Tribunal of the Roman Rota, Definitive Decree Concerning the Incidental Question of the Nullity of the Sentences, 1998.


A marriage nullity case was presented to a tribunal, which rendered a negative decision. The case was appealed and the appellate tribunal upheld the negative decision but, acting as court of first instance, admitted new grounds, granting an affirmative decision on these new grounds. The case was sent to the Roman Rota, in accord with canon 1682 §1. The Rota issued a decree declaring the irremediable nullity of the sentences of both the first and second instance courts. The petitioner lodged an appeal against this decree to a different turnus of judges of the Rota, also asking that the Rota uphold the decision of the second instance court, acting as first instance, which had issued an affirmative decision on the newly introduced grounds. What follows is an edited version of the definitive decree of the Rota overturning the earlier rotal decision, which had initially declared the nullity of these sentences.

(Unofficial English translation)




THE APOSTOLIC TRIBUNAL OF THE ROMAN ROTA

The Reverend Monsignor Emilio Colagiovanni, Presiding Judge and Ponens

THE DEFINITIVE DECREE

Concerning the Incidental Question of The Nullity of the Sentences

The Undersigned Auditors of this judicial panel – Emilio Colagiovanni, Ponens, Hyginus Ragni and Bernard DeLanversin – in a duly convoked session held at the offices of Apostolic Tribunal of the Roman Rota for the purpose of deciding an incidental question concerning the nullity of the sentences of first and second instance in this case, issued this definitive

Decree

THE FACTS

1) On *, the petitioner, a Catholic presented an initial petition to the ecclesiastical tribunal of Corinth (competent by reason of contract and

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domicile), in which he asked that his marriage to the respondent be declared “null on any grounds which the tribunal will judge to be appropriate.”

From a preliminary hearing of the petitioner, the respondent and other witnesses, it was established that the couple had shared a life in common for twenty-four years, had three children and had been granted a civil divorce at the request of the respondent. The initial petition was accepted on *. At the same time, the dubium was formulated: “Has the nullity of this marriage been proven on the grounds of: 1) lack of due discretion on the part of the man?; 2) psychic incapacity on the part of the woman?”

An advocate was appointed for the respondent.

2) When the preceding documents and preliminary investigations had been incorporated in the acts, the case advanced to the formal instruction stage and the appointment of an expert who, after examining the acts, rendered his opinions.

Advocates for the petitioner and respondent submitted their briefs and the defender of the bond offered his arguments against the nullity of the marriage.

3) The decision issued was negative on both grounds.

4) The petitioner appealed to a higher tribunal and added a brief statement together with a deposition from his father.

The appellate court added “new grounds”: “relative psychic incapacity.”

After several statements had been received from the witnesses and the clinical psychologists, and an expert had been appointed to review the entire acts, and briefs had been submitted on behalf of the petitioner and the respondent as well as in defense of the bond, an affirmative decision was issued “on grounds of relative psychic incapacity.”

5) After an initial affirmative decision on new grounds admitted in the court of second instance, the case was referred to our sacred Tribunal. Our Defender of the Bond filed a complaint of nullity against both previous sentences, that of first instance as well as second.

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A rotal panel decreed that the nullity of the sentences of both first and second instance had been established.

6) After he had been notified of this decision, the petitioner sought recourse from a higher rotal panel. The appellate panel invalidated the initial rotal decree.

On appeal of the Most Reverend Defender of the Bond, the question was referred to our rotal panel.

7) When dates had been set for the submission of briefs by advocates for both petitioner and respondent, and respondent’s brief had not been submitted in timely fashion, this panel’s session, was postponed. We must now answer the question: Whether a subsequent rotal decree which set aside an initial rotal decree, should be upheld or vacated; in other words, has the nullity of the sentences of first and second instances in this case been established?

THE LAW

What the undersigned ponens wrote in an earlier decree in a similar incidental question concerning the nullity of the sentence of the Halifax-Edmundston tribunal is set forth again here so that it might be quite aptly applied to our case.

The first question which necessarily arises – and a difficult one at that – regards the scope, force and juridical-procedural consequences of canon 1598 as it relates to the very essence of the judicial process which develops vigorously and unfolds through logical argument so that, from dialectical opposition (or, since we should employ terminology more suitable to judicial precision, thesis and antithesis), this process might arrive at a synthesis or at “the splendor of truth.”

