Canon Law: PART III : CERTAIN SPECIAL PROCESSES

TITLE I: MATRIMONIAL PROCESSES CHAPTER I : CASES CONCERNING THE DECLARATION OF NULLITY OF MARRIAGE ARTICLE 1: THE COMPETENT FORUM

Can. 1671 Matrimonial cases of the baptized belong by their own right to the ecclesiastical judge.

Can. 1672 Cases concerning the merely civil effects of marriage pertain to the civil courts, unless particular law lays down that, if such cases are raised as incidental and accessory matters, they may be heard and decided by an ecclesiastical judge.

Can. 1673 The following tribunals are competent in cases concerning the nullity of marriage which are not reserved to the Apostolic See:

1° the tribunal of the place where the marriage was celebrated;

2° the tribunal of the place where the respondent has a domicile or quasi­domicile;

3° the tribunal of the place where the plaintiff has a domicile, provided that both parties live within the territory of the same Episcopal Conference, and that the judicial Vicar of the domicile of the respondent, after consultation with the respondent, gives consent;

4° the tribunal of the place in which in fact most of the evidence is to be collected, provided that consent is given by the judicial Vicar of the domicile of the respondent, who must first ask the respondent whether he or she has any objection to raise.

ARTICLE 2: THE RIGHT TO CHALLENGE THE VALIDITY OF MARRIAGE

Can. 1674 The following are able to challenge the validity of a marriage:

1° the spouses themselves;

2° the promoter of justice, when the nullity of the marriage has already been made public, and the marriage cannot be validated or it is not expedient to do so.

Can. 1675 §1 A marriage which was not challenged while both parties were alive, cannot be challenged after the death of either or both, unless the question of validity is a necessary preliminary to the resolution of another controversy in either the canonical or the civil forum.

§2 If a spouse should die during the course of a case, can. 1518 is to be observed.

ARTICLE 3: THE DUTIES OF THE JUDGES

Can. 1676 Before he accepts a case and whenever there appears to be hope of success, the judge is to use pastoral means to persuade the spouses that, if it is possible, they should perhaps validate their marriage and resume their conjugal life.

Can. 1677 §1 When the petition has been accepted, the presiding judge or the 'ponens' is to proceed to the notification of the decree of summons, in accordance with can. 1508.

§2 If, within fifteen days of the notification, neither party has requested a session to contest the suit, then within the following ten days the presiding judge or 'ponens' is, by a decree, to decide ex officio the formulation of the doubt or doubts and to notify the parties accordingly.

§3 The formulation of the doubt is not only to ask whether the nullity of the particular marriage is proven, but also to determine the ground or grounds upon which the validity of the marriage is being challenged.

§4 If the parties have not objected to this decree within ten days of being notified, the presiding judge or 'ponens' is, by a new decree, to arrange for the hearing of the case.

ARTICLE 4: PROOFS

Can. 1678 §1 The defender of the bond, the advocates of the parties and, if engaged in the process, the promoter of justice, have the right:

1° to be present at the examination of the parties, the witnesses and the experts, without prejudice to can. 1559;

2° to see the judicial acts, even if they are not yet published, and to inspect documents produced by the parties.

§2 The parties themselves cannot be present at the sessions mentioned in §1, n. 1.

Can. 1679 Unless the evidence brought forward is otherwise complete, in order to weigh the depositions of the parties in accordance with can. 1536, the judge is, if possible, to hear witnesses to the credibility of the parties, as well as to gather other indications and supportive elements.

Can. 1680 In cases concerning impotence or defect of consent by reason of mental illness, the judge is to use the services of one or more experts, unless from the circumstances this would obviously serve no purpose. In other cases, the provision of can. 1574 is to be observed.

ARTICLE 5: THE JUDGMENT AND THE APPEAL

Can. 1681 Whenever in the course of the hearing of a case a doubt of a high degree of probability arises that the marriage has not been consummated, the tribunal can, with the consent of the parties, suspend the nullity case and complete the instruction of a case for a dispensation from a non­consummated marriage; eventually it can forward the acts to the Apostolic See, together with a petition, from either or both of the parties for a dispensation, and with the Opinions of the tribunal and of the Bishop.

Can. 1682 §1 The judgment which has first declared the nullity of a marriage, together with the appeals, if there are any, and the judicial acts, are to be sent ex officio to the appeal tribunal within twenty days of the publication of the judgment.

§2 If the judgment given in first instance was in favor of the nullity of the marriage, the appeal tribunal, after weighing the observations of the defender of the bond and, if there are any, of the parties, is by its decree either to ratify the decision at once, or to admit the case to ordinary examination in the new instance.

Can. 1683 If a new ground of nullity of marriage is advanced in the appeal grade, the tribunal can admit it and give judgment on it as at first instance.

Can. 1684 §1 After the judgment which first declared the nullity of the marriage has been confirmed on appeal either by decree or by another judgment, those whose marriage has been declared invalid may contract a new marriage as soon as the decree or the second judgment has been notified to them, unless there is a prohibition appended to the judgment or decree itself, or imposed by the local Ordinary.

