CANONICAL POSITION ON THE CATHOLIC MARRIAGE: THE MARRIAGE TRIBUNAL AND THE ISSUE OF ANNULMENT

CANONICAL POSITION ON THE CATHOLIC MARRIAGE: THE MARRIAGE TRIBUNAL AND THE ISSUE OF ANNULMENT

 

By Very Rev Fr Dr Peter Kwame Sarpong, Chancellor of the Kumasi Archdiocese

SALUTATION

Hon Chair, Your Excellency ……., it is a rare honour and privilege for me to be with the Knights & Ladies of Marshall Society Members based in  and outside Kumasi Metropolis on this occasion of your Annual Regional Conference to deliver a talk of on Canonical Position on the Catholic Marriage: The Marriage Tribunal and the Issues of Annulment. May I respectfully thank the organisers of this programme for this invitation. I doff my hat to salute you with immense respect and admiration.

 

So we are going to discuss, dissect, and bisect the argument: Canonical Position of the Catholic Marriage: The Marriage Tribunal and the Issues of Annulment into three (3) parts:

1. Catholic Marriage
2. The Marriage Tribunal and

• The Issues of Annulment in the Catholic Church.

 

Pope Celestine once warned in a letter to the bishops of Apulia and Calabria (July 21, 429) “No priest or knight is permitted to be ignorant of the sacred canons. “Priests (Knights and ladies) are to know the sacred scripture and the canons” because “ignorance, the mother of all errors, is especially to be avoided by priests and knights of God”

 

 

Part I:

Canonical Position of the Catholic Marriage

 

1. Description of Terms

 

1. Canonical Position (Canon Law)

Canon Law is a set of norms created by reason enlightened through faith that intends to bring order into the life of the ecclesial community or the Catholic Church. It is articulated and promulgated by those who are entrusted with the community’s care, and its purpose is to serve the common good – Salus animarus suprema lex est

1. Canonical Marriage

It is the marriage which has been celebrated in accordance with the laws of the church. It may be Catholic Christian marriage, a mixed marriage or disparity of cult marriage.

 

• Catholic Marriage

Catholic Marriage is the marriage between two baptised Catholics. Christian Marriage is the marriage between the baptised. If one party is baptised in the Catholic Church and the other in an ecclesial community or church whose baptism is valid and accepted, it is still a Christian marriage. The important factor is the baptism of the two.  Thus mixed marriage i.e. the marriage between two baptised persons, one of whom was baptised in the Catholic Church or received into it after baptism, and the other of who belongs to a church or ecclesial community not in full communion with the Catholic Church, is also a Christian  marriage.

 

Part I – Canonical Position of Catholic Marriage

Topic: Canonical Position of the Catholic Marriage: The Marriage Tribunal and the Issues of Annulment

 

1. Catholic Marriage

 

• Description of Marriage in the Code of Canon Law

The Code of Canon Law which was solemnly promulgated on the 25^th day of January 1983, by Paul John Paul II, in the 5^th year of his Pontificate, has a very good description of marriage:

Can 1055: The marriage covenant by which a man and a woman establish between themselves a partnership of their whole life, and which of its own very nature is ordered towards the well-being of the spouses and to the procreation and education of children has between the baptised been elevated to the dignity of a sacrament.

• 2 Consequently, a valid marriage contract cannot exist between the baptised persons without its being by that very fact a sacrament

 

• From the above canonical description of marriage, we can deduce the following:

 

• Not every marriage celebrated in church is a Sacrament
• Marriage as a Sacrament = Valid marriage + Baptism of the two
• Valid marriage = Absence of impediment + lawful consent + valid form

 

From the above description of marriage in the Code of Canon Law, a marriage is considered valid only when the following three (3) elements are present:

• Absence of diriment impediments
• Lawful consent
• Valid form

Secondly a marriage is considered Catholic Marriage when there is

• Valid marriage and
• The both couples are baptised in the Catholic Church

Elements for the Validity of Canonical/Catholic Marriage

There are three (3): Absence of diriment impediments, lawful consent and valid form

1. Absence of diriment impediments

A diriment impediment renders a person incapable of validly contracting a marriage (Can 1073). In other words, what can permit or impede a man or a woman from contracting the covenant of marriage. There are twelve (12) diriment impediments spelt out in the code of canon law and any one of them could be used as grounds for the annulment of the marriage: These include the following:

1. Age (Can 1083)

Canonically, 16 for a man and 14 for a woman: The bishop conference can establish a higher age for the lawful celebration of marriage. Below this age the marriage is invalid.

