CANON LAW SOCIETY OF SOUTHERN AFRICA
UKUPHILA RETREAT HOUSE
12 AUGUST 2014
For canonists, it must be clear that the process for the declaration of nullity of marriage is not merely a matter of procedure, but the process is essentially connected with the doctrinal truth enunciated in canon 1141 of the 1983 Code of Canon Law for the Latin Church [CIC]: “A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death.” Can. 853 of the Code of Canons of the Eastern Churches [CCEO] reads similarly: “The sacramental bond of marriage, once the marriage has been consummated, cannot be dissolved by any human power nor by any cause other than death.” This theological datum specifies the judicial process as one which has as its object the declaration of a juridic fact. The marriage accused of nullity is either valid or not.
The college of judges or single judge has no power to dissolve a valid marriage, but only to search for the truth about a particular marriage and declare authoritatively either that, with moral certitude, the truth of the nullity of the marriage has been established or proven (constat de nullitate) or that such moral certitude has not been reached (non constat de nullitate). It should be noted that, since the bond of marriage enjoys the favor of the law, there is no need to prove the validity of a marriage; it is enough to declare that the alleged nullity has not been proven.
This understanding of the marriage nullity process is not a new reality in the juridical life of the Church, but it has received renewed emphasis in the past 70 years, especially in the Rotal Allocutions of Pope Pius XII in 1944, of Pope John XXIII in 1961, of Pope Paul VI in 1978, of Pope John Paul II in 1980, 1982, 1994 and 2005, and of Pope Benedict XVI in 2006, 2007, and 2010. I single out for particular attention the Allocutions given by Pope Pius XII in 1944 and by Pope John Paul II in 1980.
In the former Allocution, Pope Pius XII reminds us that “in a matrimonial trial, the one end is a judgment in accordance with truth and law, which in a suit for the declaration of nullity, is concerned with the alleged nonexistence of the matrimonial bond …,” and that all who participate in the canonical process have this unity of purpose, carried out according to the proper nature of their respective functions. He also reminds us that this unified judicial activity is fundamentally pastoral, that is, directed to the same end which unifies the action of the whole Church, namely, the salvation of souls.
Pope John Paul II, in the latter Allocution, reminds us anew that “[t]he immediate purpose of these trials is to ascertain whether or not the facts exist that by natural, divine or ecclesiastical law invalidate marriage, in order to be able to issue a true and just sentence concerning the alleged non-existence of the marriage bond.” Worthy of special study is also the Allocution given in 1994, following the promulgation of the Encyclical Letter Veritatis Splendor.
This more recent emphasis in the Papal Magisterium has been in part a response to the tendency of the modern age to relativize truth or even to deny its existence, a tendency which has had a negative influence even within the Church and Her tribunals. Regarding law, in general, there has developed the notion that the law has no relation to objective truth but is constituted by whatever man, usually the judge, decides. Such a theory was proposed in my homeland, the United States of America, already in 1897 by Justice Oliver Wendell Holmes, Jr.
While one cannot exclude the possibility that there are those who consciously and explicitly reject the Church’s doctrine on marriage, and yet accept and exercise an office in a tribunal in a manner that betrays their oath of office, the more common difficulties found in this regard arise from an acritical acceptance of certain principles and practices that in effect betray or weaken what should be the common underlying purpose of all who participate in canonical trials, which is the search for the truth. Quite often such practices are based upon a mistaken idea of what it means to be “pastoral”. Such ways of operating can have serious repercussions not only for the individual decisions which touch the very first cell of the life of the Church and of society, but also for the public perception of the work of the tribunal and indeed of the teaching of the Catholic Church regarding marriage. As experience teaches, the world at large is not especially eager to accept what the Church has to say, especially when it is not reflected in the way that the Church acts.