Moreover, it is a condition of this dialectical process that, through the publication of the acts, the parties involved in the process (petitioner, respondent, defender of the bond and, should he intervene, the promoter of justice), each arguing strongly for his own position, are able to uphold their rights and thus offer the judge their conclusions from the acts of the case. Most assuredly, without some communication of the acts to the

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parties and/or the advocates through whom they act in the trial, “there is no place for argumentation” (coram Davino, August 14, 1989, no. 3). We cite approvingly Roberti (De Processibus, II, no. 435, 157): “The necessity of publication … or of communication with the other party rests upon the necessity of defense, which can hardly be carried out unless each party is aware of the arguments of his adversary.” For that reason, Roberti admits the difficulty (by no means the impossibility) of the right of defense if the acts are NOT communicated to the parties also.

8) Yet this necessity, arising from the natural right of defense, must be “calibrated” or “compared and harmonized” in at least a twofold way:

First, a distinction must be made in the canon between natural law and positive law. This positive law will no doubt need to be thoroughly combed, sifted and probed to uncover a natural right, possibly occurring alongside some other, that concerns the public good (which, in the Church, definitely has a direct bearing upon and reference to canon 1752 and the salvation of souls).

Second, unless there is question of a criminal indictment, the parties are able, whenever required, to participate in a judicial proceeding through their advocates.

And, so, in canon 1598 there are several elements which must be carefully distinguished since they scarcely seem to hold the same weight in natural law.

9) The right of defense is assuredly a natural right. Yet, there will be a duty of at least equal, if not stronger, force to avoid very serious and public harm (which in the Church directly or at least indirectly affects its mission of salvation).

The last section of canon 1598 answers the question of a double necessity or right of defense (a natural law right) for both petitioner and respondent: “the parties and their advocates.” There is no question in the canon of the right of the public officials, the defender of the bond and/or the promoter of justice, who diligently follow the proceedings and have the right to inspect the acts at every turn. In order to safeguard the good (or rights) of the parties and the public good (or even that of private persons

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in cases which are, by their very nature, public) the canon states: “In cases which involve the public good, the judge, in order to avoid very serious dangers, can decree that a certain act be shown to no one, care nevertheless being taken that the right of defense always remains intact.” Take note of the phrases: “to no one” and especially “a certain act.”

A distinction must therefore be made between the failure to publish a certain act and the denial of the right of defense. This is brought out most clearly in a decision coram Davino on December 14, 1989 (cited by the astute defender of the bond, the Most Reverend Monsignor Robert Sable; see his opinion in a case from Denver coram Stankiewicz, protocol Num. 16,395): “The nullity of a sentence can only be invoked when de facto, from the failure to publish the acts, it is evident that the right of defense will actually be denied.” Therefore, one cannot embrace a certain automatic or formalistic attitude whereby, whenever there is a failure to publish the acts, the sentence should by that very fact be pronounced null; one must instead truly establish that the right of defense has been actually and in fact denied by the failure to publish. The method to be employed should rather be a retrospective and comparative sifting through the entire acts to determine if they had been made known in their essential elements to the other party directly or through advocates, so that by this route one might reach an accord between two demands: the natural right of the parties and the natural-divine right concerning the very serious public harm to the Church (directly or indirectly, as it is able to give rise to hatred, scandal, or unjust lawsuits that oppose the natural and supernatural rights of the Church.)

10) What should be said if the acts are published and “in accordance with canon 1598, of the revised Code of Canon Law, [it] is decreed that in order to avoid serious dangers the acts of this case are not communicated to the parties but only to the advocates?” The problem is posed by the fact that, in canon 1598 of the present code it is prescribed: “The judge by a decree must, under pain of nullity, permit the parties and their advocates to inspect at the tribunal chancery the acts which are not yet known to them.”

What force does this penalty of nullity have if the acts are communicated to the advocates who act in the name of the parties in the judicial process? It does not directly affect the nullity of the sentence unless through (and from) this omitted communication to the parties, the right of defense was actually denied (c. 1620, 7°).

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It is therefore confirmed from the law that automatic nullity of a sentence does not occur if a strong and pointed defense which addresses the grounds in dispute is not in fact precluded, so that each party is able to defend his right either through himself or through his advocate. An entirely different matter is the exception in the second section which treats of the instance in which only some particular act “is not to be shown to anyone.”

11) A further question is: then upon what law is founded the required publication of the acts and the faculty granted either to the parties or to their advocate of inspecting the acts of the case? Canon 1859 of the 1917 code threatened no penalty of nullity, but prescribed: “once the parties and their advocates have been granted the faculty of inspecting the procedural acts and of requesting a copy of them, the acts are considered published.” It should likewise be noted that, although in the aforesaid canon 1859 “denial of the right of defense” is not mentioned among the causes of irremediable nullity of a sentence, jurisprudence and teaching generally considered the sentence null.

