Supreme Tribunal of the Apostolic Signatura, Decree Concerning the Use of Presumptions of Fact in Marriage Nullity Cases, 13 December 1995.


SUPREME TRIBUNAL OF THE APOSTOLIC SIGNATURA

DECREE CONCERNING THE USE OF “PRESUMPTIONS OF FACT” IN MARRIAGE NULLITY CASES

1. The fourth edition of a list of “presumptions” in cases of nullity of marriage has reached this Supreme Tribunal. This list is for the use of Advocates, Defenders of the Bond and Judges of the Tribunal of the diocese of N.

In this document it is explained: “the tribunal uses presumptions of fact as aids in reaching certitude. Presumptions alone do not constitute proof of a given defect of consent, but they frequently clarify the significance of

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the facts in evidence, and, together with that evidence, can bring us moral certitude about the marriage’s validity or nullity. …

The use of these presumptions seems to be frequent, for “[i]n dictating sentences, judges may simply give the number of any presumption. The typist will use the computer to place the corresponding paragraph in the text at that point.”

Opportune information about this matter was asked from the Reverend Judicial Vicar of N., and after its receipt, the Supreme Tribunal of the Apostolic Signatura submitted all the relevant material to careful study.

2. Now that this study has been completed, the following general observations must be made regarding the “presumptions” in question:

a. According to canon 1586, “[t]he judge is not to formulate presumptions which are not established by law, unless they arrive from a certain and determined fact which is directly connected with the subject matter of the controversy”: moreover, doctrine teaches that “a presumption derived from a presumption is not admissible.”

Furthermore, the “presumptions” under review are considered in approved canonical jurisprudence solely as aids, indications or circumstances, but not as true presumptions, for the nullity — or otherwise — of marriage is not directly connected with the facts upon which they are based.

In spite of all this, they are considered as “presumptions” to which at least some probative force is attributed, for: “they can bring us moral certitude about the marriage’s validity or nullity when the evidence alone would not have given rise to certitude.”

b. All these “presumptions” are for the nullity of marriage, with only one exception, if at all.

Even in the case of circumstances in which more often than in other cases nullity of marriage is present, it still cannot in any way be presumed that nearly all the marriages which have been contracted or will be contracted are null.

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Therefore these same “presumptions” (which are even proposed for the use of the Defenders of the Bond) manifest a mentality which favors the declaration of nullity of marriage even though on the contrary there is a grave obligation to seek the objective truth.

Such “presumptions” therefore seem to correspond to a juridical order in which divorce is admitted, but they do not correspond at all with canonical doctrine and legislation.

3. Regarding some of these “presumptions”, the following remarks in particular must be made:

a. The “presumptions” which refer to the young age of the contracting parties, do not agree with canon law, which presupposes that a man who has completed his sixteenth year and likewise a woman who has completed her fourteenth year in general can validly enter marriage (cfr. c. 1083, §1). For this reason the exception must be proven and can never be presumed.

b. The “presumptions” based on the general mentality which favors divorce or infidelity, cannot be admitted, for:

– Doctrine and canon law on the contrary maintain that an error concerning the unity or indissolubility or the sacramental dignity of marriage does not vitiate marriage consent, unless in a concrete case it indeed determines the will (cfr. can. 1099);

– The Holy Father John Paul II warned in his address to the Roman Rota of the 29th January 1993: “it would cause serious harm to the stability of marriage and so to its sacred nature, if … the so-called “error iuris” regarding an essential property of marriage or its sacramental dignity, did not acquire such intensity as to condition the act of will, thus causing the consent to be null” (AAS 85 [1993] 1259; L’Osservatore Romano, n.5, 3 February 1993, p. 3);

– It would be utterly inconsistent to presume the invalidity of nearly all (broken?) marriages in regions where divorce or infidelity are widely admitted, since the capacity of man to enter upon marriage validly is to be presumed, until the contrary is proven positively in a concrete case.

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4. After carefully considering the above:

Since, prescinding from the question of the good faith of the officials of tribunal N., the “presumptions” proposed by the same Tribunal do not have the probative value of real presumptions, and indeed their introductions and use paves the way for jurisprudence which completely lacks a solid foundation;

Since the Christian faithful have the right to have their cases judged not according to arbitrary or ambiguous criteria, but according to canon law and approved jurisprudence,

The Supreme Tribunal of the Apostolic Signatura

By virtue of art. 124, §1 of the Apostolic Constitution “Pastor Bonus”, that is to say by virtue of its duty to exercise vigilance on the correct administration of justice;

In its Congresso held on the 13th December 1995 and presided over by the undersigned Cardinal Prefect,

has decreed:

The use of the “presumptions” under review is forbidden in ecclesiastical tribunals.

The above is to be duly notified.

Given at Rome, at the Supreme Tribunal of the Apostolic Signatura, on the 13th of December, 1995

Gilberto Cardinal Agustoni

Prefect

Zenon Grocholewski

Secretary




Periodica 85 (1996): 531-548; RRAO (1996): 34-39.