Explanations regarding Matrimonial Tribunals
Tribunals should provide information to the public about the nature, purpose and procedures of the tribunal, as well as information about the possible grounds of nullity of marriage. They should also have the practice of welcoming those whose marriages have failed to approach the tribunal. The Instruction Dignitas Connubii, “To Be Observed by Diocesan and Interdiocesan Tribunals in Handling Causes of the Nullity of Marriage,” recommends that the tribunal have an office or person responsible for providing information about the possibility of introducing a cause of nullity and the manner in which this is to be done. This personal service can even include giving general information about the various grounds of nullity for those who are interested. It must be clear that at this level, it is a matter of a conversation about how the tribunal works. Even so, in order to safeguard the impartiality of the trial, any tribunal minister who provides such preliminary information to a party, thus establishing a certain rapport with the party, cannot then take part in the concrete cause as judge or defender of the bond. On the other hand, if one of the tribunal advocates provides this service, he or she can then act as the petitioner’s advocate.
There are those who do not accept the Church’s teaching on marriage. After a failed marriage and divorce, they feel that it is their right to remarry and seek happiness in a new union. But there are many faithful Catholics in the same situation who accept that they cannot enter a new union without the approval of the Church and so, encouraged by their priests, deacons or other members of the parish staff, or family members or friends, approach the tribunal for a solution to their most serious difficulty. They entrust themselves to the Church in good faith, even if they do not have a very clear idea of what exactly it is that the tribunal does.
Clearly, they can be badly served by their own pastoral ministers who do not explain to them in a clear and unambiguous way what the Church teaches and what the tribunal does in accord with the Church’s teaching. What is worse, they may encounter an allegedly pastoral but actually merely pragmatic attitude that in effect would make the search for the truth about a marriage a secondary consideration to the pursuit of making possible a new marriage in the Church. It even happens that tribunal personnel who are trying to carry out their responsibilities faithfully are unduly pressured by such pastoral ministers who seem interested only in immediate results.
The faithful can also be badly served by the tribunal itself, if it is not correct and clear in its explanation of the Church’s teaching and the role of the tribunal, or if it does not actually live up to what it correctly explains its purpose to be, or if it, too, falls into the pseudo-pastoral pragmatism just described. Pope John Paul II in his Allocution of 1994 warned precisely against the temptation to exploit the canonical process “in order to achieve what is perhaps a ‘practical’ goal, which might perhaps be considered ‘pastoral,’ but is to the detriment of truth and justice.” He referred to his earlier Allocution of 1990, in which he had noted that those who approach the tribunal in order to clarify their situation in the Church have a right to the truth, declaring:
[Ecclesiastical authority] thus takes note, on the one hand, of the great difficulties facing persons and families involved in unhappy conjugal living situations and recognizes their right to be objects of special pastoral concern. But it does not forget, on the other hand, that these people also have the right not to be deceived by a sentence of nullity which is in contrast to the existence of a true marriage. Such an unjust declaration of nullity would find no legitimate support in appealing to love or mercy, for love and mercy cannot put aside the demands of truth. A valid marriage, even one marked by serious difficulties, could not be considered invalid without doing violence to the truth and undermining thereby the only solid foundation which can support personal, marital and social life. A judge, therefore, must always be on guard against the risk of misplaced compassion, which would degenerate into sentimentality, itself only pastoral in appearance. The roads leading away from justice and truth end up in serving to distance people from God, thus yielding the opposite result from that which was sought in good faith.
It must also be observed that other members of Christ’s faithful, who clearly understand both the Church’s teaching and the function of the tribunal, can be disedified and even scandalized by superficial or erroneous explanations and by an incorrect modus operandi. Such is not infrequently the case among respondents who perceive the tribunal to be less than even-handed whether in its explanations or in its modus operandi. If a tribunal gives the impression that its main purpose is to enable those in failed marriages to remarry in the Church, then a respondent who has doubts about the alleged nullity of the marriage can feel that the tribunal itself considers him or her an obstacle to be overcome.
One of the hallmarks of any tribunal should be the objectivity or impartiality which necessarily marks the search for the truth. Such objectivity should be especially evident in the tribunals of the Church which must take particular care not only to be impartial but also to appear to be so. The correct observance of procedural norms is an important means of guaranteeing the actual and evident impartiality of the tribunal, which can be undermined in many ways, some more subtle than others.
