The Gazette 1978

GAZETTE

SEPTEMBER 1978,

(iv)

The Impediment of Solemn Vows:

This

impediment, also of ecclesiastical origin, is much the same

as Holy Orders and what is forbidden is for a person who

has taken solemn vows to marry, e.g. Benedictines,

Franciscans, Passionists and certain orders of nuns.

(v)

The Impediment of Consanguinity:

Consanguinity

is the impediment which exists between blood relations.

The impediment can exist either in the collateral line (e.g.

the relationship between uncle and niece, etc.) and in the

direct line (e.g. mother and son, grandmother and

grandson, etc.). The law of the Church on the matter is

that consanguinity in the direct line (either ascending or

descending) constitutes a diriment impediment. In the

collateral line, a marriage is invalid by reason of the

impediment of consanguinity up to the third degree.

Therefore, a marriage between any relatives in the direct

line is invalid. In the collateral line, a marriage between

brother and sister, first cousins and second cousins is

invalid. However, the relationship between third cousins

is not a diriment impediment.

The origin of the impediment of consanguinity depends

on the nature of the relationship. It is considered that

consanguinity in the direct line is an impediment of the

Divine Law to the first degree, at least, and to the other

degrees it is an impediment of ecclesiastical law, and for

these direct line relationships the Church does not

generally grant a dispensation. In the collateral line, the

relationship between brother and sister is regarded as an

impediment of the Divine Law, whereas in all other

degrees of the collateral line, it is an impediment of

ecclesiastical law. The unbaptised are not bound by the

impediments which are considered to be merely of the

ecclesiastical law.

(vi)

The Impediment of Affinity:

This is the

impediment which arises between one party of a marriage

and a blood relation of the other; for example, the

relationship of affinity between a man and his wife's

sister. This impediment is one of ecclesiastical law and,

therefore, affects only the baptised; but when an

unbaptised person wishes to marry a baptised person, he

becomes subject to the impediment if it exists. The

Church hardly every dispenses from affinity in the direct

line when the marriage of the two spouses has been

consummated. If the marriage has not been

consummated, the dispensation is less difficult to obtain.

The law of the Church states that there is a diriment

impediment where affinity exists in the direct line in all

degrees whereas the impediment is diriment in the

collateral line only up to the second degree, e.g. between a

man and the first cousin of his wife. The proposed new

Code of Canon Law proposes to restrict the impediment

of affinity in the collateral line to the relationship between

a man and his deceased's wife's sister.

(vii)

The Impediment of Spiritual Relationship:

When

a person is baptised, there arises a spiritual relationship

between this person and the one who baptises him and

also between the baptised person and his godparents. This

impediment of ecclesiastical origin rarely creates any

problem since there will probably be a great number of

years between the baby and his spiritual relations;

however, it could be more relevant when it involves the

marriage of an adult received into the Catholic Church

with absolute baptism. The proposed new Code of Canon

Law proposes to eliminate this impediment from the law.

142

Procedure In

Nullity Case — The Marriage Tribunal

and its Officials

(a)

General:

Every nullity case involves two distinct

elements. Firstly, there is involved the evaluation and

assessment of the evidence, the presumptions which may

be drawn from certain facts and the type of proof that is

required. This element falls under the heading of

jurisprudence. The guidelines here in any nullity case are

taken principally from the Rotal Jurisprudence, which is a

series of decisions of the Sacred Roman Rota which are

published in shortened form some ten years after the

actual decision itself was given. Secondly, there is the

procedure involved. The rules of procedure for each case

are contained in outline in the Code of Canon Law

(1918), but there are fuller and more specific rules given

in an Instruction of the Sacred Congregation for the

Discipline of the Sacraments; this Instruction, known by

its first three words "Provida Mater Ecclesia", was issued

on 15 August 1936. Added to this, there is a further

group of regulations, some taking the place of the

directions of"ProvidaMater". These additional regulations

are contained in the "motu proprio" of Pope Paul VI called

"Causas Matrimoniales" issued on 28 March 1971, a

principal purpose of which was to speed up the processing

of nullity cases, and especially the treatment of appeals.

The new Code of Canon Law as promulgated would

incorporate most of the changes which have been made in

the procedural law since 1918.

(b)

The Marriage Tribunal:

Each diocese either has its

own marriage tribunal or, in recent years more likely and

more effective, the better system of regional tribunals

covering several dioceses in a geographical area. The term

"tribunal" has two senses. In the first sense, it is a

department of the diocesan curia, which looks after the

day-to-day administration of marriage cases (not merely

nullity but also cases of non-comsummation and non-

baptism). The business of the tribunal is presided over by

an experienced Canon lawyer, called the "officialis", who

makes the arrangements for prospective clients to be

interviewed, for applications to be dealt with in the office,

for evidence to be taken, for the personnel to be assigned

to each case. The "offlcialis" or "president ofthe tribunal",

has the same power in judicial matters as a vicar general

has in other matters. There is the other, less proper, sense

of the word "tribunal" and this sense covers the actual

panel of priests with their differing functions who are

actually concerned in dealing with specific marriage cases.

In this sense, the tribunal is often called a "court" in the

sense that normally there will be more than one nullity

case dealt with at any one time in the tribunal. There will

also be a series of these courts in operation, which means

that some of the priests involved in one court will also

belong to other such courts.

For each formal nullity case, there will be a court of six

persons, as a minimum. In each court there are three

judges. These will be priests who are experienced in

Canon Law and have experience of nullity work. One of

these judges will be the "president of the court", and he will

generally be the person who manages the daily

correspondence and details connected with the case.

Sometimes the president of the court will also be the

"ponens", the name given to the person who leads the

discussion of the case at the decision hearing and who

eventually produces the written "sentence" which presents

the reasons in law and fact for the decision.

The court will also have a "'defender of the bond" of