|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » The competent forum
|§1 Marriage cases of the baptized belong to the ecclesiastical judge by proper right.
§2. Cases regarding merely the civil effects of marriage belong to a civil magistrate, unless the particular law establishes that such cases, if carried out in an incidental or accessory manner, can be recognized by and determined by an ecclesiastical judge.
|In cases regarding the nullity of marriage not reserved to the Apostolic
See, the competencies are: 1° the tribunal of the place in which the marriage was celebrated; 2° the tribunal of the place in which either or both parties have a domicile or a quasi-domicile; 3° the tribunal of the place in which in fact most of the proofs must be collected.
|§1 In each diocese, the judge in first instance for cases of nullity or marriage for which the law does not expressly make an exception is the diocesan bishop, who can exercise judicial power personally or through others, according to the norm of law.
§2 The bishop is to establish a diocesan tribunal for his diocese to handle cases of nullity of marriage without prejudice to the faculty of the same bishop to approach another nearby diocesan or interdiocesan tribunal.
§3 Cases of nullity of marriage are reserved to a college of three judges. A judge who is a cleric must preside over the college, but the other judges may be laypersons.
§4 The bishop moderator, if a collegial tribunal cannot be constituted in the diocese or in a nearby tribunal chosen according to the norm of §2, is to entrust cases to a sole clerical judge who, where possible, is to employ two assessors of upright life, experts in juridical or human sciences, approved by the bishop for this task; unless it is otherwise evident, the same single judge has competency for those things attributed to the college, the praeses, or the ponens.
§5 The tribunal of second instance must always be collegiate for validity, according to the prescript of the preceding §3.
§6 The tribunal of first instance appeals to the metropolitan tribunal of second instance without prejudice to the prescripts of cann. 1438-1439 and 1444.
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » The right to challenge a marriage
|§1 The following are qualified to challenge a marriage: 1° the spouses; 2° the promoter of justice when nullity has already become public, if the convalidation of the marriage is not possible or expedient.
§2 A marriage which was not accused while both spouses were living cannot be accused after the death of either one or both of the spouses unless the question of validity is prejudicial to the resolution of another controversy either in the canonical forum or in the civil forum.
§3 If a spouse dies while the case is pending, however, can. 1518 is to be observed.
|The judge, before he accepts a case, must be informed that the marriage has irreparably failed, such that conjugal living cannot be restored.
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » The duty of the judges
|§1 After receiving the libellus, the judicial vicar, if he considers that it has some basis, admits it and, by a decree appended to the bottom of the libellus itself, is to order that a copy be communicated to the defender of the bond and, unless the libellus was signed by both parties, to the respondent, giving them a period of fifteen days to express their views on the petition.
§2 After the above-mentioned deadline has passed, and after the other party has been admonished to express his or her views if and insofar as necessary, and after the defender of the bond has been heard, the judicial vicar is to determine by his decree the formula of the doubt and is to decide whether the case is to be treated with the ordinary process or with the briefer process according to can. 1683-1687. This decree is to be communicated immediately to the parties and the defender of the bond.
§3 If the case is to be handled through the ordinary process, the judicial vicar, by the same decree, is to arrange the constitution of a college of judges or of a single judge with two assessors according to can. 1673, §4.
§4 However, if the briefer process is decided upon, the judicial vicar proceeds according to the norm of can. 1685.
§5 The formula of doubt must determine by which ground or grounds the validity of the marriage is challenged.
|§1 The defender of the bond, the legal representatives of the parties, as well as the promoter of justice, if involved in the trial, have the following rights: 1° to be present at the examination of the parties, the witnesses, and the experts, without
prejudice to the prescript of can. 1559; 2° to inspect the judicial acts, even those not yet published, and to review the documents presented by the parties.
§2 The parties cannot be present at the examination mentioned in §1, n. 1.
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » Proofs
|§1 In cases of the nullity of marriage, a judicial confession and the declarations of the parties, possibly supported by witnesses to the credibility of the parties, can have the force of full proof, to be evaluated by the judge after he has considered all the indications and supporting factors, unless other elements are present which weaken them.
§2 In the same cases, the testimony of one witness can produce full proof if it concerns a qualified witness making a deposition concerning matters done ex officio, or unless the circumstances of things and persons suggest it.
§3 In cases of impotence or defect of consent because of mental illness or an anomaly of a psychic nature, the judge is to use the services of one or more experts unless it is clear from the circumstances that it would be useless to do so; in other cases the prescript of can. 1574 is to be observed.
