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GAZETTE
SEPTEMBER 1978,
legal formula the actual grounds of the alleged nullity.
The formula for a case in which the respondent has
deliberately reserved to himself the right to obtain a
divorce later in the marriage would be more or less as
follows: "the point at issue was agreed by all present as:
whether the marriage is null and void on the grounds of
an intention 'contra bonum Sacramenti' (i.e. the technical
expression for an intention to exclude the permanence of
marriage)." This document is then signed by the judges,
defender of the bond, proxy of the petitioner and notary.
(h)
Examination of Parties and Witnesses:
Often this
meeting for the agreement of the point at issue is also
chosen as the occasion when evidence of the petitioner
can be taken. Prior to the occasion when this testimony is
obtained, the advocate has had the right to present a
series of questions which he wished to be asked of his
client and these questions are handed to the defender of
the bond and the notary and, by permission of the
president of the court, the advocate may also be present.
It is important at this stage to emphasise that a
canonical nullity process is a documentary one and also
that it is completely confidential. For this reason, there is
no open court and only the persons mentioned above are
present together with the witness. Moreover, the method
of taking evidence is not like in a civil court, as there is no
cross-questioning, no oratory of advocates, no trying to
discredit witnesses. Hearsay is accepted into the evidence,
although later on it is evaluated for what it is worth. The
general pattern of an evidence session is one of much less
formality than that which exists in civil courts. The
interrogating judge first asks the preliminary questions,
such as names, addresses, professions, relationships,
status and the like. The witnesses have to swear they will
tell the truth; the witness may affirm instead of taking the
oath, but the point is noted for later evaluation. The judge
next puts the more specific questions to the witness but
often they are formulated by means of a general
discussion about the matter with the witness in the first
instance. Eventually, the full written statement of the
witness is read back to him at the end of the session and he
has an opportunity of changing whatever he wishes in his
testimony.
The whole basis of a nullity case in an ecclesiastical
court is to arrive at the truth through searching
investigation and enquiry, whereas in a civil court the aim
is to arrive at the truth through the clashing of two
opposites, of the plaintiff and of the defendant. The
inquiry of the ecclesiastical court is made by the judge in
charge, not by those representing either side. As a judge,
he is interested in whatever the witness says which will
establish the truth. When the judge is asking questions, he
makes use of the material supplied by the defender of the
bond. The defender of the bond is not permitted to
formulate questions which would tend to trap the witness or
seek to discredit him. The judge is permitted to ask his own
questions where necessary to elucidate a previous answer or
to cover some point which was not known of before the
session began. Likewise, the defender of the bond and the
advocate, if present, may wish to add further questions but
may only do so through the judge; they cannot ask them
directly of the witness. After the deposition has been read
back to the witness and corrected, where appropriate, all
those present sign the testimony. At this point the witness
may be asked to take a further oath confirming that the
statements in his deposition are true and also that hewill not
disclose the questions asked nor the replies given until the
end of the case.
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Frequently, some of the witnesses live a long way from
the tribunal office, or live abroad. In those circumstances,
a request is sent to the diocese where the other witnesses
live and the local tribunal takes the testimony with the
same formalities as already described. The testimony thus
taken is returned to the court and included in the dossier
of the case.
(i)
Publication of Evidence and Comments thereon:
When all the evidence originally requested by the
advocate and the defender, of the bond has been taken and
transcribed (usually in five copies — three for the judges
and one each for the defender of the bond and the
advocate) it is then "published" i.e. made available to the
advocate and the defender of the bond to study. At this
point, the defender of the bond and the advocate have the
opportunity of calling for more witnesses, or, for good
reasons, for the re-interrogation of certain witnesses but
this can only be done with the permission of the presiding
judge.
When both the defender of the bond and advocate are
satisfied that all possible and relevant testimony has been
obtained, the presiding judge then declares the evidence
stage of the case "concluded". The advocate then prepares
his pleadings showing why, from the evidence, the
marriage in question should be regarded as null and void
and his written comments are sent within a certain time to
the presiding judge with a copy to the defender of the
bond. The defender of the bond then prepares his reply to
the advocate with submissions, again from the evidence,
as to why the marriage should be regarded as valid. The
advocate and the defender of the bond have the
opportunity of writing two (and sometimes more) sets of
comments.
(j)
Decision of the Tribunal:
Copies of all the evidence,
documents and submissions of the advocate and the
defender of the bond are then handed to the three judges
who are given a certain length of time to study the
material and a date is set for them to meet together to
discuss the case. At this meeting, called the "decisio", the
presiding judge calls upon the "ponens" to expound the
facts of the case and the judges discuss their individual
views. When the discussion is concluded, there is a vote
and the result of the case rests upon the majority decision.
The formula of the decision would be expressed, for
example, thus: "It appears proved (not proved) that the
marriage in question is null and void on the grounds of an
intention against the permanence of the marriage on the
part of the respondent".
Where there is a negative decision, the judges make no
comment on the validity of the marriage as such and the
decision merely states that "it appears not proved". It is
always possible that the judges may have concluded that
there was insufficient evidence to establish the nullity,
whereas if there had been evidence, the marriage might
well have been proved to be null and void.
The petitioner and his advocate and the defender of the
bond are notified of the outcome of the meeting. It is then
theobligation of the "ponens" to write the sentence, which
is a series of reasons in law and in fact showing why and
how the judges arrived at their decision. When this is
drawn up (usually some weeks after the decision), it is
released to the petitioner and his advocate and to the
defender of the bond.
(k)
Appeal to Court of Second Instance:
If the decision
is in favour of the petitioner (i.e. the judges have decided
that the marriage is invalid), the defender of the bond is
bound to appeal against the decision. On the other hand, if