§2 The provisions of can. 1644 are to be observed even if the judgment which declared the nullity of the marriage is confirmed not by a second judgment, but by a decree.

Can. 1685 As soon as the sentence is executed, the judicial Vicar must notify the Ordinary of the place where the marriage was celebrated. This Ordinary must ensure that a record of the decree of nullity of the marriage, and of any prohibition imposed, is as soon as possible entered in the registers of marriage and baptism.

ARTICLE 6: THE DOCUMENTARY PROCESS

Can. 1686 A marriage can be declared invalid on the basis of a document which proves with certainty the existence of a diriment impediment a defect of lawful form or the lack of a valid proxy mandate; the document must not be open to any contradiction or exception. It must be equally certain that no dispensation has been given. When a petition in accordance with can. 1677 has been received alleging such invalidity, the judicial Vicar, or a judge designated by him, can omit the formalities of the ordinary procedure and, having summoned the parties, and with the intervention of the defender of the bond, declare the nullity of the marriage by a judgment.

Can. 1687 §1 If the defender of the bond prudently judges that the defects mentioned in can. 1686, or the lack of dispensation, are not certain, he must appeal to the judge of second instance. The acts must be sent to the appeal judge and he is to be informed in writing that it is a documentary process.

§2 A party who considers him or herself injured retains the right of appeal.

Can. 1688 The judge of second instance, with the intervention of the defender of the bond and after consulting the parties, is to decide in the same way as in can. 1686 whether the judgment is to be ratified, or whether the case should rather proceed according to the ordinary course of law, in which event he is to send the case back to the tribunal of first instance.

ARTICLE 7: GENERAL NORMS

Can. 1689 In the judgment the parties are to be reminded of the moral, and also the civil, obligations by which they may be bound, both towards one another and in regard to the support and upbringing of their children.

Can. 1690 Cases for the declaration of nullity of marriage cannot be dealt with by the oral contentious process.

Can. 1691 In other matters concerning the conduct of the process, the canons concerning judicial powers in general and concerning the ordinary contentious process are to be applied, unless the nature of the case demands otherwise; the special norms concerning cases dealing with the status of persons and cases pertaining to the public good are also to be observed.

CHAPTER II : CASES CONCERNING THE SEPARATION OF SPOUSES

Can. 1692 §1 Unless lawfully provided otherwise in particular places, the personal separation of baptized spouses can be decided by a decree of the diocesan Bishop, or by the judgment of a judge in accordance with the following canons.

§2 Where the ecclesiastical decision does not produce civil effects, or if it is foreseen that there will be a civil judgment not contrary to the divine law, the Bishop of the diocese in which the spouses are living can, in the light of their particular circumstances, give them permission to approach the civil courts.

§3 If the case is also concerned with the merely civil effects of marriage, the judge is to endeavor, without prejudice to the provision of §2, to have the case brought before the civil court from the very beginning.

Can. 1693 §1 The oral contentious process is to be used, unless either party or the promoter of justice requests the ordinary contentious process.

§2 If the ordinary contentious process is used and there is an appeal, the tribunal of second instance is to proceed in accordance with can. 1682 §2, observing what has to be observed.

Can. 1694 In matters concerning the competence of the tribunal, the provisions of can. 1673 are to be observed.

Can. 1695 Before he accepts the case, and whenever there appears to be hope of success, the judge is to use pastoral means to induce the parties to be reconciled and to resume their conjugal life.

Can. 1696 Cases of separation of spouses also concern the public good; the promoter of justice must, therefore, always intervene, in accordance with can. 1433.

CHAPTER III : THE PROCESS FOR THE DISPENSATION FROM A RATIFIED AND NON­CONSUMMATED MARRIAGE

Can. 1697 The parties alone, or indeed one of them even if the other is unwilling, have the right to seek the favor of a dispensation from a ratified and non­consummated marriage.

Can. 1698 §1 Only the Apostolic See gives judgment on the fact of the non­consummation of a marriage and on the existence of a just reason for granting the dispensation.

§2 The dispensation, however, is given by the Roman Pontiff alone.

Can. 1699 §1 The diocesan Bishop of the place of domicile or quasidomicile of the petitioner is competent to accept the petition seeking the dispensation. If the request is well founded, he must arrange for the instruction of the process.

§2 If, however, the proposed case has special difficulties of a juridical or moral order, the diocesan Bishop is to consult the Apostolic See.

§3 Recourse to the Apostolic See is available against the decree of a Bishop who rejects the petition.

Can. 1700 §1 Without prejudice to the provisions of can. 1681, the Bishop is to assign the instruction of these processes, in a stable manner or case by case, to his own tribunal or to that of another diocese, or to a suitable priest.

§2 If, however, a judicial plea has been introduced to declare the nullity of the same marriage, the instruction of the process is to be assigned to the same tribunal.

Can. 1701 §1 In these processes the defender of the bond must always intervene.

