Instruction Dignitas Research Articles

The Role of History and Context in Church Law: The Instruction Dignitas Connubii as One Case in Point

The Role of History and Context in Church Law: The Instruction Dignitas Connubii as One Case in Point

Conformity of Sentences: Something Old Yet Something New

The Jurist 70 (2010) 270–301 270 CONFORMITY OF SENTENCES: SOMETHING OLD YET SOMETHING NEW John J. M. Foster* Where two or three tribunal officials are gathered together, the topic of first instance-second instance relationships is sure to come up sooner or later. In some cases, the first instance canonists might express frustration that, after heeding the advice of the Apostolic Signatura to use grounds other than those for incapacity found in canon 1095, their second instance courts will not accept as proven any cases but those judged on canon 1095. Conversely, second instance canonists sometimes express exasperation at seeing from their first instance courts cases decided using only the incapacity to consent to marriage validly. The following scenario illustrates some aspects of this frustration: Betsy, a twenty-year old college student living at home, has experienced a good bit of abuse from her parents the past few years. She and her boyfriend Aaron have dated since meeting during freshman orientation. Despite a rocky courtship for several months, Betsy agrees to Aaron’s proposal of marriage. Seven months after the wedding, the parties divorce . For the purpose of this illustration, the court of first instance, which Betsy approaches sometime later to clarify her status in the Church, formulates the doubt on her incapacity to consent to marriage because she suffered “from a grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted.”1 In rendering its affirmative decision on this ground, the tribunal states that the abuse Betsy endured at home became so intolerable that, at the time of consent, she was psychologically at her wits end and was left incapable of discerning marriage with Aaron. When the acts and sentence of the case are transmitted to the duly appointed court of second instance, the officials there do not see Betsy as having been incapable of consenting to marriage. Rather, they see three other grounds as worthy of follow up. First, if the abuse at home was directed at pressuring Betsy to marry Aaron, then force and fear (c. 1103) might be appropriate, since, believing her parents’ threats to disown her, * School of Canon Law, The Catholic University of America 1 Codex Iuris Canonici auctoritate Ioannis Pauli PP. II promulgatus (Vatican City: Libreria Editrice Vaticana, 1983) c. 1095, 2°; hereafter cited as 1983 code. conformity of sentences: something old, something new 271 2 Pontifical Council for Legislative Texts, Instruction Dignitas connubii (Vatican City: Libreria Editrice Vaticana, 2005); hereafter this source will be cited as DC followed by the article number. she could see no other way to escape the abusive pressure than to marry. Second, perhaps Betsy viewed marriage to Aaron as the way to escape the abuse at home, in which case she chose not marriage but escape. Total simulation might be the proper ground here (c. 1101 §2). Finally, if Betsy entered the marriage with the intention that she could regain her freedom to marry after an eventual divorce, then partial simulation contra bonum sacramenti might be more appropriate (c. 1101 §2). Inasmuch as the affirmative decision rendered by the court of first instance must be “confirmed at the appellate grade either by a decree or by a second sentence” before Betsy can enter a new marriage (c. 1684 §1), the procedural options available to the second instance court are limited. The first instance decision can be ratified by decree, or the case can be admitted to an ordinary examination (c. 1682 §2). In these options, the second instance court judges the case on the same formulation of the doubt decreed by the court of first instance (see c. 1639 §1). The court of second instance, however, also has the option of admitting a new ground and adjudicating it “as if in first instance” (tamquam in prima instantia; c. 1683). Given the facts presented here, the second instance court cannot confirm the first instance sentence by decree. Thus, the case must be opened to an ordinary examination. At this point, the higher court might decide that canon 1095, 2° was simply not proven and give the case a negative decision. Betsy then would have the option of...

From Theory to Practice: Finding Equivalent Conformity Between Sentences Decided on Force and Fear and Lack of Due Discretion or Simulation

