Those who are defending or have defended the validity of their marriage offer suggestions to their compatriots in the
defending marriage yahoo group.
Resources on this Webpage
Book Recommendations for Respondent in Annulment Case
Mary's Advocates selects one primary resource and recommends two others.
Sequence of Events for Respondent in Annulment Case
See listing with citations from Canon Law and Dignitas Connubii
Grave Lack of Discretion (canon 1095 º2) - Outline of Pope's teaching
See page to share with witntesses LINK
Pope John Paul II gave two international addresses providing the correct interpretation for grave lack of discretion of Judgement.
See outline of his addresses to the Roman Rota in 1987 and 1988.
Advice to a Reliable husband who learn of tribunal accepts wife's petition for invaliidity of marriage
Reliable husband and father who was abandondend by wife and forced through no-fault divorced.
Husband had his young children forcebly removed from him half the time.
He was advised by his wife that he shall be reciving notice from their tribunal of her petition for nullity of their marriage.
Wife publicly professes to be a faithful, model, loyal Catholic.
Does all the information collected by the tribunal for the case need to be in writing?
How does Respondent designate Rota as Court of First Instance
Canon law What are the responsibilities of Tribunal prior to acception
Petition for Annulment?
Tribunal judges are to strive toward reconciliation of spouses, and convalidation of invalid marraiges.
When Is Marriage Null? Guide to the Grounds of Matrimonial Nullity for Pastors, Counselors, and Lay Faithful. by Paolo Bianchi. Publisher: Ignatious Press, Ⓒ 2015.
Listen to optional audio accompaniment, Annulment Respondents Audio (mp3)
This book has forward by Cardinal Raymond Burke, who served as the Prefect of the Supreme Tribunal of the Apostolic Signatura. The Signatura is the highest appellate tribunal in the world, over the Roman Rota and all the Pontifical Councils and Congregations. Originally published in Italian, the author gives thorough explanations of the most common grounds used for nullity cases. Plus, he provides lists of criteria that anyone can use to understand whether a ground is applicable in a particular case. Fifty-three pages are dedicated to Canon 1095, for cases in which parties suffered psychological impediments making them unable to consent to marriage. On page
85 and 213, author shows how "good of the spouses" necessarily incorporates the orientation toward "mutual assistance" that was previously codified in canon 1013 §1 in 1917.
The Theology of Marriage; Personalism, Doctrine and Canon Law, by Msgr. Cormac Burke. Publisher: Catholic University of America, Ⓒ 2015.
Cormac Burke was a judge at the Tribunal of the Roman Rota assigned by Saint Pope John Paul II. He offers clarity on the broader sense of the phrase "good of the spouses" that was newly added to the definition of marriage in the 1983 code. Citing historical Church authorities, he shows how the "good of the spouses" is not some new discovery of the Church during the late 1900's. Nor can "the good of the spouses" be used to grant annulments for marriages that would have been judged valid under the pre-1983 code. The last chapter about the "remedy for concupiscence" is a beautiful tribute to the dignity of sexuality and the human person, such that sexual acts are not solely the solution to the animalistic sex drive.
What God Has Joined Together: The Annulment Crisis in American Catholicism, by Robert Vasoli. Publisher: Oxford University Press, Ⓒ 1998.
Robert Vasolli was a Sociology professor at the University of Notre Dame who had taught courses that dealt extensively with criminal law and procedure and the law of corrections. His wife abandoned him and entered a second union, and she petitioned for a decree of invalidity of their marriage. He wrote his book after ten years of study and his bibliography is nine pages long. The book's introduction will affirm the "yellow-flags" going up in any respondent's head that senses that something is amiss when beginning the process as one defending the validity of the marriage. His book is a high-level overview of the history behind the U.S. annulment crisis, statistics supporting his thesis, and descriptions of tribunal practices that violate the rights of the defendant. He discovered from studies on cases between 1980 and 1987, that at least 92% of the American defective consent cases reviewed by the Rota were overturned (page 61-62).
CIC Codicis Iuris Cononici Code Law Canon
DC Dignitas Conubbii Dignity of Marriage
- "The notification of citations, decrees, sentences, and other judicial acts must be made through the public postal service or by some other very secure method". (CIC 1509)
- The Libellus is presented to tribunal, naming tribunal, parties, reason for petitioning and grounds. Libellus, also called petition, is the statement requesting a determination concerning the validity of the marriage. (CIC. 1502) (DC 114-117)
- Before the judge accepts the case or pursues litigation, in accord with
canon 1676 canon 1675 Motu Proprio , the respondent can clearly inform the judge that the marriage has not irreparably failed, and that conjugal living can be restored. Further, the respondent can ask the bishop to issue a singular precept in accord with canon 49, wherein the bishop orders the Petitioner to join the Respondent in employing the means of using a reputable person for mediation. Canon 1446 §2 recommends the use of mediation, and respondent can request a particular named mediator that is known for his experience helping couples improve their marriage (counselor, etc.).
- If the petitioner requests the streamlined process introduced by Pope Francis that is scheduled to go in effect on 8 December 2015, "The brief process cannot be used if the respondent remains silent, does not sign the petition or declare his consent" (Quoting Cardinal Francesco Coccopalmerio, president of the Pontifical Council for Legislative Texts as reported here, letter here). Pope Francis' changes did not introduce "lack of faith" as a new ground for nullity. One reason for streamlined process in Title V, Art. 14 is "the defect of faith which can generate simulation of consent or error that determines the will." Simulation is canon 1101. Error is canon 1099.
