The Gazette 1978

GAZETTE

SEPTEMBER 1978,

marriage. He is a priest skilled in Canon Law and his

function is to represent the bond of marriage and bring

forward arguments showing why the marriage should be

regarded as valid. On the other side, each petitioner will

be represented by an "advocate" who assists the petitioner

to prepare his case and, at the end of the proceedings,

produces arguments showing why the marriage should be

declared null and void. Both the defender of the bond and

the advocate will usually be priests, although there are

some places (e.g. the Sacred Roman Rota and at least one

diocese in the United States) where the advocate is a

layman. The advocate if he is so appointed by the

petitioner can also act as the latter's proxy, so that certain

documents may be signed and some appearances can be

made on behalf of the petitioner by the proxy. Finally,

each court has a "notary", also usually a priest, who takes

down the testimony at formal evidence sessions, and

whose signature on the documents shows that the

documents and other papers in the case are authentic.

(c)

Commencement of Procedure:

A nullity case may

originate in one of several ways, such as by reference to

the tribunal by a parish priest, or solicitor, or simply by

direct approach. When the first contact has been made,

an appointment will be arranged and an interview will

follow. The interview with the prospective petitioner may

be conducted by an advocate, or, in some places, by one

of a number of judges who assist the tribunal. When the

interview with the would-be petitioner has taken place,

together with interviews with other witnesses who may be

able to give evidence about the grounds of the alleged

nullity, the interviewing priest would assist the petitioner

by drawing up a "libellus" or "petition". The "libellus",

signed by the petitioner, together with other supporting

documents, is then presented formally to the tribunal (in

the stricter and wider sense) for consideration. When the

tribunal receives the petition, the 'offlcialis' appoints a

court composed of three judges, a defender of the bond,

an advocate and a notary. A "decree" appointing these

persons is drawn up and signed by the "oficialis and

authenticated by a notary. These are the officials of the

court who will deal with the particular case throughout all

its stages until the final decision is published in the

"sentence".

(d)

Examination of Petition:

The court, thus

appointed, examines the petition to establish whether it

can be accepted for trial. If it appears that the petition

might have to be refused a trial, or "rejected", the three

judges must discuss the case and the acceptance or

rejection of the petition is agreed by a majority vote. In

either case, the petitioner is notified, and if the petition is

rejected, the petitioner is also told the reasons. For the

examination of the petition with a view to its acceptance

or rejection, a number of points have to be considered, (i)

the court's competence; (ii) whether the petitioner has the

right to bring a case, and, (iii) whether the case alleged

has sufficient substance.

(i)

Competence:

The ordinary competence (meaning

the court's legal ability to accept and try the case, as

opposed to the right of some other tribunal to do so) of

any diocesan tribunal rests either on the place where

the marriage took place or on the domicile of the

respondent.

(ii)

Right to Plead:

When the court has established that

it is competent to try the case, it must next see whether

the petitioner can be admitted to plead. The general

rule is that any Catholic may plead a case so long as

he is not a "dishonourable petitioner". This term refers

to whether he was the malicious cause of the nullity

and, if he was, then he is barred from pleading. For

example, if a person before the marriage had

deliberately prepared a series of documents showing

that he did not intend to contract a permanent union,

then he would certainly be regarded as the malicious

cause of the alleged nullity,

(iii)

Sttfflcient Substance:

The third consideration is

whether the petition is of sufficient substance. The

petition must be rejected; (a) if the reasons alleged and

other information submitted, even if proved and true,

are not adequate to indicate that the marriage is null

and void, the same reasons are nonetheless patently

false or completely unprovable; for example, an

allegation by the petitioning husband that his wife did

not want children, when she already had four children

by him and was hoping for a fifth1 Except for these two

situations, the petition must be regarded as having

some sort of substance and it must be accepted for trial

and a document is then issued indicating the

acceptance.

(e)

Petitions by non-Catholics:

The Church is

competent to deal with the examination of all marriages

which are sacramental and to pronounce on their validity.

Petitions from non-Catholics are not unusual, particularly

in cases where the non-Catholic wishes to re-marry a

Catholic. It is necessary for the local bishop to give

permission for the non-Catholic petitioner to plead before

the tribunal, but there is usually no difficulty about

obtaining this permission.

Notification to Respondent:

The petition having

been accepted for trial, the next requirement is that the

respondent should be informed of the ensuing

proceedings. This phase of the proceedings is called the

"citation" and normally takes the form of a letter to the

respondent advising him that his former partner has

petitioned for an examination of the marriage and that the

union has been alleged to be invalid on certain grounds.

He is also advised that there will be a meeting held in the

near future at which the formal grounds for the alleged

nullity would be agreed and he is asked to indicate

whether he would like to intervene in the proceedings and

whether he would like to give evidence, or, alternatively,

leave the whole matter to the court. A reasonable length

of time is allowed for the respondent to reply to either of

these alternatives. If there is no reply, another letter may

be sent and if it is clear that the respondent received the

letters and has not replied, then the proceedings may

commence, with a note entered into the documents of the

case stating that the respondent has been cited and that,

so far as can be ascertained, he has received the citation

but has not replied.

(g)

Agreement of the Point of Issue:

Assuming that the

respondent has replied and has left the outcome of the

case in the hands of the court, the court then meets for the

first formal session, at which the precise grounds for the

alleged nullity are agreed. This is called the "agreement of

the point of (or, at) issue" (or "contensatio litis"). The

agreement of the precise grounds upon which the nullity is

sought is set down in a document which indicates the

names of the members of the court and the petitioner is

advised of all the persons involved and asked if he has any

objection to them. The document also states the relevant

details concerning the citation of the respondent and the

nature of his reply. Finally, the document sets down in a

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