The Gazette 1978

GAZETTE

SEPTEMBER 1978,

the decision is against the petitioner, the latter has a right to

appeal against it. In either case, the petition and all evidence

of the court of first instance must go on appeal to a court of

second instance.

There are two possible methods of procedure for a case

heard by the appeal tribunal. The first and shortest is by

means of "ratification" and the other is termed the

"ordinary procedure". When a case is received by the

appeal court, a defender of the bond is appointed to

examine all the evidence and other documents and he then

prepares a report on the case indicating whether he would

have any objection if the appeal tribunal judges confirmed

the first instance affirmative decision, i.e. give it a further

affirmative and issue a decree of nullity. On the other

hand, the defender of the bond may feel there are special

problems which have not been adequately dealt with by

the court of first instance, and these problems should

receive further attention from the appeal court. An appeal

from a negative decision given in first instance is dealt

with according to the ordinary procedure.

The appeal judges then consider the case. If they

conclude that the case is straightforward and the

affirmative decision of the first instance court is correct,

they can proceed to ratify that first instance decision and

issue a decree of nullity. On the other hand, if they feel

that the case requires further consideration then they issue

a decree directing that the case should be dealt with by the

ordinary procedure and they give reasons for this

direction. The advocate may, in such circumstances,

think that more evidence is needed and call for this, either

from someone who has already given testimony or from

some one new. In any event, whatever further work is

necessary on the case is attended to and thereafter the

advocate and the defender of the bond write their

comments in the same way as in the first instance

procedure. The judges then consider the case, discuss and

decide it and with the duly appointed "ponens" writing the

reasons in law and fact for the decision.

(1) Further Appeals and Issue of Decree of Nullity:

For a decree of nullity to issue, there must be two

concordant or agreeing decisions in favour of the

petition. If one decision is affirmative and the other

negative, before a decree can be issued, the case must be

examined by a third court. The third court is either the

Sacred Roman Rota in Rome or, on permission from the

Holy See given on an "ad hoc" basis, the third hearing

could take place in some diocese locally, which would

ensure greater speed. The case might also be referred to

the Rota, where a petitioner, having received a negative

decision in the first instance, wishes to appeal direct (in

second instance) to the Rota and which he is permitted to

do. However, if this then means that the second decision

is affirmative, the third instance clearly must also be dealt

with at the Rota (with another panel of judges). Finally,

and most unusually, for very special reasons, such as

being very well known in his own diocese, a person may

request to have his case dealt with at the very beginning of

the Rota.

(m)

Conditions attached to a Decree of Nullity:

It is

clear from some of the grounds of nullity already

mentioned that where a case is proved and the grounds

reside in the petitioner, it may be necessary to exercise

caution about the petitioner marrying again. For example,

in the case where a non-Catholic petitioner alleged that he

had an intention against the permanence of marriage

when entering his first union and this intention "contra

bonum sacramenti" is proved to have existed, it is a

matter of ordinary prudence to make quite certain that

when this non-Catholic marries again, this time in the

Church, he does not have a similar intention.

Consequently, to make sure that his intentions are proper

this time, it is not unusual for the appeal court to add a

restrictive or an 'ad mentem' clause to the decree of

nullity, such as that the "petitioner should not be

permitted to enter into a new marriage in the Catholic

Church until such time as he has satisfied the bishop of

the place where he lives that he now has a proper

intention with regard to the permanence of marriage". As

a result of such a clause, the petitioner will probably be

asked to sign a specially drafted document making clear

that his intentions this time are right, and the bishop

might also require that his new fiancee be also advised of

the circumstances of the nullity of the first marriage.

In the case where a decree of nullity is based on lack of

due discretion or amentia or the inability to assume the

obligations of marriage, it might be necessary to place an

absolute ban upon a person re-marrying, where for

example, the person in question is still in the same state as

he was at the time of the first marriage.

(n)

Rejection of the Petition:

The burden of proof, or

the onus of establishing that the marriage is invalid, lies

on the petitioner and where the petitioner is not successful

in bringing forward sufficient evidence to upset the

presumption of validity, the judges must return a decision

of 'non constrat de nullitate' or "it does not appear that

the marriage in question is invalid".

Even before the full hearing, as already seen, the judges

could reject the petition on the grounds that it did not

conform to the rules of competence or it did not have

some substance as a case. The petitioner can appeal

against this initial rejection of the petition in the ordinary

appeal court and if the appeal judges regard the rejection

by the first instance court as unjustified, they direct the

first instance tribunal to take and try the case. In those

circumstances a new panel of judges is appointed for the

trial of the case in the original court.

(o)

Irformal or Administrative Procedure:

This

procedure is adopted in the case of certain impediments,

though causing the nullity of the marriage which can be

established by means of certain and authentic documents.

If such documents can be produced and together with the

citations mentioned in connection with the formal

procedure and the inspection of the documents by the

defender of the bond, such a marriage can be declared

invalid without further ado. The informal process can be

used for establishing the following impediments, namely

disparity of cult, a solemn vow of chastity, sacred orders

previous marriage, consanguinity, affinity and spiritual

relationship.

6. Dispensation of a non-consummated marriage

(i)

General:

As has already been described according

to the teaching of the Church, a marriage which is valid,

sacramental and consummated cannot be set aside by any

human power. Such a union is regarded as indissoluble

and binding until the death of one of the spouses. Up to

now there has been an examination of the situation where

it was alleged that a marriage was not valid. But what if

the marriage is alleged to be unconsummated? For certain

special situations, upon certain conditions, the Pope has

the power to grant a dispensation from such a marriage,

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