The Gazette 1978

GAZETTE

SEPTEMBER 1978,

which enables one or both parties to re-marry. In a non- consummation case put to the Pope, there are two elements which must be clearly established; firstly that the marriage has not, in fact, been consummated and secondly, that there are sufficiently good reasons why the dispensation should be granted. (ii) Proof of non-consummation: Clearly, as seen when considering impotence as a ground of nullity, where there exists a condition of absolute or relative impotence which is perpetual and antecedent to themarriage, then obviously, the marriage will be impossible of consummation. But where consummation is physically possible and is alleged not to have in fact taken place, then this must be clearly established. The local diocesan tribunal, in investigating this, acts, in an administrative way, as an agent for the Holy See to collect the evidence and try and establish the facts. The tribunal does not act of its own proper competence and the final decision in the case is taken in Rome. When the dossier has been completed by the local tribunal, it is submitted to the Congregation of the Sacraments in Rome. (iii) Procedurefor Obtaining Evidence: For this type of case, it is necessary first to have various documents and a petition. The documents are the baptismal and marriage certificates and proof that the marriage has broken down, (e.g. civil divorce or nullity decree). The bishops then appoints a court to take the evidence in the case, the court consisting ofan instructingjudge, a defender ofthebond and a notary. Normally the court is helped by a doctor, appointed by it, who would carry out a personal medical examination of die wife (and possibly also the husband) and who would deal with the actual details of attempted consummation and the like. The very nature of this type of case is such that there can be no witnesses in the strict sense of the word and apart from the evidence of the doctor or doctors, the case goes through entirely upon the word and good standing and known honesty of the two parties to the case, verified by witnesses. The witnesses, therefore, would either be witnesses who know directly or indirectly about the consummation of the marriage and who would, invariably, be giving hearsay evidence, or character witnesses who would vouch for the truthfulness and honesty of the parties. The hearsay witnesses are asked among other things, when they were first told about the couple's marriage problem, whether this was before or after the separation and any other relevant details they might know of. The character witnesses are asked about the honesty and truthfulness of the parties. (iv) Comments on Evidence and Transmission to Rome: When all this material has been gathered, it is transcribed into four copies, one of which goes to the defender of the bond who is probably present at most of the evidence sessions. The defender of the bond examines all the evidence and sees whether it contains any inherent contradictions and he seeS to what extent the spouses are vouched for as honest and trustworthy. The whole dossier together with the comments of the defender of the bond are then submitted to the bishop and the bishop prepares his "opinion" on the case, specially mentioning whether he regards the allegation of non-consummation as established, whether the petitioner is a worthy person and whether he recommends the petition to the Pope. This opinion together with three copies of the whole dossier are then sent to the Congregation of the Sacraments in Rome. (v) Procedure in Rome: At the Congregation of the Sacraments, where the case is handled on behalf of the

Pope, another court is appointed consisting of a defender of the bond and three commissioners. The defender of the bond examines the case and writes his comments. He passes these to the Congregation and the comments together with the whole dossier are then submitted to each of the three commissioners. Independently the commissioners examine all the material and at some appointed time meet together and vote on the case. If the decision is in favour of the petition (i.e. if they decide that the evidence has established the non-consummation and a dispensation should be granted) their recommendations are then submitted to the Cardinal Prefect of the Congregation. The latter personally takes a resume of the case, together with many others to the Pope and advises him of the opinion of the Congregation. If the Pope agrees, the Congregation then issues the necessary dispensation in the name of the Pope. In due course this decree is sent to the local diocese and the instructing judge will communicate the decision to the parties concerned. On receipt of the dispensation, provided there are no restrictive clauses inserted in the text, both parties are advised they are now free to remarry. (vi) Restrictive Clauses: Occasionally the reason for the non-consummation may be the antecedent and perpetual impotence of one of the parties, or rather it might be surmised that this is the reason. Alternatively, the reason may be that one of the parties was the deliberate and wilful cause of the non-consummation i.e. the person concerned refused to consummate the marriage. When a dispensation is granted it means that the marriage in question is dissolved and that, at least technically, both parties are free to contract other marriages. Even the guilty party could be free to marry again and, therefore, occasionally, the Holy See imposes a restrictive clause on the dispensation to the effect, for example, that the other party is not to be permitted to remarry without the permission of the bishop of the diocese or of the Congregation or indeed that the other party is not to be permitted to remarry at all. In order to ensure that such a restrictive clause is effective, when a dispensation is granted because a marriage has not been consummated, a note of this fact together with a note of any restrictive caluse is recorded in the baptismal and marriage registers in the place where each of the parties to the dispensed marriage were baptised and first married. In order to remarry it is necessary for a person to produce amongst other documents a baptismal certificate dated within six months of the marriage. Such a baptismal certificate so requisitioned would mention the fact of the dispensation and any restrictive clause. 7. Dissolution of The Natural Bond There has already been an examination of the grounds for invalidating a marriage and also for the dispensation for the non-consummation of a marriage. Finally, one must look at the situation. where it is alleged that the marriage contracted was not a sacrament. The sacrament of matrimony, like the other sacraments, can only be received by a person who is himself a Christian. When both parties are baptised, all other things being equal, each can confer on the other the sacrament of matrimony. Therefore, if one of the parties is not baptised, the marriage is non-sacramental.

(i) Power of Pope to Dissolve Non-Sacramental Marriages: The Pope has the power to set aside (or

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