The Use of Language
One example is the use of language in explanations and in correspondence. The Apostolic Signatura has received a number of observations from members of the faithful regarding the use of the term “former spouse” in reference to the other party in a marriage whose validity is contested. To them this expression indicates a prejudice against the validity of the marriage. Whatever the actual intentions of the tribunal may be in using such an expression, the observation is not frivolous. In its general explanations, the tribunal should be careful not to use such ambiguous expressions. In correspondence in a particular cause, it is correct and more respectful to use the name of the person in question, rather than referring prejudicially to “your former spouse.”
A similar difficulty arises when a tribunal, in an effort to explain the nature of the canonical process, tries to acknowledge the existential reality or putative nature of the marriage in question – which would not be erased by a decision in favor of the invalidity of the marriage – but uses ambiguous expressions in doing so. A clear distinction must be made between the existential experience and the validity of the marriage before the Church, and likewise between the validity of the union in civil law and its validity in Canon Law.
Such well-meaning efforts even lead to erroneous explanations, such as those which state that the tribunal is not judging the existence of the marriage but only whether or not it was a sacrament in the eyes of the Church, or whether or not it was binding in the eyes of the Church. Apart from the fact that the Church does not recognize the sacramental nature of a marriage involving at least one non-baptized person, such explanations can reveal a more fundamental error, that of making too great a distinction between marriage as a natural reality created by God and a sacramental marriage. Pope John Paul II warned against this, for example, in his Allocution to the Roman Rota in 2001, when he declared:
When the Church teaches that marriage is a natural reality, she is proposing a truth evinced by reason for the good of the couple and of society, and confirmed by the revelation of Our Lord, who closely and explicitly relates the marital union to the “beginning” (Mt 19: 4-8) spoken of in the Book of Genesis: “male and female he created them” (Gn 1: 27), and “the two shall become one flesh” (Gn 2: 24). The fact, however, that the natural datum is authoritatively confirmed and raised by Our Lord to a sacrament in no way justifies the tendency, unfortunately widespread today, to ideologize the idea of marriage – nature, essential properties and ends – by claiming a different valid conception for a believer or a non-believer, for a Catholic or a non-Catholic, as though the sacrament were a subsequent and extrinsic reality to the natural datum and not the natural datum itself evinced by reason, taken up and raised by Christ to a sign and means of salvation” (n. 4).
Even the common use of the ambiguous term “annulment” can be misleading, for it can have either a constitutive or a declarative meaning. In general parlance, the constitutive meaning prevails. In other words, the term conveys the cancellation of a reality not a declaration that the apparent reality in fact did not exist. “Declaration of nullity” is the proper term to use.
The Judicial Debate, an Instrument for Finding the Truth
The canonical process seeks to arrive at the truth through a dialectic process, the contradictorium. The principle, et audiatur altera pars, is not just a recognition of the right of the other party to be heard and to respond, but it is also a critical means of arriving at the truth. For this reason, in matrimonial causes every effort must be made not just to respect the right of the respondent to participate but also to seek actively such participation when he or she may be reluctant to exercise this right.
In regard to causes of the nullity of marriage, this dialectic process is guaranteed in a special way. Pope Benedict XIV, recognizing that both parties, in fact, in the pursuit of regaining their freedom, could be in favor of the nullity of the marriage, instituted the office of Defender of the Bond, who is to guarantee that another voice is heard. Confronting a situation of matrimonial tribunals granting declarations of nullity with great license, Pope Benedict XIV, by his Apostolic Constitution Dei miseratione of November 3, 1741, reformed the process for the treatment and decision of causes of nullity of marriage. The particulars of the papal reform centered on a new officer in the ecclesiastical tribunal, the defender of the bond (Defensor Matrimonii or Defensor Matrimoniorum) and the requirement of a double agreeing sentence affirming the nullity of a marriage before a person could enter a new union.
Furthermore, one of the distinguishing notes of the canonical process is the active role of the judge, something that can be somewhat foreign to those used to a Common Law legal tradition. In the canonical process, the judge can take the initiative in seeking out proofs in order to arrive at a more complete understanding of the truth. Thus canon 1452, § 1, provides that in causes involving the public good, the judge can and should act ex officio. The second paragraph also gives the judge the power to make up for the negligence of the parties in offering evidence or exceptions, whenever this is required to avoid an unjust sentence.
