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The Instruction Dignitas Connubii, on the norms to be
observed at ecclesiastical tribunals in matrimonial proceedings, was
compiled by the Pontifical Council for Legislative Texts with the
collaboration of the other most closely concerned Dicasteries of the
Holy See. The Instruction was presented to journalists accredited to the
Holy See Press Office on Tuesday, 8 February [2005].
Speakers at the press conference included Cardinal Julián
Herranz, President of the Pontifical Council for Legislative Texts;
Archbishop Angelo Amato, S.D.B., Secretary of the Congregation for the
Doctrine of the Faith; Archbishop Domenico Sorrentino, Secretary of the
Congregation for Divine Worship and the Discipline of the Sacraments;
Bishop Velasio De Paolis, C.S., Secretary of the Supreme Tribunal of the
Apostolic Signatura; and Mons. Antoni Stankiewicz, Dean of the Tribunal
of the Roman Rota....
Cardinal Julián
Herranz
President of the Pontifical Council for Legislative Texts
A simple purpose: helping tribunals handle their
work better
The Instruction Dignitas Connubii which we are presenting
today is the result of the lengthy endeavour that the Dicasteries of the
Holy See here represented embarked on, at the Holy Father's explicit
request, in 1996: in addition to the Pontifical Council for Legislative
Texts, the Congregation for the Doctrine of the Faith, the Congregation
for Divine Worship and the Discipline of the Sacraments, the Supreme
Tribunal of the Apostolic Signatura and the Apostolic Tribunal of the
Roman Rota.
Reason for this Document
The purpose of the Instruction is very simple: to offer the ministers
of justice who work in ecclesiastical tribunals a practical Document, a
sort of vademecum that will serve as an easy guide to enable them
to handle their work better in canonical processes of matrimonial
nullity. Thus, it was desired to repeat the positive experience that the
similar Instruction, Provida Mater, met with in 1936.
Both Instructions were published about 20 years after the respective
Codes of Canon Law (1917 and 1983), not in order to compare the Codes
with another legislative text nor, still less, to abrogate them, but
merely to facilitate their consultation and application.
On the one hand, the Instruction presents in a unified manner all
that concerns the canonical process of matrimonial nullity, as distinct
from the Code of Canon Law in which the relative norms are scattered in
the various sections.
On the other hand, it integrates the juridical developments that
occurred in the period immediately following the promulgation of the
Code: the authentic interpretations of the Pontifical Council for
Legislative Texts, the responses of the Supreme Tribunal of the
Apostolic Signatura, the jurisprudence of the Apostolic Tribunal of the
Roman Rota.
As usually happens with norms that are less important than laws, this
Instruction does not only reiterate the text of the canonical code, but
also contains interpretations, explanations of what the laws prescribe
and further measures concerning procedures for their execution.
With this Document the Holy See intends once again to exercise its
universal mission regarding the administration of justice throughout the
Church: in this case, concretely in the context of the Latin Church. Far
from diminishing the responsibility of diocesan Bishops for the
individual tribunals dependent upon them, it seeks with this mission to
strengthen and encourage them in a positive way.
As the Holy Father reasserted a few days ago, the diocesan Bishops
are "by divine law judges in their communities.... It is on their behalf
that the tribunals administer justice. Bishops are therefore called to
be personally involved in ensuring the suitability of the members of
the tribunals, diocesan or interdiocesan, of which they are the
Moderators, and in verifying that the sentences passed conform to
right doctrine. Sacred Pastors cannot presume that the activity of
their tribunals is merely a 'technical' matter from which they can
remain detached, entrusting it entirely to their judicial vicars (cf.
CIC, cann. 391, 1419, 1423 § 1)" (Address to the Roman Rota,
29 January 2005, n. 4; L'Osservatore Romano English edition, [ORE],
2 February, p. 3).
The full and dynamic involvement of the particular Churches is in
fact crucial if the functioning of tribunals and the training of
ministers of justice are to be improved, inconsistencies set right and
abuses in proceedings corrected, and if sentences are to conform fully
to the Church's legislation and doctrine on marriage.
On this subject, it is also increasingly necessary to activate the
synergy of ecclesial communion between the universal Church and the
particular Churches, understanding that the Apostolic See's
interventions constitute neither an interference nor an intention to
relieve any of the competent bodies of responsibility: indeed, their
purpose is quite the opposite.
Reason for the canonical process of matrimonial nullity
This Instruction confirms the need to submit the question of the
validity or nullity of a marriage of the faithful to a truly judicial
trial.