- The Judge considers whether to accept reject libellus (CIC 1505) (DC 119-125)
- The Judge's acceptance or rejection of libellus is set by decree
- The respondent is notified by summons (also called citation). The other party to the case, the respondent, is cited, so that he or she may participate in the case. (CIC 1507, 1508) (DC 126-128).
- Competency is determined. The location of tribunal can be any of four places: a) where the marriage took place; b) where respondent lives; c) where petitioner lives
(if the respondent lives in same country and the respondend approves); or d) where most of the witnesses live (if the respondent has been heard) (CIC 1673) (DC 10) If respodent lives in a different diocese than the petitioner the respondend's judicial vicar must be participating in communication. Judicial vicar = top tribunal judge. . As of December 8, 2015 (see Motu Proprio), the Judicial Vicar of the Respondent no longer is involved in choosing the diocese that will decide the case. A Respondent could clearly ask the tribunal of the Petitioner to move the case where the Respondent prefers, but this is not part of the law anymore.
- The respondent, early on, has a right to know the charge against the marraige--and what facts and proofs are being proposed to the tribunal as the basis for the claim of invalidity. The notification/citation to the respondent must include a copy of the petitioner's petition/libellus (CIC 1508 §2, DC Art. 127 §3). The petitioner's petition/libellus must include the petitioner's statements providing the facts and proofs in a general way that he or she is planning to use to prove the case (DC Art. 116 º3, CIC 1504 º2). Read Excerpts from Commentary on D.C. Art. 128, 129, 135 citation
If respondent does not receive these statements from Petitioner, Responded could insists on receiving them. See Sample Letter.
What does NOT qualify as a libellus is a petitioner's answers to a questionnaire, where he simply explains the difficulties that occurred in the marriage and its breakup. [See Rotal Jurisprudence Decree of Nov. 15, 1990 (section 22 a-b). English version: Studia canonica, 25 (1991), pp. 509-517]
The introductory libellus is to be attached to the citation, unless the praeses or ponens for grave reasons decrees, with a decree indicating reasons, that the libellus is not to be communicated to the respondent party before that party has given his judicial deposition. In this case, however, it is required that the respondent party be notified of the object of the cause and the ground(s) proposed by the petitioner.
"The libellus which introduces litigation is to be attached to the citation unless for grave causes the judge determines that the libellus must not be made known to the party before that party makes a deposition in the trial"( can. 1508, § 2).
There does not appear to be an appeal to higher court possible if the judge decides for decreed grave reason to withhold the libellus from the Respondent after it had been requested as there is no appeal granted by the canon itself as this action is what is noted in can 1629,4. The judge's decree to withhold libellus for grave reasone is a is a decree from a judge that does not have the force of a definitive sentene. However, after the definitive sentences is issued by first instance, an appeal can be made especially a plea of nullity, against the definitive sentence of the case following the normal appeal process. This might apply if the respondent did not have access to the libellus before the publication of the acts. Yet, if the respondent was able to see the actual libellus at the time of the publication, there would be less basis to appeal. The purpose of the libellus is to establish the basis of a claim that the marriage is null. The respondent has a right to reply to this libellus to refute any information that they consider inaccurate.
If the judge had decreed that the libelus should be withheld from the respondent for grave reasons, it would appear that a respondent can request a copy of the libellus after first testifying. The only justification which must be given by a decree must indicate why the respondent must be deposed first before being given a copy. One would receive it at the time of the Publication, but the canon indicates a copy must be given before this if requested by the respondent after they have already given testimony. Once they have given testimony, they have a right to receive the libellus.
- The responded has a right to have an advocate assiting. (See Suggested Questons for Interviewing Tribunal Advocate)
Read about Advocates and Procurtors in Dignitas Connubii: Norms And Commentary
Download 160 Kb Word.doc
, or See 2.6 Mb PDF
Respondents should have "a choice -- i.e., between no advocate, a Tribunal advocate, or one otherwise selected by them" (section 17 Rota Case LINK).
Art. 46 - § 1. The collegial tribunal is to be presided over by the Judicial Vicar or Adjunct Judicial Vicar or, if this cannot be done, by a cleric from the college designated by either one of them (cf. can. 1426, § 2).
§ 2. It pertains to the praeses of the college:
6- to provide for the ministry of a procurator or advocate in accordance with artt. 101, §§ 1, 3; 102; 105, § 3; 106, § 2; 109; 144, § 2);
Art. 101 - § 1. Without prejudice to the right of the parties to defend themselves personally, the tribunal is bound by the obligation to provide that each spouse is able to defend his rights with the help of a competent person, most especially when it concerns causes of a special difficulty.
§ 2. If in the judgement of the praeses the ministry of a procurator or advocate is necessary and the party has not so provided within a prescribed time limit, the praeses is to name them, as the case requires, but they remain in function only as long as the party has not named others.
§ 3. If gratuitous legal assistance has been granted, it pertains to the tribunal praeses himself to name the procurator or advocate.
§ 4. In any case, the appointment of a procurator or advocate by decree is to be communicated to the parties and the defender of the bond.
Art. 112 - § 1. It pertains to the Bishop Moderator to publish an index or directory in which there are listed the advocates admitted before his tribunal and the procurators who usually represent parties there.
§ 2. The advocates inscribed in the directory are bound, by a mandate of the Judicial Vicar, to provide gratuitous legal assistance to those to whom the tribunal has granted this benefit (cf. art. 307).