 

1. Antecedent and perpetual impotency to have sexual intercourse whether on the part of the man or on that of the woman, whether absolute or relative (Can 1084). For a man, potency is being able to have erecting, penetration and ejaculation; For a woman, on the other hand, potency is having her femina, being able to be penetrated, being able   to absorb some semen deposited

 

• Previous Bond (Can 1085)

A person obliged by the bond of previous marriage, even if not consummated, invalidly attempts marriage, even if the previous marriage was invalid or for any reason dissolved. It is not lawful to contract another marriage before the nullity of the dissolution of the previous one has been established lawfully and with certainty.

 

1. Disparity of Cult/Worship (Can 1086)

Marriage between two persons when one of the two was baptised in the Catholic Church or received into it and the other not baptised. This type of marriage is called disparity of cult marriage. Accordingly, the marriage between a Catholic party and all the other Pentecostal or Charismatic churches fall into this category.

For a disparity of cult marriage to be validly contracted, certain conditions have to be fulfilled before the Local Ordinary can grant the necessary dispensation for a lawful canonical celebration. Conditions for the permission or dispensation (Can 1125):

• 1°: The Catholic party is to declare that he or she is prepared to remove dangers of defecting from the faith, and is to make a sincere promise to do all in his power  in order that all the children be baptised and brought up in the catholic church
• 2°: The other party is to be informed in good time of these promises to be made by the Catholic party, so that it is certain that he or she is truly aware of the promise and of the obligation of the Catholic party.
• 3°: Both parties are to be instructed about the purposes and essential properties of marriage, which are not to be excluded by either contractant.

1. Sacred Orders (Can 1087)

Those who are in sacred orders invalidly attempt marriage: deacon, priest, bishop

 

1. Public perpetual vow of Chastity in a Religious Institute (Can 1088)

Those who are bound by a public vow of chastity in a religious institute invalidly attempt marriage – the Rev. Sisters and brothers.

 

• Woman abduction (Can1089)

A woman abducted or detained by a man with a view to contracting marriage with her Such a marriage can be valid only when the woman, after she has been separated from her abductor and established in a safe and free place, chooses marriage of her own accord.

 

• Crimine (Can 1090)

This is where one who, with view to entering marriage with a particular person, has killed that person’s spouse or his or her own spouse. They also invalidly attempt marriage with each other who, by mutual physical or moral action, have brought about the death of either’s spouse – rat racing game

 

1. Consanguinity (Can 1091)

Blood relation: marriage is invalid between those related in all degrees of the direct line, whether ascending or descending, legitimate or natural – marriage among parents and sibling.  In the collateral line, it is invalid up to the 4^th degree inclusive – marriage among cousins and nieces.

 

1. Affinity (Can1092)

Affinity in any degree of the direct line invalidates marriage. Affinity is a relationship between two persons of whom one is joined by a valid marriage to a blood relative of the other. For instance if my wife has two sisters, I cannot divorce my wife and marry her junior or senior sister. I am in affinity with them. In the same way if I have two brothers, my wife cannot divorce me and marry any of my brothers because of affinity.

 

1. Public propriety (Can1093)

The impediment of public propriety arises when a couple live together after an invalid marriage, or from notorious or public concubinage. Cohabitation

 

• Adoption (Can 1094)

Those who are legally related by reason of adoption cannot validly marriage each other if their relationship is in the direct line or in the second degree of the collateral line.

 

These are the 12 elements that render a person capable and enable him or her to contact a valid marriage. These same impediments are good grounds for the annulment of a marriage.

 

2. Lawful Consent

We have already discussed that for a marriage to be considered valid canonically, three (3) elements are involved – Absence of impediments+ lawful consent + valid form

Marriage, a partnership of the whole life, is brought into being by the lawfully manifested consent of persons who are legally capable. This consent cannot be supplied by any human power (Can 1057 §1). Matrimonial consent is an act of will by which a man and a woman by an irrevocable covenant mutually give and accept one another for the purpose of establishing a marriage (Can 1057 §2)

There are seven features of consent. Any one of these can serve as a solid ground for annulment of the marriage:

1. Lack of sufficient use of reason; Grave lack of discretion of judgement; Psychological problem (Can 1095). The following are incapable of contracting marriage:

1° those who lack sufficient use of reason:

2° those who suffer from a grave lack of discretionary judgement concerning the essential matrimonial rights and obligations to be mutually given and accepted;

3° those who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage;

 

1. Ignorance: (Can 1096)

For matrimonial consent to exist, it is necessary that the contracting parties be at least not ignorant of the fact that marriage is a permanent partnership between a man and a woman, ordered to the procreation of children through some form of sexual cooperation.§2 This ignorance is not presumed after puberty (Can 1096 §2).

