwise proven in the external forum. Consequently, they have the right to receive the sacraments and participate actively in the life of grace in full ecclesial communion. Instead, the marriages celebrated from the first hour of the 27th of January 2010 until to date and under the same conditions – at least one defected from the Catholic Church with or without formality and without observing the canonical form – are to be considered invalid; they are neither canonical nor sacramental. The Protocol N. 10279/2006, paragraph 5/b74 contemplates the canonical sanctions for those who defected cum actu formali; however, it will be the task of the competent ecclesiastical authority, servatis de iure servandis, the application of the penal law on individual cases. Likewise, it will be the duty of the pastor to verify the existence of the obstacles for the licit and valid administration of the sacraments especially of the Holy Communion and the Sacrament of Reconciliation for those whose marriage have become irregular because of the enforcement of the new provision. It should be clear that the non-observance of the obligations for the dispensation of disparity of cult, canonical form and mixed marriage would result to an invalid matrimonial bond. However, it should be likewise clear that Canon Law offers ordinary means in order to regularize successively this kind of marital unions, like dispensation from the ecclesiastical                                                                                                                                     74 5. It is required, moreover, that the act be manifested by the interested party in written form, before the competent authority of the Catholic Church: the Ordinary or proper pastor, who is uniquely qualified to make the judgment concerning the existence or non-existence of the act of the will as described above in n. 2. Consequently, only the convergence of the two elements – the theological content of the interior act and its manifestation in the manner defined above – constitutes the actus formalis defectionis ab Ecclesia catholica, with the corresponding canonical penalties (cf. can. 1364, § 1).

   

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW impediments, the convalidatio simplex, the sanatio in radice or as the case may be, the declaration of nullity of marriage before an ecclesiastical tribunal. CONCLUSION The Protocol N. 10279/2006 of the Pontifical Council for the Legislative Texts established the proper canonical procedure to ascertain the defection from the Catholic Church cum actu formali. The theological and canonical elements are required in order to ascertain the intention and formalize in external forum that a faithful is indeed separated from the ecclesial communion with a corresponding penalty. Thus, it is extremely difficult to formally defect from the Catholic Church; rather, it is almost impracticable if one should observe literally the minutiae of the Protocol. For this reason, the unilateral defection, in specified cases, may also be considered defection cum actu formali as stated clearly in the exchange of letters between the Pontifical Council for the Legislative Texts and the Italian Bishops Conference. The exemption clause of can. 1086 §1, can. 1117 and can. 1124 evidently simplified the exercise of the natural right to marry, i.e., ius connubii at the expense of the juridical certitude about who really were entitled to these exemptions. There was no clear indication on the proper interpretation and application of defection cum actu formali until the Protocol was issued on March 13, 2006. The Omnium in mentem, ensures the juridical certainty that every Catholic or he who is received in it is bound to observe the ecclesiastical law repealing thereby the exemptions previously granted. It is true that the juridical certitude is established but at the expense of the exercise of ius connubii. In fact, for those bound to the ecclesiastical law, the non-observance of the obligations on the matrimonial law implies invalidity of marriage. The exemption clause facilitated the exercise of the natural right to marry at the expense of the juridical certainty, while the Omnium in mentem assures the juridical certainty at the expense of the exercise of the ius connubii. Is there any other way to harmonize the natural right to marry and the juridical certitude? There are still many doors to be opened; there are keys to unlock them. How about the key opening the discussion on the possibility of reconsidering the invalidating and validating force of the canonical form that per sé is merely an ecclesiastical law?

* Rev. Fr. Danilo R. Flores is one of the clergy of the Diocese of Rome. He has a summa cun laude doctoral degree in Canon and Civil Law (Utroque Iure) from the Pontifical Lateran University (Vatican City). He is presently an invited professor at the Faculty of Canon Law and at the Graduate School of Civil Law in the Pontifical and Royal University of Santo Tomas (Manila, Philippines). He is a fidei donum on-loan priest of the Diocese of Rome to the Diocese of Pasig (Philippines) and parish priest of the Sagrada Familia Parish at Bagumbayan in Taguig City (Diocese of Pasig).