Art. 113 - § 1. At every tribunal there is to be an office or a person available so that anyone can freely and quickly obtain advice about the possibility of, and procedure for, the introduction of their cause of nullity of marriage, if such should be the case.
§ 2. If this office should happen to be carried out by the ministers of the tribunal, they cannot have the part of judge or defender of the bond in the cause.
§ 3. In each tribunal, to the extent possible, there are to be stable advocates designated, receiving their salary from the tribunal itself, who can carry out the function described in § 1, and who are to exercise the function of advocate or procurator for the parties who prefer to choose them (cf. can. 1490).
- Roman Rota Request The respondent can advise the tribunal of intent to go to Rota. At any time during the first instance tribunal process, the respondent can advise tribunal that the second instance tribunal is to be the Roman Rota, as is one's right (Canon 1444, 1, Annotations on 1444, 1405, See Special Norm of the Rota for Marriage Nullity Trials (Art. 58, §2)).
Under canon 1444, after a first instance judgment, anyone can appeal to the Rota for the hearing in second instance. A simple indication in writing ("I
appeal to the Rota for the second instance hearing of this case") to the first instance tribunal is sufficient; then the Tribunal is obliged to forward the
case to the Rota. The petitioner has the right to know when this has been done. In such cases, the appellant can ask for gratuitous legal representation at
the Rota and this is automatically granted - without charge.
See text from agreement with US Bishops and the Holy See related to the submission of matrimonial cases to the Roman Rota. Canon Law Digest, Volume 13, covers the years 1991-1995, edited by Rev. Patrick Cogan, Publisher: Canon Law Society of America, pages 631-632. "If, in any given case, the parties are unable to sustain the stipend of $750-$850, they may apply for the gratuitous patronage according to the usual norms." pdf 381 KB
- The respondent may be able to get information from the Defender of the Bond. The defender of the bond is bound by his office to propose and clarify everything which can be reasonably adduced AGAINST nullity or dissolution. (Canon 1432).
- Respondent notifies judge of intention to participate (with 15 day deadline after summons or citation) (DC 129, canon 1676 § 1 Motu Proprio ),
and can request session for joinder of the issue. (CIC 1677 §2). The purpose of the session for the joinder of the issue is to establish the formulation of the doubt. As of Dec. 8, 2015, there is no more option of requesting a session for the joinder of the issue. Read Excerpts from Commentary on D.C. Art. 135 citation
Possible Response to Citation
1) I acknowledge receipt of your citation dated mm/dd/yy.
2) I request to see the list of advocates published by the Bishop (Dignitas Connubii Art 112).
3) I request my copy of the petitioner's libellus that was not provided, and I look forward to reading the facts and proofs in a general way that the petitioner is using to make the case. (DC Art. 127 §3, CIC 1508 §2, DC Art. 116 º3, CIC 1504 º2).
4) I have no response at this time, other than that I shall be defending the validity of our marriage.
5) I shall await the decree setting forth the formulation of the doubt determining specifically by which ground or grounds the validity of our marriage is being challenged (DC 135 § 3).
6) I understand that I have 10 days to reply to the formulation of the doubt (DC 135 § 4).
7) I might offer any proofs of my position after reviewing the formulation of the doubt, since the formulation of the doubt is to delimit those things which are to be investigated. I shall not provide answers to questionaire untill the final decree of the formulation of the doubt is issued because proofs must not be collected until after that decree (DC Art. 160).
8) I understand that "The burden of proof lies on the one making an assertion (can. 1526, § 1)" (DC Art. 156 - § 1).
9) I am awaiting a meeting with my advocate prior to admitting any proofs to the tribunal.
10) As of Dec. 8, 2015, this option has been eliminated.
I request a session for the determination of the formulation of the doubt, wherein both parties participate in a session with tribunal (DC Art. 135, CIC 1677).
11) When the Petitioner receives a negative decision, that our marriage has not been proven invalid, I ask the Tribunal to advise Petitioner of his moral obligation to restore common conjugal life as no legitimate moral cause for separation exists (D.C. Art. 252;
Motu Proprio c. 1691 § 1;
- Formulation of the doubt is to be set by decree, and it must specify the grounds for invalidity to be investigated (within 25 days after citation - allowing 15 days for respondent's reply plus 10 days for formulation). The decree must be sent to the parties, unless they already agreed to the terms. One can object to the formulation of the doubt; within 10 days after it was decreed the judge must answer the objection. [DC Art 135 (
citing CIC 1677 §2,
replaced by Motu Proprio c. 1676 §§ 1-2
), DC 160 (citing CIC 1529)]
- Instruction of the cause is to be set by decree, indicating that the case shall proceed. (
CIC 1677 §4, DC 137;
Motu Proprio c. 1676 §§ 2-3
- Collection of Proofs. (DC 155-216). Proofs and witnesses are utilized by the tribunal to help the judge(s) come to a conclusion about validity of the marriage. (cc. 1526-1529, 1547-1573) Proofs are not to be secret unless a grave reason is shown (DC 157).
(link to page for Witnesses)
- Judicial Examinations are to be in person, and questions are not to be seen in advance. A respondent's advocate has the right to be present when the petitioner and witnesses are giving testimony so that the respondent's advocate could pose question for the witnesses. The respondent can, in advance, provide to the judge questions to ask petitioner and witnesses(DC 164). If a tribunal doesn't follow these norms, they are supposed to do all they can to prevent fraud and collusion.
