Supreme Tribunal of the Apostolic Signatura, A Question Concerning the Use of an Expert in Causes of the Nullity of Marriage, 16 June 1998.

In his letter of the 13th August 1997, the very Reverend Judicial Vicar N. presented a certain difficulty in the treatment of marriage cases of nullity based on grounds dealt with in canon 1095, since in his country psychiatrists and psychologists are prohibited from giving their services in the ecclesiastical court. Hence the very Reverend Judicial Vicar asks whether in such circumstances judges are allowed to pronounce in favour of nullity, if they arrive at the moral certitude, which is required by law, through their own “non-professional” knowledge, without the services of experts.

Indeed an affirmative response - as the Judicial Vicar points out - would bring about that the services of experts can be omitted not only if “it is obvious from the circumstances that it would be useless” (canon 1680), but also if circumstances render these services morally impossible.

In response to these questions and additional information which was received, it has seemed opportune to explain at greater length certain pertinent fundamental principles.

For this reason, having compared the opinions of experts and having diligently examined the matter in the Congresso of the 16th June 1998, held in the presence of the undersigned Cardinal Prefect, in virtue of article 124, n. 1, of the Apostolic Constitution Pastor Bonus

THE SUPREME TRIBUNAL OF THE APOSTOLIC SIGNATURA decides on the following declaration with reference to this matter:

1. The fundamental principle for pronouncing an affirmative sentence in marriage nullity cases is found in canon 1608, §§ 1-2: there must be in the mind of the judge a moral certainty, which must be derived from the acts and the proofs, regarding the matter to be settled by the sentence. The judge, who cannot acquire this certainty, ought to pronounce that the nullity of the marriage has not been established (cf. Canon 1608, §4). This

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moral certitude cannot be considered “una certezza puramente soggettiva che si fonda sul sentimento di questo o di quello, forse anche su personale credulità, sconsideratezza, inesperienza”, as was declared by Pius XII in his address to the Roman Rota of the 1st October 1942 (AAS 34 [1942] 338-343: vide n. 3, p. 340).

2. In cases based on grounds which are dealt with in canon 1095, “unless it is obvious from the circumstances that this would be useless”, the services of experts are required (cf. Canon 1680 and the address of John Paul II to the Roman Rota of the 5th February 1987: AAS 79 [1987] 1453-1459 and of the 25th January 1988 AAS 80 [1988] 922-927). Therefore in such cases the services of a psychiatrist or psychologist are mostly required to distinguish the psychic condition of the party or parties at the time of the celebration of the marriage.

3. In cases based on incapacities, which are dealt with in canon 1095, considering their complex nature, it is hardly possible that in cases, in which the services of experts appear necessary, the judge can arrive through his own “non-professional” knowledge, at the moral certitude “which is not to be derived from the acts and the proofs”, and which is required in order to pronounce an affirmative sentence (cf. canon 1608, §§ 1, 2 and 4).

4. The services of experts in such cases are the be employed not only because they have been prescribed by law, but especially because such services are an instrument of proof, which, as it happens in most cases, the judge cannot ignore in order to derive moral certainty “from the acts and proofs”, so as to be able to pronounce sentence in favour of the nullity of a marriage.

5. An expert report about the psychic state of a party can seem to be “evidently useless” in order to prove the nullity of a marriage: a) when, even if the matter in hand is not “an expert report” in the technical sense, in the acts there exists a document or testimonial, which is so qualified, that it provides sufficient relevant proof to the judge; b) when from proven facts and circumstances, without any doubt, there appears either a lack of sufficient use of reason or a serious lack of discretion of judgement or an incapacity to assume the essential obligations of marriage. The reason is that in this case the nullity of the marriage can be declared on account of an evident lack of consent, without the need of a carefully drawn up diagnosis of the psychic cause due to which there exists that defect. However, in

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such cases the judge can ask the expert to explain some document or fact, which exists or is alleged in the acts.

Indeed, here we are dealing with two cases which should not be considered except as exceptions from the general rule.

6. However, if a party refuses to subject himself to an examination by an expert, it is usual for the judge to ask the expert for a “report” (votum) based on the acts alone, even if such a “votum” is not considered in psychiatry or psychology as “an expert report” (peritia) in the technical sense. Evidently in this case one can ask the same expert to explain the importance of such a “votum” in order to distinguish the true nature of the psychic defect. It is clear that this same “votum” should not be assessed in psychiatry or psychology in the same way as a “peritia” in the technical sense.

7. A judge, who asks for a “peritia” or, if such is the case, a “votum”, should observe assiduously the regulations of the relevant canonical procedural law, while keeping in mind that in marriage nullity cases the acts regarding the case and the sentence itself should be made public per se only to the parties and not to outsiders (cf. the Address of John Paul II to the Roman Rota on 26th January 1989: AAS 81 [1989] 922-923; see especially nn. 8-9, pp. 925-926).

8. On his part, the expert is bound to observe diligently not only the precepts and ethical norms of his art or science, but also the regulations of both canonical and civil law in fulfilling duly and faithfully his own duty (cf. canons 1574, 1577, §2, and 1578, §2).

9. Since the services of experts, who are distinguished for their knowledge and experience and who adhere to the principles of Christian anthropology, are to be considered of great importance in settling marriage cases of nullity based on the grounds dealt with in canon 1095, one must absolutely see to it that the principles indicated above are duly explained to those whom it concerns.

Given in Rome, at the Supreme Tribunal of the Apostolic Signatura on the 16th June 1998.

Prot. No. 28252/97 VT, Periodica 87 (1998): 619-622; Forum 9, n. 1 (1998): 35-38; Forum 9, n. 2 (1998): 51-57.