The Gazette 1978

SEPTEMBER 1978,

GAZETTE

4. Procedure In a Nullity Case — The Marriage Tribunal and its Officials (a) General: Every nullity case involves two distinct elements. Firstly, there is involved the evaluation and assessment of the evidence, the presumptions which may be drawn from certain facts and the type of proof that is required. This element falls under the heading of jurisprudence. The guidelines here in any nullity case are taken principally from the Rotal Jurisprudence, which is a series of decisions of the Sacred Roman Rota which are published in shortened form some ten years after the actual decision itself was given. Secondly, there is the procedure involved. The rules of procedure for each case are contained in outline in the Code of Canon Law (1918), but there are fuller and more specific rules given in an Instruction of the Sacred Congregation for the Discipline of the Sacraments; this Instruction, known by its first three words "Provida Mater Ecclesia", was issued on 15 August 1936. Added to this, there is a further group of regulations, some taking the place of the directions of"ProvidaMater". These additional regulations are contained in the "motu proprio" of Pope Paul VI called "Causas Matrimoniales" issued on 28 March 1971, a principal purpose of which was to speed up the processing of nullity cases, and especially the treatment of appeals. The new Code of Canon Law as promulgated would incorporate most of the changes which have been made in the procedural law since 1918. (b) The Marriage Tribunal: Each diocese either has its own marriage tribunal or, in recent years more likely and more effective, the better system of regional tribunals covering several dioceses in a geographical area. The term "tribunal" has two senses. In the first sense, it is a department of the diocesan curia, which looks after the day-to-day administration of marriage cases (not merely nullity but also cases of non-comsummation and non- baptism). The business of the tribunal is presided over by an experienced Canon lawyer, called the "officialis", who makes the arrangements for prospective clients to be interviewed, for applications to be dealt with in the office, for evidence to be taken, for the personnel to be assigned to each case. The "offlcialis" or "president ofthe tribunal", has the same power in judicial matters as a vicar general has in other matters. There is the other, less proper, sense of the word "tribunal" and this sense covers the actual panel of priests with their differing functions who are actually concerned in dealing with specific marriage cases. In this sense, the tribunal is often called a "court" in the sense that normally there will be more than one nullity case dealt with at any one time in the tribunal. There will also be a series of these courts in operation, which means that some of the priests involved in one court will also belong to other such courts. For each formal nullity case, there will be a court of six persons, as a minimum. In each court there are three judges. These will be priests who are experienced in Canon Law and have experience of nullity work. One of these judges will be the "president of the court", and he will generally be the person who manages the daily correspondence and details connected with the case. Sometimes the president of the court will also be the "ponens", the name given to the person who leads the discussion of the case at the decision hearing and who eventually produces the written "sentence" which presents the reasons in law and fact for the decision. The court will also have a "'defender of the bond" of

(iv) The Impediment of Solemn Vows: This impediment, also of ecclesiastical origin, is much the same as Holy Orders and what is forbidden is for a person who has taken solemn vows to marry, e.g. Benedictines, Franciscans, Passionists and certain orders of nuns. (v) The Impediment of Consanguinity: Consanguinity is the impediment which exists between blood relations. The impediment can exist either in the collateral line (e.g. the relationship between uncle and niece, etc.) and in the direct line (e.g. mother and son, grandmother and grandson, etc.). The law of the Church on the matter is that consanguinity in the direct line (either ascending or descending) constitutes a diriment impediment. In the collateral line, a marriage is invalid by reason of the impediment of consanguinity up to the third degree. Therefore, a marriage between any relatives in the direct line is invalid. In the collateral line, a marriage between brother and sister, first cousins and second cousins is invalid. However, the relationship between third cousins is not a diriment impediment. The origin of the impediment of consanguinity depends on the nature of the relationship. It is considered that consanguinity in the direct line is an impediment of the Divine Law to the first degree, at least, and to the other degrees it is an impediment of ecclesiastical law, and for these direct line relationships the Church does not generally grant a dispensation. In the collateral line, the relationship between brother and sister is regarded as an impediment of the Divine Law, whereas in all other degrees of the collateral line, it is an impediment of ecclesiastical law. The unbaptised are not bound by the impediments which are considered to be merely of the ecclesiastical law. (vi) The Impediment of Affinity: This is the impediment which arises between one party of a marriage and a blood relation of the other; for example, the relationship of affinity between a man and his wife's sister. This impediment is one of ecclesiastical law and, therefore, affects only the baptised; but when an unbaptised person wishes to marry a baptised person, he becomes subject to the impediment if it exists. The Church hardly every dispenses from affinity in the direct line when the marriage of the two spouses has been consummated. If the marriage has not been consummated, the dispensation is less difficult to obtain. The law of the Church states that there is a diriment impediment where affinity exists in the direct line in all degrees whereas the impediment is diriment in the collateral line only up to the second degree, e.g. between a man and the first cousin of his wife. The proposed new Code of Canon Law proposes to restrict the impediment of affinity in the collateral line to the relationship between a man and his deceased's wife's sister. (vii) The Impediment of Spiritual Relationship: When a person is baptised, there arises a spiritual relationship between this person and the one who baptises him and also between the baptised person and his godparents. This impediment of ecclesiastical origin rarely creates any problem since there will probably be a great number of years between the baby and his spiritual relations; however, it could be more relevant when it involves the marriage of an adult received into the Catholic Church with absolute baptism. The proposed new Code of Canon Law proposes to eliminate this impediment from the law. 142