(CIC 1564-1566, DC 159, 161, 169-171)
- Expert Witness, Psychological Expert The expert often has a role in the canonical process, but it is simply as that of one witness more.
He is generally held to be a 'qualified witness' or a 'technical witness' (cf. c. Colagiovanni, May 17, 1994, nn. 19; 22), in the sense that his expert opinion, applied to the facts of the case, can at times be useful or even necessary to enable the judges reach a decision. In the Code of Canon Law, the role of the "peritus" or expert is dealt with in c. 1680 within the chapter "De probationibus." Hence, his intervention, when considered necessary in the case, is after the rest of the proofs have been collected. His opinion will then be based on the facts established in the Acts; and - if the judge considers this useful - on a personal session with the party or parties. (Cf. c. Funghini, July 18, 1990). Mons. Stankiewicz, the present Dean of the Rota, puts it quite clearly in one of his sentences: "in the canonical process the experts are not co-judges, advisers, helpers or consultors of the judge, because they simply represent one element more - the "peritia" - among the means of proof" (c. Stankiewicz, April 28, 1994).
So, if there is need for an expert, that will arise at or just after the Instruction stage of the subsequent process (
CIC 1680, DC 203-213;
Motu Proprio c. 1678 § 3). Parties should most always have the right to read the resport of the psychological expert and read the transcript of the judicial examination of the expert. See Justice and Transparency in Matrimonial Decisions Angelicum (Rome) © 2012 by Msgr. Cormac Burke, Judge of the Tribunal of the Roman Rota 1985-1998. See also paragraph 11, 12, 22 in sentence Cormac-Burke Sentence of April 29, 1993 , and paragraph 15 in sentence Cormac-Burke Sentence of Nov 25, 1993
If Tribunal restricts a Respondent from reading a psychologist expert witness report, the Respondent can raise an exception. See Sample Letter.
- Publication of Acts is to be set by decree. The parties and their advocates are invited to inspect the acts. The purpose is to permit both parties and their advocates to be informed regarding all that has taken place in the trail, and with which they may not yet be acquainted. If there is legitimate concern that some serious danger would evolve from this inspection, the judge may decide that a certain act is not to be shared with the parties. The judge must not, however, jeopardize the right of defense. (CIC 1598, DC 229)
- The respondant has the right to review the testimony -- the entire testimony in the case and not just a summary as some tribunals try to do: testimony cannot be withheld from a party except to avoid "a most grave danger" (c. 1598 §1) without violating a party's right of defense, which would render the Court's judgment irremediably null (c. 1620 7°). If a tribunal judge trys to restirct the party from taking notes, the party can write to the judge the following: "I promise in accord with D.C. Art 232 to only use the knowledge I gain through the inspection of the acts for my legitimate defense in the canonical forum. I am aware I am bound by confidentiality. Nevertheless, I can find no provision in canon law that prevents me from taking whatever notes I need for my own defense, when reading the Acts. Any attempt in that direction would violate my right of defense." Any party who chooses to disobeyes a tribunal's instruction to take no notes, will need to be calm and serene, as well as firm, when taking their notes, and will need to be calm in any subsequent action. (See supporting Rotal Jursprudence about required contractictory between parties).
If a Tribunal restricts a Respondent from keeping Respondent's own notes, the Respondent can raise an exception. See Sample Letter.
- It is absolutely forbidden that any information given to the judge by the parties or the advocates, or by any other persons, be excluded from the acts of the case (CIC Can. 1604 §1, D.C. Art. 241). The testimony and report from the tribunal's expert witness psychologist is an item in the acts of the case. The response/observations of the defender of the bond are items in the acts of the case. A tribunal does not satisfy its obligation to ensure the respondent's right of defense when the tribunal keeps secret from the respondent certain acts while only providing copy of said act to respondent's advocate (see supporting Rotal Jurisprudence).
- If a judge decides to exclude from the acts altogether certain documents provided to the tribunal by the petitioner, the respondent can ask the judge to change his mind. If documents are excluded from the acts alltogether, the judges can't used them when making their deciion. The Judge does have authority over the admission of evidence and can exclude evidence that he considers to be superfluous or illicit. A party who wants the evidence included, though, may request that the Judge reverse his decision and admit it. If he rejects this request, the party may have recourse to the College of Judges--if the case is not being judged by a sole clerical judge. (CIC can. 1527, 1533, and D.C. Art.157, § §1 and 3; 158, §1 and 221)
- Value of Proofs A party's statements alone (provided during the collection of the proof) can't be considered facts upon which the judges base their decision unless the statements are corroborated by other witnesses.(D.C. Art. 180, CIC Can. 1536 §2, 1572, 1573,
1679, Motu Proprio canon 1678).
After the publication of the Acts, is when the respondent really gets to defend the marriage (in theory and in law). When the Acts are published the respondent (or the advocate instead) reads the testimony of all witnesses (unless some of it is withheld by the judge for serious reason (CIC 1598 §1, DC 230). If the Acts are not made available, a case can be voided because the right of defense has been denied (DC 231, CIC 1620, n.7; 1622, n.5)
- Parties declare nothing to add, the judge determines an appropriate time for the advocates to make pleadings for the case, time for proposing proofs expires, or judge declares proofs sufficiently instructed. (DC 237, CIC 1599)
- The defender of the bond (a court officer) intervenes to propose in favor of the marriage bond, after carefully reviewing the case (DC 243, CIC 1432, 1603 §3).