In this context it is helpful to remember that respect for the proper distinction of roles in the canonical process helps to guarantee both the objectivity of the tribunal and the dialectic nature of the process. As Pope Pius XII explained very clearly in his Allocution of 1944, all are engaged in the search for the truth in the canonical process, but each according to his or her proper role. Each of the parties and their respective advocates present that evidence and those arguments which, without untruth or fraud, favor their relative position, as the defender of the bond does in regard to the bond of marriage. The judge, with the auditors under his direction, represents the impartiality of the tribunal itself in the search for the truth, as do the notary and the promoter of justice in accord with their respective functions. The Instruction Dignitas connubii prohibits the same person from exercising habitually several of these functions in the same tribunal (with the exception of the defender of the bond and the promoter of justice) or even in two tribunals related to one another by reason of appeal, but in a most emphatic way forbids any minister of the tribunal to act as advocate or procurator, even through an intermediary, in his own tribunal or any tribunal related to it by reason of appeal. The importance of this distinction will be made clear.
The Participation of the Respondent
In regard to the respondent in a matrimonial cause, the search for the truth requires the tribunal to do everything possible to locate and cite the respondent, but also to encourage and assist his participation. Pope John Paul II emphasized this in his 1989 Allocution to the Roman Rota with these words:
Even though one of the parties may have renounced the exercise of the right of defence, the judge in these cases still has the grave duty to make serious efforts to obtain the judicial deposition of the party concerned and also of the witnesses whom the party could have called. The judge should weigh well each individual case. Sometimes the respondent does not wish to be present at the trial without offering any adequate motive, precisely because he cannot understand how the Church could possibly declare the nullity of the sacred bond of his marriage after so many years of living together. True pastoral sensitivity and respect for the party’s conscience will oblige the judge in such a case to offer the respondent all opportune information regarding causes of nullity and to seek patiently the party’s full cooperation in the process, also for the sake of avoiding a partial judgement in a matter of such gravity.
It is important to be sure that every effort has been made to locate and cite the respondent. Many tribunals are very diligent in this matter, even when the petitioner is reluctant to provide the necessary information. But the citation itself must not be a pro forma exercise; the respondent must be positively encouraged to participate in order to assist the tribunal to arrive at a just judgment. Too often one has the impression, when reading the acts of a cause, that the tribunal in question is relieved in a certain way when a respondent does not want to participate. The law itself requires that the respondent be given the basic information about the petition and the court, that the court be certain, even by a second citation, that the respondent received the citation, and that the judge make every effort to persuade a reluctant respondent to participate.
A very crucial element in obtaining the participation of the respondent is the availability of trained advocates to assist respondents, especially those who are opposed to the declaration of nullity or to the ground or grounds alleged by the petitioner, or who at least wish to present their own side of the story. Some tribunals do not offer such assistance at all, and others offer only a token assistance. An abuse that the Apostolic Signatura has encountered too frequently is that of offering – or even assigning – to a respondent an advocate who essentially does nothing in the process to protect the rights of the party.
In some cases, the respondent is never even given the name or contact information of the procurator-advocate appointed for him or her; in other cases the advocate takes no initiative and waits to be contacted; in other cases the advocate has no preparation for the important service he is to provide. In some cases the advocate even acts against the interests of the respondent, for example, by trying to discourage him or her from opposing the nullity of the marriage, or even offering to the tribunal arguments that favor the petitioner, thus failing to respect the proper distinction of roles.
Too often, some tribunals seem to categorize as “hostile” or “difficult” any respondent who is actively opposed to the nullity of the marriage, apparently confirming in such cases the impression of some respondents that the tribunal itself considers him or her an obstacle to be overcome. Certainly there are those who from the beginning are hostile toward the tribunal, often because of perceived unfairness, injustice or injury in the process of separation and divorce. They may respond more positively toward the tribunal when they perceive that the tribunal is just as interested in hearing them as it is in hearing the petitioner. On the other hand, there are some who are initially open to the tribunal but become more negative when they feel that the tribunal is not taking them or the bond of marriage seriously. The assistance of a qualified and diligent advocate, who effectively assists the respondent in presenting his or her side of the story, without engaging in obstructionism, can do much to reassure the person that the tribunal is engaged in the impartial search for the truth.