 

• Error of person (Can 1097)

Error about a person renders a marriage invalid. I wanted to marry Attaa Kakra. It turned out to be Attaa Panin. Error about a quality of the person, even though it be the reason for the contract, does not render a marriage invalid unless this quality is directly and principally intended – condition sine qua non.

 

1. Deceit, perpetrated in order to secure consent (Can 1098)

Can. 1098 A person contracts invalidly who enters marriage inveigled by deceit, perpetrated in order to secure consent, concerning some quality of the other party, which of its very nature can seriously disrupt the partnership of conjugal life.

 

Simulation of consent: positive act of the will – Anything that would have influenced the person to decide otherwise – sickness, sterility, behaviour, character, etc.

 

1. Exclusion of an essential property of marriage (Can 1101 §2)

The essential properties of marriage are unity, indissolubility and children; in Christian marriage they acquire a distinctive firmness by reason of the sacrament (Can 1056). If, however, either or both of the parties should by a positive act of will exclude marriage itself or any essential element of marriage or any essential property, such party contracts invalidly.

 

1. Future conditions (Can 1102 §1)

Marriage cannot be validly contracted subject to a condition concerning the future. For instance: Adwoa’s parents are in the USA. It is likely that she will be invited by her parents to the USA. I will marry Adwoa so that one day when she goes to the USA, she will always invite me – future condition. Another: Kofi is in the medical school. He will one day become a medical doctor. I will marry him so that one day I will be a doctor’s wife. If Kofi is not able to complete and the marriage has already taken place, you see such marriage have very serious problem in their totius concortium vitae.

 

• Vis/Metus (Can 1103)

Vis is physical violence and metus, great fear. A marriage is invalid which was entered into by reason of force or of grave fear imposed from outside, even if not purposely, from which the person has no escape other than by choosing marriage.

 

3. Valid Form or the Canonical Form

The third element for validity of canonical marriage is the valid form, the other two being absence of impediment and lawful consent. The valid form is the canonical form:

For the valid celebration of marriage, the canonical form is required. Canon 1108 simply put it this way:

“Only those marriages are valid which are contracted in the presence of the local ordinary or parish priest or of the priest or deacon delegated by either of them, who ii the presence of two witnesses, assists, in accordance with the law”.

Therefore, for the validity of the canonical form, the marriage must be contracted in the presence of either:

1. The Local Ordinary and two witnesses
2. The Parish Priest and two witnesses
3. A Priest or Deacon delegated by either of them (Local Ordinary or the Parish Priest) and two witnesses

This is what is termed as the general faculty to priests and deacons. “As long as they validly hold office, the Local Ordinary and the Parish Priest can delegate to priests and deacons the faculty, even the general faculty, to assist at marriages within the confines of their territory”

Secondly, Lay persons: where there are no priests and deacons, the diocesan Bishop can delegate lay persons to assist at marriages, if the Episcopal Conference has given its prior approval and the permission of the Holy See has been obtained (Can. 1112 §1)

Thirdly, Only witnesses: if one who, in accordance with the law, is competent to assist, cannot be present or be approached without grave inconvenience, those who intend to enter a true marriage can validly and lawfully contract in the presence of witnesses only (Can. 1116 §1). There are some conditions though: 1° in danger of death; 2° apart from danger of death provided it is prudently foreseen that this state of affairs will continue for a month. §2 In either case, if another priest or deacon is at hand who can be present, he must be called upon and, together with the witnesses, be present at the celebration of the marriage, without prejudice to the validity of the marriage in the presence of only the witnesses.

Finally, Place of celebration: canon 1108 is very clear on the canonical form – the marriage must be celebrated in the presence of the local ordinary or parish priest or a priest or a deacon delegated by either of them and two witnesses, and Canon 1118 §1 stipulates further that “a marriage between Catholics, or a Catholic party and a baptised non-Catholic, is to be celebrated in the parish church, even though a dispensation can be given by the local ordinary.  This explains the reason why when a catholic celebrates his/her marriage outside the church without the needed dispensation, he/she celebrates marriage invalidly because of lack of canonical form and subsequently cannot go for Communion.

