The Gazette 1978

SEPTEMBER 1978,

GAZETTE

he is not a "dishonourable petitioner". This term refers to whether he was the malicious cause of the nullity and, if he was, then he is barred from pleading. For example, if a person before the marriage had deliberately prepared a series of documents showing that he did not intend to contract a permanent union, then he would certainly be regarded as the malicious cause of the alleged nullity, (iii) Sttfflcient Substance: The third consideration is whether the petition is of sufficient substance. The petition must be rejected; (a) if the reasons alleged and other information submitted, even if proved and true, are not adequate to indicate that the marriage is null and void, the same reasons are nonetheless patently false or completely unprovable; for example, an allegation by the petitioning husband that his wife did not want children, when she already had four children by him and was hoping for a fifth1 Except for these two situations, the petition must be regarded as having some sort of substance and it must be accepted for trial and a document is then issued indicating the acceptance. (e) Petitions by non-Catholics: The Church is competent to deal with the examination of all marriages which are sacramental and to pronounce on their validity. Petitions from non-Catholics are not unusual, particularly in cases where the non-Catholic wishes to re-marry a Catholic. It is necessary for the local bishop to give permission for the non-Catholic petitioner to plead before the tribunal, but there is usually no difficulty about obtaining this permission. (0 Notification to Respondent: The petition having been accepted for trial, the next requirement is that the respondent should be informed of the ensuing proceedings. This phase of the proceedings is called the "citation" and normally takes the form of a letter to the respondent advising him that his former partner has petitioned for an examination of the marriage and that the union has been alleged to be invalid on certain grounds. He is also advised that there will be a meeting held in the near future at which the formal grounds for the alleged nullity would be agreed and he is asked to indicate whether he would like to intervene in the proceedings and whether he would like to give evidence, or, alternatively, leave the whole matter to the court. A reasonable length of time is allowed for the respondent to reply to either of these alternatives. If there is no reply, another letter may be sent and if it is clear that the respondent received the letters and has not replied, then the proceedings may commence, with a note entered into the documents of the case stating that the respondent has been cited and that, so far as can be ascertained, he has received the citation but has not replied. (g) Agreement of the Point of Issue: Assuming that the respondent has replied and has left the outcome of the case in the hands of the court, the court then meets for the first formal session, at which the precise grounds for the alleged nullity are agreed. This is called the "agreement of the point of (or, at) issue" (or "contensatio litis"). The agreement of the precise grounds upon which the nullity is sought is set down in a document which indicates the names of the members of the court and the petitioner is advised of all the persons involved and asked if he has any objection to them. The document also states the relevant details concerning the citation of the respondent and the nature of his reply. Finally, the document sets down in a 143

marriage. He is a priest skilled in Canon Law and his function is to represent the bond of marriage and bring forward arguments showing why the marriage should be regarded as valid. On the other side, each petitioner will be represented by an "advocate" who assists the petitioner to prepare his case and, at the end of the proceedings, produces arguments showing why the marriage should be declared null and void. Both the defender of the bond and the advocate will usually be priests, although there are some places (e.g. the Sacred Roman Rota and at least one diocese in the United States) where the advocate is a layman. The advocate if he is so appointed by the petitioner can also act as the latter's proxy, so that certain documents may be signed and some appearances can be made on behalf of the petitioner by the proxy. Finally, each court has a "notary", also usually a priest, who takes down the testimony at formal evidence sessions, and whose signature on the documents shows that the documents and other papers in the case are authentic. (c) Commencement of Procedure: A nullity case may originate in one of several ways, such as by reference to the tribunal by a parish priest, or solicitor, or simply by direct approach. When the first contact has been made, an appointment will be arranged and an interview will follow. The interview with the prospective petitioner may be conducted by an advocate, or, in some places, by one of a number of judges who assist the tribunal. When the interview with the would-be petitioner has taken place, together with interviews with other witnesses who may be able to give evidence about the grounds of the alleged nullity, the interviewing priest would assist the petitioner by drawing up a "libellus" or "petition". The "libellus", signed by the petitioner, together with other supporting documents, is then presented formally to the tribunal (in the stricter and wider sense) for consideration. When the tribunal receives the petition, the 'offlcialis' appoints a court composed of three judges, a defender of the bond, an advocate and a notary. A "decree" appointing these persons is drawn up and signed by the "oficialis and authenticated by a notary. These are the officials of the court who will deal with the particular case throughout all its stages until the final decision is published in the "sentence". (d) Examination of Petition: The court, thus appointed, examines the petition to establish whether it can be accepted for trial. If it appears that the petition might have to be refused a trial, or "rejected", the three judges must discuss the case and the acceptance or rejection of the petition is agreed by a majority vote. In either case, the petitioner is notified, and if the petition is rejected, the petitioner is also told the reasons. For the examination of the petition with a view to its acceptance or rejection, a number of points have to be considered, (i) the court's competence; (ii) whether the petitioner has the right to bring a case, and, (iii) whether the case alleged has sufficient substance. (i) Competence: The ordinary competence (meaning the court's legal ability to accept and try the case, as opposed to the right of some other tribunal to do so) of any diocesan tribunal rests either on the place where the marriage took place or on the domicile of the respondent. (ii) Right to Plead: When the court has established that it is competent to try the case, it must next see whether the petitioner can be admitted to plead. The general rule is that any Catholic may plead a case so long as