CONFERENCE FOR THE PRESENTATION
Tuesday, 8 February 2005
CARD. JULIÁN HERRANZ
A simple purpose: helping tribunals handle their work better
The Instruction Dignitas Connubii which we are presenting today is the result of the lengthy endeavour that the Dicasteries of the Holy See here represented embarked on, at the Holy Father's explicit request, in 1996: in addition to the Pontifical Council for Legislative Texts, the Congregation for the Doctrine of the Faith, the Congregation for Divine Worship and the Discipline of the Sacraments, the Supreme Tribunal of the Apostolic Signatura and the Apostolic Tribunal of the Roman Rota.
Reason for this Document
The purpose of the Instruction is very simple: to offer the ministers of justice who work in ecclesiastical tribunals a practical Document, a sort of vademecum that will serve as an easy guide to enable them to handle their work better in canonical processes of matrimonial nullity. Thus, it was desired to repeat the positive experience that the similar Instruction, Provida Mater, met with in 1936.
Both Instructions were published about 20 years after the respective Codes of Canon Law (1917 and 1983), not in order to compare the Codes with another legislative text nor, still less, to abrogate them, but merely to facilitate their consultation and application.
On the one hand, the Instruction presents in a unified manner all that concerns the canonical process of matrimonial nullity, as distinct from the Code of Canon Law in which the relative norms are scattered in the various sections.
On the other hand, it integrates the juridical developments that occurred in the period immediately following the promulgation of the Code: the authentic interpretations of the Pontifical Council for Legislative Texts, the responses of the Supreme Tribunal of the Apostolic Signatura, the jurisprudence of the Apostolic Tribunal of the Roman Rota.
As usually happens with norms that are less important than laws, this Instruction does not only reiterate the text of the canonical code, but also contains interpretations, explanations of what the laws prescribe and further measures concerning procedures for their execution.
With this Document the Holy See intends once again to exercise its universal mission regarding the administration of justice throughout the Church: in this case, concretely in the context of the Latin Church. Far from diminishing the responsibility of diocesan Bishops for the individual tribunals dependent upon them, it seeks with this mission to strengthen and encourage them in a positive way.
As the Holy Father reasserted a few days ago, the diocesan Bishops are "by divine law judges in their communities.... It is on their behalf that the tribunals administer justice. Bishops are therefore called to be personally involved in ensuring the suitability of the members of the tribunals, diocesan or interdiocesan, of which they are the Moderators, and in verifying that the sentences passed conform to right doctrine. Sacred Pastors cannot presume that the activity of their tribunals is merely a "technical' matter from which they can remain detached, entrusting it entirely to their judicial vicars (cf. CIC, cann. 391, 1419, 1423 1)" (Address to the Roman Rota, 29 January 2005, n. 4; L'Osservatore Romano English edition, [ORE], 2 February, p. 3).
The full and dynamic involvement of the particular Churches is in fact crucial if the functioning of tribunals and the training of ministers of justice are to be improved, inconsistencies set right and abuses in proceedings corrected, and if sentences are to conform fully to the Church's legislation and doctrine on marriage.
On this subject, it is also increasingly necessary to activate the synergy of ecclesial communion between the universal Church and the particular Churches, understanding that the Apostolic See's interventions constitute neither an interference nor an intention to relieve any of the competent bodies of responsibility: indeed, their purpose is quite the opposite.
Reason for the canonical process of matrimonial nullity
This Instruction confirms the need to submit the question of the validity or nullity of a marriage of the faithful to a truly judicial trial.
Sometimes, this traditional praxis of the Church is the subject of criticism or reservations, as though an excessive formalism were entailed. Simpler ways to a solution are suggested that would even solve the problem solely in the internal forum, through the so-called "nullity of conscience", in which the Church would do no more than to register the conviction of the spouses themselves as to whether or not their marriage was valid.
Sometimes, it is also hoped that the Church would give up any sort of trial and leave this kind of juridical problem in the hands of courts of civil law.