Finally, there are respondents who are not simply hostile toward the petitioner and therefore the tribunal that accepted the cause, but who, judging from their past history, represent a possible threat even to the tribunal. In such cases, the tribunal has to be prudent, but without excluding the respondent from all knowledge of the process and from any participation in it.
The experience of the Apostolic Signatura over the years has taught several things. First of all, a respondent who is feared to become upset by the mere introduction of a cause of marriage nullity before the tribunal is going to be much more upset to learn after the fact, for example, by hearing of the remarriage of the petitioner in the Church, that a cause was introduced and judged without his or her even being informed and invited to participate in the process.
Secondly, the procedural norms of the Church are meant to safeguard the rights of both parties; the correct exercise of the respondent’s right of defense is not to deprive the petitioner of the right to have his or her petition heard in a correct and timely manner. Pope John Paul II noted in his 1989 Allocution to the Roman Rota on the right of defense:“[I]t is not the function of positive law to deprive one of the exercise of the right of defence, but to regulate it so that it does not degenerate into abuse or obstructionism, and at the same time to guarantee the practical possibility of exercising it.”
Thirdly, at times it appears that tribunals which do not regularly follow the Church’s procedural norms very closely have the most difficulty in dealing with respondents and advocates who are constantly raising objections and exceptions. On the other hand, those judges who know and follow the law attentively in all things have an easier time regulating such potentially obstructive actions through a careful application of the relevant procedural norms.
The Role of the Defender of the Bond
The participation of the defender of the bond is of such importance that the acts are null without it. But this is just the minimum requirement for the integrity of the process. The search for the truth is impeded when the defender of the bond is present but, through negligence and passivity, deprives,in effect, the process of an important voice in the judicial debate. Pope Pius XII noted that “it would be inconsistent with the importance of his office and the careful and conscientious fulfillment of his duty were he to content himself with a perfunctory review of the acts and a few superficial remarks.” The Instruction Dignitas Connubii makes it clear that the defender is to participate from the beginning of the process, possibly even before the acceptance of the libellus. Furthermore, such participation is not to be limited to presenting arguments against nullity but rather to propose any kind of proofs, responses and exceptions that, without prejudice to the truth of the matter, contribute to the protection of the bond. It is true that the defender has the right, as Pope Pius XII also noted, “to declare that after a careful, thorough, and conscientious examination of the acts, he has found no reasonable objection to propose against the petition of the plaintiff,” but this would remain an exception. In any event, the defender can never act in any way in favor of the nullity of marriage.
Sadly, the Apostolic Signatura has seen many examples of negligence in this area. Even in the present day, there are tribunals in which the defender regularly does not participate in the process until the discussion phase of the process, thus losing the opportunity to participate in the instruction of the cause. Likewise, in all too many cases the defender offers very little in defense of the bond, even when it is clear from a cursory study of the acts that there was much that could and should have been argued against the alleged nullity of the marriage. One still finds in use so-called “animadversions” consisting of a standardized brief form or a boilerplate text, with little or no concrete information about the specifics of the cause in question, which the defender uses to “sign off” on a marriage nullity cause. Some of these prepared forms even have the defender stating in advance that he or she would not appeal an affirmative decision.
Even worse than this effective abandonment of the defense of the bond is the practice of some defenders who offer arguments in favor of the nullity of the marriage, positively declaring in some cases that there is no bond to defend! It is clear that such abandonment or outright betrayal of office by a defender, in effect, destroys the whole dialectic of the process, especially when the respondent is absent or in favor of nullity, and puts the whole burden on the judges, who, as Pope Pius XII pointed out, “should find in the careful work of the defender of the bond an aid and complement to their own activity.” He further observed that “it is not to be supposed that [the judges] must do all his [the defender of the bond’s] work.”
