| CODE OF CANON LAW BOOK VII. PROCESSES
BOOK VII PROCESSES PART III. CERTAIN SPECIAL PROCESSES TITLE I. MARRIAGE PROCESSES (Cann. 1671 - 1707) CHAPTER I.n CASES TO DECLARE THE NULLITY OF MARRIAGE Art. 1 The Competent Forum and Tribunals THE COMPETENT FORUM Can. 1671 § 1. Marriage cases of the baptized belong to the ecclesiastical judge by proper right. § 2. Cases regarding merely the civil effects of marriage belong to a civil magistrate, unless the particular law establishes that such cases, if carried out in an incidental or accessory manner, can be recognized by and determined by an ecclesiastical judge. Can. 1672. In cases regarding the nullity of marriage not reserved to the Apostolic See, the competencies are: 1° the tribunal of the place in which the marriage was celebrated; 2° the tribunal of the place in which either or both parties have a domicile or a quasi-domicile; 3° the tribunal of the place in which in fact most of the proofs must be collected. Can. 1673 § 1. In each diocese, the judge in first instance for cases of nullity or marriage for which the law does not expressly make an exception is the diocesan bishop, who can exercise judicial power personally or through others, according to the norm of law. § 2. The bishop is to establish a diocesan tribunal for his diocese to handle cases of nullity of marriage without prejudice to the faculty of the same bishop to approach another nearby diocesan or interdiocesan tribunal. § 3. Cases of nullity of marriage are reserved to a college of three judges. A judge who is a cleric must preside over the college, but the other judges may be laypersons. § 4. The bishop moderator, if a collegial tribunal cannot be constituted in the diocese or in a nearby tribunal chosen according to the norm of § 2, is to entrust cases to a sole clerical judge who, where possible, is to employ two assessors of upright life, experts in juridical or human sciences, approved by the bishop for this task; unless it is otherwise evident, the same single judge has competency for those things attributed to the college, the praeses, or the ponens. § 5. The tribunal of second instance must always be collegiate for validity, according to the prescript of the preceding § 3. § 6. The tribunal of first instance appeals to the metropolitan tribunal of second instance without prejudice to the prescripts of cann. 1438-1439 and 1444. Art. 2 THE RIGHT TO CHALLENGE A MARRIAGE Can. 1674 § 1. The following are qualified to challenge a marriage: 1° the spouses; 2° the promoter of justice when nullity has already become public, if the convalidation of the marriage is not possible or expedient. § 2. A marriage which was not accused while both spouses were living cannot be accused after the death of either one or both of the spouses unless the question of validity is prejudicial to the resolution of another controversy either in the canonical forum or in the civil forum. § 3. If a spouse dies while the case is pending, however, can. 1518 is to be observed. Art. 3 THE INTRODUCTION AND INSTRUCTION OF THE CASE Can. 1675. The judge, before he accepts a case, must be informed that the marriage has irreparably failed, such that conjugal living cannot be restored. Can. 1676 § 1. After receiving the libellus, the judicial vicar, if he considers that it has some basis, admits it and, by a decree appended to the bottom of the libellus itself, is to order that a copy be communicated to the defender of the bond and, unless the libellus was signed by both parties, to the respondent, giving them a period of fifteen days to express their views on the petition. § 2. After the above-mentioned deadline has passed, and after the other party has been admonished to express his or her views if and insofar as necessary, and after the defender of the bond has been heard, the judicial vicar is to determine by his decree the formula of the doubt and is to decide whether the case is to be treated with the ordinary process or with the briefer process according to cann. 1683-1687. This decree is to be communicated immediately to the parties and the defender of the bond. § 3. If the case is to be handled through the ordinary process, the judicial vicar, by the same decree, is to arrange the constitution of a college of judges or of a single judge with two assessors according to can. 1673, § 4. § 4. However, if the briefer process is decided upon, the judicial vicar proceeds according to the norm of can. 1685. § 5. The formula of doubt must determine by which ground or grounds the validity of the marriage is challenged. Can. 1677 § 1. The defender of the bond, the legal representatives of the parties, as well as the promoter of justice, if involved in the trial, have the following rights: 1° to be present at the examination of the parties, the witnesses, and