The Jurist 70 (2010) 302–326 302 FROM THEORY TO PRACTICE: FINDING EQUIVALENT CONFORMITY BETWEEN SENTENCES DECIDED ON FORCE AND FEAR AND LACK OF DUE DISCRETION OR SIMULATION John P. Beal* The 2005 instruction Dignitas connubii has given official approval to the practice of declaring two sentences in marriage cases to be equivalently or substantially conforming, even though they were decided on formally distinct grounds of nullity. Article 291 of the instruction stipulates:§1. Two sentences or decisions are said to be formally conforming if they have been issued between the same parties, concerning the nullity of the same marriage, and on the basis of the same ground of nullity and the same reasoning of law and fact (cf. can. 1641, n.1).§2. Decisions are considered to be equivalently or substantially conforming when, even though they specify and determine the ground of nullity by different names, they are still rooted in the same facts rendering the marriage null and the same proofs. Even before Dignitas connubii, equivalent conformity had already emerged in the practice of the Roman Rota as a way of bringing closure to marriage cases being heard in the third or even higher instances when the judges now hearing these cases agreed with at least one of the previous judicial panels that the marriages were indeed invalid but disagreed with that panel about the proper ground of nullity.1 By declaring equiva- * School of Canon Law, Catholic University of America 1 SeeAntoni Stankiewicz, “La conformità delle sentenze nella giurisprudenza,” in La doppia conforme nel processo matrimoniale: Probleme e prospettive, Studi Giuridici 60 (Vatican City: Libreria Editrice Vaticana, 2003) 147–166. See also Karl-Theodor Geringer , “Die Conformitas Sententiarum: Zur Gleichwertigkeit formell nicht konformer Urteile,” AkKR 149 (1980) 432–466; Joaquín Llobel Tuset, “La conformidad equivalente de dos decisiones en las causas de nulidad del matrimonio. Ulteriores consideraciones,” REDC 64 (2007) 131–168; Paolo Moneta, “Determination of the Formulation of the Doubt and Conformity of the Sentence,” in Studies in the Instruction Dignitas Connubii, ed. Patricia Dugan and Luis Navarro (Montreal: Wilson and LaFleur, 2006) 91–114; Gianpaolo Montini, “Alcune questioni processuali intorno alla decretazione di conformità from theory to practice 303 lent conformity of affirmative sentences, the last judicial panel spared the parties the time and expense of yet another full trial. Occasionally, Rotal judges have even declared negative sentences to be formally, but not equivalently, conforming to allow a petitioner the opportunity to appeal an adverse decision instead of resorting to the more difficult and demanding petition for a new hearing of the case. In both types of cases, although Rotal judges have been reluctant to characterize the declaration of equivalent conformity or the lack thereof as an exercise of canonical equity, it is hard to escape the conclusion that this is precisely what they have been doing.2 As it has emerged in Rotal practice, the institute of equivalent conformity of sentences does not allow appellate courts unfettered discretion to “second guess” lower courts on the grounds of nullity appropriate for a particular case or to substitute its own judgment for that of the original tribunal, and then to declare the decisions equivalently conformed. Rotal jurisprudence has been unwavering in insisting that two sentences decided on different grounds of nullity can be legitimately declared equivalently conforming if, and only if, they are both grounded in “the same juridic facts.” Nevertheless, there is considerable disagreement, even among Rotal judges, about what the “juridic facts” which provide the basis for equivalent conformity actually are and what degree of “sameness ” of “juridic facts” is required for equivalent conformity to be declared .3 There is consensus that “juridic facts” are different than the “simple” or “secondary” or “unqualified” facts that are introduced into marriage nullity processes through the declarations of the parties, docuequivalente ,” Periodica 95 (2006) 483–551; Id., “La richiesta di nuovo esame della medisma causa dopo una doppia decisione conforme (artt. 290–294),” in Il giudizio di nullit à matrimoniale dopo l’instruzione “Dignitas connubii,” Studi Giuridici 78 (Vatican City: Libreria Editrice Vaticana, 2008) 3: 669–707; James H. Provost, “Jurisprudential and ProceduralApproaches to Traditional and Modern Grounds and the Question of Conformity of Sentences,” Proceedings of...

Obrona ważności małżeństwa w perspektywie poszukiwania prawdy o małżeństwie w czynnościach obrońcy węzła małżeńskiego

The article analyses role of the defender marital knot in the cases of declaration of the nullity of a marriage. The basic question is: what is the place in the process, what is the rights and obligations of the defender marital knot? Is he defends the validity of marriage at all costs? Benedict XIV’s Constitution Dei miseratione and the Code of Canon Law from the year 1917 give that basic obligation of the defender is defense of marriage. Later this concept evolved. In the Code of Canon Law from the year 1983 we have following meaning. The defender defends the validity of marriage, but not at all costs. This defense must be rational. We have also this statement in the process’s instruction Dignitas connubii. In conclusion, Author stats that  efender defends the validity of marriage with regard to the truth.

Actuación del defensor del vínculo en el proceso de nulidad matrimonial. Consideraciones sobre su función a la luz de la regulación codicial y de la Instrucción Dignitas Connubbi

The Instruction Dignitas Connubii, from the Pontifical Council for Legislative Texts, has introduced important novelties in the canonical process of matrimonial nullity. Some of these novelties deal with the criteria and faculties of the Defender of the Bond in the development of matrimonial proceedings. This article studies, taking into account the dynamism of the process, the performance of this Public Ministery though the proceeding for the declaration of matrimonial nullity, analysing those novelties introduced by the Instruction Dignitas Connubii that may cause problems of interpretation, like the attribution of functions of counselling to the judge in the admission of the plea or in the conclusion of the cause, novelties that may break the balance between public and private parties in the process. The article also intends to deduce, from the present norms, the criteria than must guide the performance of the Defender of the Bond in matrimonial proceedings, with special attention to those questions than may cause difficulties in the practice of Eclesiastical Courts.

La conformidad equivalente de dos decisiones en las causas de nulidad del matrimonio. Ulteriores consideraciones

Inside the diverse procedural relevant questions of the Instruction Dignitas connubii, the presented study centres on the between sentences of marriage nullity. It begins with a distinction among the doctrinal aspects of the marriage and the juridical - procedural institutes that make possible this doctrine in the practice. Between them, the search of the truth supported in the moral certainty to pronounce sentence, turn out to be the most important thing. The procedural institution of the double similar sentence is received in the Dignitas connubii in the form known by the jurisprudence of the Roman Rota that distinguishes between substantial conformity and equivalent conformity. The present study approaches all this problems inherent to the above mentioned distinction.

La dimensión pastoral del proceso de nulidad matrimonial. Anotaciones al Discurso del Romano Pontífice al Tribunal Apostólico de la Rota Romana (28 ener o2006)

This study takes as a preamble the Speech of S.S. Benedict XVI to the Prelates, Auditors, Defenders of the Bond and Advocates of the Roman Rota, declared by the Pope on January 28, 2006. The full text of the speech is later commented by the author in diverse paragraphs. The first one, gathers the relation that exists between the matrimonial pastoral services and the activity of the ecclesiastic Courts in the light of the Instruction Dignitas conniihii and other important ecclesiastical documents, from the universal Church and from the Spanish Church as well. The second part of this study relates the declaration of nullity of marriage as culminating point in the matrimonial pastoral services, where the exigency of truth becomes the most important thing in order to harmonize adequately the Canon Law and the matrimonial pastoral services. He concludes this study centring the concept of matrimonial nullity and the importance of the exigency of the truth on this area, always in the light of the Popes doctrine.