La naturaleza procesal del defensor del vínculo en su desarrollo legislativo. Perspectiva histórica

Abstract

and its legislative development: historical perspective. The present article seeks to be a contribution to the study of the procedural nature of the Defender of the Bond. Our perspective is the legislative development in the history of canonical processes of marriage (from the Apostolic Letter Dei Miseratione of Benedict XIV to the Code of Canon Law of 1983), leaving aside other technical and fundamental questions. We conclude with an analysis of some decrees of the Roman Rota since the 1983 promulgation of the CIC, in order to see, from the jurisprudential angle, how the present configuration of Defender of the Bond has been received. The figure of Matrimoniorum Defensor as a proper office for the public defence of the marriage bond arises with the Ap. Letter Dei Miseratione of Benedict XIV with the intention of procuring a better defence of the marriage bond in canonical processes. The procedural condition of the party is highlighted by the Apostolic Constitution. Throughout the XVIII and XIX centuries the functions and competences of the Defensor (who by the turn of the century will be known as Defensor Vinculi) become ever wider, making him increasingly appear in an intermediate posture between the private parties and the Tribunal. With the promulgation of the Codex luris Canonici and, above all, with the Instruction Provida Mater Ecclesiae, competencies are being attributed to the Defender of the Bond which disfigure his condition as a part of the process, often making him appear more as a delegate of the judge than as a defender of a good which has a public character. After the announcement of the reform of the Codex the commission charged with revising the law on processes got down to work with, among other things, clarifying the procedural nature of the Defender as a public party, establishing a greater equality among the parties and situating his ministry within the defence of the truth of the marriage. These works of revision were taken up in the Code of '83. Lastly, we glance at the reception of the new legislative configuration of the Defender from the angle of jurisprudence, underlining his condition as a party to the process, as is evidenced by the abuses and lack of defence of marriage as an ecclesial good when the figure of Defender of the Bond is not properly understood.