Supreme Tribunal of the Apostolic Signatura, Letter Concerning the Right Application of Canons 1150 and 1608, §4, 8 February 1996.
The following letter from the Apostolic Signatura accompanied a decree of the same pertaining to the correct application of canons 1150 and 1608, §4, Prot. No., 26689/96 VAR, January 23, 1996. The original decree can be found in Periodica 85 (1996): 357-360 and RRAO (1996): 40-42.
[In an earlier letter], this Supreme Tribunal had asked for a further explanation of some information given on the annual report of the diocesan tribunal of N. for 1993 concerning five cases judged in a documentary process.
After studying the response given by the Judicial Vicar concerning the manner in which the cases in question were resolved [. . .], this Dicastery asked for the acts of the matter in Congresso. After further consultation with the Congregation for the Doctrine of the Faith, this Supreme Tribunal discussed the matter again in Congresso and issued the enclosed decree […].
The Apostolic Signatura regrets that it must bring this matter to the attention of Your Excellency [. . .], but it could not fail to act given the serious nature of this matter. In order to assist you in your responsibilities as Moderator of the Diocesan Tribunal, this Supreme Tribunal would like to make the following points about the whole matter.
1. The practice in question was described by the Judicial Vicar as follows: “The 5 cases involved causes in which the judge felt he could not arrive at moral certitude as to the nullity of the marriage due to factors such as inadequate testimony of witnesses, lack of cooperation by the Respondent, and so on. However, the Petitioner’s freedom to marry based on the application of canon 1608, §4, and canon 1150 was recognized. Obviously the cases should not have been reported under that category. If I am correct, the cases would not have been reported at all, since they were not resolved as judicial causes.”
According to the acts of the cases, [the Judicial Vicar] himself made the decision in each case.
2. However, there is absolutely no doubt that in cases of matrimonial nullity whenever the judge does “not arrive at moral certitude as to the nullity of the marriage” canon 1608, §4, requires him to pronounce in favor of the bond of marriage in keeping with canon 1060, that is, to declare in his judicial sentence that the nullity of the marriage has not been proven. Once such a declaration has been given, the judge has fulfilled his task and no longer has, per se, any competence regarding the case.
The principle given in canon 1150 (In re dubia privilegium fidei gaudet favore iuris), on the other hand, is to be applied in cases in which a party seeks a dissolution of the existing bond of a non-sacramental marriage in favor of the faith.
There is simply no basis in law for the application of canon 1150 by an ecclesiastical judge in cases of matrimonial nullity.
Furthermore, since canon 1608 gives the principles according to which a judge is to pronounce his judicial sentence, it is contradictory to say both that “the Petitioner’s freedom to marry based on the application of canon 1608, §4, and canon 1150 was recognized” and that the cases “were not resolved as judicial causes.”
3. A dissolution of the bond of a non-sacramental marriage can be granted either ipso iure or else by an act of the Roman Pontiff:
– the dissolution can be granted ipso iure according to canons 1143-1149; among the requirements for such cases is that both parties were unbaptized at the time of the wedding;
– in all other cases only the Roman Pontiff can grant such a dissolution, provided that the required conditions are fulfilled;
– if the marriage was contracted between an unbaptized person and a person who was doubtfully baptized, the question must be referred to the Apostolic See.
4. In each of the five cases, the petitioner had asked the tribunal for a declaration of the nullity of the marriage in question, not for a dissolution of the same.
5. In one of the five cases (N.-N.), the petitioner herself states that she was baptized at the time of her marriage to the Muslim respondent. If she has asked for a dissolution of her marriage in favor of the faith, there would have been no possibility of the use of the Pauline Privilege (cc. 1143-1147) or one of the provisions given in canons 1148-1149; a dissolution could have been granted only by an act of the Roman Pontiff.
6. In every one of the other four cases, the petitioner asserts that he or she was not baptized before the marriage or during the time of the conjugal life and that he or she does not know the baptismal status of the respondent at the time of the marriage. At this point there is not even doubt concerning the baptismal state of the respondent in each case; there is merely ignorance.
If any of these petitioners had asked for a dissolution of his or her marriage in favor of the faith, and it had been established that both parties had not been baptized, it is possible that the Pauline Privilege could have been applied, but no effort was made to verify in each case whether or not the necessary conditions had been fulfilled. According to the acts, in none of the cases was there any attempt made to corroborate the claim of the non-baptism on the part of the petitioner or to ascertain the baptismal status of the respondent. In fact, in two of the cases (N.- N., and N.- N.) the tribunal was in contact with the respondent but did not even ask him about his baptismal status, and in another case (N.-N.) the parents of the petitioner were sent (and did return) a written questionnaire, but were not asked to verify their son’s statement that he was never baptized.
If, after a serious examination of each case, it had been proven that the petitioner was not baptized or at least doubtfully baptized, and the interested party had asked for a dissolution, the Ordinary or his delegate should have made an administrative investigation to see whether the case could be instructed in order to seek the dissolution of the marriage by the Supreme Pontiff. Any such case should then have been prepared and sent to the Congregation for the Doctrine of the Faith.
7. It is clear that in all five cases [the Judicial Vicar] had absolutely no basis upon which to declare that the parties were free to marry, whatever he thought about the nature of his declarations.
8. Since the nullity of the marriages in question has not been proven, the marriages have not been dissolved by an act of the Roman Pontiff, and the fulfillment of the conditions for the application of the Pauline Privilege has not been ascertained, the presumption of their validity, according to canon 1060, still stands. [. . .]
9. [In any case], such a practice on the part of the tribunal must be stopped immediately.
10. Considering the utter lack of foundation in law for such a practice, one must question the competence of the Judicial Vicar who acted in this matter and who perhaps permitted other judges in the tribunal to do so as well. Your Excellency is therefore asked to investigate this matter and to consider whether or not to remove [this priest] from the office of Judicial Vicar or perhaps to take some other action. In any case, you are asked to inform this Dicastery about your decision in this regard.
Taking this occasion to express to Your Excellency my sentiments of respect and esteem, and offering my prayerful support for you in your pastoral ministry, I remain,
Devotedly Yours in Our Lord,
Gilberto Card. Agustoni
RRAO (1996): 40-45.