Therefore we are able to say that in the new code the expression “under pain of nullity” takes effect if and insofar as the right of defense has been in fact denied. Therefore the argumentation is not a priori, as though the very fact that the parties were not granted the faculty of inspecting the acts itself rendered the sentence null. The reasoning is rather a posteriori: the sentence is null to the extent that the parties were unable to exercise their right of defense precisely on account of that omission. Therefore, those sections in the new code are to be interpreted in light of and within the scope of the natural right of defense, as is readily apparent from a comparison of canons 1598 and 1620, 7° as also from a comparison of the former and most recent codes.

12) And so is confirmed correct the interpretation of this sacred tribunal whose jurisprudence holds that the foundation for the publication of the acts is rooted in the “debate” aspect so that there might be affirmation-contradiction, and ultimately “so that each party might seek to easily defend his/her proper right (coram Davino, April 1, 1976, no. 3, CSRD, vol. 71, 414; see coram Doran, May 19, 1988; coram Giannecchini, March 26, 1987, no. 2 in Monitor Ecclesiasticus, 1988, 310).

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In a case before the undersigned ponens on May 21, 1985, no. 8, we read: “The process is constituted by the work of the contradictory principle, with the ability to know not only the grounds alleged, but also the proofs brought forward with the possibility therefore of responding and of offering contrary proofs.”

13) Nevertheless, this general principle ought to be balanced with another requirement, certainly not rare, of the overriding necessity of avoiding “public harm,” to which the second section of the same canon 1598, §1, provides some aid. But the hypothesis of the second section is not entirely consonant with our case: because the passage cited refers to a certain act communicated to no one.

However, no one can doubt that cases of nullity of marriage have the strongest possible bearing on the public good. And since the facts, even the most secret details, often touch upon the entire life of one or both spouses, their disclosure might bring about harm, not only to the Church, but also to one or both parties. Since advocates before ecclesiastical tribunals fulfill not simply a private role but a public function in the Church (indeed, by a triple commission: professional, public or institutional when they appear before the tribunal, and ecclesial since they act by mandate on behalf of the community of the faithful), there now falls directly upon them the task of guarding the public good of the Church (see e.g., c. 1483 and related canons that treat of cases of matrimonial nullity pertaining to the public good.)

In such a jurisdictional system, the danger of harm must be weighed, not only on behalf of the Church (the public danger expressly mentioned in the canon), but even on behalf of one of the parties (and therefore private). Certainly these dangers are not to be considered in the abstract, but in their singular circumstances and conditions – personal, social, and juridical.

14) The harm to be feared may be of various kinds, not even ruling out a criminal indictment (with a suit for monetary damages) before a lay judge, if facts brought out in the ecclesiastical trial should injure a good reputation, in those nations where there exists a very strict so-called “separation of church (or any religious denomination) and state.”

In the previously cited decree of the undersigned ponens, we dealt at some length with the dangers that grow more serious each day, especially in North

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America, where, whether in the United States or in Canada, there prevails a separation, understood in a stricter (or corrupted) sense, between state and church (i.e., the churches, denominations, and nearly countless cults that shoot up there). We also treated of the danger, not merely hypothetical but proximate, to the Catholic Church of damages (to mention not only financial damages, but, more importantly, harm to the Church and harm to souls). Therefore, before we proceed by a direct route from the letter of the law (which even here can kill the spirit) to a decision about the nullity of the sentence, all the circumstances must be thoroughly examined with an understanding of and a sensitivity towards the cultural, historical and juridical milieu of those nations. (See our decree, already cited, of March 30, 1993 in a case of the nullity of the sentence of the tribunal of Halifax-Edmundston, nos. 10-13).

15) “Therefore that exception or restriction of canon 1598, §1, which deals with the publication of the acts, is able to be verified and applied according to diverse juridical, political and social realities, from which could issue serious harm, not only financial, but also social, and therefore pastoral, to the Church or to the local ecclesial community (e.g., by reason of scandal). This harm is certainly able to be assessed not only by the local ordinary but also by his tribunal.”

An even greater difficulty occurs when in particular cases harm is feared not only from the publication of a single document (as is foreseen by the canon) but from any that plays an essential role in constructing the carefully interwoven and orderly arrangement of proofs or that is, yet more seriously, the basis of the proof itself! The strongest instance of this is in the citation and application of canon 1095… No one can deny that certain grounds of matrimonial nullity, e.g., lack of due discretion or psychic incapacity, have such a connotation among the unlearned (and such are all those ignorant of canon law … it’s so easy to count those who know it … but those who don’t are as countless as the stars in the sky) that, if these grounds are then made known to the parties, negative consequences may ensue for one or both, e.g., to their good name and therefore to their social and professional (or occupational) reputation.