 

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW PONTIFICAL COUNCIL FOR LEGISLATIVE TEXTS

ACTUS FORMALIS DEFECTIONIS AB ECCLESIA CATHOLICA

Vatican City, 13 March 2006 Prot. N. 10279/2006 Your Excellency: For quite some time, a considerable number of Bishops, Judicial Vicars and others working in the field of canon law have been posing to this Pontifical Council questions and requests for clarification concerning the so-called actus formalis defectionis ab Ecclesia catholica mentioned in canons 1086, § 1, 1117 and 1124 of the Code of Canon Law. The concept therein presented is new to canonical legislation and is distinct from the other – rather “virtual” (that is, deduced from behaviors) – forms of “notoriously” or “publicly” abandoning the faith (cfr. can. 171, § 1, 4°; 194, § 1, 2°; 316, § 1; 694, § 1, 1°; 1071, § 1, 4° and § 2). In the latter circumstances, those who have been baptized or received into the Catholic Church continue to be bound by merely ecclesiastical laws (cfr. can. 11). The issue was carefully examined by the competent Dicasteries of the Holy See in order to identify, first of all, the theological and doctrinal components of an actus formalis defectionis ab Ecclesia catholica and then in turn the requirements or juridical formalities that would be necessary so that such an action would constitute a true “formal act” of defection. After having received the decision of the Congregation of the Doctrine of the Faith concerning the theological and doctrinal elements, and after subsequently examining the entire matter in Plenary Session, this Pontifical Council communicates the following to the Presidents of Episcopal Conferences: 1. For the abandonment of the Catholic Church to be validly configured as a true actus formalis defectionis ab Ecclesia so that the exceptions foreseen in the previously mentioned canons would apply, it is necessary that there concretely be: a) the internal decision to leave the Catholic Church; b) the realization and external manifestation of that decision; and c) the reception of that decision by the competent ecclesiastical authority. 2. The substance of the act of the will must be the rupture of those bonds of communion – faith, sacraments, and pastoral governance – that permit the Faithful to receive the life of grace within the Church. This means that the formal act of defection must have more than a juridical-administrative character (the removal of one’s name from a Church membership registry maintained by the government in order to produce certain civil consequences), but be configured as a true separation from the constitutive elements of the life of the Church: it supposes, therefore, an act of apostasy, heresy or schism. 3. The juridical-administrative act of abandoning the Church does not per se constitute a formal act of defection as understood in the Code, given that there could still be the will to remain in the communion of the faith.

 

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW On the other hand, heresy (whether formal or material), schism and apostasy do not in themselves constitute a formal act of defection if they are not externally concretized and manifested to the ecclesiastical authority in the required manner. 4. The defection must be a valid juridical act, placed by a person who is canonically capable and in conformity with the canonical norms that regulate such matters (cfr. cann.124-126). Such an act must be taken personally, consciously and freely. 5. It is required, moreover, that the act be manifested by the interested party in written form, before the competent authority of the Catholic Church: the Ordinary or proper pastor, who is uniquely qualified to make the judgment concerning the existence or non-existence of the act of the will as described above in n. 2. Consequently, only the convergence of the two elements – the theological content of the interior act and its manifestation in the manner defined above – constitutes the actus formalis defectionis ab Ecclesia catholica, with the corresponding canonical penalties (cfr. can. 1364, § 1). 6. In such cases, the competent ecclesiastical authority mentioned above is to provide that this act be noted in the baptismal registry (cfr. can. 535, § 2) with explicit mention of the occurrence of a “defectio ab Ecclesia catholica actu formali”. 7. It remains clear, in any event, that the sacramental bond of belonging to the Body of Christ that is the Church, conferred by the baptismal character, is an ontological and permanent bond which is not lost by reason of any act or fact of defection. With the certainty that the Bishops of your Conference, conscious of the salvific dimension of ecclesiastical communion, will well understand the pastoral motivations underlying these norms, I welcome this opportunity to renew my sentiments of fraternal esteem. Faithfully yours in the Lord, Julián Card. Herranz President Bruno Bertagna Secretary

This notification was approved by the Supreme Pontiff, Benedict XVI, who directed that it be transmitted to all Presidents of Episcopal Conferences.  

