the norms for the simplified marriage nullity procedures€¦ · marriage has been declared null...

New Norms WorkshopDecember 1, 2015

The Norms for the Simplified Marriage Nullity Procedures

December 1, 2015

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AGENDA9:10 AM Opening Prayer Sr. Sofia

9:12 AM Welcome Fr. Andy

9:15 AM Bishop’s Remarks Bishop Patrick J. McGrath

9:25 AM Staff Introduction Fr. Andy

9:30 AM Preliminary Questions / Burning Issues Fr. Bob

9:35 AM History / Background Msgr. Willie

10:00 AM Major Changes Sr. Marie

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10:30 AM Ordinary Process and Abbreviated Process Fr. Andy

10:50 AM The New Form C (Libellus) Sr. Sofia and Therie

11:05 AM Tribunal Fees Fr. Bob

11:10 AM Wrap-Up / Q & A Fr. Bob

11:25 AM Closing Remarks Fr. Andy

Come, long-expected Jesus. Excite in me a wonder at the wisdom

and power of Your Father and ours.

Come, long-expected Jesus. Excite in me a hunger for peace:

peace in the world, peace in my home,

peace in myself.

Receive my prayer as part of my service of the Lord who enlists me

in God's own work for justice.

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Come, long-expected Jesus. Excite in me a joy responsive to the Father's joy. I seek His will so I can serve with gladness, singing and love.

Come, long-expected Jesus. Excite in me the joy and love and peace.I seek His mercy during this year to serve with compassion.

Receive my prayer as part of my service of the Lord who enlists me in God's own work for justice.

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Pope Francis

Apostolic LetterMotu Proprio

MITIS IUDEX DOMINUS IESUSon the Reform of

Marriage Nullity Procedures

Pope Francis’ Take on Annulment

• Dates and Rationale August 27, 2014 – Task Force

Report of the 2014 Synod of Bishops• Paragraph 48• Synod Fathers emphasized:

– the need to make the procedure in cases of nullity more accessible and less time-consuming,

– and, if possible, at no expense.

• They proposed, among others:– the dispensation of the requirement of second instance for

confirming sentences;– the possibility of establishing an administrative means under the

jurisdiction of the diocesan bishop;– and a simple process to be used in cases where nullity is clearly

evident.

• Some synod fathers, however, were opposed to these proposals, because they felt that they would not guarantee a reliable judgment.

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August 15, 2015

Pope approves the documents submitted by the Task Force

September 8, 2015

The two documents issued by the Pope “on his own initiative” (motu proprio) were made public

• Mitis Iudex Dominus Iesus – for the Latin Church

• Mitis et misericors Iesus – for the Eastern-rite Catholics

December 8, 2015

The beginning of the “Year of Mercy” the new norms take effect

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Pope Francis’ Take on Annulment

Timeline

Definition of Terms/Clarification of Concepts

• Declaration of Nullity

• Annulment

• Basic canonical principles and theological doctrine regarding the sacrament of Matrimony

– Marriage enjoys the favor the law

– Consent makes the marriage

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Valid Marriage

What makes a marriage valid?– Right matter

– Correct form

Elements of a valid marriage:– Single Catholic Male and

– Single Catholic Female

• Celebrated by a Catholic Priest

• In a Catholic Church

• Before Two Witnesses

The Canonical Process

What are we looking for?

• Truth

• Motives for nullity

• Presence of qualities that should not be there

• Absence of Qualities that should be there

• Doubt of validity

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Composition of the Tribunal

• Diocesan bishop is the judge in his particular Church; he alone can constitute the tribunal and appoint its officials

• Single Judge

• Collegiate Tribunal - panel of three judges

– Current: only one lay canonist

– New: allows two lay canonists

– But presiding judge must always be cleric

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Conforming Sentences

• Requirement that once an affirmative sentence isrendered by the first instance, it automaticallygoes to the second grade for review.

• Before a decision is executable, there must be twoconforming sentences

• New Norms abolish this automatic review

• It is no longer obligatory to appeal to the secondgrade, but the possibility for appeal is not denied

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COMPETENCE

Can. 1672

In cases regarding the nullity of marriage notreserved to the Apostolic See, the competenciesare: §1.the tribunal of the place in which themarriage was celebrated; §2. the tribunal of theplace in which either or both parties have adomicile or a quasi-domicile; §3.the tribunal ofthe place in which in fact most of the proofs mustbe collected.