§4 Whenever, during the instruction of a case, a very probable doubt arises as to whether the marriage was ever consummated, the tribunal, having heard both parties, can suspend the case of nullity, complete the instruction for a dispensation super rato, and then transmit the acts to the Apostolic See together with a petition for a dispensation from either one or both of the spouses and the votum of the tribunal and the bishop.
|The sentence that first declared the nullity of the marriage, once the terms as determined by can. 1630-1633 have passed, becomes executive.
|§1 The party who considers himself or herself aggrieved, as well as the promoter of justice and the defender of the bond, have the right to introduce a complaint of nullity of the judgment or appeal against the sentence, according to can. 1619-1640.
§2 After the time limits established by law for the appeal and its prosecution have passed, and after the judicial acts have been received by the tribunal of higher instance, a college of judges is established, the defender of the bond is designated, and the parties are admonished to put forth their observations within the prescribed time limit; after this time period has passed, if the appeal clearly appears merely dilatory, the collegiate tribunal confirms the sentence of the prior instance by decree.
§3 If an appeal is admitted, the tribunal must proceed in the same manner as the first instance with the appropriate adjustments.
§4 If a new ground of nullity of the marriage is alleged at the appellate level, the tribunal can admit it and judge it as if in first instance.
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » The sentence and the appeal
|If a sentence has become effective, one can go at any time to a tribunal of the third level for a new proposition of the case according to the norm of can. 1644, provided new and grave proofs or arguments are brought forward within the peremptory time limit of thirty days from the proposed challenge.
|§1 After the sentence declaring the nullity of the marriage has become effective, the parties whose marriage has been declared null can contract a new marriage unless a prohibition attached to the sentence itself or established by the local ordinary forbids this.
§2 As soon as the sentence becomes effective, the judicial vicar must notify the local ordinary of the place in which the marriage took place. The local ordinary must take care that the declaration of the nullity of the marriage and any possible prohibitions are noted as soon as possible in the marriage and baptismal registers.
|The diocesan bishop himself is competent to judge cases of the nullity of marriage with the briefer process whenever:
1° the petition is proposed by both spouses or by one of them, with the consent of the other;
2° circumstance of things and persons recur, with substantiating testimonies and records, which do not demand a more accurate inquiry or investigation, and which render the nullity manifest.
|The libellus introducing the briefer process, in addition to those things enumerated in can. 1504, must: 1° set forth briefly, fully, and clearly the facts on which the petition is based; 2° indicate the proofs, which can be immediately collected by the judge; 3° exhibit the documents, in an attachment, upon which the petition is based.
|The judicial vicar, by the same decree which determines the formula of the doubt, having named an instructor and an assessor, cites all who must take part to a session, which in turn must be held within thirty days according to can. 1686.
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » The documentary process
|The instructor, insofar as possible, collects the proofs in a single session and establishes a time limit of fifteen days to present the observations in favor of the bond and the defense briefs of the parties, if there are any.
|§1 After he has received the acts, the diocesan bishop, having consulted with the instructor and the assessor, and having considered the observations of the defender of the bond and, if there are any, the defense briefs of the parties, is to issue the sentence if moral certitude about the nullity of marriage is reached. Otherwise, he refers the case to the ordinary method.
§2 The full text of the sentence, with the reasons expressed, is to be communicated to the parties as swiftly as possible.
§3 An appeal against the sentence of the bishop is made to the metropolitan or to the
Roman Rota; if, however, the sentence was rendered by the metropolitan, the appeal is made to the senior suffragan; if against the sentence of another bishop who does not have a superior authority below the Roman Pontiff, appeal is made to the bishop selected by him in a stable manner.
§4 If the appeal clearly appears merely dilatory, the metropolitan or the bishop mentioned in §3, or the dean of the Roman Rota, is to reject it by his decree at the outset; if the appeal is admitted, however, the case is remitted to the ordinary method at the second level.
|After receiving a petition proposed according to the norm of can. 1677, the diocesan bishop or the judicial vicar or a judge designated by him can declare the nullity of a marriage by sentence if a document subject to no contradiction or exception clearly establishes the existence of a diriment impediment or a defect of legitimate form, provided that it is equally certain that no dispensation was given, or establishes the lack of a valid mandate of a proxy. In these cases, the formalities of the ordinary process are omitted except for the citation of the parties and the intervention of the defender of the bond.