On the contrary, the Church reaffirms her competence to deal with these causes, for in them is at stake the existence of the marriage of at least one of her faithful, especially if we remember that marriage is one of the seven sacraments instituted by Christ himself and entrusted to the Church. To forgo involvement in this problem would be equivalent, in practice, to obscuring the sacramental holiness of marriage.
This would be even harder to understand in the present circumstances of confusion about the natural identity of marriage and the family in some civil legislation that not only accepts and facilitates divorce but in certain cases even casts doubt on the indispensable feature of heterosexuality in marriage.
Furthermore, neither in the Church nor in civil society can marriage be considered an exclusively private matter whose validity could be judged by the parties themselves with a juridic efficacy that would permit them to contract another union.
Apart from the great unreliability of human judgment on matters of a strong personal involvement where there can obviously be discrepancies between the parties themselves, it is necessary above all to understand that the conjugal bond, the true foundation of a family, does not only concern the spouses but also any children who may be born to them, and the whole of society, both ecclesial and civil.
Marriage, therefore, in conformity with a conviction rooted in the civilizations of all the ages, is a public union. Hence, those who contract it cannot declare its nullity themselves.
This commitment to seeking the truth must satisfy two fundamental conditions: it must permit the defence and discussion of the arguments both for and against nullity, as well as the gathering of evidence that proves the one or the other. It must also assign the task of judgment to an impartial third party.
These two prerequisites are essential to judicial proceedings, a juridic institution which, moreover, the Church herself has largely contributed to shaping throughout history.
In the case of the processes of matrimonial nullity, a specific role has been introduced that enables those characteristics to be maintained when both parties are in agreement in requesting the declaration of nullity: in each case it is the task of the defender of the bond to contribute all that can be deduced in favour of the existing validity of the marital bond.
Everyone knows human fallibility can lead to a practical decision in which there is no true justice, or in which it may be delayed. Of course, it is not easy to judge when these situations actually do occur, so it is essential to be cautious in providing information on proceedings, avoiding the superficiality of a tabloid scandal with no proper basis.
On the other hand, it would be absurd to denigrate in general a means valid in itself such as an ecclesiastical tribunal, merely because it may not have functioned well in a few cases.
In this regard, the Church intends to take the only wise path: to persevere in her intention to improve the seriousness and rapidity of proceedings, facilitating access to them for all concerned, providing equal opportunities and rendering the decisions of all tribunals increasingly uniform.
Basic question: the good of marriage and of the family
Through the efforts by personnel and the means that she designates to this pastoral field, the Church desires to make a positive contribution to achieving an important objective which is central to John Paul II's Pontificate: the good of marriage and the family.
"The future of humanity passes by way of the family!" (Post-Synodal Apostolic Exhortation Familiaris Consortio, 22 November 1981, n. 86): this heartfelt exclamation of the Pope shows the urgent need for the commitment of the Church, of Christians and of a multitude of people of good will to protect and promote marriage and the family in the contemporary historical context.
The pressures of hedonism and selfishness that subordinate everything to their own satisfaction is a tremendous pastoral challenge in our day. What stands in danger of passing unperceived is the goodness and beauty of the matrimonial and family institution in its genuine essence as a profoundly personal reality.
People forget that it is necessary to fight to stay faithful to a commitment of love and justice, which by its nature embraces the whole of life: the reciprocal gift of husband and wife for the purpose of creating a family open to life and that death alone can dissolve (cf. can. 1141).
In the context of a divorce mentality, canonical proceedings of annulment can also easily be misunderstood as no more than a means to obtain a divorce with apparent Church approval. The difference between nullity and divorce would be merely nominal. By skilful manipulation of the causes of nullity, every failed marriage would be annulled.
The Roman Pontiffs, especially in their annual Address to the Roman Rota, have often demonstrated the true meaning of matrimonial nullity which is inseparable from the search for the truth, since the declaration of nullity is in no way the dissolution of an existing bond but merely an observation, in the name of the Church, of the inexistence of a true marriage from the start.