the experts, without prejudice to the prescript of can. 1559; 2° to inspect the judicial acts, even those not yet published, and to review the documents presented by the parties. § 2. The parties cannot be present at the examination mentioned in §1, n. 1. Can. 1678 § 1. In cases of the nullity of marriage, a judicial confession and the declarations of the parties, possibly supported by witnesses to the credibility of the parties, can have the force of full proof, to be evaluated by the judge after he has considered all the indications and supporting factors, unless other elements are present which weaken them. § 2. In the same cases, the testimony of one witness can produce full proof if it concerns a qualified witness making a deposition concerning matters done ex officio, or unless the circumstances of things and persons suggest it. § 3. In cases of impotence or defect of consent because of mental illness or an anomaly of a psychic nature, the judge is to use the services of one or more experts unless it is clear from the circumstances that it would be useless to do so; in other cases the prescript of can. 1574 is to be observed. § 4. Whenever, during the instruction of a case, a very probable doubt arises as to whether the marriage was ever consummated, the tribunal, having heard both parties, can suspend the case of nullity, complete the instruction for a dispensation super rato, and then transmit the acts to the Apostolic See together with a petition for a dispensation from either one or both of the spouses and the votum of the tribunal and the bishop. Art. 4 THE JUDGMENT, ITS APPEALS AND ITS EFFECTS Can. 1679. The sentence that first declared the nullity of the marriage, once the terms as determined by cann. 1630-1633 have passed, becomes executive. Can. 1680 § 1. The party who considers himself or herself aggrieved, as well as the promoter of justice and the defender of the bond, have the right to introduce a complaint of nullity of the judgment or appeal against the sentence, according to cann. 1619-1640. § 2. After the time limits established by law for the appeal and its prosecution have passed, and after the judicial acts have been received by the tribunal of higher instance, a college of judges is established, the defender of the bond is designated, and the parties are admonished to put forth their observations within the prescribed time limit; after this time period has passed, if the appeal clearly appears merely dilatory, the collegiate tribunal confirms the sentence of the prior instance by decree. § 3. If an appeal is admitted, the tribunal must proceed in the same manner as the first instance with the appropriate adjustments. § 4. If a new ground of nullity of the marriage is alleged at the appellate level, the tribunal can admit it and judge it as if in first instance. Can. 1681. If a sentence has become effective, one can go at any time to a tribunal of the third level for a new proposition of the case according to the norm of can. 1644, provided new and grave proofs or arguments are brought forward within the peremptory time limit of thirty days from the proposed challenge. Can. 1682 § 1. After the sentence declaring the nullity of the marriage has become effective, the parties whose marriage has been declared null can contract a new marriage unless a prohibition attached to the sentence itself or established by the local ordinary forbids this. § 2. As soon as the sentence becomes effective, the judicial vicar must notify the local ordinary of the place in which the marriage took place. The local ordinary must take care that the declaration of the nullity of the marriage and any possible prohibitions are noted as soon as possible in the marriage and baptismal registers. Art. 5 THE BRIEFER MATRIMONIAL PROCESS BEFORE THE BISHOP Can. 1683. The diocesan bishop himself is competent to judge cases of the nullity of marriage with the briefer process whenever: 1° the petition is proposed by both spouses or by one of them, with the consent of the other; 2° circumstance of things and persons recur, with substantiating testimonies and records, which do not demand a more accurate inquiry or investigation, and which render the nullity manifest. Can. 1684. The libellus introducing the briefer process, in addition to those things enumerated in can. 1504, must: 1° set forth briefly, fully, and clearly the facts on which the petition is based; 2° indicate the proofs, which can be immediately collected by the judge; 3° exhibit the documents, in an attachment, upon which the petition is based. Can. 1685. The judicial vicar, by the same decree which determines the formula of the doubt, having named an instructor and an assessor, cites all who must take part to a session, which in turn must be held within thirty days according to can. 