 

 

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW APOSTOLIC LETTER "MOTU PROPRIO"

OMNIUM IN MENTEM OF THE SUPREME PONTIFF BENEDICT XVI ON SEVERAL AMENDMENTS TO THE CODE OF CANON LAW The Apostolic Constitution Sacrae Disciplinae Leges, promulgated on 25 January 1983, reminded everyone that the Church, as a community which is at once spiritual and visible, and also hierarchically structured, requires juridical norms, "so that the exercise of the tasks divinely entrusted to her, especially the exercise of sacred power and of the administration of the sacraments, may be properly organized". The norms ought to reflect, on the one hand, the unity between theological doctrine and canonical legislation, and, on the other, the pastoral usefulness of the prescriptions whereby ecclesiastical ordinances are directed to the good of souls. The more effectively to safeguard this necessary doctrinal unity and pastoral purpose, the Church's supreme authority, after careful deliberation, decides, from time to time, to make suitable changes or to introduce additions to the canonical norms. This is the reason that has led me to promulgate the present Letter, which concerns two issues. First, in can. 1008 and can. 1009 of the Code of Canon Law, on the sacrament of Holy Orders, the essential distinction between the common priesthood of the faithful and the ministerial priesthood is reaffirmed, while the difference between the episcopate, the presbyterate and the diaconate is made clear. Inasmuch as my venerable Predecessor John Paul II, after consulting the Fathers of the Congregation for the Doctrine of the Faith, ordered that the text of n. 1581 of the Catechism of the Catholic Church be modified in order better to convey the teaching on deacons found in the Dogmatic Constitution Lumen gentium of the Second Vatican Council (n. 29), I have determined that the canonical norm concerning this subject should likewise be adjusted. Consequently, after hearing the view of the Pontifical Council for Legislative Texts, I decree that the words of the aforementioned canons are to be modified as set forth below. Since the sacraments are the same for the entire Church, the supreme authority of the Church alone is competent to approve or define what is required for their validity and to determine the rites to be observed in their celebration (cf. can. 841). All this is equally applicable to the form to be observed in the celebration of marriage, if at least one of the parties has been baptized in the Catholic Church (cf. cann. 11 and 1108). The Code of Canon Law nonetheless prescribes that the faithful who have left the Church "by a formal act" are not bound by the ecclesiastical laws regarding the canonical form of marriage (cf. can. 1117), dispensation from the impediment of disparity of cult (cf. can. 1086) and the need for permission in the case of mixed marriages (cf. can. 1124). The underlying aim of this exception from the general norm of can. 11 was to ensure that marriages contracted by those members of the faithful would not be invalid due to defect of form or the impediment of disparity of cult. Experience, however, has shown that this new law gave rise to numerous pastoral problems. First, in individual cases the definition and practical configuration of such a formal act of separation from the Church has proved difficult to establish, from both a theological and a canonical standpoint. In addition, many difficulties have surfaced both in pastoral activity and the practice of tribunals. Indeed, the new law appeared, at least indirectly, to facilitate and even in some way to encourage apostasy in places where the Catholic faithful are not numerous or where unjust marriage laws discriminate between citizens on the basis of religion. The new law also made difficult the return of baptized persons who greatly desired to contract a new canonical marriage following the failure of a preceding marriage. Finally, among other things, many of these marriages in effect became, as far as the Church is concerned, "clandestine" marriages. In light of the above, and after carefully considering the views of the Fathers of the Congregation for the Doctrine of the Faith and the Pontifical Council for Legislative Texts, as well as those of the Bishops' Conferences consulted with regard to the pastoral advantage of retaining or abrogating this exception from the general norm of can. 11, it appeared necessary to eliminate this norm which had been introduced into the corpus of canon law now in force.  