The Role of the Judge
As explained, the judge in the canonical process has an active role. It is not enough to direct the process in the proper manner, leaving it to the parties and their advocates to propose proofs and take the initiative. Too often the Apostolic Signatura see judges who are satisfied with whatever witnesses the petitioner proposes, even when the respondent does not participate and cannot be persuaded to do so by the judge. The judge can and should take the initiative in calling other witnesses ex officio, in ordering expert reports, in seeking documentary proofs, etc. For example, if the petitioner is alleging the nullity of marriage because of reverential fear but does not include among the proposed witnesses the parents, some close relatives or the officiant, then the judge must take the initiative and look for such witnesses. Likewise, in cases of alleged simulation or exclusion, the judge must take the initiative at times to establish the factual truth of the alleged causa simulandi and causa contrahendi, according to the well-established schema of proof. In cases of alleged psychic incapacity to enter marriage, the judge must be sure to obtain ex officio an expert opinion. Even with regard to the defense of the parties, the judge is to warn the parties if their advocates do not present their briefs, thereby giving them the opportunity to provide for their defense.
An important part of the work of the judge is to direct the collection of proofs, including the judicial depositions of the parties, the proofs proposed by the parties or the defender of the bond, and those to be collected ex officio. Since the decision of the judge must be based ex actis et probatis, every means must be taken to ensure an impartial and unbiased instruction of the cause, especially in regard to the questioning of parties and witnesses.
There is great attention given these days to maintaining so-called “best practices”. In the realm of canonical procedural law, the “best practice” for the objective collection of proofs from parties and witnesses is precisely the judicial deposition. This means the deposition of the person, using questions based on the specific ground or grounds of nullity determined in the formulation of the doubt. The questions are prepared by the judge, with input from the parties and the defender of the bond, but previously unseen by the deponent, and then answered by the party or witness in the presence of a notary. The questioning can also be done by an auditor, at the direction of the judge, and in a place that is more convenient for the person being deposed.
Unlike the common practice in the civil law context in the United States, for example, it is not necessary to have a verbatim transcript of every word or sound uttered by the deponent. In the canonical process, the judge or auditor can listen to the response and then direct the notary regarding what to write down, with the agreement of the deponent, as well as the notary, who guarantees the objectivity of the record. In this way, those things which are superfluous or unnecessarily offensive can be omitted from the record. The judge can also ask further questions in order to clarify certain things or to pursue certain indications given.
Pope John Paul II, in his 1980 Allocution to the Roman Rota addressed at length the process of instruction which the judge has the solemn responsibility to direct:
… All acts of the ecclesiastical judgment, from the petition to the documents of defense, can and must be a source of truth. This is especially true of the “acts of the cause,” and, among these, the “acts of the instruction,” since the instruction has as its specific purpose the gathering of proofs concerning the truth of the alleged fact, in order that the judge may on this foundation pronounce a just judgment.
For this purpose on being summoned by the judge, the parties, the witnesses, and if necessary the experts will appear to be questioned. The oath to tell the truth, which is required from all these persons, is perfectly consistent with the purpose of the instruction. It is not a question of creating an event that has never existed, but of making clear and emphasizing a fact that took place in the past and that still continues, perhaps, in the present. Certainly, each of these persons will tell his or her own truth, which will normally be the objective truth or a part of it, often considered from various points of view, colored with the hues of personal temperament, perhaps with some distortion or even mingled with error. But in any case they must all act faithfully, without betraying either what they think is objective truth, or their own conscience.
Pope John Paul II underlines what must be the total objectivity of the process of instruction, if the truth is to be attained with moral certitude,
Noting the ever present danger of false testimony, Pope John Paul II continued:
… Alexander II pointed out in the twelfth century: “Often witnesses, corrupted by money, are easily induced to give false testimony”. Unfortunately not even today are witnesses immune from the possibility of prevarication. For this reason Pius XII, in the address on unity of purpose and action in matrimonial suits, exhorted not only the witnesses, but all those who take part in the trial, not to depart from the truth: “In matrimonial cases before ecclesiastical tribunals there is never room for trickery, perjury, subornation, or fraud of any kind!”
