Witness Info - Investigating Invalidity Marriage

Purpose

LAWFUL PROCEDURES

The integrity of the testimony can be challenged if the witness is given a list of questions before testimony is given (CIC 1565). If a witness imagines that an envelope contains questions from an investigating tribunal, the witness could bring the sealed envelope to a priest or parish staff person. If the letter contains a list of questions that the witness is being instructed to answer, the witness could ask the priest to hold the pages containing any lists of questions.

Proposed Letter from witness' priest to witness' local tribunal.

The witness could ask the priest to send the list of questions to the local tribunal with a note stating the following:

Dear Rev. Named, Judicial Vicar of Witness Diocese,

These questions were sent to Named, who composesd this letter and asked me to mail it to you with the attached questions. Named is being asked to be a witness for the tribunal case in Named Diocese for parties, Mr. and Mrs. Named, protocol no. _________.

As questions are not to be made known in advance to the witness, the witness has asked me to pass these questions to you (Canon 1565). The witness states that he would be pleased to submit to a judicial examination in the seat of our tribunal, but does not want the integrity of the testimony to be challenged because of violations of procedural norms designed to ensure authenticity and integrity of proofs, avoiding any danger of fraud, collusion or corruption (Dignitas Connubii Art 161).

Named, (the witness) asks that I convey to you this request: Before scheduling appointment for judicial examination, witness askes that we ensure him that the investigating dicoese has already set by decree the formulation of the doubt (DC 135, CIC 1529, CIC 1677§2, DC 160).

Testimony is to be provided orally. A witness should receive a summons to the judicial examination from the investigating tribunal (DC 163§1, CIC 1556). If a witness lives in a distant diocese, he can inform the investigating tribunal of the reason for his absence (DC 163§2, CIC 1557). A witness can specify that he wants to be a cooperative witness, and give testimony in his local diocese by writing a letter like the following:

Dear Rev. Named, Tribunal of Investigating Diocese, Protocol No. (if know),

I have received your summons, dated mo/da/yr, to a judicial examination. I would be pleased to testify before the judge, but because I live in a distant diocese, I ask to lawfully be heard before a judge in my diocese of Named, State (Dignitas Connubii (DC) Art. 163§2, CIC 1557), with diocesan notary (DC 166, CIC 1561).

Enclosed is a copy of the letter that I asked Rev. Named to send to our Judicial Vicar. Rev. Named was present when I opened your summons and because your envelope contained a list of questions, I asked that he pass the questions to our Judicial Vicar, and I asked him to witness that I did not read any of the questions.

I am please to be examined locally and participate in instructing the cause (DC 29). As I have already communicated my interest to my local tribunal, a rogatorial letter from your bishop instructing our diocese to assist in instructing the case may not be needed to take care of the mater (DC 29§2, CIC 1418).

I understand that during my testimony, a notary is to relate back to me the very words of my deposition, at least in regard to things which directly touch the matter of the trial (DC Art. 173§1, CIC 1567§1). If a recording devise is used, I understand that I shall listen to what was recorded and have the chance to add, delete, correct or change my answers (DC 175§1, CIC 1569§1). I would be pleased to sign the transcript (DC Art. 173§1, CIC 1569§2).

To summarize, I am not refusing to testify, but ask to be lawfully examined in my diocese in front of a notary with questions that I have not viewed in advance.

Before providing testimony, the witness can ask (on the record) whether the formulation of doubt has been set by decree.

Before a tribunal gathers testimony from witnesses, the tribunal must have already specified exactly what charge is being made against a marriage, or a person. Just as one wouldn't testify in a criminal case when the prosecutor has never specified the charge against the accused, testimony is not to be gathered from witnesses in church tribunal, until after the specific charge has been defined and limited. While the witnesses have no right to know the exact charge brought against a marriage, a witness could ask, on the record, whether the charges against the marriage have been set by decree (this is called formulation of the doubt.

