Procedures for the Separation of Members from Their Institute, June 1984.

1. In her maternal solicitude, holy Mother Church exhorts religious to be faithful to the obligations they freely assumed at the time of their profession (cf. cc. 598, §2; 652, §3; 677, §1; 678, §2). In his exhortation Redemptionis donum the Holy Father likewise reminded religious of their duty assumed in their profession. Imitating the infinite mercy of the Lord whose redemptive work she continues, the Church accedes to the petitions of those who are in difficulty. All such situations are not foreseen in its legislation, but in every instance the Church offers all its maternal assistance, the presence of Christ Himself to souls.

2. Canons 691, and 693 indicate the authority qualified to permit religious in perpetual vows definitively to leave their institute. The granting of such an indult according to the new code (as also according to the 1917 Code: c. 638) is reserved to the Holy See for members of institutes of pontifical right; it may be granted by the local ordinary for members of institutes of diocesan right.

The preparatory Pontifical Commission for the redaction of the 1983 Code, in the session held 4 March 1980, gave particular consideration to the possibility of granting the superior general the faculty to authorize subjects definitively to leave their institute. After weighing, however, the seriousness of perpetual commitment

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freely assumed, and taking into consideration the diminution of fidelity to the religious vocation, the Commission decided to maintain the necessity of recourse to the Holy See for the dispensation (cf. Comm 31 (1981): 334-335).

3. The 1917 Code did not clearly indicate the procedure to be followed in these cases; it stated only that the indult had to be requested of the Holy See which reserved to itself the authority to grant it (or to the local ordinary, cf. c. 638). The intervention of the superior general was not formally prescribed by the code, but was required by the very nature of the matter, by the jurisprudence of the Congregation for Religious and for Secular Institutes, as well as by the constitutions of the institute.

The new code now specifies what had already been ordinary praxis: the superior general must transmit to the Holy See (or to the local ordinary) the request of the religious together with the judgment of the superior and the councillors.

4. Whatever may have been the cause of the "crisis" of the religious, whatever may be the motives for the petition, the superior must present them frankly in order that the competent authority may form an objective judgment on which the reply in the rescript will depend. The 1917 Code, canon 40, stated: "In every rescript the condition, whether expressed or not, is understood: if the request is based on truth." The new code, canon 63, §§1 and 2 states: "Subreption or the concealment of the truth, invalidates a rescript if those things which must be expressed in the request for validity according to the law, style and canonical practice were not expressed; this does not apply to a rescript of favor which was given motu proprio. Obreption, or statements of falsehood, likewise invalidates a rescript if not even one proposed motivating reason is true."

5. The responsibility for this presentation of the real motives of the petition rests primarily on the person making the petition. This person could easily be deceived by the subjective motives concealing the objective truth. This is why the superior must employ every useful means to be able to discern at first hand the objectivity of the motives by making opportune enquiries, by providing the councillors with the data necessary to obtain their reasoned opinion, and by transmitting along with the petition of the person concerned the superior's personal motivated judgment.

6. The code places an obligation on the superior general to gather the necessary information, to study the case personally, to seek the

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opinion of the councillors, and to transmit his/her personal judgment along with the petition of the religious.

It is not sufficient to inform the Holy See (or the local ordinary) that the councillors are or are not in agreement; it is necessary to furnish the competent authority with all the data useful in order to form an idea as exact as possible of the case to arrive at a proper judgment with full cognizance of the case.

The role of the councillors is not fulfilled by saying Yes or No to the proposals submitted by the superior for their reflective prayer. They should seriously study the problem, examine it in detail, and present the solid reasons for the decision they reached. The very nature of their function (and many constitutions mention this explicitly) is to enlighten the superior general by clearly and frankly presenting the reasons which support the conclusions they reached after studying the documentation.

7. In the case contemplated in canon 691, §1, the purpose of the legislation is to enable the Congregation for Religious and for Secular Institutes (or the local ordinary) to form an exact idea of the case presented and reach an objective judgment in the light of the data on hand. The following data is required:

a. from the petitioner a frank, clear declaration:

1. when the petitioner pronounced perpetual vows;

2. why the person pronounced them;

3. how, when and in what circumstances the petitioner lived the vows;

4. why the petitioner desires now to leave the institute.

b. from the superior who has the duty:

1. to gather from the provincial (if there is one) all useful information;

2. to secure a complete curriculum vitae of the petitioner;

3. to include in the dossier the judgment of the competent authority which admitted the petitioner into the institute, and a judgment concerning the life the religious led in the institute;

4. to indicate what the relationship was of the religious with the superiors;

5. to learn with what fidelity the person fulfilled the obligations assumed;

6. to discover any possible psychological or pathological taints or defects the person may have or have had;

7. to present a motivated judgment on the case.

8. In this way the requirements of canon 691 will be met and the

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Congregation for Religious and for Secular Institutes (or the local ordinary) will be able to make an objective decision. Otherwise the superior general and the councillors would not fulfill their duty and would prevent the Congregation for Religious and for Secular Institutes (or the local ordinary) from objectively fulfilling theirs.

9. It may well be remarked here that article II of Chapter VI of the 1983 Code (cc. 686-693) speaks directly (in recto) of separation from the institute, of leaving the institute, and only indirectly (in obliquo) of dispensation from vows. Here the present code follows the preceding one which presented the dispensation from vows as a consequence of secularization or of definitive separation from the institute (1917 Code, c. 640, §1, 2°). True, the result is the same (cf. Tabera, Antonana, Escudero, Il diritto dei religiosi, Roma, 1961, p. 528, n. 392), but the formal approach is different.

What the Holy See in fact directly grants in the terms of canon 691 is departure from the institute, and the indult by which this is granted carried with it juridically, over and above the separation from institute, dispensation from the vows and all the obligations ensuing from religious profession (cf. c. 692).

