The Gazette 1978

GAZETTE

SEPTEMBER 1978,

Frequently, some of the witnesses live a long way from the tribunal office, or live abroad. In those circumstances, a request is sent to the diocese where the other witnesses live and the local tribunal takes the testimony with the same formalities as already described. The testimony thus taken is returned to the court and included in the dossier of the case. (i) Publication of Evidence and Comments thereon: When all the evidence originally requested by the advocate and the defender, of the bond has been taken and transcribed (usually in five copies — three for the judges and one each for the defender of the bond and the advocate) it is then "published" i.e. made available to the advocate and the defender of the bond to study. At this point, the defender of the bond and the advocate have the opportunity of calling for more witnesses, or, for good reasons, for the re-interrogation of certain witnesses but this can only be done with the permission of the presiding judge. When both the defender of the bond and advocate are satisfied that all possible and relevant testimony has been obtained, the presiding judge then declares the evidence stage of the case "concluded". The advocate then prepares his pleadings showing why, from the evidence, the marriage in question should be regarded as null and void and his written comments are sent within a certain time to the presiding judge with a copy to the defender of the bond. The defender of the bond then prepares his reply to the advocate with submissions, again from the evidence, as to why the marriage should be regarded as valid. The advocate and the defender of the bond have the opportunity of writing two (and sometimes more) sets of comments. (j) Decision of the Tribunal: Copies of all the evidence, documents and submissions of the advocate and the defender of the bond are then handed to the three judges who are given a certain length of time to study the material and a date is set for them to meet together to discuss the case. At this meeting, called the "decisio", the presiding judge calls upon the "ponens" to expound the facts of the case and the judges discuss their individual views. When the discussion is concluded, there is a vote and the result of the case rests upon the majority decision. The formula of the decision would be expressed, for example, thus: "It appears proved (not proved) that the marriage in question is null and void on the grounds of an intention against the permanence of the marriage on the part of the respondent". Where there is a negative decision, the judges make no comment on the validity of the marriage as such and the decision merely states that "it appears not proved". It is always possible that the judges may have concluded that there was insufficient evidence to establish the nullity, whereas if there had been evidence, the marriage might well have been proved to be null and void. The petitioner and his advocate and the defender of the bond are notified of the outcome of the meeting. It is then theobligation of the "ponens" to write the sentence, which is a series of reasons in law and in fact showing why and how the judges arrived at their decision. When this is drawn up (usually some weeks after the decision), it is released to the petitioner and his advocate and to the defender of the bond. (k) Appeal to Court of Second Instance: If the decision is in favour of the petitioner (i.e. the judges have decided that the marriage is invalid), the defender of the bond is bound to appeal against the decision. On the other hand, if

legal formula the actual grounds of the alleged nullity. The formula for a case in which the respondent has deliberately reserved to himself the right to obtain a divorce later in the marriage would be more or less as follows: "the point at issue was agreed by all present as: whether the marriage is null and void on the grounds of an intention 'contra bonum Sacramenti' (i.e. the technical expression for an intention to exclude the permanence of marriage)." This document is then signed by the judges, defender of the bond, proxy of the petitioner and notary. (h) Examination of Parties and Witnesses: Often this meeting for the agreement of the point at issue is also chosen as the occasion when evidence of the petitioner can be taken. Prior to the occasion when this testimony is obtained, the advocate has had the right to present a series of questions which he wished to be asked of his client and these questions are handed to the defender of the bond and the notary and, by permission of the president of the court, the advocate may also be present. It is important at this stage to emphasise that a canonical nullity process is a documentary one and also that it is completely confidential. For this reason, there is no open court and only the persons mentioned above are present together with the witness. Moreover, the method of taking evidence is not like in a civil court, as there is no cross-questioning, no oratory of advocates, no trying to discredit witnesses. Hearsay is accepted into the evidence, although later on it is evaluated for what it is worth. The general pattern of an evidence session is one of much less formality than that which exists in civil courts. The interrogating judge first asks the preliminary questions, such as names, addresses, professions, relationships, status and the like. The witnesses have to swear they will tell the truth; the witness may affirm instead of taking the oath, but the point is noted for later evaluation. The judge next puts the more specific questions to the witness but often they are formulated by means of a general discussion about the matter with the witness in the first instance. Eventually, the full written statement of the witness is read back to him at the end of the session and he has an opportunity of changing whatever he wishes in his testimony. The whole basis of a nullity case in an ecclesiastical court is to arrive at the truth through searching investigation and enquiry, whereas in a civil court the aim is to arrive at the truth through the clashing of two opposites, of the plaintiff and of the defendant. The inquiry of the ecclesiastical court is made by the judge in charge, not by those representing either side. As a judge, he is interested in whatever the witness says which will establish the truth. When the judge is asking questions, he makes use of the material supplied by the defender of the bond. The defender of the bond is not permitted to formulate questions which would tend to trap the witness or seek to discredit him. The judge is permitted to ask his own questions where necessary to elucidate a previous answer or to cover some point which was not known of before the session began. Likewise, the defender of the bond and the advocate, if present, may wish to add further questions but may only do so through the judge; they cannot ask them directly of the witness. After the deposition has been read back to the witness and corrected, where appropriate, all those present sign the testimony. At this point the witness may be asked to take a further oath confirming that the statements in his deposition are true and also that hewill not disclose the questions asked nor the replies given until the end of the case. 144