If the one collecting testimony can't tell the witness whether the formulation of the doubt has been set, the witness could ask that testimony be postponed until after the fact has been established that the formulation of the doubt has been set. (DC 135, CIC 1529, CIC 1677§2, DC 160)

The questions are to be brief, adapted to the capacity of the person being questioned, not involving several matters at the same time, not confusing, not tricky, not suggesting a response, avoiding any offensiveness, and pertinent to the cause in question (can. 1564). (DC 169)

See Commentary on Articles in DC describing Examination of Witnesses, DC Art. 162-176, CIC 1471, 1532, 1552-1570. (1.2 MB link)

LAWFUL BASIS FOR INVALIDITY

If two Catholics marry in the Catholic Church, the Formal process is required.
See Canon Law listing grounds for annulment

"regarding psychic incapacity in the causes of matrimonial nullity" [...] "there continues to be a concrete and pressing problem in this regard. In some cases, unfortunately, one can still perceive the urgent need to which my venerable Predecessor pointed: that of preserving the ecclesial community 'from the scandal of seeing the value of Christian marriage being destroyed in practice by the exaggerated and almost automatic multiplication of declarations of nullity, in cases of the failure of marriage, on the pretext of some immaturity or psychic weakness on the part of the contracting parties' ([Pope John Paul II] Address to the Roman Rota, 5 February 1987, n. 9)." Pope Benedict XVIAddress to the Roman Rota, Jan. 29, 2009 par. 3-4

"[A marriage's] continuing validity does not depend on the subsequent conduct of the couple during their married life." Pope Benedict XVI Address to the Roman Rota, Jan. 29, 2009 par. 10

"there is a need for a new and positive appreciation of the capacity to marry belonging in principle to every human person by virtue of his or her very nature as a man or a woman. We tend in fact to risk falling into a kind of anthropological pessimism which, in the light of today's cultural context, would consider marriage as practically impossible." Pope Benedict XVI Address to the Roman Rota, Jan. 29, 2009 par. 9

"5. Then what can one say to the argument which holds that the failure of conjugal life implies the invalidity of the marriage? Unfortunately, this erroneous assertion is sometimes so forceful as to become a generalized prejudice that leads people to seek grounds for nullity as a merely formal justification of a pronouncement that is actually based on the empirical factor of matrimonial failure. This unjust formalism of those who are opposed to the traditional favor matrimonii can lead them to forget that, in accordance with human experience marked by sin, a valid marriage can fail because of the spouses' own misuse of freedom."
(emphasis added) Pope John Paul II, Jan. 29, 2004

"The tendency to instrumentally broaden the causes for nullity, losing sight of the bounds of objective truth, involves a structural distortion of the entire process. In this perspective the preliminary investigation would lose its effectiveness since its outcome would be preordained."
Pope John Paul II, Jan. 29, 2004 sec. 6 par. 2

"The author of these pages has written and published many Rote decisions concerning incapacitas adimplendi necessaria matrimonii onera, all embellished, at times profusely, with references to tracts on law and psychiatry in various languages. He now wishes to cut through whatever is accessory, peripheral, or merely decorative in this matter and focus upon what Rota judges have in other contexts rather grandly called 'ipse argumenti nucleus' "
Egan, Edward M. "The Nullity of Marriage for Reason of Incapacity to Fulfill the Essential Obligations of Marriage."
Ephemerides Iuris Canonici Vol. 40. No. 1-4 (1984): p 9-34. (pdf version)

"Over the past several years, the Canon Law Faculty of the Pontifical Gregorian University in Rome has been offering a special course for judges and others engaged in marriage tribunal work, in order to review the basic principles of matrimonial and procedural law and as well to explain new developments and approaches in both these fields. It has fallen to me to teach the section of the course entitled 'Amentia et defectus debitae iudicii discretionis'. What follows is a summary of my lectures, a summary that has been requested by many of the hundreds of students who have participated, in the course."
Egan, Edward M. "The Nullity of Marriage for Reason of Incapacity to Fulfill the Essential Obligations of Marriage."
Ephemerides Iuris Canonici Vol. 40. No. 1-4 (1984): p 9-34. (pdf version)

"10. The 'bonum coniugum': an essential element of marriage? Can the bonum coniugum be classified as an "essential element" of marriage under the terms of c. 1101§2? The importance of the question means that it cannot be answered lightly; and an adequate answer must bear in mind the relationships of essence, property (element) and end outlined above. We repeat that all the logic of philosophical and juridic discourse, working from these fine but clear distinctions, makes it evident that since the bonum coniugum is an end of marriage, it is not and cannot be one of its essential elements or properties."
Roman Rotal Decree March 26, 1998