- Conclusion of the Cause is set by decree, stating that all things pertaining to the production of proofs have been completed (CIC 1599, DC 237)
- Preparation of Defense The respondent or his advocate can submit to tribunal an "argument" or "brief" including defenses and observations. (DC 242, 245) Spouses have a right to read and respond to the observations of the defender of the bond (DC 243) and the other party's advocate (DC 242). This right is understood as the right to interpret the evidence before the Judge. It completes the active participation of the parties with respect to the evidence: the presentation of evidence (in the instruction of the cause), the inspection of the evidence (at the time of the publication of the acts), and the interpretation of the evidence (during the discussion of the cause). A sentence could be declared null due to a denial of the right of defense if, during the process, a party requested a copy of the arguments and was never permitted to see or respond to them. Note: "The defender can never act in favour of the nullity of marriage; if in a special case he has nothing that can be reasonably proposed or argued in favour of the bond, the defender can remit himself to the justice of the court." (DC 56 §5).
- Request notice of Petitioner's Obligations As part of Respondent's "argument" and "observations," the Respondent can request that when the Petitioner receives a negative decision, that is marriage has not been proven invalid, the Tribunal should advise Petitioner of his/her moral obligation to restore common conjugal life as no legitimate moral cause for separation exists (D.C. Art. 252, 1983 CIC c. 1151-1155; Motu Proprio c. 1691 § 1).
- The Pronouncement of judgement is decided by a definitive judgement (CIC 1607, DC 246), distributed to the parties, along with the means of appealing the sentence. (cc. 1611-1618)
- The respondent should insist on receiving his own copy of the Definitive Sentence of the Court once judgment is rendered, since the judgment cannot take effect unless it is published to the parties (c. 1614), and c. 1615 specifies, "Publication or communication of the sentence can be done either by giving a copy of the sentence to the parties or their procurators or by sending them a copy according to the norm of can. 1509." A tribunal could lead a party to believe that it is upon receipt of their letter (Dispositive Sentence, which almost always is the summary of the Sentence and not the complete Definitive sentence,) is when the 15 day clock to appeal starts ticking. This IS NOT SO. The time limits for lodging an appeal (to the Rota e.g.) does not start until the parties or their procurators receive a copy of the Definitive sentence (Canon 1634.2,) and that the sentence has no force before publication even if the dispositive part was made known to the parties with the permission of the judge. (Canon 1614). The dispositive part of the sentence is only a summary of the final outcome of the decision. Providing the summary of the final outcome to the parties is not following the law. The required elements of the full Definitive Sentence are specified in Canon Law and reiterated in Dignitas Connubii.Article. 246 - 258.
- is to be mutually agreed upon by three judges and written by one, the ponens, OR as of Dec. 8, 2015 can also be decided by a sole judge that is a cleric (Motu Proprio c. 1673 §§ 3 & 4)
- if one of the three disagrees with the other two, he can insist that his opinion be sent to appeal tribunal
- must respond to each proposed ground for nullity, one-by-one
- must show and explain the justification for the response to each ground
- explanation must include relevant facts and law for each ground
- if one party is so messed up that he can't ever marry, the sentence must state this (Art. 251)
- must include instruction on who is going to pay for tribunal fees.
- must warn the parties of their moral and civil obligations toward each other and children (Art. 252)
- must specify names of judge, petitioner, respondent, procurator (if applicable), address of parties, defender of the bond, and promoter of justice (if applicable)
- must summarize the facts
- must restate the formulation of the doubt
- must show place, date, month and year and signature of three judges
- must include instructions for appealing, and information about the automatic appeal if is positive sentence
- must be clear in explaining reasons in law and fact so that their reasoning is described
- must be given to the parties as soon as possible
If the first instance tribunal will not give the respondent his copy of definitive sentence, respondent should seek the assistance of the appellate tribunal. See sample letter.
- Appeal to Tribunal of Second Instance As of December 8, 2015, if the tribunal decides the marriage is invalid, and neither party appeals, the decision goes into effect. The Respondent has a fifteen days to notify the tribunal of his intent to appeal the decision; the appeallate tribunal is also called the second instance tribunal
(1983 CIC c. 1630; Motu Proprio c. 1679-1680).
If the first instance decides that the marriage invalid, it automatically goes to second instance. The acts (records) of the case, and first instance sentences, are sent to an appellate tribunal for confirmation of the sentence, or it may admit the case for a new trial if it is unable to confirm the first sentence (DC 263-264, CIC 1682).
- Appeal to the Roman Rota After a first instance judgment, anyone can appeal to the Rota for the hearing in second instance. A simple indication in writing ("I appeal to the Rota for the second instance hearing of this case") to the first instance tribunal is sufficient; then the Tribunal is obliged to forward the case to the Rota. The petitioner has the right to know when this has been done. In such cases, the appellant can ask for gratuitous legal representation at the Rota and this is automatically granted - without charge. (CIC 1444, DC 302-308, download rtf file highlighting law; read CLSA newsletter "cases are processed without cost to the parties") Also see line item above "Roman Rota Request."
"The US tribunal will send a stipend of $750-$850 to the Rota. No other fees or monies for cases submitted under this agreement are requested or required. Any solicitation made by anyone for additional sums for any case for any reason should not be honored. Such unauthorized requests should be referred to the Rota immediately." (from Canon Law Digest Volume 13, pages 631-632.)
See Sample Letter asking to pay no costs to designate Rota as Tribunal of 2nd instance.