In conclusion, a valid/canonical marriage is a marriage which has been celebrated by following strict laws of the Church being it Christian marriage, mixed or disparityof cult marriage. For the Canonical marriage to be valid, three elements are involved: absence of diriment impediment, lawful consent and valid canonical form.

Catholic/Christian marriage

Now we turn our attention to Catholic marriage. The Code of Canon Law talks of catholic marriage as the marriage between two baptised Catholics (Can 1055 §1), and  Christian marriage as the marriage between two baptised persons, one of which was baptised in the catholic church and the other in another church whose baptism is considered valid (Can 1055 §2). The Ghana Bishops Conference accepts only the baptism of 4 churches: Anglican, Methodist, Presbyterian and Lutheran. A catholic party marrying any member of these 4 churches enter into mixed marriage which is considered as a Christian marriage and a sacrament at the same time. All othermarriages between a catholic party and other in any church outside these 4 are in the domain of disparity of cult marriage which is not a sacrament.

For a marriage to be considered as a sacrament, two elements are involved:

• A valid marriage = absence of impediment, lawful consent and valid form
• The baptism of the two couples.

In Catholic marriage/Christian marriage, the valid marriage is between the baptised is elevated by Christ the Lord to the dignity of a sacrament.

 

 

Part II

The Marriage Tribunal

In part 1, we deliberated on the canonical position of Catholic marriage, that is how the canon law considers as a valid marriage, Catholic/Christian Marriage and the Sacramentality of marriage. Now, we direct our attention to the second part of our topic:  The Marriage Tribunal. In the Catholic Church, there is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation.

A tribunal is any court/institution with authority to judge, adjudicate on, or determine claim of disputes. Catholic Tribunal is a court of Canon Law (Church Law), where all matters relating to Canon Law are handled. This includes many types of cases but the most commonly known work is marriage annulment cases. In the Catholic marriage tribunal, there is a group of persons, who in union with a legitimately constituted judge, carry out a juridical and detailed treatment of a marriage case.

1. Different Grades and Kinds of Tribunals (Cann. 1417 – 1445)

There are three (3) different grades of tribunals in the Church:

1. The tribunal of the Roman Pontiff (Can. 1417 §1) – where  member of the faithful is free to bring or introduce his or her own contentious or penal case to the Holy See and  where recourse (an appeal) can be made or brought to the Apostolic See. However, recourse does not suspend the exercise of jurisdiction by a judge who has already begun to adjudicate a case except in the case of an appeal (Can 1417§2)
2. The tribunal of the first instance case: where judge is the diocesan bishop, who can exercise judicial power personally or through others (Can 1419§1).

• Appellate Tribunal:/Metropolitan tribunals: where the tribunal of a suffragan bishop, appeal is made.

 

2. Officials of the Tribunal

 

1. The Judges (Can 1420)

Cases of nullity of marriage are reserved to a college of three judges. A judge who is a cleric must preside over the college, but the other judges may be laypersons (1673 §3).

 

• Judicial Vicar with ordinary power to judge. He constitutes one tribunal  with the Bishop
• Adjunct judicial vicars (Can 1420 §3). Both the judicial vicar and adjutant judicial vicars must be priests, of unimpaired reputation, doctors or at least licensed in canon law, and not less than thirty years of age (Can 1420 §4).
• Other Judges are to be of unimpaired reputation and doctors or at least licensed in canon law.

1. The Promoter of Justice (Can. 1430)

A promoter of justice is to be appointed in a diocese for contentious cases which can endanger the public good and for penal cases; the promoter of justice is bound by office to provide for the public good

 

• The Defender of the bond (Can. 1432)

The defender of the bond is bound by office to propose and explain everything which reasonably can be brought forth against nullity or dissolution

 

• 1677 § 1: The defender of the bond, the legal representatives of the parties, as well as the promoter of justice, if involved in the trial, have the following rights: 1° to be present at the examination of the parties, the witnesses, and the experts; 2° to inspect the judicial acts, even those not yet published, and to review the documents presented by the parties. NB If the promoter of justice or defender of the bond was not cited in cases which require their presence, the acts are invalid unless they actually took part even if not cited or, after they have inspected the acts, at least were able to fulfil their function before the sentence (Can. 1433)

 

1. Notary (Can. 1437 §1)

A notary is to take part in any process, so much so that the acts are null if the notary has not signed them.§2. Acts which notaries prepare warrant public trust

 

1. Advocates1 A party can freely appoint an advocate and procurator; (Can 1481§1)

 

3. Competent forum (1404 -1416)

Before a tribunal accepts a petition it must ascertain whether has the forum to deal with it. The competence of the tribunal is based on:

1. Where couple has domicile or quasi-domicile (Can 1408).
2. In case of a transient the place of his or her actual residence (Can 1409#1).