Thereby can arise the potential for even greater danger if the respondent, who him/herself opposed the case, fears harm from the disclosure of certain personal facts and threatens recourse to the civil authority to protect his/her private interest.

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THE FACTS

Concerning the Nullity of the Sentence of First Instance

16) As was said in the law section, a decision as to whether or not the sentence is null must be assessed specifically in relation to the denial of the right of defense.

However, the sentence in first instance was favorable to the wishes of both the respondent and the defender of the bond.

The respondent had personally and through her advocate contested the petitioner’s claim that the marriage was null.

The respondent objected as did her advocate when, after reviewing and considering the acts of the case, he wrote: “Bases on the above facts, it appears there is no real proof to support the grounds determined by the marriage tribunal that have been proven.”

The defender of the bond concluded: “The nullity of this marriage 1) cannot be proven on the grounds of psychic incapacity on the part of the woman; 2) cannot be proven on the ground of lack of due discretion on the part of the man.”

The basic thrust of the decision was that the right for which the respondent and the defender of the bond were fighting has therefore been preserved.

Regarding canon 1626 which states, “Not only the parties who are themselves aggrieved can file a complaint of nullity, but also the promoter of justice or the defender of the bond whenever they have the right to intervene,” neither the respondent nor the defender of the bond were aggrieved by a negative sentence.

Nor did the petitioner file a complaint of nullity against the sentence, even though he entered the normal appeal.

Moreover, for the sake of completeness as to the rights of the respondent having been protected in first instance, permit us to marshall some evidence from the acts:

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1) The decree by which the case was admitted before the tribunal of first instance ordered that “the parties are to be notified according to the norms of the law.” It added: “The foregoing procedural acts (‘determination of the grounds’) have been executed on the dates indicated according to the norms of the law.”;

2) Even before grounds were determined, an advocate had been appointed ex officio for the respondent;

3) The petitioner sought and was granted an advocate ex officio;

4) The respondent testified and asked for and received an advocate ex officio and expressed her opposition to an annulment of her marriage;

5) After receiving a request from the tribunal that she express more clearly her opinion about the process of annulment of her marriage with the petitioner, the respondent wrote to the judicial vicar: “In response to your recent letter, I reiterate – I do not want my marriage-sacrament annulled.” She added: “At the time of the marriage I was not crazy and my actions today are the same as any reasonable, responsible adult in the same circumstances.”;

6) After the testimony had been completed, the respondent’s advocate, who had been granted the faculty of inspecting the acts submitted a rather detailed brief;

7) Even before the sentence was published the respondent sent the Supreme Pontiff a letter which was referred by the Secretariat of State to the tribunal of first instance with the suggestion: “Please be given appropriate pastoral attention.”

The woman still offered the defense that she was not “crazy.” At the same time, however, as she had done in her testimony and in her other responses, she recalled both the positive and the negative circumstances of her lengthy marital life.

17) We certainly cannot agree with the initial rotal decision that regarded the sentences of both instances, even the first, to be null on account of the violation of the respondent’s right of defense, for we hold that the first decision was the very one by which her right was protected. The petitioner did not even file a complaint of nullity but he did enter an appeal, calling our attention to those items which we have cited in the law section as pertinent to the necessary distinction between the failure to communicate all the acts to the parties and the denial of the right of defense. Otherwise, an automatic effect is accorded the letter of the law, an interpretation

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that can hardly be sustained, not only for the reason that the law is made for man, not man for the law, but also because after a careful analysis of the canons reviewed above, we find such an automatic response, which smacks of formalism, untenable in light of the law itself.

18) Finally, it should be added that both respondent and the majority of the witnesses requested that their deposition NOT be revealed to the other party (thus giving leave to the advocates).

19) At the end of each deposition, opportunity was given to choose between two statements: Whether the parties and the witnesses have NO objection that “all this testimony be revealed to the couple involved in this case” or, if they do object, a second option, “I request that no part of this testimony be revealed to the couple involved in this marriage. . .” This latter option was selected by the respondent, and several of the witnesses. (The petitioner and two other witnesses offered no objection).

Even though the law grants the judge the faculty of placing a particular document under total secrecy, we in fact already have in the express wishes of the witnesses an answer for the rest of the testimony in this case: all the acts have certainly not been concealed from the parties and their advocates, but only from the former.