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DETERMINATION OF GROUNDS AND PROCESS

Can. 1676

§1. After receiving the libellus, the judicial vicar, ifhe considers that it has some basis, admits it and,by a decree appended to the bottom of the libellusitself is to order that a copy be communicated tothe defender of the bond and unless the libelluswas signed by both parties, to the respondent,giving them a period of fifteen days to expresstheir views on the petition.

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Can. 1676

§2. After the above-mentioned deadline haspassed, and after the other party has beenadmonished to express his or her views if andinsofar as necessary, and after the defender of thebond has been heard, the judicial vicar is todetermine by his decree the formula of the doubtand is to decide whether the case is to be treatedwith the ordinary process or with the brieferprocess according to cann. 1683-1687. Thisdecree is to be communicated immediately to theparties and the defender of the bond.

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Can. 1676

§3. If the case is to be handled through theordinary process, the judicial vicar, by the samedecree, is to arrange the constitution of a collegeof judges or a single judge with two assessorsaccording to can.1673, §4.

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Can. 1676

§4. However, if the briefer process is decidedupon, the judicial vicar proceeds according to thenorm of can. 1685.

§5. The formula of doubt must determine bywhich ground or grounds the validity of themarriage is challenged.

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DECLARATION OF THE PARTIES

Can. 1678

§1. In cases of the nullity of marriage, a judicialconfession and the declaration of the parties,possibly supported by witnesses to the credibility ofthe parties, can have the force of full proof, to beevaluated by the judge after he has considered allthe indications and supporting factors, unless otherelements are present which weaken them.

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DECLARATION OF THE PARTIES

Can. 1678

§2. In the same cases, the testimony of one witnesscan produce full proof if it concerns a qualifiedwitness making a deposition concerning mattersdone ex officio, or unless the circumstances of thingsand persons suggest it.

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ONE AFFIRMATIVE DECISION SUFFICES

Can. 1682

§1. After the sentence declaring the nullity ofmarriage has been executed, the parties whosemarriage has been declared null can contract a newmarriage unless a prohibition attached to thesentence itself or established by the local ordinaryforbids this.

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THE JUDICIAL ROLE OF THE DIOCESAN BISHOP

Can.1683.

The diocesan bishop himself is competent to judgecases of the nullity of marriage with the brieferprocess whenever:

§1. the petition is proposed by both spouses or byone of them, with the consent of the other.

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THE JUDICIAL ROLE OF THE DIOCESAN BISHOP

Can.1683. The diocesan bishop himself iscompetent to judge cases of the nullity of marriagewith the briefer process whenever:

§2. circumstance of things and persons recur, withsubstantiating testimonies and records, which do notdemand a more accurate inquiry or investigation,and which render the nullity manifest.

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ELIGIBILITY OF LAY PERSONS TO SERVE AS JUDGES

Can. 1673

§3. Cases of nullity of marriage are reserved to acollege of three judges. A judge who is a cleric mustpreside over the college, but the other judges may belaypersons.

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Ordinary Process & Abbreviated Process

Ordinary Process: Evident changes in terms of preliminaries in accepting the Case

- The Role of the Judge

- Competence

- Lay Persons eligible as Judges

- Choice of Grounds

- The Organization of Tribunals

- Preliminary Investigation

- Proofs: Declaration of the Parties

- Role of Assessors

- The Decision and the Appeal

- The Role of the Conference of Bishops and the Diocesan Bishop

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Introduction: A brief procedure for evident Cases

1. Many interesting possibilities: a combination of the provisions of Clement V’s Constitution Saepe(c 1308); the norms of the oral contentious procedure; the principles for documentary Cases and parallels with ratum and in Favor of the Faith Cases.

2. A hybrid: overlapping & internal contradictions as to its overall thrust.

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3. Why Abbreviated Process? Overlapping and Cases not protracted beyond a reasonable period of time.

4. Is this realistic?

- Present shortage of Tribunal personnel Tribunal Personnel

- Bishop gives the actual Decision (not only his Votum as in ratum and PF Cases)

- No Appeal against the Bishop’s Decision = The Case stops.