• In case of a person whose domicile, quasi-domicile, and place of residence are unknown – in the forum of the petitioner provided that no other legitimate forum is available.

1. By reason of the location of an object, where the object in dispute is located whenever the action is directed against the object or concerns damages (Can 1410)
2. Where the contract was made or must be fulfilled unless the parties mutually agree to choose another tribunal (can 1411§1)
3. By reason of prevention, if two or more tribunals are equally competent, the right of adjudicating the case belongs to the one which legitimately cited the respondent first

 

Part III:

Issues of Annulment Process

The part III of our discussion is on Issues of nullity or the declaration of nullity process. This is the process where a tribunal determines whether in fact a valid marriage existed in order to determine whether a person is free to marry in the Catholic Church.

Marriage enjoys the favour of law (Can 1060) consequently, in doubt the validity of a marriage must be upheld until the contrary is proven. Any baptised who feels aggrieved in his/her can petition the tribunal of the Church which is governed by the code of canon law, for redress. The one who petitions is called the petitioner and the other party is the respondent. It is only when a petitioner petitions the tribunal that a contentious trial begins.

A marriage can be invalided by the presence of:

• Diriment impediments – age, impotency, previous bond, disparity of cult, orders etc
• Unlawful consent – psychological nature, ignorance, simulation, exclusion, vic, etc
• Invalid form – before the local ordinary/parish priest and 2 witnesses

These have been the traditional grounds that marriage annulment was based upon. On Tuesday, September 8, 2015, Pope Francis issued an Apostolic Letter motu proprio– Mitis Iudex Dominus Iesus, The Lord Jesus the Clement Judge- and outlined changes to the declaration of nullity process, commonly called annulment, took effect on December 8, 2015. In all, 21 canons in the 1983 Code on matrimonial processes were changed and rewritten. The changes include the competent forum (Can 1672 -1673, the right to challenge the validity of marriage (Cann1674-1675), the office of the judge (Can 1676 -can 1677); proofs (Cann1678-1685), the documentary process (Can1686 -1691), General Norms (Cann 1689 – Cann 1691). In the briefer process the Pope introduced new ground for annulment in addition to the traditional grounds. These include:

• The defect of faith which can generate simulation of consent or error that determines the will;
• A brief conjugal cohabitation;
• An abortion procured to avoid procreation;
• An obstinate persistence in an extra-conjugal relationship at the time of the wedding or immediately following it;
• The deceitful concealment of sterility,
• The deceitful concealment of grave contagious illness,
• The deceitful concealment of children from a previous relationship,
• The deceitful concealment of incarcerations;
• A cause of marriage completely extraneous to married life,
• Physical violence inflicted to extort consent,
• The defect of the use of reason which is proved by medical documents, etc

The Contentious Trial

The Processes: The Introduction and Instruction of the Case

1. Contact your Pastor or Parish Priest
2. Preparation of History and the Libellus
3. Formal Petition (Libellus)
4. Decree of Appointment of Trial Officials
5. Decree of Admission of Libellus
6. Citation for the Joinder of Issues (Petitioner)
7. Citation for the Joinder of Issues (Respondent)
8. Decree of Joinder of Issues
9. Formula of Oath (Before and After by Petitioner, Respondent &Witnesses)
10. Citation of Witness (For Petitioner and Respondent)
11. Advocate and Defender of the Bond (Brief or Observation, Defence or Animadversion,)
12. Decrees for the Publication of the Process
13. Decree Closing the Case
14. Publication of Sentence of First Instance Tribunal
15. Judgement

 

16. *Notification and Payment of Judicial Expenses*
17. Sending of Dossier to the Second Instance Court for Affirmation
18. Decree of the Execution of the Sentence after affirmation

 

 

4. Libellus of Litigation

• The judge can admit an oral petition whenever a party is prevented from presenting a libellus: however, the judge himself orders the notary to draw up the act in writing that must be read to the party and approved, which takes the place of the libellus written by the party for all effects of law.
• If the libellus was presented to introduce the ordinary process, but the judicial vicar believes the case may be treated with the briefer process, he is, in the notification of the libellus according to can. 1676, §1, to invite the respondent who has not signed the libellus to make known to the tribunal whether he or she intends to enter and take an interest in the process. As often as is necessary, he invites the party or parties who have signed the libellus to complete it as soon as possible according to the norm of can. 1684.
• The libellus, which introduces litigation, must (Can. 1504):