[NB see Authentic Interpretation of the former canon 1686 (pre-Mitis Iudex Dominus Iesus), 11.VII.1984]
|Processes » Certain Special Processes » Matrimonial Processes » Cases to declare the nullity of marriage » General norms
|§1 If the defender of the bond prudently thinks that either the flaws mentioned in can. 1688 or the lack of a dispensation are not certain, the defender of the bond must appeal against the declaration of nullity to the judge of second instance; the acts must be sent to the appellate judge who must be advised in writing that a documentary process is involved.
§2 The party who considers himself or herself aggrieved retains the right of appeal.
|The judge of second instance, with the intervention of the defender of the bond and after having heard the parties, will decide in the same manner as that mentioned in can. 1688 whether the sentence must be confirmed or whether the case must rather proceed according to the ordinary method of law; in the latter event the judge remands the case to the tribunal of first instance.
|§1 In the sentence the parties are to be reminded of the moral and even civil obligations binding them toward one another and toward their children to furnish support and education.
§2 Cases for the declaration of the nullity of a marriage cannot be treated in the oral contentious process mentioned in can. 1656-1670.
§3. In other procedural matters, the canons on trials in general and on the ordinary contentious trial must be applied unless the nature of the matter precludes it; the special norms for cases concerning the status of persons and cases pertaining to the public good are to be observed.
[revised wording of cc. 1671-1691 according to m.p. Mitis Iudex Dominus Iesus,
|Processes » Certain Special Processes » Matrimonial Processes » Cases of separation of spouses
|§1 Unless lawfully provided otherwise in particular places, the personal separation of baptised spouses can be decided by a decree of the diocesan Bishop, or by the judgement of a judge in accordance with the following canons.
§2 Where the ecclesiastical decision does not produce civil effects, or if it is foreseen that there will be a civil judgement not contrary to the divine law, the Bishop of the diocese in which the spouses are living can, in the light of their particular circumstances, give them permission to approach the civil courts.
§3 If the case is also concerned with the merely civil effects of marriage, the judge is to endeavour, without prejudice to the provision of §2, to have the case brought before the civil court from the very beginning.
|§1 The oral contentious process is to be used, unless either party or the promotor of justice requests the ordinary contentious process.
§2 If the ordinary contentious process is used and there is an appeal, the tribunal of second instance is to proceed in accordance with can. 1682 §2, observing what has to be observed.
|In matters concerning the competence of the tribunal, the provisions of can. 1673 are to be observed.
|Before he accepts the case, and whenever there appears to be hope of success, the judge is to use pastoral means to induce the parties to be reconciled and to resume their conjugal life.
|Cases of separation of spouses also concern the public good; the promotor of justice must, therefore, always intervene, in accordance with can. 1433.
|Processes » Certain Special Processes » Matrimonial Processes » Process for the dispensation of a marriage ratum et non consummatum
|The parties alone, or indeed one of them even if the other is unwilling, have the right to seek the favour of a dispensation from a ratified and non-consummated marriage.
|§1 Only the Apostolic See gives judgement on the fact of the non-consummation of a marriage and on the existence of a just reason for granting the dispensation.
§2 The dispensation, however, is given by the Roman Pontiff alone.
|§1 The diocesan Bishop of the place of domicile or quasidomicile of the petitioner is competent to accept the petition seeking the dispensation. If the request is well founded, he must arrange for the instruction of the process.
§2 If, however, the proposed case has special difficulties of a juridical or moral order, the diocesan Bishop is to consult the Apostolic See.
§3 Recourse to the Apostolic See is available against the decree of a Bishop who rejects the petition.
|§1 Without prejudice to the provisions of can. 1681, the Bishop is to assign the instruction of these processes, in a stable manner or case by case, to his own tribunal or to that of another diocese, or to a suitable priest.
§2 If, however, a judicial plea has been introduced to declare the nullity of the same marriage, the instruction of the process is to be assigned to the same tribunal.
|§1 In these processes the defender of the bond must always intervene.
§2 An advocate is not admitted, but the Bishop can, because of the difficulty of a case, allow the petitioner or respondent to have the assistance of an expert in the law.
|In the instruction of the process both parties are to be heard. As far as possible, and provided they can be reconciled with the nature of these processes, the canons concerning the collection of evidence in the ordinary contentious process and in cases of nullity of marriage are to be followed.
|§1 There is no publication of the acts, but if the judge sees that, because of the evidence tendered, a serious obstacle stands in the way of the plea of the petitioner or the exception of the respondent, he can prudently make it known to the party concerned.