"Instead of the usual practice of waiting for the parties to search out and engage their own Rotal lawyer it was agreed that the Diocese would send over a set fee with the case and then the Dean would immediately appoint a Rotal Advocate."
(from U.S. Rota Judge, 1986 - 2012, Msgr. Kenneth E. Boccafola, speech 2013)
- Proposing Observations to Appeal Tribunal
The appeal tribunal (called second instance could be the Roman Rota) is to send letter to parties advising them that the party's observations are welcome and can be proposed to the tribunal of appeal. The Motu Proprio shows the judges obligation to decide "after having heard the parties" (Motu Proprio c. 1690) The Roman Rota might call these observations "animadversions" which means comments or remarks, esp. critical ones (DC 264-265, download rtf file). If the Respondent believes his rights of defense were denied, he can make a Complaint of Nullity of Sentence, wherein he describes the problems during the case (DC 274 §3) The Rota will study whether the entire first instance decision should be thrown out. Show that your complaints are not contrived (see 1996 Address to Rota ¶4). If the Rota decides that the first instance decision is null, the Petitioner has the option to resubmit a Petition and hope the first instance handles the case correctly the second time. If the Rota does not decide the whole first instance case was null, they have three options: See commentary on Rota's Norms, Article 58
- Receiving copy of Decision from Roman Rota
When the Tribunal of the Roman Rota issues its decision, the parties should receive a full copy of the decree or sentence (written in Latin). There is a difference between a decree and a sentence (read more). Normally the Roman Rota will send a copy of decree/sentence to the 1st instance tribunal who will forward it to the parties. The 1st instance tribunal can provide English translation too (though this practice is not universal). See sample letter for requesting copy of decision. The norm at play here is art. 101 of the Norms of the Tribunal of the Roman Rota (unofficial translation): "An authentic copy of every decision will be integrally communicated to the Promoter of Justice and the Defender of the Bond, if they have intervened in the trial, to the parties themselves through the competent Curia and to their procurators; the same Curia is to present to the Tribunal of the Rota verification that the communication or execution has been completed." [Exemplar authenticum cuiuslibet decisionis integre notificabitur Promotori iustitiae et vinculi Defensori, si iudicio interfuerint, ipsis partibus per Curiam competentem nec non earundem procuratoribus; de peracta notificatione aut exsecutione eadem Curia testimonium Rotae Tribunali exhibeat. - AAS, 86 (1994), p. 536. PDF on Vatinca.va]
See article about 1095 by independant Canon Lawyer Phil Gray
Below is an outline of the ground of nullity under grave defect of discretion of judgment in the addresses noted. (from Sheryl Temaat)
Address of John Paul II to the Tribunal of the Roman Rota, February 5, 1987
Summary: Only serious mental abnormalities are to be considered by tribunal judges when deciding marriage cases under lack of due discretion.
- Psychic (mental) incapacities (disabilities) have become the ground for a high number of declarations of nullity in some countries.
- Certain trends in psychology go beyond their own competence and cannot be reconciled with Christian anthropology (study of the behavior of man).
- If the psychologist or psychiatrist is opposed to Catholic teaching, the dialogue between the judge and expert will be built on ambiguous (doubtful) premises and lead to false and damaging conclusions.
- Often the experts consider every obstacle which requires effort, commitment or renunciation, or worse, every failure of a marriage union, as proof of the inability of the spouses to understand and succeed in their marriage.
- Such experts do not take into consideration the duty of the spouses to overcome by sacrifice and renunciation the obstacles that interfere with the success of their marriage.
- They regard every tension as a sign of an incapacity to live out one's marriage.
- These experts easily consider cases of slight psychopathological (mental disease) disturbance or failures of the moral order as proof of incapacity to assume the essential obligations of marriage.
- Unfortunately such approaches are sometimes accepted by ecclesiastical judges.
- The findings of the experts who have been influenced by these views deceive the judge.
- For the canonist the principle must remain clear that only incapacity and not difficulty in giving consent and realizing a true community of life and love invalidates a marriage.
- The breakdown of a marriage is never in itself proof of such incapacity; spouses may have neglected or used badly natural and supernatural means to stay together or they may have failed to accept the inevitable burdens of married life, which do not affect human freedom.
- Or they may have failed to keep the moral order (law).
- Only a serious anomaly (abnormality) vitiates (destroys) the capacity of a person to understand and/or to will.
- The almost automatic multiplication of declarations of marriage nullities due to some immaturity or psychic (mental) weakness is a scandal.
- Denying unjust declarations of nullity is a charity which saves people from making the same mistakes in a new union.
Address of John Paul II to the Tribunal of the Roman Rota, January 25, 1988
Summary: It is the defender of the bond’s duty to discount descriptive analyses of different ways of behaving from real, severe mental incapabilities to consent and to do what one agreed to do.
- Marriage has to do with the common good and enjoys the favor of the law.
- If a defender of the bond is absent, the case is null and void.
- There is a lot of confusion and misunderstanding about mental disabilities regarding marriage resulting in incorrect use of evidence.
- Psychological and Psychiatric trends do not consider eternal, religious or moral factors. They are solely concerned with the fulfillment (happiness) of the spouses in the here and now.
- Christian anthropology (study of man) recognizes sin; psychology does not.
- Slight or moderate mental disabilities make married life difficult but not impossible. The Spirit, not the psychiatrist, helps us overcome our weaknesses.