1/ express the judge before whom the case is introduced, what is being sought and by whom it is being sought; – declaration of nullity

2/ indicate the right upon which the petitioner bases the case and, at least generally, the facts and proofs which will prove the allegations – grounds of annulment;

3/ be signed by the petitioner or the petitioner’s procurator, indicating the day, month, and year, and the address where the petitioner or procurator lives or where they say they reside for the purpose of receiving the acts;

4/ indicate the domicile or quasi-domicile of the respondent.

5. The citation and Notification of Juridical Acts

• In the decree which accepts the libellus of the petitioner, the judge or the presiding judge must call the other parties to trial, that is, cite them to the joinder of the issue, establishing whether they must respond in writing or present themselves before the judge to come to agreement about the doubts. If from the written responses the judge perceives it necessary to convene the parties, the judge can establish that by a new decree (Can. 1507 §1).
• 1509 §1. The notification of citations, decrees, sentences, and other judicial acts must be made through the public postal services or by some other very secure method according to the norms established in particular law.

 

6. The Joinder of the Issue (Cann 1513 -1516

• The joinder of the issue occurs when the terms of the controversy, derived from the petitions and responses of the parties, are defined through a decree of the judge.
• 2. The petitions and responses of the parties, besides those in the libellus can be expressed either in a response to the citation or in the oral declarations made before the judge; in more difficult cases, however, the judge must convene the parties to resolve the doubt or doubts which must be answered in the sentence.
• 3. The decree of the judge must be communicated to the parties; unless they have already agreed to the terms, the parties can make recourse to the judge within ten days in order to change them; a decree of the judge, however, must resolve the question as promptly as possible (expeditissime).

 

7. The trial of the litigation (Cann 1517 -1525)

• A trial begins with the citation; it ends not only by the pronouncement of a definitive sentence but also by other methods defined by law.
• If the parties, without any impediment, propose no procedural act for six months, the trial is abated.
• The petitioner can renounce the trial at any stage or grade of the trial; likewise both the petitioner and the respondent can renounce either all or only some of the acts of the process.
• The parties and their advocates can be present for the examination of other parties and witnesses unless the instructor, on account of circumstances of things and persons, decides to proceed otherwise.
• The responses of the parties and witnesses are to be rendered in writing by the notary.

 

 

8. Proofs (Cann. 1526 – 1586)

The burden of proof rests upon the person who makes the allegation.

• The declarations of the parties. The judge can always question the parties to draw out the truth more effectively and beyond doubt.
• Proof through documents
• Witnesses and testimonies
• Experts: The assistance of experts must be used whenever the prescript of a law or of the judge requires their examination and opinion based on the precepts of art or science in order to establish some fact or to discern the true nature of some matter (Can. 1574)
• Juridical examination: If, in order to decide a case, the judge considers it opportune to visit some place or to inspect some thing, the judge, after having heard the parties, is to order it by a decree describing in summary fashion those things which must be exhibited during the visit or inspection (Can 1582).

 

9. Incidental case (Cann. 1587 – 1597)

• An incidental case arises whenever, after the trial has begun through the citation, a question is proposed which nevertheless pertains to the case in such a way that it frequently must be resolved before the principal question, even if it was not expressly contained in the libellus which introduced the litigation. For example:
• Parties who do not appear: If the cited respondent has neither appeared nor given a suitable excuse for being absent or has not responded, the judge, having observed what is required, is to declare the respondent absent from the trial and decree that the case is to proceed to the definitive sentence and its execution (Can. 1592 §1).

 

10. Publication of the Acts ( 1598 – 1606):

• 1598 §1: After the proofs have been collected, the judge by a decree must permit the parties and their advocates, under penalty of nullity, to inspect at the tribunal chancery the acts not yet known to them; furthermore, a copy of the acts can also be given to advocates who request one. In cases pertaining to the public good to avoid a most grave danger the judge can decree that a specific act must be shown to no one; the judge is to take care, however, that the right of defense always remains intact.
• To complete the proofs, the parties can propose additional proofs to the judge. When these proofs have been collected, it is again an occasion for the decree mentioned in §1 if the judge thinks it necessary.