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5. The Libellus (Canon 1504)

- Name of the Judge

- Statement of what is being sought and from whom

- The Right of which the Petition is based

- The facts and the grounds (+address and domicile of the parties)

- Signed and dated

- Brief outline of the facts on which the Petition is based.

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- The Proofs the Judge can collect

- Accompanying documents that indicate that the Petition is well founded (Canon 1684)

6. The Instruction of the Case

- The Judicial Vicar (JV) carries out the Instruction of the Case + the help of an Auditor/Instructor

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- When proofs are gathered, the Acts are given to the diocesan Bishop, who together with the Instructor and an Assessor, and taking into account the observations of the Defender of the Bond and the arguments presented by the parties, if any, hands down the Decision

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Ordinary Process & Abbreviated ProcessThe Procedural Steps for the Abbreviated Form/Process(Hope for a VADEMECUM from the USCCB outlining the matrimonial procedural steps.)- Observance of the provisions of Canon 1691 §3- Application of the Canons on trials in general

and on the ordinary contentious trial- The preliminary inquiry is not a trial within a

trial, but it helps set the base. (There is a parallel with c. 1717 for eventual penal cases).

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• The request comes either from one or both of the parties, or from the Promoter of Justice (c. 1674*).

• A preliminary inquiry is then set in place (Ratio, Art. 2). The purpose of this inquiry is twofold: to attain a better understanding of the situation; and to gather elements that would be useful in the process.

• No fumus iuris = parties are notified and Case no longer proceeds until further proofs are found and verified.

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The Judicial Vicar carries out the instruction with the help of the Auditor (Instructor) (Canon 1586)

The Acts are given to the diocesan Bishop, who together with the Instructor and Assessor + the observations of the Defender of the Bond and the arguments presented by the parties, hands down the Decision that requires moral certitude.

If Bishop is not convinced = he remits the Case to the ordinary procedure.

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3. If it is considered worthwhile to proceed, a libellus is presented (Ratio, Art. 5). It is usually in writing, although Art. 10 of the Ratio provides that it can also be presented orally.

• The libellus is to set forth briefly, fully, and clearly the facts on which the petition is based.

• Determine whether the request appears to have a real foundation in law.

• It would also contain the general elements outlined in canon 1504: the name of the court, refer to the right to present the case (competence – for instance, domicile). be signed and dated, with pertinent contact information.

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• Before accepting the libellus, the JV (or, if duly delegated, the Adjutant JV) is to make certain that the union is irretrievably broken down (c. 1675*).

• The libellus is admitted if the judicial vicar considers that it has some merit (canon 1676.1*).

• If the libellus is presented jointly by both parties, or by one of them with the other party consenting (canon 1683*), it can be considered eligible for the briefer process, provided all the other conditions have been met.

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• Art. 15 of the Ratio provides that if the libellus waspresented by only one party, but the JV believesthat the case could be considered according to thebriefer procedures, he then invites the respondentwho has not signed the libellus to make known tothe Tribunal whether he or she intends to takepart in the process.

• Canon 1676.1* notes that if the Respondent didnot co-sign the libellus he or she is given 15 days torespond.

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Art. 11.2 of the Ratio states that if the Respondent makes no response, or remits himself or herself to the justice of the Tribunal, the Respondent is deemed not to object to the petition.

However, two responses from Legislative Texts, October 1, 2015 (Prot. 15138/2015 and 15139/2015) insist that before the summary procedure can be used, the Respondent must reply positively. The presumption of not objecting can be used only for formal trials.

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4. With a libellus duly founded and other conditionsof law met, the JV after hearing the DOB (Defenderof the Bond) accepts the libellus and formulatesthe grounds.

- The Decree of the grounds set forth for the Caseis appended to the libellus.

- The grounds are to be precise and not generic.

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5. The JV then, in accordance with the provisions of canon 1685, names an instructor (i.e., auditor) and an assessor (canon 1685).

- We should note that although canon 1673.4* adds the words “where possible” when referring to the appointment of assessors, when it comes to the briefer procedure, those words are not found.

- Thus we can conclude that the intervention of an assessor is required in such cases (see also Canon 1687.1*).

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6. The instructor then notifies the parties that they areto make available, at least three days prior to theinstruction of the case, those specific points uponwhich the parties or the witnesses are to bequestioned, unless they have already beenpresented along with the libellus.