1686. Can. 1686. The instructor, insofar as possible, collects the proofs in a single session and establishes a time limit of fifteen days to present the observations in favor of the bond and the defense briefs of the parties, if there are any. Can. 1687 § 1. After he has received the acts, the diocesan bishop, having consulted with the instructor and the assessor, and having considered the observations of the defender of the bond and, if there are any, the defense briefs of the parties, is to issue the sentence if moral certitude about the nullity of marriage is reached. Otherwise, he refers the case to the ordinary method. § 2. The full text of the sentence, with the reasons expressed, is to be communicated to the parties as swiftly as possible. § 3. An appeal against the sentence of the bishop is made to the metropolitan or to the Roman Rota; if, however, the sentence was rendered by the metropolitan, the appeal is made to the senior suffragan; if against the sentence of another bishop who does not have a superior authority below the Roman Pontiff, appeal is made to the bishop selected by him in a stable manner. § 4. If the appeal clearly appears merely dilatory, the metropolitan or the bishop mentioned in § 3, or the dean of the Roman Rota, is to reject it by his decree at the outset; if the appeal is admitted, however, the case is remitted to the ordinary method at the second level. Art. 6 THE DOCUMENTARY PROCESS Can. 1688. After receiving a petition proposed according to the norm of can. 1677, the diocesan bishop or the judicial vicar or a judge designated by him can declare the nullity of a marriage by sentence if a document subject to no contradiction or exception clearly establishes the existence of a diriment impediment or a defect of legitimate form, provided that it is equally certain that no dispensation was given, or establishes the lack of a valid mandate of a proxy. In these cases, the formalities of the ordinary process are omitted except for the citation of the parties and the intervention of the defender of the bond. Can. 1689 § 1. If the defender of the bond prudently thinks that either the flaws mentioned in can. 1688 or the lack of a dispensation are not certain, the defender of the bond must appeal against the declaration of nullity to the judge of second instance; the acts must be sent to the appellate judge who must be advised in writing that a documentary process is involved. § 2. The party who considers himself or herself aggrieved retains the right of appeal. Can. 1690. The judge of second instance, with the intervention of the defender of the bond and after having heard the parties, will decide in the same manner as that mentioned in can. 1688 whether the sentence must be confirmed or whether the case must rather proceed according to the ordinary method of law; in the latter event the judge remands the case to the tribunal of first instance. Art. 7 General Norms Can. 1691 § 1. In the sentence the parties are to be reminded of the moral and even civil obligations binding them toward one another and toward their children to furnish support and education. § 2. Cases for the declaration of the nullity of a marriage cannot be treated in the oral contentious process mentioned in cann. 1656-1670. § 3. In other procedural matters, the canons on trials in general and on the ordinary contentious trial must be applied unless the nature of the matter precludes it; the special norms for cases concerning the status of persons and cases pertaining to the public good are to be observed. CHAPTER II. CASES OF SEPARATION OF SPOUSES Can. 1692 §1. Unless other provision is legitimately made in particular places, a decree of the diocesan bishop or a judicial sentence can decide the personal separation of baptized spouses according to the norm of the following canons. §2. Where an ecclesiastical decision has no civil effects or if a civil sentence is not contrary to divine law, the bishop of the diocese of the residence of the spouses, after having weighed the special circumstances, can grant permission to approach the civil forum. §3. If a case concerns only the merely civil effects of marriage, the judge, after having observed the prescript of §2, is to try to defer the case to the civil forum from the start. Can. 1693 §1. Unless a party or the promoter of justice requests the ordinary contentious process, the oral contentious process is to be used. §2. If the ordinary contentious process has been used and an appeal is proposed, the tribunal of second grade, observing what is required, is to proceed according to the norm of can. 1682, §2. Can. 1694 The prescripts of can. 1673 are to be observed in what pertains to the competence of the tribunal. Can. 1695 Before accepting the case 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. Can. 