 

11. Concluding of the case (Can. 1599 §1).

When everything pertaining to the production of proofs has been completed, the conclusion of the case is reached.§2 This conclusion occurs whenever the parties declare that they have nothing else to add, the useful time prescribed by the judge to propose proofs has elapsed, or the judge declares that the case is instructed sufficiently. §3The judge is to issue a decree that the case has reached its conclusion, in whatever manner it has occurred.

 

12. The pronouncement of the Judge:

• 1608 §1: For the pronouncement of any sentence, the judge must have moral certitude about the matter to be decided by the sentence. §2. The judge must derive this certitude from the acts and the proofs. §3. The judge, however, must appraise the proofs according to the judge’s own conscience, without prejudice to the prescripts of law concerning the efficacy of certain proofs
• 1609 §1. In a collegiate tribunal the president of the college is to establish the date and time when the judges are to convene for deliberation; unless a special reason suggests otherwise, the meeting is to be held at the tribunal office.

 

13. Contracting of new Marriage (Can 1682 §1)

After the sentence declaring the nullity of the marriage has become effective, the parties whose marriage has been declared null can contract a new marriage unless a prohibition attached to the sentence itself or established by the local ordinary forbids this.

 

14. Changes to the Declaration of Nullity Process

On Tuesday, September 8, 2015, Pope Francis issued two Apostolic Letters motu proprio (motu proprio means “on one’s own initiative”) outlining changes to the declaration of nullity process, commonly called annulment, which will take effect on December 8, 2015, the start of the Jubilee of Mercy.

One Apostolic Letter, Mitis Iudex Dominus Iesus, The Lord Jesus  the Clement Judge,  addressed canonical procedures in the Code of Canon Law used by the Latin Catholic Church, while the other, Mitis et MisericorsIesus, Clement and merciful Jesus, addressed procedures in the Code of Canons of the Eastern/Oriental Churches.

Msgr. Pio Vito Pinto, Dean of the Apostolic Tribunal of the Roman Rota and President of the special commission, noted that these reforms are only the third time the Church has revised the norms for the declaration of nullity procedure in such a significant way (the others being in 1741 and 1908).

It is important to note that the reforms do not change the Church’s teaching on the indissolubility of marriage, meaning that marriage lasts until death. Nor do they change the Church’s teaching on not permitting those who have civilly remarried after divorce to receive the Eucharist. Instead, the reforms made by Pope Francis seek to make the declaration of nullity process, which is used to determine whether in fact a valid marriage existed in order to determine whether a person is free to marry in the Catholic Church, more accessible, more efficient, and less expensive or even free. Pope Francis had indicated earlier in a meeting with canon Lawyers his desire to streamline the declaration of nullity process, saying, “Some procedures are so long and so burdensome, they don’t favour justice, and people give up” (Nov. 5, 2014).

The reforms are the result of an expert group appointed to study the current state of law and practice in the Church as far as marriage law is concerned. The Holy Father goes on in the preface to explain that the reforms are guided by seven (7) specific criteria:

1. – A single executive sentence in favour of nullity is effective. – First of all, it seemed that a double conforming decision in favour of the nullity of a marriage was no longer necessary to enable the parties to enter into a new canonical marriage. Rather, moral certainty on the part of the first judge in accord with the norm of law is sufficient.
2. – A sole judge under the responsibility of the bishop. – In the first instance, the responsibility of appointing a sole judge, who must be a cleric, is entrusted to the bishop, who in the pastoral exercise of his judicial power must guard against all laxism.

III. – The bishop himself as judge. – In order that a teaching of the Second Vatican Council regarding a certain area of great importance finally be put into practice, it has been decided to declare openly that the bishop himself, in the church over which he has been appointed shepherd and head, is by that very fact the judge of those faithful entrusted to his care. It is thus hoped that the bishop himself, be it of a large or small diocese, stand as a sign of the conversion of ecclesiastical structures, and that he does not delegate completely the duty of deciding marriage cases to the offices of his curia. This is especially true in the streamlined process for handling cases of clear nullity being established in the present document.

1. – Briefer Process. – For indeed, in simplifying the ordinary process for handling marriage cases, a sort of briefer process was devised – besides the current documentary procedure – to be applied in those cases where the alleged nullity of marriage is supported by particularly clear arguments.

Nevertheless, we are not unaware of the extent to which the principle of the indissolubility of marriage might be endangered by the briefer process; for this very reason we desire that the bishop himself be established as the judge in this process, who, due to his duty as pastor, has the greatest care for catholic unity with Peter in faith and discipline.

