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GAZETTE
SEPTEMBER 1978,
which enables one or both parties to re-marry. In a non-
consummation case put to the Pope, there are two
elements which must be clearly established; firstly that the
marriage has not, in fact, been consummated and
secondly, that there are sufficiently good reasons why the
dispensation should be granted.
(ii)
Proof of non-consummation:
Clearly, as seen when
considering impotence as a ground of nullity, where there
exists a condition of absolute or relative impotence which
is perpetual and antecedent to themarriage, then obviously,
the marriage will be impossible of consummation. But
where consummation is physically possible and is alleged
not to have in fact taken place, then this must be clearly
established. The local diocesan tribunal, in investigating
this, acts, in an administrative way, as an agent for the
Holy See to collect the evidence and try and establish the
facts. The tribunal does not act of its own proper
competence and the final decision in the case is taken in
Rome. When the dossier has been completed by the local
tribunal, it is submitted to the Congregation of the
Sacraments in Rome.
(iii)
Procedurefor Obtaining Evidence:
For this type of
case, it is necessary first to have various documents and a
petition. The documents are the baptismal and marriage
certificates and proof that the marriage has broken down,
(e.g. civil divorce or nullity decree). The bishops then
appoints a court to take the evidence in the case, the court
consisting ofan instructingjudge, a defender ofthebond and
a notary. Normally the court is helped by a doctor,
appointed by it, who would carry out a personal medical
examination of die wife (and possibly also the husband) and
who would deal with the actual details of attempted
consummation and the like.
The very nature of this type of case is such that there
can be no witnesses in the strict sense of the word and
apart from the evidence of the doctor or doctors, the case
goes through entirely upon the word and good standing
and known honesty of the two parties to the case, verified
by witnesses. The witnesses, therefore, would either be
witnesses who know directly or indirectly about the
consummation of the marriage and who would,
invariably, be giving hearsay evidence, or character
witnesses who would vouch for the truthfulness and
honesty of the parties. The hearsay witnesses are asked
among other things, when they were first told about the
couple's marriage problem, whether this was before or
after the separation and any other relevant details they
might know of. The character witnesses are asked about
the honesty and truthfulness of the parties.
(iv)
Comments on Evidence and Transmission to
Rome:
When all this material has been gathered, it is
transcribed into four copies, one of which goes to the
defender of the bond who is probably present at most of
the evidence sessions. The defender of the bond examines
all the evidence and sees whether it contains any inherent
contradictions and he seeS to what extent the spouses are
vouched for as honest and trustworthy. The whole dossier
together with the comments of the defender of the bond
are then submitted to the bishop and the bishop prepares
his "opinion" on the case, specially mentioning whether he
regards the allegation of non-consummation as
established, whether the petitioner is a worthy person and
whether he recommends the petition to the Pope. This
opinion together with three copies of the whole dossier are
then sent to the Congregation of the Sacraments in Rome.
(v)
Procedure in Rome:
At the Congregation of the
Sacraments, where the case is handled on behalf of the
Pope, another court is appointed consisting of a defender
of the bond and three commissioners. The defender of the
bond examines the case and writes his comments. He
passes these to the Congregation and the comments
together with the whole dossier are then submitted to each
of the three commissioners. Independently the
commissioners examine all the material and at some
appointed time meet together and vote on the case. If the
decision is in favour of the petition (i.e. if they decide that
the evidence has established the non-consummation and a
dispensation should be granted) their recommendations
are then submitted to the Cardinal Prefect of the
Congregation. The latter personally takes a resume of the
case, together with many others to the Pope and advises
him of the opinion of the Congregation. If the Pope
agrees, the Congregation then issues the necessary
dispensation in the name of the Pope. In due course this
decree is sent to the local diocese and the instructing
judge will communicate the decision to the parties
concerned. On receipt of the dispensation, provided there
are no restrictive clauses inserted in the text, both parties
are advised they are now free to remarry.
(vi)
Restrictive Clauses:
Occasionally the reason for
the non-consummation may be the antecedent and
perpetual impotence of one of the parties, or rather it
might be surmised that this is the reason. Alternatively,
the reason may be that one of the parties was the
deliberate and wilful cause of the non-consummation i.e.
the person concerned refused to consummate the
marriage. When a dispensation is granted it means that
the marriage in question is dissolved and that, at least
technically, both parties are free to contract other
marriages. Even the guilty party could be free to marry
again and, therefore, occasionally, the Holy See imposes a
restrictive clause on the dispensation to the effect, for
example, that the other party is not to be permitted to
remarry without the permission of the bishop of the
diocese or of the Congregation or indeed that the other
party is not to be permitted to remarry at all. In order to
ensure that such a restrictive clause is effective, when a
dispensation is granted because a marriage has not been
consummated, a note of this fact together with a note of
any restrictive caluse is recorded in the baptismal and
marriage registers in the place where each of the parties to
the dispensed marriage were baptised and first married. In
order to remarry it is necessary for a person to produce
amongst other documents a baptismal certificate dated
within six months of the marriage. Such a baptismal
certificate so requisitioned would mention the fact of the
dispensation and any restrictive clause.
7. Dissolution of The Natural Bond
There has already been an examination of the grounds
for invalidating a marriage and also for the dispensation
for the non-consummation of a marriage. Finally, one
must look at the situation. where it is alleged that the
marriage contracted was not a sacrament. The sacrament
of matrimony, like the other sacraments, can only be
received by a person who is himself a Christian. When
both parties are baptised, all other things being equal,
each can confer on the other the sacrament of matrimony.
Therefore, if one of the parties is not baptised, the
marriage is non-sacramental.
(i)
Power of Pope to Dissolve Non-Sacramental
Marriages:
The Pope has the power to set aside (or
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