1696 Cases concerning the separation of spouses also pertain to the public good; therefore the promoter of justice must always take part in them according to the norm of can. 1433. CHAPTER III. PROCESS FOR THE DISPENSATION OF A MARRIAGE RATUM ET NON CONSUMMATUM Can. 1697 Only the spouses, or one of them even if the other is unwilling, have the right to petition for the favor of a dispensation from a marriage ratum et non consummatum. Can. 1698 §1. Only the Apostolic See adjudicates the fact of the non-consummation of a marriage and the existence of a just cause to grant a dispensation. §2. Only the Roman Pontiff, however, grants the dispensation. Can. 1699 §1. The person competent to accept a libellus seeking a dispensation is the diocesan bishop of the domicile or quasi-domicile of the petitioner, who must arrange for the instruction of the process if the petition is well founded. §2. If the proposed case has special difficulties of the juridical or moral order, however, the diocesan bishop is to consult the Apostolic See. §3. Recourse to the Apostolic See is available against a decree by which a bishop rejects a libellus. Can. 1700 §1. Without prejudice to the prescript of can. 1681, the bishop is to entrust the instruction of these processes either in a stable manner or in individual cases to his tribunal, that of another diocese, or a suitable priest. §2. If a judicial petition to declare the nullity of the same marriage has been introduced, however, the instruction is to be entrusted to the same tribunal. Can. 1701 §1. The defender of the bond must always intervene in these processes. §2. A legal representative is not admitted, but because of the difficulty of a case, a bishop can permit the petitioner or the respondent to have the assistance of a legal expert. Can. 1702 In the instruction each spouse is to be heard, and the canons on the collection of proofs in the ordinary contentious trial and in cases of the nullity of marriage are to be observed insofar as possible, provided that they can be reconciled with the character of these processes. Can. 1703 §1. There is no publication of the acts. If the judge perceives that the proofs brought forward seriously hinder the request of the petitioner or the exception of the respondent, however, he is prudently to inform the interested party. §2. The judge can show a document introduced or a testimony received to a party who requests it and set a time to present observations. Can. 1704 §1. When the instruction has been completed, the instructor is to give all the acts along with a suitable report to the bishop, who is to prepare a votum on the veracity of the fact of the non-consummation, the just cause for the dispensation, and the suitability of the favor. §2. If the instruction of the process has been entrusted to another tribunal according to the norm of can. 1700, the observations in favor of the bond are to be made in the same forum; the votum mentioned in §1, however, pertains to the entrusting bishop, to whom the instructor is to hand over a suitable report together with the acts. Can. 1705 §1. The bishop is to transmit to the Apostolic See all the acts together with his votum and the observations of the defender of the bond. §2. If supplemental instruction is required in the judgment of the Apostolic See, this requirement will be communicated to the bishop with an indication of the points on which the instruction must be completed. §3. If the Apostolic See replies that non-consummation has not been established from the materials presented, then the legal expert mentioned in can. 1701, §2 can inspect the acts of the process, though not the votum of the bishop, at the tribunal to consider whether any grave reason can be brought forth in order to resubmit the petition. Can. 1706 The Apostolic See transmits the rescript of the dispensation to the bishop who will notify the parties about the rescript and also as soon as possible will order the pastor both of the place where the marriage was contracted and of the place of baptism to note the granting of the dispensation in the marriage and baptismal registers. CHAPTER IV. PROCESS IN THE PRESUMED DEATH OF A SPOUSE Can. 1707 §1. Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document, the other spouse is not considered free from the bond of marriage until after the diocesan bishop has issued a declaration of presumed death. §2. The diocesan bishop is able to issue the declaration mentioned in §1 only if, after having carried out appropriate investigations, he attains moral certitude of the death of the spouse from the depositions of witnesses, from rumor, or from evidence. The absence of a spouse alone, even for a long time, is not sufficient. §3. The bishop is to consult the Apostolic See in uncertain and complicated cases.
