The Gazette 1978

SEPTEMBER 1978,

GAZETTE

matter of ordinary prudence to make quite certain that when this non-Catholic marries again, this time in the Church, he does not have a similar intention. Consequently, to make sure that his intentions are proper this time, it is not unusual for the appeal court to add a restrictive or an 'ad mentem' clause to the decree of nullity, such as that the "petitioner should not be permitted to enter into a new marriage in the Catholic Church until such time as he has satisfied the bishop of the place where he lives that he now has a proper intention with regard to the permanence of marriage". As a result of such a clause, the petitioner will probably be asked to sign a specially drafted document making clear that his intentions this time are right, and the bishop might also require that his new fiancee be also advised of the circumstances of the nullity of the first marriage. In the case where a decree of nullity is based on lack of due discretion or amentia or the inability to assume the obligations of marriage, it might be necessary to place an absolute ban upon a person re-marrying, where for example, the person in question is still in the same state as he was at the time of the first marriage. (n) Rejection of the Petition: The burden of proof, or the onus of establishing that the marriage is invalid, lies on the petitioner and where the petitioner is not successful in bringing forward sufficient evidence to upset the presumption of validity, the judges must return a decision of 'non constrat de nullitate' or "it does not appear that the marriage in question is invalid". Even before the full hearing, as already seen, the judges could reject the petition on the grounds that it did not conform to the rules of competence or it did not have some substance as a case. The petitioner can appeal against this initial rejection of the petition in the ordinary appeal court and if the appeal judges regard the rejection by the first instance court as unjustified, they direct the first instance tribunal to take and try the case. In those circumstances a new panel of judges is appointed for the trial of the case in the original court. (o) Irformal or Administrative Procedure: This procedure is adopted in the case of certain impediments, though causing the nullity of the marriage which can be established by means of certain and authentic documents. If such documents can be produced and together with the citations mentioned in connection with the formal procedure and the inspection of the documents by the defender of the bond, such a marriage can be declared invalid without further ado. The informal process can be used for establishing the following impediments, namely disparity of cult, a solemn vow of chastity, sacred orders previous marriage, consanguinity, affinity and spiritual relationship. 6. Dispensation of a non-consummated marriage (i) General: As has already been described according to the teaching of the Church, a marriage which is valid, sacramental and consummated cannot be set aside by any human power. Such a union is regarded as indissoluble and binding until the death of one of the spouses. Up to now there has been an examination of the situation where it was alleged that a marriage was not valid. But what if the marriage is alleged to be unconsummated? For certain special situations, upon certain conditions, the Pope has the power to grant a dispensation from such a marriage, 145

the decision is against the petitioner, the latter has a right to appeal against it. In either case, the petition and all evidence of the court of first instance must go on appeal to a court of second instance. There are two possible methods of procedure for a case heard by the appeal tribunal. The first and shortest is by means of "ratification" and the other is termed the "ordinary procedure". When a case is received by the appeal court, a defender of the bond is appointed to examine all the evidence and other documents and he then prepares a report on the case indicating whether he would have any objection if the appeal tribunal judges confirmed the first instance affirmative decision, i.e. give it a further affirmative and issue a decree of nullity. On the other hand, the defender of the bond may feel there are special problems which have not been adequately dealt with by the court of first instance, and these problems should receive further attention from the appeal court. An appeal from a negative decision given in first instance is dealt with according to the ordinary procedure. The appeal judges then consider the case. If they conclude that the case is straightforward and the affirmative decision of the first instance court is correct, they can proceed to ratify that first instance decision and issue a decree of nullity. On the other hand, if they feel that the case requires further consideration then they issue a decree directing that the case should be dealt with by the ordinary procedure and they give reasons for this direction. The advocate may, in such circumstances, think that more evidence is needed and call for this, either from someone who has already given testimony or from some one new. In any event, whatever further work is necessary on the case is attended to and thereafter the advocate and the defender of the bond write their comments in the same way as in the first instance procedure. The judges then consider the case, discuss and decide it and with the duly appointed "ponens" writing the reasons in law and fact for the decision. (1) Further Appeals and Issue of Decree of Nullity: For a decree of nullity to issue, there must be two concordant or agreeing decisions in favour of the petition. If one decision is affirmative and the other negative, before a decree can be issued, the case must be examined by a third court. The third court is either the Sacred Roman Rota in Rome or, on permission from the Holy See given on an "ad hoc" basis, the third hearing could take place in some diocese locally, which would ensure greater speed. The case might also be referred to the Rota, where a petitioner, having received a negative decision in the first instance, wishes to appeal direct (in second instance) to the Rota and which he is permitted to do. However, if this then means that the second decision is affirmative, the third instance clearly must also be dealt with at the Rota (with another panel of judges). Finally, and most unusually, for very special reasons, such as being very well known in his own diocese, a person may request to have his case dealt with at the very beginning of the Rota. (m) Conditions attached to a Decree of Nullity: It is clear from some of the grounds of nullity already mentioned that where a case is proved and the grounds reside in the petitioner, it may be necessary to exercise caution about the petitioner marrying again. For example, in the case where a non-Catholic petitioner alleged that he had an intention against the permanence of marriage when entering his first union and this intention "contra bonum sacramenti" is proved to have existed, it is a