10. Canon 692 of the new code introduces a notable difference in the praxis of the Holy See. The preceding jurisprudence in fact guaranteed the one who received an indult of secularization a period of reflection: the religious upon receiving the indult could accept or refuse it immediately, or wait ten days before expressing his/her decision.

At times ambiguous situations arose and frequently the Congregation for Religious and for Secular Institutes had to intervene to resolve the impasse.

The present code prescribes that the rescript goes into effect as soon as it is communicated to the person concerned, unless the person upon receiving the communication positively rejects the rescript. Therefore only a formal act of refusal at the moment of notification can make the indult inefficacious.

What is to be done if at the time that the superior receives the rescript the religious concerned is absent and cannot be reached? In theory the document remains valid until the competent superior communicates it to the petitioner: at that moment the rescript goes into effect, unless the religious refuses to accept it. Would it be opportune to set a limit (six months? a year?) to the value of the document so that if after such time it had not been notified to the religious it would no longer be of value?

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11. A special norm applies to clerics:' 'If the member is a cleric, the indult (of leaving his institute) is not granted before he finds a bishop who will incardinate him into a diocese or at least receive him experimentally: (c. 693). The term "cleric" in the present code is equivalent to the expression religiosus in sacris (in the 1917 Code, c. 641), because the new code brings to our attention that “a person becomes a cleric through the reception of the diaconate and is incardinated into the particular Church" (c. 266, §1); it is no longer by tonsure (1917 Code, c. 111, §2) that a candidate becomes a cleric, but by the diaconate. A religious in perpetual vows is "incardinated" in his institute as a cleric by the reception of the diaconate (c. 266, §2).

The code in this case does not make a formal defense, but establishes a norm: the text states "it is granted," not "may it be granted." A religious deacon or priest may not obtain the indult to leave his institute before having been accepted definitively or on trial by a local ordinary.

This norm differs from the previous legislation which foresaw the possibility of granting this indult, even if the religious in sacred orders had not yet found a bishop willing to accept him. In such a case, however, the religious had to enter in his own diocese (of origin) if he had not already lost such a standing according to canon 585 by being "incardinated" in the institute by virtue of his religious perpetual profession. But he was not permitted to exercise sacred orders without having first found a "benevolent" bishop who received him, unless the Holy See made some other provision. Canon 693 simplifies the procedure: it makes no further mention of the clause "unless the Holy See has provided otherwise," although evidently this possibility remains in accordance with the pastoral procedure of the competent dicastery (cf. Regimini ecclesiae universae, 73, §2).

12. The reason for such a norm (both that of the 1917 and the 1983 Code) is evident. Beyond the prescription of canon 265: "Every cleric must be incardinated into some particular Church or personal prelature, or into an institute of consecrated life or society endowed with this faculty, so that unattached or transient clerics are not allowed at all" (cf. c. Ill, 1917 Code); pastoral prudence requires such a norm. It is the duty of the local ordinary to watch over the pastoral ministry in his diocese, to confide to those he deems qualified the canonical mission in his territory. No cleric (cf.

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c. 266, §1) may exercise the sacred ministry in the diocese without having been missioned by the bishop.

From this viewpoint the 1917 Code envisaged the separation of the religious could not exercise his ministry before having found a "benevolent bishop" who would receive him in his diocese. The present code goes still farther in establishing the norm that a religious may not receive the requested indult unless he has already, at least provisionally, been accepted in a diocese.

13. Different is the case of a religious cleric (in sacris according to the 1917 Code) who asks to leave his institute, but for psychological, physical, moral or other reasons has decided in agreement with his superiors to no longer celebrate Holy Mass or exercise his ministry. He requests permission definitively to leave his institute in order to live as "a layman," continuing to observe his vow of chastity.

In such a case, not contemplated in law, the Holy See can certainly (and also the bishop for a member of a diocesan institute) grant the indult according to canon 691, which upon notification and acceptance will sever the bonds with the institute and those flowing from religious profession, without dispensing from celibacy.1 The religious is then considered as a lay person who has made the vow of perfect chastity.

From the doctrinal viewpoint it is clear the person remains a "priest forever." Baptism, which initiates the faithful into the royal priesthood of Christ, and the sacrament of orders (cf. LG , 10) imprint an indelible mark which the Church terms a character (cf. c. 845). The priest, though reduced to the lay state, remains a priest forever. The norm which requires membership in a diocese or institute (cf. c. 265) is a positive law from which the Church may dispense. She may do this directly a) by removing a priest or a group of priests from their diocese or institute in order to place them immediately under the Sovereign Pontiff or an organism of the Holy See; history records such cases; or b) by severing the priest from every bond with the exercise of ministry depriving him even of the very right to exercise the ministry: reduction to the lay

1 The dispensation from celibacy for priests is reserved to the Holy Father upon presentation of the request by the Sacred Congregation for the Doctrine of the Faith. Cf. Lettre Circulaire de la S. Cong. pour la Doctrine de la Foi, issued 14 Oct 1980 along with the norms for the procedure; cf. norm 8 in EnchVat, 7, pp. 550-566.

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state (as a "grace" or a penalty) or by definitive separation from the diocese or the religious institute without reduction to the lay state.

In the latter case, if a juridical bond remains, it will be uniquely with the Holy See because the bond with the inferior organisms has been definitively broken. Though reduced to the lay state, the priest actually by virtue of his priestly state, retains an "ontological," or a special doctrinal bond with the Church and the Holy Father. The juridical bond with a diocese or an institute does not derive from the priesthood as such but from positive law and may be suppressed.

Cong. for Religious and Secular Institutes, June 1984. EnchVat 9, nn 847-860; ConLife 10 (1986): 87-92.