Indeed, wherever possible, the Church encourages the convalidation of marriages that are null. John Paul II explained it as follows: "The spouses themselves must be the first to realize that only in the loyal quest for the truth can they find their true good, without excluding a priori the possible convalidation of a union that, although it is not yet a sacramental marriage, contains elements of good, for themselves and their children, that should be carefully evaluated in conscience before reaching a different decision" (Address to the Roman Rota, 28 January 2002, n. 6; ORE, 6 February, p. 6).
In short, it is necessary to rediscover the dignity of marriage in the dimensions of both human nature and salvation in Christ.
As an indispensable good for persons and societies, the riches of marriage and the family, which in Christ are transformed into a real process of sanctification and of an apostolate, is what this Instruction intends to promote, in accordance with its specific juridic dimension.
OF H.E. MONS
VELASIO DE PAOLIS, C.S.
Instruction provides reliable explanation of the tribunal procedure
General considerations on matrimonial causes today
The Instruction Dignitas Connubii concerns the approximately 800 diocesan or interdiocesan tribunals of the Latin Church that deal almost exclusively with cases of matrimonial nullity.
The number of nullity cases has increased enormously in recent decades, especially in countries with an ancient Christian tradition. Numerous factors have given rise to this increase, among which, in general, the following can be pointed out:
1. Widespread secularization, which brings with it erroneous conceptions of marriage compared to the ideal proposed by the Church; as a result, many marriages today are null, precisely because the faithful exclude from them constitutive elements essential to their existence.
2. A more precise knowledge of the human mind leads to the realization that in specific cases matrimonial consent does not suffice to bind people to the covenant of marriage.
3. A third reason is without any doubt also a factor of conscience: many of the faithful who have obtained a divorce and are therefore permitted by civil law to marry again, ask for a declaration of nullity because they know that, for Catholics, a valid marriage can only be one that is celebrated according to the laws of the Church.
Some statistical data
It is first of all necessary to provide some statistics concerning causes of matrimonial nullity. The source is the Annuario Statistico della Chiesa for 2002. However, the cases of matrimonial nullity introduced at the tribunals of the Eastern Catholic Churches are also included here.
According to the above-mentioned Annuario, 56,236 ordinary trials for the declaration of matrimonial nullity were concluded, 46,092 of them with an affirmative sentence and 2,894 with a negative one; 4,649 were quashed and 2,601 were discontinued.
It can be presumed that in a considerable number of the suits overturned or abandoned, there was no prospect of reaching an affirmative verdict on the nullity of the marriage.
Of the 46,092 affirmative sentences of the tribunal of the first instance after an ordinary trial, 343 were pronounced in Africa, 676 in Oceania, 1,562 in Asia, 8,855 in Europe and 36,656 in America, 30,968 in North America and 5,688 in the whole of Central and South America.
Indeed, the Roman Rota receives few cases from the tribunals of the second and third instance, that is, fewer than 150 a year. These are usually very complicated causes in which a lower tribunal has often issued a negative sentence.
Some reflections on the statistical data
The interpretation of statistical data is far from easy. However, it can be said that:
Much depends, in fact, on the actual availability of resources and especially of trained personnel.
The real question, in fact, does not concern the possibly high number of sentences pro nullitate matrimonii, but the seriousness of the jurisprudence together with the real possibility of obtaining a declaration of nullity within a reasonable period of time, should the marriage truly be invalid.
- Since the Apostolic Tribunal of the Roman Rota usually judges only the most complicated cases of matrimonial nullity, it does not seem correct to compare the percentage of negative decisions issued by the Roman Rota with the percentage of negative decisions issued by lower tribunals.
The recently published Instruction certainly offers ministers of justice who work in the ecclesiastical tribunals a clear and reliable explanation of the procedure for bringing cases of marital nullity to conclusion, with both the seriousness and speed required by their very nature.