Concerning the Nullity of the Sentence of Second Instance

20) Both the rotal defender of the bond and the first rotal decree hold the sentence of second instance to be null both on account of the new or innovative grounds of matrimonial nullity and on account of the violation of canon 1598 regarding the publication of the acts and their communication to the parties (as well as to their advocates).

21) We are not dealing with the introduction of new grounds after the dubium had been agreed upon (cc. 1514 and 1677), but rather of an exception to canon 1639, §1, an exception foreseen in canon 1683: “If at the appellate level a new ground of nullity is offered, the tribunal can admit it and judge it as if in first instance.

It is in fact stated in the decree of the appellate tribunal: “It was decided that this case be tried on ‘new grounds’: relative psychic incapacity.”

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This introduction of a new grounds (the force of which in law and in fact will certainly be discussed or disagree with when we treat of the merits of the case), introduced according to the norms of canon 1513, was communicated to the parties. The petitioner, who had already stated in his initial petition that the marriage could be declared null “on any grounds which the tribunal will judge to be appropriate,” accepted the new grounds.

Whatever the intention of the respondent, it remained the same after the introduction of new grounds as before.

The respondent wrote (after the sentence had been communicated to her): “Please be advised on the above referenced matter my mind has not changed. . I do not desire to have my marriage annulled” and then added new arguments on behalf of her claim.

Moreover, after she had received notification of the new grounds from the presiding judge of the college, she at that time also, listed her objections.

Several documents were gathered by the tribunal in second instance and next an expert was also heard.

All this was communicated to the advocates of both parties who set forth their arguments (the respondent’s advocate was the same one as in the first instance). Then, after the animadversions in favor of the bond had been submitted, the decision was published.

This decision made a determination not only about the newly introduced grounds, but also about the grounds of first instance, as is acknowledged even in the first rotal decree. The negative sentence of first instance was confirmed by these words: “We concur with the court of first instance that the contentions of 1) lack of discretion on the part of the man, and 2) psychic incapacity on the part of the woman, were not conclusively proven. And hence, said court rightly denied the nullity on those given grounds.” And so it continues: “The new grounds for contention, ‘relative psychic incapacity,’ seem better suited for this case.” An affirmative decision was issued on the latter grounds, a negative for the grounds brought forward and already rejected in first instance.

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Regarding the omitted communication of the acts to the parties:

Allow us to briefly recall what was said about the sentence of first instance.

Granted a distinction between the denial of the right of defense and the law’s admonition concerning the publication of the acts, according to what was so well affirmed in the case cited above, coram Davino on December 14, 1989 (quoted by the learned defender of the bond, the Most Reverend Monsignor Robert Sable in his opinion in a case from Denver coram Stankiewicz, protocol num. 16, 395): “the nullity of a sentence can only be claimed when, in fact, from the omitted publication of the acts, it actually happens that the right of defense is denied”, any suggestion of an automatic or merely formal effect having been excluded, the denial of the right of defense in the case at hand is hardly proven.

Permit us to conclude with the wise and prudent opinion of the Most Reverend Promoter of Justice of this sacred tribunal, Monsignor A. Fanelli:

“Nearly all the witnesses and the respondent herself requested in their deposition that the transcripts of their testimony should remain under secrecy. . .

Tribunals nevertheless have acted cautiously so that the parties might have reasonable and ample use of the right of defense, as is provided in canon 1598, §1.

The respondent never, not even in the letters she wrote to the Supreme Pontiff, complained she was unable to exercise this right before the tribunals of first and second instance.”

Moreover this same distinguished promoter of justice holds that the subsequent rotal decree declaring that the sentences given in first and second instance in this case are not irremediably null can be upheld.

23) Having carefully considered all relevant points of law and of fact, we, the undersigned auditors of this panel, addressed the question put to us: “Whether the rotal decree (noted above) should be confirmed or set aside.” We decided that the following is the response which must be given and we therefore answer:

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Affirmative to the first part, Negative to the second. In other words, we decided not to uphold the nullity of the sentences of first and second instances.

This decree should be made known to all interested parties so that it may have every effect of law.

Given at Rome.

Emil Colagiovanni, Ponens

Higninus Ragni

Bernard de Lanversin

Angelo Bruno Bottone, Notary

From the Chancery of the Apostolic Tribunal of the Roman Rota

Gregory Erlebach, Notary [who confirms the authenticity of the (Latin) copy]




RRAO (1998): 18-28.