§2 An advocate is not admitted, but the Bishop can, because of the difficulty of a case, allow the petitioner or respondent to have the assistance of an expert in the law.

Can. 1702 In the instruction of the process both parties are to be heard. As far as possible, and provided they can be reconciled with the nature of these processes, the canons concerning the collection of evidence in the ordinary contentious process and in cases of nullity of marriage are to be followed.

Can. 1703 §1 There is no publication of the acts, but if the judge sees that, because of the evidence tendered, a serious obstacle stands in the way of the plea of the petitioner or the exception of the respondent, he can prudently make it known to the party concerned.

§2 To the party requesting it the judge can show a document which has been presented or evidence which has been received, and he can set a time for the production of arguments.

Can. 1704 §1 When the instruction is completed, the judge instructor is to give all the acts, together with a suitable report, to the Bishop. The Bishop is to express his Opinion on the merits of the case in relation to the alleged fact of non­consummation, the adequacy of the reason for dispensation, and the opportuneness of the favor.

§2 If the instruction of the process has been entrusted to another tribunal in accordance with Can. 1700, the observations in favor of the bond of marriage are to be prepared in that same tribunal. The Opinion spoken of in §1 is, however, the province of the Bishop who gave the commission and the judge instructor is to give him, together with the acts, a suitable report on the case.

Can. 1705 §1 The Bishop is to transmit all the acts to the Apostolic See together with his Opinion and the observations of the defender of the bond.

§2 If, in the judgment of the Apostolic See, a supplementary instruction is required, this will be notified to the Bishop, with a statement of the items on which the acts are to be supplemented.

§3 If, however, the answer of the Apostolic See is that the non­consummation is not proven from the evidence produced, then the expert in law mentioned in Can. 1701 §2 can inspect the acts of the case, though not the Opinion of the Bishop, in the tribunal office, in order to decide whether anything further of importance can be brought forward to justify another submission of the petition.

Can. 1706 The rescript of dispensation is sent by the Apostolic See to the Bishop. He is to notify the parties of the rescript, and also as soon as possible direct the parish priests of the place where the marriage was contracted and of the place where baptism was received, to make a note of the granting of the dispensation in the registers of marriage and baptism.

CHAPTER IV : THE PROCESS IN THE CASE OF 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 regarded as free from the bond of marriage until the diocesan Bishop has issued a declaration that death is presumed.

§2 The diocesan Bishop can give the declaration mentioned in §1 only if, after making suitable investigations, he has reached moral certainty concerning the death of the spouse from the depositions of witnesses, from hearsay and from other indications. The mere absence of the spouse, no matter for how long a period, is not sufficient.

§3 In uncertain and involved cases, the Bishop is to consult the Apostolic See.

TITLE II: CASES FOR THE DECLARATION OF NULLITY OF SACRED ORDINATION

Can. 1708 The right to impugn the validity of sacred ordination is held by the cleric himself, or by the Ordinary to whom the cleric is subject, or by the Ordinary in whose diocese he was ordained.

Can. 1709 §1 The petition must be sent to the competent Congregation, which will decide whether the case is to be determined by the Congregation of the Roman Curia, or by a tribunal designated by it.

§2 Once the petition has been sent, the cleric is by the law itself forbidden to exercise orders.

Can. 1710 If the Congregation remits the case to a tribunal, the canons concerning trials in general and the ordinary contentious trial are to be observed, unless the nature of the matter requires otherwise and without prejudice to the provisions of this title.

Can. 1711 In these cases the defender of the bond has the same rights and is bound by the same duties as the defender of the bond of marriage.

Can. 1712 After a second judgment confirming the nullity of the sacred ordination, the cleric loses all rights proper to the clerical state and is freed from all its obligations.

TITLE III: WAYS OF AVOIDING TRIALS

Can. 1713 In order to avoid judicial disputes, agreement or reconciliation can profitably be adopted, or the controversy can be submitted to the judgment of one or more arbiters.

Can. 1714 The norms for agreements, for mutual promises to abide by an arbiter's award, and for arbitral judgments are to be selected by the parties. If the parties have not chosen any, they are to use the law established by the Episcopal Conference, if such exists, or the civil law in force in the place where the pact is made.

Can. 1715 §1 Agreements and mutual promises to abide by an arbiter's award cannot validly be employed in matters which pertain to the public good, and in other matters in which the parties are not free to make such arrangements.

§2 Whenever the matter concerned demands it, in questions concerning temporal ecclesiastical goods the formalities established by the law for the alienation of ecclesiastical goods are to be observed.

Can. 1716 §1 If the civil law does not recognize the force of an arbitral judgment unless it is confirmed by a judge, an arbitral judgment in an ecclesiastical controversy has no force in the canonical forum unless it is confirmed by an ecclesiastical judge of the place in which it was given.

§2 If, however, the civil law admits of a challenge to an arbitral judgment before a civil judge, the same challenge may be brought in the canonical forum before an ecclesiastical judge who is competent to judge the controversy at first instance.