If this should happen, however, the acts of the instruction would certainly not be limpid sources of truth and they might lead the judges, in spite of their moral integrity and their faithful effort to discover the truth, to err in passing judgment.
It is possible in exceptional circumstances to obtain the declarations of parties or witnesses in less desirable and less effective ways. The judicial deposition, however, remains the norm, being most effective for discovering the truth by means of a reliable deposition.
The preference of some tribunals for taking the statements of witnesses and even the parties by sending them a written questionnaire greatly diminishes the effectiveness of the process as a reliable way to seek the truth. Not only does it leave open the possibility for the person to discuss the questions with others, especially an interested party, but it precludes the judge’s intelligent interaction with the deponent by which the judge or auditor can pursue further certain questions when the initial response is inadequate or uncovers new matter.
Related to this is the practice one encounters of mixing the functions of advocate and auditor, in which the same person interviews the party using questions provided by the tribunal, submits that as “testimony” to the tribunal, and then acts on their behalf in the process. Insofar as the advocate is acting as an auditor, whose function is related to that of the judge, this is a clear violation of the prohibition mentioned above. It is one thing for an advocate to interview a client in order to assist him or her in drawing up the libellus, but the judicial statement of a party must be taken in an impartial manner by the judge or auditor in the presence of a notary.
Another Means of Safeguarding the Search for the Truth
Pope Benedict XIV, in his concern for the objectivity and impartiality of the marriage nullity process, also instituted by his Apostolic Constitution Dei miseratione, in addition to the office of the defender of the bond, the requirement of a second conforming decision in favor of nullity before the parties could be free to marry. In legislating the requirement of a double agreeing sentence, Pope Benedict XIV called to mind the firm principle that causes regarding states of persons never pass into res iudicata and, therefore, enjoy always the possibility of being heard again if new proofs be found. The double agreeing sentence, however, assured, as Pope Benedict XIV stated, in a later Apostolic Constitution Si datam, making reference to Dei miseratione, “that we might consider the fuller elucidation of the truth in this very serious type of judgment in which the sacred covenant of the married is in question, and that judges, not without very certain knowledge of all things which most pertain to the matter, would dissolve by their sentence as invalid from the beginning a bond of this sort, which is for so many reasons indissoluble.” This innovation, an additional guarantee of the correctness of the decision given, was not based so much on an inherent mistrust of the honesty or the competence of the judges of first instance, but rather on the recognition of the possibility of honest error even on the part of conscientious judges. The acceptance of and cooperation with this institution requires a humility on the part of judges who acknowledge the limits of their own powers of judgment.
This institution was considered in some cases to constitute an excessive measure. In recognition of this possibility one approach which was tried was to allow for the possibility of a dispensation from the requirement that the defender of the bond appeal a first instance decision in favor of nullity. Thus the so-called American Procedural Norms, effective July 1, 1970, gave the Conference of Bishops the faculty to grant a dispensation in those extraordinary cases in which an appeal would be evidently superfluous. However, this faculty was soon abused – there is no other word for it – and this exceptional dispensation from the second conforming sentence quickly became the norm in the United States. It was not put to rest until the present Code of Canon Law took effect in 1983. In the meantime, a different approach was tried in the rest of the Church, that of the possibility of a confirmation of a first instance sentence by decree through a shorter process, put into effect on October 1, 1971, by the Motu Proprio Causas matrimoniales. It was this second solution that was incorporated into the present procedural norms.
It is regrettable that there are still appellate tribunals who do not appear to take their role seriously. This is evidenced above all in the practice of the tribunal issuing a pro forma decree of confirmation which often consists of a single page, following a set format that seems to leave little room for any other decision. Such decrees often contain nothing specific to the concrete cause in question other than a mention of the protocol number and the names of the parties. Some are so minimal that they do not even indicate the grounds of nullity in question; the judges decree that the sentence of first instance is confirmed on the grounds of nullity indicated there and for the reasons indicated there. In such tribunals the animadversions of the defender of the bond are also submitted on a standard form and essentially have no substance. In the extreme version of this “rubber stamp” procedure, there are tribunals which have the entire acts of second instance on one sheet of paper: the constitution of the tribunal, the “animadversions” of the defender of the bond, the brief generic disposition and the signatures of the judges.