1. – Appeal to the metropolitan see. – It is necessary that the appeal process be restored to the metropolitan see, especially since that duty, insofar as the metropolitan see is the head of the ecclesiastical province, stands out through time as a stable and distinctive sign of synodality in the Church.
2. The duty proper to episcopal conferences. – Conferences of bishops, which above all should be driven by apostolic zeal to reach out to the dispersed faithful, should especially feel the duty of participating in the aforementioned “conversion” and they should respect the restored and defended right of organizing judicial power in their own particular churches.

The restoration of the proximity between the judge and the faithful will never reach its desired result unless episcopal conferences offer encouragement and assistance to individual bishops so that they may carry out the reform of the matrimonial process.

Episcopal conferences, in close collaboration with judges, should ensure, to the best of their ability and with due regard for the just compensation of tribunal employees, that processes remain free of charge, and that the Church, showing herself a generous mother to the faithful, manifest, in a matter so intimately tied to the salvation of souls, the gratuitous love of Christ by which we have all been saved.

VII. – Appeal to the Apostolic See. – In accord with a revered and ancient right, it is still necessary to retain the appeal to the ordinary tribunal of the Holy See, namely the Roman Rota, so as to strengthen the bond between the See of Peter and the particular churches, with due care, however, to keep in check any abuse of the practice of this appeal, lest the salvation of souls should be jeopardized.

The Briefer Matrimonial Process before the Bishop

NB: The necessary instructions are made like the ordinary process and then presented to the bishop who will issue the sentence if moral certitude about the nullity of marriage is reached. Otherwise, he refers the case to the ordinary method.

Can. 1683. The diocesan bishop himself is competent to judge cases of the nullity of marriage with the briefer process whenever:

1° the petition is proposed by both spouses or by one of them, with the consent of the other;

2° circumstance of things and persons recur, with substantiating testimonies and records, which do not demand a more accurate inquiry or investigation, and which render the nullity manifest.

Can. 1684. The libellus introducing the briefer process, in addition to those things enumerated in can. 1504, must: 1° set forth briefly, fully, and clearly the facts on which the petition is based; 2° indicate the proofs, which can be immediately collected by the judge; 3° exhibit the documents, in an attachment, upon which the petition is based.

The Documentary Process

Can. 1688. After receiving a petition proposed according to the norm of can. 1677, the diocesan bishop or the judicial vicar or a judge designated by him can declare the nullity of a marriage by sentence if a document subject to no contradiction or exception clearly establishes the existence of a diriment impediment or a defect of legitimate form, provided that it is equally certain that no dispensation was given, or establishes the lack of a valid mandate of a proxy. In these cases, the formalities of the ordinary process are omitted except for the citation of the parties and the intervention of the defender of the bond.

Can. 1689 § 1.If the defender of the bond prudently thinks that either the flaws mentioned in can. 1688 or the lack of a dispensation are not certain, the defender of the bond must appeal against the declaration of nullity to the judge of second instance; the acts must be sent to the appellate judge who must be advised in writing that a documentary process is involved.

• 2. The party who considers himself or herself aggrieved retains the right of appeal.

1. If it happens that a collegiate tribunal cannot be established in the first instance of a trial, the conference of bishops can permit the bishop, for as long as the impossibility continues, to entrust cases to a single clerical judge who is to employ an assessor and auditor where possible ((Can. 1425 §4)
2. 1426 §1. A collegiate tribunal must proceed collegially and render its sentences by majority vote

 

 

Conclusion

We have deliberate of the topic Canonical position on the Catholic Marriage: Marriage Tribunal and annulment. We bisected the topic into three parts: Catholic Marriage, Marriage Tribunal and Issues of Annulment

We saw the elements that make up canonical valid marriage: absence of impediments (12 types), lawful consent (7 elements) and valid form (4 types).

On the second segment, marriage tribunal, we discussed the structure of the marriage tribunal, the different grades and kinds of tribunal, the officials of the tribunal and the competent form

Finally, on the third segment, Issues of annulment, grounds for annulment, processes of annulment, the seven (7) changes that have been introduced by Pope Francis, the briefer process and the documentary process were talked about.

May the good Lord bless us all. Let us know

“No priest or knight is permitted to be ignorant of the sacred canons. “Priests (Knights and ladies) are to know the sacred scripture and the canons” because “ignorance, the mother of all errors, is especially to be avoided by priests and knights of God

 

Thanks