§2 To the party requesting it the judge can show a document which has been presented or evidence which has been received, and he can set a time for the production of arguments.
|§1 When the instruction is completed, the judge instructor is to give all the acts, together with a suitable report, to the Bishop. The Bishop is to express his
Opinion on the merits of the case in relation to the alleged fact of non-consummation, the adequacy of the reason for dispensation, and the opportuneness of the favour.
§2 If the instruction of the process has been entrusted to another tribunal in accordance with can. 1700, the observations in favour of the bond of marriage are to be prepared in that same tribunal. The Opinion spoken of in §1 is, however, the province of the Bishop who gave the commission and the judge instructor is to give him, together with the acts, a suitable report on the case.
|§1 The Bishop is to transmit all the acts to the Apostolic See together with his Opinion and the observations of the defender of the bond.
§2 If, in the judgement of the Apostolic See, a supplementary instruction is required, this will be notified to the Bishop, with a statement of the items on which the acts are to be supplemented.
§3 If, however, the answer of the Apostolic See is that the non-consummation is not proven from the evidence produced, then the expert in law mentioned in can. 1701
§2 can inspect the acts of the case, though not the Opinion of the Bishop, in the tribunal office, in order to decide whether anything further of importance can be brought forward to justify another submission of the petition.
|The rescript of dispensation is sent by the Apostolic See to the Bishop. He is to notify the parties of the rescript, and also as soon as possible direct the parish priests of the place where the marriage was contracted and of the place where baptism was received, to make a note of the granting of the dispensation in the registers of marriage and baptism.
|Processes » Certain Special Processes » Matrimonial Processes » Process in the presumed death of a spouse
|§1 Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document, the other spouse is not regarded as free from the bond of marriage until the diocesan Bishop has issued a declaration that death is presumed.
§2 The diocesan Bishop can give the declaration mentioned in §1 only if, after making suitable investigations, he has reached moral certainty concerning the death of the spouse from the depositions of witnesses, from hearsay and from other indications. The mere absence of the spouse, no matter for how long a period, is not sufficient.
§3 In uncertain and involved cases, the Bishop is to consult the Apostolic See.
|Processes » Certain Special Processes » Cases for Declaring the Nullity of Sacred Ordination
|The right to impugn the validity of sacred ordination is held by the cleric himself, or by the Ordinary to whom the cleric is subject, or by the Ordinary in whose diocese he was ordained.
|§1 The petition must be sent to the competent Congregation, which will decide whether the case is to be determined by the Congregation of the Roman Curia, or by a tribunal designated by it.
§2 Once the petition has been sent, the cleric is by the law itself forbidden to exercise orders.
|If the Congregation remits the case to a tribunal, the canons concerning trials in general and the ordinary contentious trial are to be observed, unless the nature of the matter requires otherwise and without prejudice to the provisions of this title.
|In these cases the defender of the bond has the same rights and is bound by the same duties as the defender of the bond of marriage.
|After a second judgement confirming the nullity of the sacred ordination, the cleric loses all rights proper to the clerical state and is freed from all its obligations.
|Processes » Certain Special Processes » Methods of Avoiding Trials
|In order to avoid judicial disputes, agreement or reconciliation can profitably be adopted, or the controversy can be submitted to the judgement of one or more arbiters.
|The norms for agreements, for mutual promises to abide by an arbiter’s award, and for arbitral judgements are to be selected by the parties. If the parties have not chosen any, they are to use the law established by the Episcopal Conference, if such exists, or the civil law in force in the place where the pact is made.
|§1 Agreements and mutual promises to abide by an arbiter’s award cannot validly be employed in matters which pertain to the public good, and in other matters in which the parties are not free to make such arrangements.
§2 Whenever the matter concerned demands it, in questions concerning temporal ecclesiastical goods the formalities established by the law for the alienation of ecclesiastical goods are to be observed.
|§1 If the civil law does not recognise the force of an arbitral judgement unless it is confirmed by a judge, an arbitral judgement in an ecclesiastical controversy has no force in the canonical forum unless it is confirmed by an ecclesiastical judge of the place in which it was given.
§2 If, however, the civil law admits of a challenge to an arbitral judgement before a civil judge, the same challenge may be brought in the canonical forum before an ecclesiastical judge who is competent to judge the controversy at first instance.
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