At times is it clear from the brief documentation that the practice was that the tribunal of first instance would only send the sentence to the tribunal “for confirmation” and would send the acts only upon request. All of this, of course, does not prove that the defender of the bond and the judges did not make a careful and conscientious study of the cause before the decree of confirmation was issued, but it seems hardly likely, especially when the whole process is done in a short period of time. Other tribunals make more effort to require substantial observations from the defender of the bond and to draw up a decree of confirmation that reflects a study of the concrete cause in question, but even so they often fail to address the evident weaknesses in the first instance sentence.
The Instruction Dignitas Connubii, in article 265, makes it clear that even in the shorter process there is to be a serious study of the acts of the cause as well as of the sentence, that the defender of the bond should not be content simply to refer back to the observations offered by the defender of the bond in first instance but must also make his own observations. Likewise, the judges are not simply to make reference to the motivations given in the sentence of first instance but are to express the reasons for their own decision, responding to the animadversions of the defender of the bond, and also to the interventions of the parties, as the case may be. The judges in second instance, just as those in first instance, must themselves arrive at moral certitude, ex actis et probatis, that the nullity of the marriage has been proven, whether this decision is expressed in a decree or in a sentence.
If they cannot arrive at the required moral certitude through the shorter process, then they must admit the cause to an ordinary examination in second instance, so that the difficulties can be addressed, even through additional instruction of the cause. The fact that in many appellate tribunals it is rare to admit a cause to an ordinary examination in second instance theoretically could indicate that the decisions of the respective first instance tribunals are generally well-founded. However, the empirical evidence obtained through the Apostolic Signatura’s study of actual decrees of confirmation, together with the relative first instance sentences, even though it represents a small sampling of the tremendous number of such decrees of confirmation, indicates with a certain consistency a superficial examination of the causes in second instance.
The additional safeguard for arriving at the truth in causes of marriage nullity established by Pope Benedict XIV, that is, the requirement of two conforming but autonomous decisions in favor of the nullity of marriage, will be effective only if there is a serious application of the discipline he legislated. The rationale of Pope Benedict XIV’s discipline is certainly as pertinent today as it was in the 18th Century.
It is my hope that these few reflections have illustrated concretely the essential relationship between the process for the declaration of nullity of marriage and the doctrinal truth regarding marriage. At the same time, I trust that they have been some source of encouragement to you in a work which renews the minimal but essential foundation of pastoral charity in the Church which is the administration of justice, in accord with truth and love. It has been my desire that my words be an expression of esteem for the service of all who laborin the ecclesiastical tribunals of the Church in Southern Africa. With them, I, as Prefect of the Supreme Tribunal of the Apostolic Signatura, express my heartfelt gratitude to all who labor inyour matrimonial tribunals.
I conclude with the words of Pope Benedict XVI to the Apostolic Tribunal of the Roman Rota on January 29, 2010, words which pertain to all who are dedicated to the administration of justice in the matrimonial tribunals of the Church.
It must be reiterated that every work of authentic charity includes an indispensible reference to justice, all the more so in our case. “Love—caritas—is an extraordinary force which leads people to opt for courageous and generous engagement in the field of justice and peace” (Caritas in Veritate, n.1). “If we love others with charity, then first of all we are just towards them. Not only is justice not extraneous to charity, not only is it not an alternative or parallel path to charity: justice is “inseparable from charity; and intrinsic to it”(ibid., n.6). Charity without justice is not charity, but a counterfeit, because charity itself requires that objectivity which is typical of justice and which must not be confused with inhuman coldness. In this regard, as my Predecessor, Venerable Pope John Paul II, said in his Address on the relationship between pastoral care and the law: “The judge … must always guard against the risk of misplaced compassion, which could degenerate into sentimentality, itself pastoral only in appearance” (18 Jan. 1990, in AAS 82 , p. 875, n. 5; ORE, 29 January 1990, p. 5-6, n. 5).
Raymond Leo Cardinal BURKE,Prefect
Supreme Tribunal of the Apostolic Signatura