7. A date is set for a hearing. Canon 1686* speaks of asingle hearing, in so far as possible. But, of course,this is not for validity. If necessary, there could bemore than one session.

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Who can be present at the Session?Canon 1677.1* provides that the following have the right to be present:

(1) the Defender of the Bond; (2) the legal representatives of the parties; (3) the Promoter of Justice, if involved in the case.

It notes, however, that the parties themselves cannot be present at the examination of the other party, of the witnesses and of the expert(s), unless the judge determines otherwise in a particular situation (see canon 1559).

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The text does not state that the Expert(s) orassessors cannot be present at the hearing, but thereis no provision preventing them from being there.

However, Art. 18.1 of the Ratio, when speaking of thebriefer process, provides explicitly for the opposite:the parties may be present, along with theiradvocates, unless the instructor decides to proceedotherwise.• We could mention, in passing, that this process contains

elements of the procedure that was in effect in some diocesesbefore the 1983 Code: the parties have their day assigned incourt, and it is up to them to present the witnesses, theproofs, and all pertinent documentation.

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- Transcription of the Testimonies not necessarily verbatim.Summary is okay.

- Value of Proofs: judicial confession; declaration of theparties; supported by credible witnesses = force of fullproof

- Problems: marriage that took place a long time ago;marriage that took place in other countries

- Qualified witness= full proof?- Value of adminicula and indicia (values that can add to

the moral certainty from the testimony received.- Value of indicia (circumstantial evidence) and adminicula

(auxiliary or supplementary evidence) to explain andcomplete other evidence.

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8. After the conclusion of the hearing(s), * provides that aperiod of fifteen days is then allotted for the presentationof briefs from the defender of the bond and the advocates(c. 1686).

The Canon does not speak of responses to each of thebriefs; however, canon 1603 remains in effect, allowingfor one counter-plea, with the defender of the bondhaving the last say (c. 1603.3).

If necessary, the instructor could extend this period oftime. However, we should keep in mind that if the case isbeing heard according to the briefer procedure, it ispresumed that the matter is clear, and, therefore, thereshould not be endless wrangling once the proofs havebeen gathered – unless, of course, the evidencedemonstrates the contrary to what is being alleged.

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The Acts are then presented to the diocesan Bishop(canon 1687.1*), who, first of all is to consult with theAssessor and the Instructor, and to consider theobservations of the Defender of the Bond and, if theyexist, those of the parties.

Work of the Bishop: a sign of conversion ofecclesiastical structures and does not delegatecompletely the duty of deciding marriage Cases to hisCuria. (Art. III, MP)

- Moral certitude is required for the Decision/Sentence(No moral certitude = the Bishop remits the Case to ordinaryprocess.

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The Decision:

- Has to be motivated.

- Has to be relatively brief.

- Explains the reason for the decision.

- Lengthy in iure not needed.

- Signed by the Bishop (not to be delegated) and countersigned by the Notary.

9. Parties are notified of the Decision within one (1) month of the date it was made. (To allow time for the writing of the Sentence.)

- Decision does not take effect until it is published.

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Ordinary Process & Abbreviated Process9. Appeals:

Who may appeal the Decision?

- The parties

- Defender of the Bond

- Promoter of Justice (when involved in the Case)

Time?

Fifteen days to lodge an appeal.

Are Appeals expected?

- No. Nullity is presumed to be evident.

Where to lodge an Appeal?

- Metropolitan/Court of Appeals or to the Roman Rota

- Frivolous Appeals may be rejected a limine (c. 1680.2*)

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Third Level Appeal? Possible.

- Thirty (30) days to appeal

- New and grave proofs or arguments need to be presented (Canon 1680.1)

No Appeals after fifteen days (15) have elapsed = parties are free to marry in the Church unless there is vetitum or if the diocesan Bishop prohibits the celebration (Canon 1682.1*)

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DIRECTIONS

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REQUIRED DOCUMENTS

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FORM C

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MINISTER’SCOMMENTS

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DOCUMENTSREQUIRED

MARITAL HISTORY

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PETITIONER’SWITNESSES

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PETITIONER’SDECLARATION

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RESPONDENT’SCONSENT

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DECREE OF

ADMISSIONAND

TRANSMISSION

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STATEMENTOF

TRIBUNALPOLICY








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Handouts will be e-mailed

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