Sometimes, this traditional praxis of the Church is the subject of
criticism or reservations, as though an excessive formalism were
entailed. Simpler ways to a solution are suggested that would even solve
the problem solely in the internal forum, through the so-called "nullity
of conscience", in which the Church would do no more than to register
the conviction of the spouses themselves as to whether or not their
marriage was valid.
Sometimes, it is also hoped that the Church would give up any sort of
trial and leave this kind of juridical problem in the hands of courts of
civil law.
On the contrary, the Church reaffirms her competence to deal with
these causes, for in them is at stake the existence of the marriage of
at least one of her faithful, especially if we remember that marriage is
one of the seven sacraments instituted by Christ himself and entrusted
to the Church. To forgo involvement in this problem would be equivalent,
in practice, to obscuring the sacramental holiness of marriage.
This would be even harder to understand in the present circumstances
of confusion about the natural identity of marriage and the family in
some civil legislation that not only accepts and facilitates divorce but
in certain cases even casts doubt on the indispensable feature of
heterosexuality in marriage.
Furthermore, neither in the Church nor in civil society can marriage
be considered an exclusively private matter whose validity could be
judged by the parties themselves with a juridic efficacy that would
permit them to contract another union.
Apart from the great unreliability of human judgment on matters of a
strong personal involvement where there can obviously be discrepancies
between the parties themselves, it is necessary above all to understand
that the conjugal bond, the true foundation of a family, does not only
concern the spouses but also any children who may be born to them, and
the whole of society, both ecclesial and civil.
Marriage, therefore, in conformity with a conviction rooted in the
civilizations of all the ages, is a public union. Hence, those who
contract it cannot declare its nullity themselves.
What is necessary instead is a true ascertainment of the objective truth
concerning the validity or invalidity of the union.
This commitment to seeking the truth must satisfy two fundamental
conditions: it must permit the defence and discussion of the arguments
both for and against nullity, as well as the gathering of evidence that
proves the one or the other. It must also assign the task of judgment to
an impartial third party.
These two prerequisites are essential to judicial proceedings, a
juridic institution which, moreover, the Church herself has largely
contributed to shaping throughout history.
In the case of the processes of matrimonial nullity, a specific role
has been introduced that enables those characteristics to be maintained
when both parties are in agreement in requesting the declaration of
nullity: in each case it is the task of the defender of the bond to
contribute all that can be deduced in favour of the existing validity of
the marital bond.
Everyone knows human fallibility can lead to a practical decision in
which there is no true justice, or in which it may be delayed: Of
course, it is not easy to judge when these situations actually do occur,
so it is essential to be cautious in providing information on
proceedings, avoiding the superficiality of a tabloid scandal with no
proper basis.
On the other hand, it would be absurd to denigrate in general a means
valid in itself such as an ecclesiastical tribunal, merely because it
may not have functioned well in a few cases.
In this regard, the Church intends to take the only wise path: to
persevere in her intention to improve the seriousness and rapidity of
proceedings, facilitating access to them for all concerned, providing
equal opportunities and rendering the decisions of all tribunals
increasingly uniform.
Basic question: the good of marriage and of the family
Through the efforts by personnel and the means that she designates to
this pastoral field, the Church desires to make a positive contribution
to achieving an important objective which is central to John Paul II's
Pontificate: the good of marriage and the family.
"The future of humanity passes by way of the family!" (Post-Synodal
Apostolic Exhortation Familiaris Consortio, 22 November 1981, n.
86): this heartfelt exclamation of the Pope shows the urgent need for
the commitment of the Church, of Christians and of a multitude of people
of good will to protect and promote marriage and the family in the
contemporary historical context.
The pressures of hedonism and selfishness that subordinate everything
to their own satisfaction is a tremendous pastoral challenge in our day.
What stands in danger of passing unperceived is the goodness and beauty
of the matrimonial and family institution in its genuine essence as a
profoundly personal reality.
People forget that it is necessary to fight to stay faithful to a
commitment of love and justice, which by its nature embraces the whole
of life: the reciprocal gift of husband and wife for the purpose of
creating a family open to life and that death alone can dissolve (cf.
can. 1141).
In the context of a divorce mentality, canonical proceedings of
annulment can also easily be misunderstood as no more than a means to
obtain a divorce with apparent Church approval. The difference between
nullity and divorce would be merely nominal. By skilful manipulation of
the causes of nullity, every failed marriage would be annulled.
The Roman Pontiffs, especially in their annual Address to the Roman
Rota, have often demonstrated the true meaning of matrimonial nullity
which is inseparable from the search for the truth, since the
declaration of nullity is in no way the dissolution of an existing bond
but merely an observation, in the name of the Church, of the inexistence
of a true marriage from the start.