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW Therefore I decree that in the same Code the following words are to be eliminated: "and has not left it by a formal act" (can. 1117); "and has not left it by means of a formal act" (can. 1086 § 1); "and has not left it by a formal act" (can. 1124). Likewise, having heard the views of the Congregation for the Doctrine of the Faith and the Pontifical Council for Legislative Texts, and after inquiry among my venerable brethren, the Cardinals of Holy Roman Church in charge of the Dicasteries of the Roman Curia, I decree the following: Art. 1. The text of can. 1008 of the Code of Canon Law is modified so that hereafter it will read: "By divine institution, some of the Christian faithful are marked with an indelible character and constituted as sacred ministers by the sacrament of holy orders. They are thus consecrated and deputed so that, each according to his own grade, they may serve the People of God by a new and specific title"; Art 2. Henceforth can. 1009 of the Code of Canon Law will have three paragraphs. In the first and the second of these, the text of the canon presently in force are to be retained, whereas the new text of the third paragraph is to be worded so that can. 1009 § 3 will read: "Those who are constituted in the order of the episcopate or the presbyterate receive the mission and capacity to act in the person of Christ the Head, whereas deacons are empowered to serve the People of God in the ministries of the liturgy, the word and charity". Art. 3. The text of can. 1086 § 1 of the Code of Canon Law is modified as follows: "A marriage between two persons, one of whom was baptized in the Catholic Church or received into it, and the other of whom is not baptized, is invalid". Art. 4. The text of can. 1117 of the Code of Canon Law is modified as follows: "The form prescribed above must be observed if at least one of the parties contracting the marriage was baptized in the Catholic Church or received into it, without prejudice to the provisions of can. 1127 § 2". Art. 5. The text of can. 1124 of the Code of Canon Law is modified as follows: "Marriage between two baptized persons, one of whom was baptized in the Catholic Church or received into it after baptism, and the other a member of a Church or ecclesial community not in full communion with the Catholic Church, cannot be celebrated without the express permission of the competent authority". All that I have laid down in this Apostolic Letter issued Motu Proprio, I now order to have the force of law, anything whatsoever to the contrary notwithstanding, even if worthy of particular mention, and I direct that it be published in the official gazette Acta Apostolicae Sedis. Given in Rome, at St Peter's, on 26 October in the year 2009, the fifth of my Pontificate.

BENEDICTUS PP. XVI

© Copyright 2009 - Libreria Editrice Vaticana

 

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UNIVERSITY OF SANTO TOMAS FACULTY OF CANON LAW CERTIFICATE OF THE ACT OF FORMAL DEFECTION FROM THE CATHOLIC CHURCH DIOCESAN CURIA OF ________________ Protocol number: _________ With reference to the petition of Mr./Ms. ____________________________________ who no longer intends to be considered as member of the Catholic Church: GRANTED THAT - the Sacrament of Baptism confers an indelible personal status for the Catholic Church; - the data contained in the baptismal registry are documentation of historical facts; they will remain as they are recorded, and thereby cannot be cancelled; - the Catholic Church, an independent legal system and autonomous in its own order, has the inherent and proper right to acquire, conserve and use the data concerning the persons of the faithful, the ecclesiastical institutions and aggregations recorded in its books for institutional end; CONSIDERING THAT the foregoing statements are recognized by the Guarantor of the State for the protection of personal data as exercise of the institutional rights of the Catholic Church concerning the use of books of registry for institutional purposes; IN CONFORMITY WITH THE Art. 2 §7 of the general decree of the Bishops Conference of __________________ on (date) concerning the “provisions for the protection of the right of good reputation and privacy”; WE AUTHORIZE the Chancellor of our diocesan curia to make the formal note in the baptismal record of Mr./Ms. _________________, in conformity and effect of the canonical norms, of the following annotation: “In force of the decree of the Diocesan Ordinary, on (date), it is hereby recorded that Mr./Ms. ___________ born on _________ in ______________ has manifested the intention to be no longer considered as member of the Catholic Church.” Mr./Ms. should be aware that the aforesaid annotation implies the following canonical consequences: - disqualification and/or exclusion from the role or the function of god parent in the celebration of Baptism and Confirmation (cf. cann. 874 §1 and 893 §1); - necessity of the license of the Ordinary of the Place for the admission to enter into a canonical marriage (cf. can. 1071, §1, 5º); - exclusion from the reception of the Sacraments (cf. cann. 133, §1, 2º and 915). Date _____________________________ The Chancellor

_________________________________ The Diocesan Ordinary (diocesan seal)

 

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