Interlocutory Sentence of Nov. 16, 1989

[English version: Monitor Ecclesiasticus CXV (1990-I-II), 266-273)]



            1 — LG., the petitioner in this case, married HJ., the respondent, in ... on November 28, 1968. Conjugal life, of which one child was born lasted until 1981. On October 6, 1986, LG petitioned the Court of X. to declare the marriage null. After a hearing which, as we will see below, was not free from grave procedural defects, judgment was given on April 15, 1988 declaring the marriage null "on account of relative and reciprocal psychic incapacity in accordance with c. 1095,3". The Metropolitan Court of Y. confirmed the Judgment by Decree on May 9, 1988. On June 2, 1988 the respondent appealed to the Rota against these decisions. After the constitution of the "Turnus", the Defender of the Bond of our Apostolic Tribunal, on February 7, 1989, requested that "In the first place the question of the nullity of either or both decisions be resolved". Gratuitous legal representation was granted to both parties; and after the Promoter of Justice had given his opinion, the Advocate for the petitioner contested not only the procedural legitimacy of the Defender of the Bond in proposing a complaint of nullity, but also the correctness of the procedure by which the respondent made her appeal. On May 31, 1989 the issues that we have to decide today were defined in the following terms:

            1) whether the Defender of the Bond is legitimately entitled to propose a complaint of nullity, in this case; and, if the answer is in the affirmative:

            2) whether the judgment of the first instance and/or the decree of ratification are/is null; and, if the answer is in the negative:

            3) whether the procedure by which the respondent has requested a new hearing of the case is in order or not; and, if the answer is in the affirmative:

            4) whether a new hearing is to be granted in the case.




            In his Address to the Auditors of the Roman Rota earlier this year, the Pope spoke of the right of defense, especially in matrimonial cases which are of such importance, "both because they so deeply and intimately affect the persons involved and because they seek to clarify the existence or otherwise of the sacred bond of Marriage. Such cases therefore demand a particularly diligent effort to search out the truth" (A.A.S. vol 81, p. 925). Among other passages of the Pope's address which are specially pertinent to the case before the Court, the following words are to be noted: "in order to guarantee still more the right of defense, the Tribunal is bound to indicate to the parties the different ways in which the judgment can be challenged (see c. 1614). It seems opportune to recall that the Court of first instance, in its fulfillment of this duty, should also indicate the possibility of already making a second instance appeal directly to the Roman Rota" (ib.).

            3 — Canon 1614 states: "The sentence is to be published as soon as possible with an indication of the ways in which it can be challenged..." As is obvious, the faithful also have the right to be informed of the norm contained in c. 1644, § 1: "If two concordant sentences have been pronounced in a case concerning the status of persons, it can be appealed at any time to an appellate tribunal if new and serious proofs or arguments are brought forward within the peremptory time period of thirty days from the proposed challenge...".

            4 — Before any kind of sentence can be pronounced, the judge must have moral certitude in his mind regarding the matter to be settled. He must derive this certitude from the acts and the proofs (see c. 1608, §§1 & 2). Once the terms of the controversy between the parties has been determined by the joinder of the issues ("contestatio litis": cc. 1513ff.), the judge is to allow the parties suitable time to present and complete their proofs (c. 1516). It is a question of prudence for the judge to decide when both sides have substantially presented their proofs. However, both in order to defend the rights of the parties as well as to ensure the most thorough sifting of the case, the law lays down three further stages which are to be gone through before sentence is pronounced: the publication of the Acts (c. 1598, § 1), the conclusion of the probatory phase ("conclusio in causa") (cc. 1599-1600), and the discussion of the case (cc. 1601-1606) within an appropriate period of time determined by the judge. If the provisions of these canons are not carefully and exactly observed, this can bring about a grave violation of the right of defense, resulting in the irremediable nullity of the sentence: "A sentence is vitiated by irremediable nullity if... the right of defense was denied to one or other party..." (c. 1620, 7° ).

            5 — The publication of the Acts is essential if the parties' rights are to be safeguarded. Once each of the parties has presented his or her principal arguments, the right of defense requires that each be informed of the arguments advanced by the other. This means that they must be given a real possibility of examining the Acts so as to sec whether, through the reexamination of witnesses, they can refute the claims or charges made against them, or whether they wish to call further witnesses or produce new documents in order to complete the Acts. So the Code lays down: "After the proofs have been collected the judge by a decree must, under pain of nullity, permit the parties and their advocates to inspect at the tribunal chancery the acts which are not yet known to them..." (c. 1598 § 1); "In order to complete the proofs the parties may propose additional proofs to the judge; when these have been collected there is an occasion for repeating the decree mentioned in § 1 if the judge thinks it necessary" (c. 1598 § 2).



            6 — With regard to the hearing before the Court of first instance: the Decree of the Publication of the Acts, given on March 21, 1988, consists of these brief words: "The substantial content of the Acts has been orally communicated to each of the parties separately" (Acts, 96). This does not even remotely satisfy the requirements of c. 1598 § 1; the Decree is therefore null in accordance with the said canon.

            7 — That the right of defense was denied to the parties appears more clearly still from the fact that the Decree of the Conclusion "in causa" was issued by the judge on the very same day, March 21, 1988. Practically speaking therefore, no interval of time was allowed between the Decree of the Publication of the Acts and the Decree of the Conclusion "in causa". This haste obviously neither gave the parties the possibility of completing the proofs (c. 1598 § 2) nor left them any time for preparing and presenting their defense briefs or observations (c. 1601ff).

            8 — It is therefore clear that the right of defense was denied to the respondent at least; and that the sentence of first instance, in accordance with c. 1620, 7° , is irremediably null.

            9 — There is much to be deplored also in the mode in which the Tribunal of X., on June 17, 1988, replied to the respondent's letter in which she expressed her determination to appeal against the decisions handed down: "I must inform you that the Ecclesiastical Tribunal does not see how you can make an appeal. The fact is that in the matrimonial case in question, there are two concordant sentences; and with this, according to the norms of canon law, the case is concluded" (Acts, 112). It is the duty of the ministers of justice to be zealous for the defense of all the rights of each one of the faithful, objectively and without any prejudice in favour of anyone. In the case in question, the Tribunal of X. made no mention whatsoever of the rights which the respondent possesses under c. 1644 § 1. The broad body of the faithful are not to be expected to know the finer points of the Church's law; it is the ministers of the Church, on the contrary, who are strictly bound to inform them of their ecclesial rights.

            10 — As regards the Decree of Confirmation, it could be noted that it does not seem to adequately fulfil the requisites contained in c. 1617. We do not however have to weigh the importance of this omission, since the Decree of Ratification of a null sentence is itself to be held null. What is null cannot be ratified.

            11 — Nor do we have to resolve the matter of the legitimacy with which the Defender of the Bond of our Tribunal proposed a complaint of nullity, since the respondent herself, after inquiry from this Tribunal, within the term of thirty days (in a letter sent on July 28, 1989), herself presented a complaint of nullity against the sentence.

            12. — Wherefore, having considered the law and the facts in this case, we the Auditors of the "Turnus", in the presence of God and having invoked the name of Christ, reply to the doubts put to us:

            to the 1st): it does not arise;


            to the 2nd): in the affirmative, in other words, both the sentence of the first instance and the decree of ratification are null;


            to the 3rd): it does not arise;


            to the 4th): provided for in the 2nd.


            13 — We direct therefore that all the Acts be returned to the Tribunal of X. which should hear the case again, as in first instance.

            Given in Tribunal of the Roman Rota, November 16, 1989.

            Cormac Burke, Ponens

            Thomas G. Doran

            Kenneth E. Boccafola