ADDRESS OF H.E. MONS.
Moral certainty and the search for the objective truth
Proofs, concept and need for the moral certainty of the judge
The Instruction presented here coordinates in 61 articles (155-216) the instruments or proofs in the search for the objective truth in the marriage process. These proofs are made available by the parties and the judge to enable ascertainment of the evidence put forward by the spouses in the cause, which are important in proving the nullity of the impugned marriage.
Only on the basis of the efficacy of the outcome of testing the proofs admitted in matrimonial proceedings, such as the declarations of the parties (arts. 177-182), the documents (arts. 183-192), the witnesses (arts. 193-202), the expert opinions and the presumptions (arts. 214-216), can the judge reach moral certitude about the cause in question so as to pass a sentence or a confirmative decree.
The moral certainty in question in this process should be understood to mean the judge's state of mind, his conviction and his firm adherence to the truth, made known and proven in the trial, concerning the existence of factors that already invalidated the marriage at the moment of its celebration.
It is not, therefore, a matter of an absolute certainty, in which every possible doubt about the truth of the facts to be judged is totally excluded, nor is it a purely subjective certainty based on personal opinion, sentiment or an impression of the cause; rather, it is a matter of an objective moral certitude, objectively founded on those things [ex actis] which have been carried out and proven in the process (cf. art. 247 3).
Indeed, the new norm states: "In order to declare the nullity of a marriage there is required in the mind of the judge moral certainty of its nullity" (art. 247 1).
To reach this, "a preponderance of the proofs and indications is not sufficient, but it is required that any prudent positive doubt of making an error, in law or in fact, is excluded, even if the mere possibility of the contrary remains" (art. 247 2).
Probative value of the parties' declaration
Consequently "the judge who, after a diligent study of the cause, is not able to arrive at this certainty, is to rule that the nullity of the marriage has not been proven" (art. 247 5).
On the lines of the norms in the Code (cf. cann. 1536, 2; 1679), recognizing the probative force of the declarations and confessions that the parties have submitted for judgment, the Instruction also explains the meaning of "judicial confession" in cases of the nullity of marriage, such as the admission of a fact that is contrary to the validity of the marriage (cf. art. 179 2).
Even if the trust shown to the personal dignity of the parties concerned ensures recognition of the probative value of their confessions and declarations, which are to be assessed by the judge together with all the other circumstances of the case, nonetheless the force of full proof cannot be attributed to them unless other elements of proof are present that entirely corroborate them (cf. art. 180 1).
To this end, should it be impossible to provide full proof otherwise, the judge may avail himself of witnesses to corroborate the credibility and veracity of the parties with regard to the nullity of their marriage, in addition to other indications and helps (cf. art. 180 2).
All this demonstrates the sensibility of the legislator to the spouses-parties in the cause of the marriage that is challenged and the positive appreciation in the norms, as far as possible, that is attributed to the judicial account of their painful matrimonial situation.
In the tension between the search for the objective truth, which is the purpose of and reason for the process, and justice corroborated with equity (cf. can. 221 2), which is the means for achieving this goal, the Instruction fits into the form of a procedural canonical tradition, preserving the principle of the second or higher grade of trial (arts. 263-289) and the double conforming sentence (arts. 290-294).
Indeed, whether it is formally (cf. art. 291 1), substantially or equivalently conforming (cf. art. 291 2), the double conforming sentence precludes a further appeal (cf. art. 290 1); moreover, should it declare the nullity of a marriage, providing there is no impediment, it offers the parties the possibility of remarrying (cf. art. 301 1).
Furthermore, even if the capacity for appeal of the principle of the second grade of jurisdiction is weakened with the abbreviated first grade of trial (cf. arts. 264-265), it nonetheless guarantees greater reliability in the ascertainment of the truth relative to the value of every marriage and of the judgment on it, and thus safeguards the "favor matrimonii" (can. 1060) and the "favor indissolubilitatis" that must always inspire the judicial activity of the Church.