Indeed, wherever possible, the Church encourages the convalidation of
marriages that are null. John Paul II explained it as follows: "The
spouses themselves must be the first to realize that only in the loyal
quest for the truth can they find their true good, without excluding a
priori the possible convalidation of a union that, although it is not
yet a sacramental marriage, contains elements of good, for themselves
and their children, that should be carefully evaluated in conscience
before reaching a different decision" (Address to the Roman Rota,
28 January 2002, n. 6; ORE, 6 February, p. 6).
In short, it is necessary to rediscover the dignity of marriage in
the dimensions of both human nature and salvation in Christ.
As an indispensable good for persons and societies, the riches of
marriage and the family, which in Christ are transformed into a real
process of sanctification and of an apostolate, is what this Instruction
intends to promote, in accordance with its specific juridic dimension.
Most Rev. Mons. Antoni
Stankiewicz
Dean of the Tribunal of the Roman Rota
Moral certainty and the search for the objective
truth
Proofs, concept and need for the moral certainty of the judge
The Instruction presented here coordinates in 61 articles (155-216)
the instruments or proofs in the search for the objective truth in the
marriage process. These proofs are made available by the parties and the
judge to enable ascertainment of the evidence put forward by the spouses
in the cause, which are important in proving the nullity of the impugned
marriage.
Only on the basis of the efficacy of the outcome of testing the
proofs admitted in matrimonial proceedings, such as the declarations of
the parties (arts. 177-182), the documents (arts. 183-192), the
witnesses (arts. 193-202), the expert opinions and the presumptions
(arts. 214-216), can the judge reach moral certitude about the cause in
question so as to pass a sentence or a confirmative decree.
The moral certainty in question in this process should be understood
to mean the judge's state of mind, his conviction and his firm adherence
to the truth, made known and proven in the trial, concerning the
existence of factors that already invalidated the marriage at the moment
of its celebration.
It is not, therefore, a matter of an absolute certainty, in which
every possible doubt about the truth of the facts to be judged is
totally excluded, nor is it a purely subjective certainty based on
personal opinion, sentiment or an impression of the cause; rather, it is
a matter of an objective moral certitude, objectively founded on those
things [ex actis] which have been carried out and proven in the
process (cf. art. 247 § 3).
Indeed, the new norm states: "In order to declare the nullity of a
marriage there is required in the mind of the judge moral certainty of
its nullity" (art. 247 § 1).
To reach this, "a preponderance of the proofs and indications is not
sufficient, but it is required that any prudent positive doubt of making
an error, in law or in fact, is excluded, even if the mere possibility
of the contrary remains" (art. 247 § 2).
Probative value of the parties' declaration
Consequently "the judge who, after a diligent study of the cause, is
not able to arrive at this certainty, is to rule that the nullity of the
marriage has not been proven" (art. 247 § 5).
On the lines of the norms in the Code (cf. cann. 1536, § 2; 1679),
recognizing the probative force of the declarations and confessions that
the parties have submitted for judgment, the Instruction also explains
the meaning of "judicial confession" in cases of the nullity of
marriage, such as the admission of a fact that is contrary to the
validity of the marriage (cf. art. 179 § 2).
Even if the trust shown to the personal dignity of the parties
concerned ensures recognition of the probative value of their
confessions and declarations, which are to be assessed by the judge
together with all the other circumstances of the case, nonetheless the
force of full proof cannot be attributed to them unless other elements
of proof are present that entirely corroborate them (cf. art. 180 § 1).
To this end, should it be impossible to provide full proof otherwise,
the judge may avail himself of witnesses to corroborate the credibility
and veracity of the parties with regard to the nullity of their
marriage, in addition to other indications and helps (cf. art. 180 § 2).
All this demonstrates the sensibility of the legislator to the
spouses-parties in the cause of the marriage that is challenged and the
positive appreciation in the norms, as far as possible, that is
attributed to the judicial account of their painful matrimonial
situation.
In the tension between the search for the objective truth, which is
the purpose of and reason for the process, and justice corroborated with
equity (cf. can. 221 § 2), which is the means for achieving this goal,
the Instruction fits into the form of a procedural canonical tradition,
preserving the principle of the second or higher grade of trial (arts.
263-289) and the double conforming sentence (arts. 290-294).
Indeed, whether it is formally (cf. art. 291 § 1), substantially or
equivalently conforming (cf. art. 291 § 2), the double conforming
sentence precludes a further appeal (cf. art. 290 § 1); moreover, should
it declare the nullity of a marriage, providing there is no impediment,
it offers the parties the possibility of remarrying (cf. art. 301 § 1).