- Psychologists and psychiatrists consider every form of mental illness abnormal, but the canonist, sees moderate forms of mental difficulty as normal. If we give in to the psychological view, everyone has some form of mental illness and hardly anyone can give valid consent.
- Only the most severe forms of mental illness are grounds for nullity.
- A lot of people are normal but refuse to overcome difficulties and make sacrifices.
- It is easy "to find in everyone's infancy and adolescence traumatizing and inhibiting elements."
- The experts (psychologists and psychiatrists) expect full maturity for a happy married life. The canonist (Church) expects the minimum capacity sufficient for valid consent.
- The defender of the bond needs to pick out and show the judge errors in what is considered abnormal in the experts' reports.
- A good defender of the bond can prevent interpretations of every form of dissatisfaction and maladjustment in a person from being called an inability to consent adequately.
- Uncertain evidence is not acceptable.
- The past influences the conscious life of a person; it does not determine it.
- "We find ourselves confronted with an ever-growing mentality which has little respect for the sacredness of obligations that have been undertaken."
Karl's Posting Jan. 3, 2009 - 6:10 pm
Can. 1153 §1. If either of the spouses causes grave mental or
physical danger to the other spouse or to the offspring or otherwise
renders common life too diffcult, that spouse gives the other a
legitimate cause for leaving, either by decree of the local ordinary
or even on his or her own authority IF THERE IS DANGER IN DELAY.
§2. IN ALL CASES, when the cause for the separation ceases, CONJUGAL
LIVING MUST BE RESTORED UNLESS ECCLESIASTICAL AUTHORITY HAS
Did your wife seek the permission of the local ordinary to separate
If so, ask for the reasons(grounds) for which the bishop gave her
permission to separate from you. If the bishop or judicial will not
provide them, then tell them, in writing, that you are requesting the
case go, in first instance, to the Rota, based upon lack of reasonable
cooperation by the judicial vicar and local ordinary in that diocese.
Copy your j.d. and Bishop, the Dean of the Rota, and Archbishop Burke,
If she did not, then ask for an official order that the local ordinary
require her to restore conjugal living immediately. If this is
refused, do the same as above, for lack of reasonable cooperation and
failure to enforce canon law, which does you and your children harm
and therefore is a delict under:
Can. 1311 The Church has the innate and proper right to coerce
offending members of the Christian faithful with penal sanctions.
Can. 128 Whoever illegitimately inflicts damage upon someone by a
juridic act or by any other act placed with malice or negligence is
obliged to repair the damage inflicted.
It is NEGLIGENT OF THE ORDINARY NOT TO ACT ON BEHALF OF THE FAMILY.
It is also MALICIOUS AND NEGLIGENT OF YOUR WIFE TO LEAVE YOU.....
DELICTS AGAINST HUMAN LIFE AND FREEDOM (Cann. 1397 - 1398)
Can. 1397 A person who commits a homicide or who kidnaps, detains,
mutilates, OR GRAVELY WOUNDS A PERSON by force OR FRAUD is to be
punished with the privations and prohibitions mentioned in ⇒ can. 1336
according to the gravity of the delict. Homicide against the persons
mentioned in ⇒ can. 1370, however, is to be punished by the penalties
GENERAL NORM (Can. 1399)
Can. 1399 In addition to the cases established here or in other laws,
the EXTERNAL VIOLATION OF A DIVINE or canonical law can be punished by
a just penalty only when the special gravity of the violation demands
punishment and THERE IS AN URGENT NEED TO prevent or REPAIR SCANDALS.
You have all you need in the canons I have listed, if your wife cannot
establish a PROVEN DANGER by you against her, which, inless you have
done something cannot be proven and therefore cannot be REAL and is
If you ordinary refuses to order her to restore the common conjugal
life nand does not impose sanctions for her lack of cooperation then
HE HAS committed a delict against DIVINE LAW AND CANON LAW, which
REQUIRES YOU TO TAKE HIM TO COURT BEFORE THE PAPAL SIGNATURA AND
DEMAND THAT THE NMULLITY CASE BE HALTED UNTIL ARCHBISHOP BURKE ACTS
UPOPN YOUR SUIT AGAINST THE BISHOP!
Go for it guy. Tell them you can pay nothing BECAUSE OPF YOUR WIFES
ACTIONS AND THE BISHOPS REFUSAL TO ACT ON YOUR BEHALF.
Posting Jan. 24, 2009 9:17:07 PM EST
(Annotations on CIC 1444, 1405)
...four "pages", pp. 1-4, which correspond with "images" of EIGHT PAGES [FROM The Code of Canon Law Annotated, MTF, 2004], whose pp. are titled "Book VII. Processes" and are numbered: "1128-1129"; "1130-1131"; "1092-1093"; "1094-1095".
Of particular import is a paragraph at the bottom of p. 1129 which reads:
It is to note that the Normae Romanae Rotae Tribunalis 52 (AAS 86 [ 1994] 508-540, also in a separate edition, Libreria editrice Vaticana, 1994) recognize to the dean of the Roman Rota, after having consulted the two older auditors, the capacity to judge in first instance the cases mentioned in c. 1444, §1, each time that particular circumstances of place or of persons request it because of the salvation of souls. So, the extraordinary faculty (cf. c. 132) granted before by each pope (cf. AAS 74  516) is now part of the ordinary power (vicarious) of the dean (cf. c. 131, §1).
[In layspeak:] The Dean of the Rota may now, himself, decide to hear petitions for a determination of nullity AT FIRST INSTANCE -- "...each time that particular circumstances of place or of persons request it because of the salvation of souls."