TITLE II. CASES FOR DECLARING THE NULLITY OF SACRED ORDINATION (Cann. 1708 - 1712) Can. 1708 The cleric himself, the ordinary to whom the cleric is subject, or the ordinary in whose diocese the cleric was ordained has the right to challenge the validity of sacred ordination. Can. 1709 §1. The libellus must be sent to the competent congregation which will decide whether the congregation of the Roman Curia itself or a tribunal designated by it must handle the case. §2. Once the libellus has been sent, the cleric is forbidden to exercise orders by the law itself. Can. 1710 If the congregation refers the case to a tribunal, the canons on trials in general and on the ordinary contentious trial are to be observed unless the nature of the matter precludes it and without prejudice to the prescripts of this title. Can. 1711 In these cases the defender of the bond possesses the same rights and is bound by the same duties as the defender of the marriage bond. Can. 1712 After a second sentence has confirmed the nullity of sacred ordination, the cleric loses all rights proper to the clerical state and is freed from all obligations. TITLE III. 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.
(n: Indica che il testo corrisponde alla nuova versione o a un nuovo paragrafo) Cf: Apostolic Letter Motu Proprio Mitis Iudex Dominus Iesus by which the canons of the Code of Canon Law pertaining to cases regarding the nullity of marriage are reformed (15 August 2015) (precedente versione): CHAPTER I. CASES TO DECLARE THE NULLITY OF MARRIAGE Art. 1. THE COMPETENT FORUM Can. 1671 Marriage cases of the baptized belong to the ecclesiastical judge by proper right. Can. 1672 Cases concerning the merely civil effects of marriage belong to the civil magistrate unless particular law establishes that an ecclesiastical judge can investigate and decide these cases if they are done in an incidental or accessory manner. Can. 1673 In cases concerning the nullity of marriage which are not reserved to the Apostolic See, the following are competent: 1/ the tribunal of the place in which the marriage was celebrated; 2/ the tribunal of the place in which the respondent has a domicile or quasi-domicile; 3/ the tribunal of the place in which the petitioner has a domicile, provided that both parties live in the territory of the same conference of bishops and the judicial vicar of the domicile of the respondent gives consent after he has heard the respondent; 4/ the tribunal of the place in which in fact most of the proofs must be collected, provided that consent is given by the judicial vicar of the domicile of the respondent, who is first to ask if the respondent has any exception to make. Art. 2. THE RIGHT TO CHALLENGE A MARRIAGE Can. 1674 The following are qualified to challenge a marriage: 1/ the spouses; 2/ the promoter of justice when nullity has already become public, if the convalidation of the marriage is not possible or expedient. Can. 1675 §1. A marriage which was not accused while both spouses were living cannot be accused after the death of either one or both of the spouses unless the question of validity is prejudicial to the resolution of another controversy either in the canonical forum or in the civil forum. §2. If a spouse dies while the case is pending, however, can. 1518 is to be observed. Art. 3. THE DUTY OF THE JUDGES 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. Can. 1677 §1. When the libellus has been accepted, the presiding judge or the ponens is to proceed to the communication of the decree of citation according to the norm of can. 1508. §2. When fifteen days have passed from the communication and unless either party has requested a session for the joinder of the issue, the presiding judge or the ponens is to establish the formula of the doubt or doubts within ten days by ex officio decree and is to notify the parties. §3. The formula of the doubt not only is to ask whether the nullity of the marriage is established in the case but also must determine on what ground or grounds the validity of the marriage is to be challenged. §4. Ten days after the communication of the decree, the presiding judge or the ponens is to arrange for the instruction of the case by a new decree if the parties have lodged no objection. Art. 4. PROOFS Can. 1678 §1. The defender of the bond, the legal representatives of the parties, and also the promoter of justice, if involved in the trial, have the following rights: 1/ to be present at the examination of the parties, the witnesses, and the experts, without prejudice to the prescript of can. 1559; 2/ to inspect the judicial acts, even those not yet published, and to review the documents presented by the parties. §2. The parties cannot be present at the examination mentioned in §1, n. 1. Can. 1679 Unless there are full proofs