Furthermore, even if the capacity for appeal of the principle of the
second grade of jurisdiction is weakened with the abbreviated first
grade of trial (cf. arts. 264-265), it nonetheless guarantees greater
reliability in the ascertainment of the truth relative to the value of
every marriage and of the judgment on it, and thus safeguards the "favor
matrimonii" (can. 1060) and the "favor indissolubilitatis"
that must always inspire the judicial activity of the Church.
Bishop Velasio De Paolis,
C.S.
Secretary of the Supreme Tribunal of the Apostolic Signatura
Instruction provides reliable explanation of the
tribunal procedure
General considerations on matrimonial causes today
The Instruction Dignitas Connubii concerns the approximately
800 diocesan or interdiocesan tribunals of the Latin Church that deal
almost exclusively with cases of matrimonial nullity.
The number of nullity cases has increased enormously in recent
decades, especially in countries with an ancient Christian tradition.
Numerous factors have given rise to this increase, among which, in
general, the following can be pointed out:
1. Widespread secularization, which brings with it erroneous
conceptions of marriage compared to the ideal proposed by the Church; as
a result, many marriages today are null, precisely because the faithful
exclude from them constitutive elements essential to their existence.
2. A more precise knowledge of the human mind leads to the
realization that in specific cases matrimonial consent does not suffice
to bind people to the covenant of marriage.
3. A third reason is without any doubt also a factor of conscience:
many of the faithful who have obtained a divorce and are therefore
permitted by civil law to marry again, ask for a declaration of nullity
because they know that, for Catholics, a valid marriage can only be one
that is celebrated according to the laws of the Church.
Some statistical data
It is first of all necessary to provide some statistics concerning
causes of matrimonial nullity. The source is the Annuario Statistico
della Chiesa for 2002. However, the cases of matrimonial nullity
introduced at the tribunals of the Eastern Catholic Churches are also
included here.
According to the above-mentioned Annuario, 56,236 ordinary
trials for the declaration of matrimonial nullity were concluded, 46,092
of them with an affirmative sentence and 2,894 with a negative one;
4,649 were quashed and 2,601 were discontinued.
It can be presumed that in a considerable number of the suits
overturned or abandoned, there was no prospect of reaching an
affirmative verdict on the nullity of the marriage.
Of the 46,092 affirmative sentences of the tribunal of the first
instance after an ordinary trial, 343 were pronounced in Africa, 676 in
Oceania, 1,562 in Asia, 8,855 in Europe and 36,656 in America, 30,968 in
North America and 5,688 in the whole of Central and South America.
The vast majority of these so-called affirmative decisions are then
confirmed by the local court of appeal.
Indeed, the Roman Rota receives few cases from the tribunals of the
second and third instance, that is, fewer than 150 a year. These are
usually very complicated causes in which a lower tribunal has often
issued a negative sentence.
Some reflections on the statistical data
The interpretation of statistical data is far from easy. However, it
can be said that:
—
The total number of cases of marital nullity in the world shows that
this is no insignificant or purely academic phenomenon, but a reality
that should not be underestimated.
—
In various parts of the world, there is only a very limited chance of
obtaining such a declaration.
The faithful do not, of course, have the right to obtain the
annulment of their marriage whenever they wish; but in the case of a
well-founded and probable doubt about the nullity of their marriage they
must have a real possibility to introduce their case and to obtain a
just decision.
—
In countries where ecclesiastical tribunals are functioning and
accessible, the number of cases of marital nullity and affirmative
sentences differ. Concerning this observation, it is vital to avoid
coming to hasty conclusions.
Much depends, in fact, on the actual availability of resources and
especially of trained personnel.
Indeed, it should be remembered above all that statistics only have a
relative value.
The real question, in fact, does not concern the possibly high number of
sentences pro nullitate matrimonii, but the seriousness of the
jurisprudence together with the real possibility of obtaining a
declaration of nullity within a reasonable period of time, should the
marriage truly be invalid.
—
Since the Apostolic Tribunal of the Roman Rota usually judges only the
most complicated cases of matrimonial nullity, it does not seem correct
to compare the percentage of negative decisions issued by the Roman Rota
with the percentage of negative decisions issued by lower tribunals.
The recently published Instruction certainly offers ministers of
justice who work in the ecclesiastical tribunals a clear and reliable
explanation of the procedure for bringing cases of marital nullity to
conclusion, with both the seriousness and speed required by their very
nature.
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