[I don't know about "all-you'all", but] this is the first time I've understood this fact clearly. Certainly, I've never heard of a single Respondent appeal to this "ordinary power" of the Dean of the Rota. Has anyone?
Thereby, it might be a good idea for anyone who's not as-yet been brought before an American tribunal for a "petition for a determination of nullity" [by their spouse] to place a [standing] "petition of record" on perpetual file with the Dean of the Rota which states to the effect that
"Whereas: Until such time and proven conditions that the structure of the tribunal courts of the USA are amply-reformed and may be reasonably-trusted to perform their functions with due-regard for the salvation of souls, I (insert name here) herewith request and petition that any future filing of any petition for a determination of nullity of my Marriage initiated by my lawful Spouse be brought AT FIRST INSTANCE for hearing by the Roman Rota, for as long as I may live, and by my heirs hereafter should they so-desire it.
For the newer, Catholic-members of defendingmarriage (and those married to Catholics): You may wish to immediately consider creating and sending such a statement of your own to the Dean of the Rota. [Think I'm overreacting? Just "ask" Shiela Kennedy! ...Or "Karl"!]
As justification for this request I offer the ample evidence presented by the late Professor Robert H. Vasoli in his book What God Has Joined Together: The Annulment Crisis in American Catholicism.
I further evidence my request be kept-on-file -- knowing that multiple "Respondents" have been judged "absent" from and thereby denied participation in said marital nullity investigations when they have been denied proper notification of the investigation by their estranged spouse's petitioned tribunal.
(Signed and dated)
(Witnessed by a "witness" to your Marriage!)
For those recently-engaged in a First-Instance investigations into their Marriages by an American Tribunal: Judging from the evident DANGER TO YOUR SOULS already posted and described in this discussion group, I think each of you already have proven instances of serious violations of trust whereat you should consider requesting transfer of your investigations at First Instance to the Rota immediately -- "with due-regard for the salvation of souls [your own, your children's, and your estranged spouse's!]
Posting March 4, 2009 9:49:05 AM EST
All information that the Tribunal obtains in cases has to be in writing. These constitute the Acts. The testimony can be obtained orally, read back to the witness, with corrections or misunderstandings amended, and then signed by the witness. The Codex states that witness are to be questioned before te Tribunal in person. They are not to bring or refer to notes unless it is something of a technical or intricate nature (such as bank statements) I believe it is to ascertain an overall picture of the disposition of the principal parties. Nothing can preclude collusion on the part of witnesses, though, but much prevarication can go into written testimony more easily than oral testimony. The Judge, the Advocates, an auditor and a notary can all be present during the questioning of witnesses.
Can. 1152 §1.
Although it is earnestly recommended that a spouse, moved by Christian charity and concerned for the good of the family, not refuse forgiveness to an adulterous partner and not disrupt conjugal life, nevertheless, if the spouse did not condone the fault of the other expressly or tacitly, the spouse has the right to sever conjugal living unless the spouse consented to the adultery, gave cause for it, or also committed adultery.
Can. 1153 §2. In all cases, when the cause for the separation ceases, conjugal living must be restored unless ecclesiastical authority has established otherwise.
Can. 1446 §1. All the Christian faithful, and especially bishops, are to strive diligently to avoid litigation among the people of God as much as possible, without prejudice to justice, and to resolve litigation peacefully as soon as possible.
§2. Whenever the judge perceives some hope of a favorable outcome at the start of litigation or even at any other time, the judge is not to neglect to encourage and assist the parties to collaborate in seeking an equitable solution to the controversy and to indicate to them suitable means to this end, even by using reputable persons for mediation.
Can. 1676 Before accepting a case and whenever there is hope of a favorable outcome, a judge is to use pastoral means to induce the spouses if possible to convalidate the marriage and restore conjugal living. After Dec. 8, 2015, before accepting a case for nullity of marriage, the judge must be informed that the marriage has irreparably failed, such that conjugal living cannot be restored (C. 1675 Motu Proprio).
Can. 1695 Before accepting the case of separation of spouses, and whenever there is hope of a favorable outcome, the judge is to use pastoral means to reconcile the spouses and persuade them to restore conjugal living.
METHODS OF AVOIDING TRIALS (Cann. 1713 - 1716)
Can. 1713 In order to avoid judicial contentions an agreement or reconciliation is employed usefully, or the controversy can be committed to the judgment of one or more arbitrators.
Can. 1714 For an agreement, a compromise, and an arbitrated judgment, the norms selected by the parties or, if the parties have selected none, the law laid down by the conference of bishops, if there is such a law, or the civil law in force in the place where the agreement is entered into is to be observed.
Can. 1715 §1. An agreement or compromise cannot be made validly concerning matters which pertain to the public good and other matters about which the parties cannot make disposition freely.
§2. For temporal ecclesiastical goods, the formalities established by law for the alienation of ecclesiastical goods are to be observed whenever the matter demands it.
Can. 1716 §1. If the civil law does not recognize the force of an arbitrated sentence unless a judge confirms it, an arbitrated sentence in an ecclesiastical controversy, in order to have force in the canonical forum, needs the confirmation of an ecclesiastical judge of the place where it was rendered.
§2. If civil law permits the challenge of an arbitrated judgment before a civil judge, however, the same challenge can be proposed in the canonical forum before an ecclesiastical judge competent to judge the controversy in the first grade.
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