from elsewhere, in order to evaluate the depositions of the parties according to the norm of can. 1536, the judge, if possible, is to use witnesses to the credibility of those parties in addition to other indications and supporting factors. Can. 1680 In cases of impotence or defect of consent because of mental illness, the judge is to use the services of one or more experts unless it is clear from the circumstances that it would be useless to do so; in other cases the prescript of can. 1574 is to be observed. Art. 5. THE SENTENCE AND THE APPEAL Can. 1681 Whenever, during the instruction of a case, a very probable doubt emerges that consummation of the marriage did not occur, after suspending the case of nullity with the consent of the parties, the tribunal can complete the instruction for a dispensation super rato and then transmit the acts to the Apostolic See together with a petition for a dispensation from either one or both of the spouses and the votum of the tribunal and the bishop. Can. 1682 §1. The sentence which first declared the nullity of the marriage is to be transmitted ex officio to the appellate tribunal within twenty days from the publication of the sentence, together with the appeals, if there are any, and the other acts of the trial. §2. If a sentence in favor of the nullity of a marriage was given in the first grade of a trial, the appellate tribunal is either to confirm the decision at once by decree or to admit the case to an ordinary examination in a new grade, after having weighed carefully the observations of the defender of the bond and those of the parties if there are any. Can. 1683 If a new ground of nullity of the marriage is alleged at the appellate grade, the tribunal can admit it and judge it as if in first instance. Can. 1684 §1. After the sentence which first declared the nullity of the marriage has been confirmed at the appellate grade either by a decree or by a second sentence, the persons whose marriage has been declared null can contract a new marriage as soon as the decree or second sentence has been communicated to them unless a prohibition attached to the sentence or decree or established by the local ordinary has forbidden this. §2. The prescripts of can. 1644 must be observed even if the sentence which declared the nullity of the marriage was confirmed not by a second sentence but by a decree. Can. 1685 As soon as the sentence is executed, the judicial vicar must notify the local ordinary of the place in which the marriage was celebrated. The local ordinary must take care that the declaration of the nullity of the marriage and any possible prohibitions are noted as soon as possible in the marriage and baptismal registers. Art. 6. THE DOCUMENTARY PROCESS Can. 1686 After receiving a petition proposed according to the norm of can. 1677, the judicial vicar or a judge designated by him can declare the nullity of a marriage by sentence if a document subject to no contradiction or exception clearly establishes the existence of a diriment impediment or a defect of legitimate form, provided that it is equally certain that no dispensation was given, or establishes the lack of a valid mandate of a proxy. In these cases, the formalities of the ordinary process are omitted except for the citation of the parties and the intervention of the defender of the bond. Can. 1687 §1. If the defender of the bond prudently thinks that either the flaws mentioned in can. 1686 or the lack of a dispensation are not certain, the defender of the bond must appeal against the declaration of nullity to the judge of second instance; the acts must be sent to the appellate judge who must be advised in writing that a documentary process is involved. §2. The party who considers himself or herself aggrieved retains the right of appeal. Can. 1688 The judge of second instance, with the intervention of the defender of the bond and after having heard the parties, will decide in the same manner as that mentioned in can. 1686 whether the sentence must be confirmed or whether the case must rather proceed according to the ordinary method of law; in the latter event the judge remands the case to the tribunal of first instance. Art. 7. GENERAL NORMS Can. 1689 In the sentence the parties are to be reminded of the moral and even civil obligations which may bind them both toward one another and toward their children to furnish support and education. Can. 1690 Cases for the declaration of the nullity of a marriage cannot be treated in an oral contentious process. Can. 1691 In other procedural matters, the canons on trials in general and on the ordinary contentious trial must be applied unless the nature of the matter precludes it; the special norms for cases concerning the status of persons and cases pertaining to the public good are to be observed. |
