Nullity Of Marriage Research Articles

Ensuring Justice and Searching for Truth in the Marriage Nullity Process

Clients have a right to a fair trial. Judges and other officials ensure fairness by observing secrecy (cf. can. 1455, CIC 1983). This is necessary in a penal trial and in some cases also in a contentious trial. Judges are also required to maintain confidentiality concerning the discussion among them in a collegiate tribunal when making their judgement. If they breach the law of secrecy, they are punished with appropriate penalties and also with dismissal from office. The judicial examination of the parties is the core of the process. This phase leads the gathering of that important information which can lead the judge to the truth (art. 177, DC). “The best way of obtaining evidence are the statements of the spouses. The spouses are expected to be sincere and honest when describing their failed marriage.” A judge is obliged to remind the parties and the witnesses about their duty to speak the whole truth and only the truth.

Wykluczenie nierozerwalności małżeństwa i potomstwa przez pozwaną w świetle wyroku Roty Rzymskiej c. Monier z 6 marca 2015 roku

The presented sentence of the Roman Rota, to which the author provides a comment, concerns nullitatis matrimonii, which was heard by the turnus c. Monier on the grounds of exclusion by the female defendant of the indissolubility of marriage and offspring. This sentence was passed by another instance, after obtaining by the male claimant nova proposition causae (in the first and third instance the sentence was negative, in the second instance it was positive); the defendant failed to attend all three instances. However, her testimony given in c. Monier instance, fully confirmed by the claimant and witnesses, unequivocally demonstrated that she simulated marriage consent – both in reference to bonum sacamenti and bonum prolis (the reason for both simulations were her beliefs concerning marriage and its procreative purpose, which deviated from the teaching of the Church). The sentence of the Roman Rota c. Monier is an example of an in-depth assessment of means of proof, which enabled to convincingly declare the nullity of marriage.

Ipse Episcopus iudex: ritorno alla tradizione canonica?

SOMMARIO. 1. Premessa - 2. L’episcopalis audientia. Riconoscimento, evoluzione e problematiche - 3. L’eta medievale e la nascita degli officiali. I tribunali “guardiani del vincolo” - 4. Dal Concilio di Trento alla prima codificazione - 5. Dal Codex del 1983 all’Istruzione Dignitas connubii - 6. Conclusioni. Ipse Episcopus iudex: return to the canonical tradition? ABSTRACT: The new procedural norms for marriage nullity approved by Pope Francis invested the diocesan Bishop with a peculiar role, adding to his previous duties in the judicial sphere that to judge personally in the new processus brevior. Bishops have always been considered the “natural judges” in their dioceses, but this task was previously exercised by appointing the tribunal staff and supervising the judicial activity. Some Authors have affirmed - referring, for example, to the ancient episcopalis audientia - that with this reform a longtime practice of the Church was restored. However, a more accurate study of the evolution of the episcopal potestas iudicandi through the centuries reveals a progressive and conscious devolution of its daily exercise to specialized clerics and colleges, exclusively dedicated to their functions. This trend, transposed in the 1917 Code of Canon Law and confirmed in the present Code promulgated after the Second Vatican Council, has been lastly strengthened in the Instruction Dignitas connubii approved by John Paul II.

Badanie przedprocesowe czyli duszpasterskie, w świetle motu proprio „Mitis Iudex Dominus Iesus”

The amendment to the process to declare the nullity of marriage introduced a new institution, a pre-judicial or a pastoral inquiry. The purpose of this procedure is to help those who have experienced the drama of breaking up a sacramental marriage. The diocesan bishop and the parish priest are responsible for helping such persons. An inquiry should be entrusted to other persons who will be adequately prepared for this. A pre-judicial inquiry is intended to be a tool to help assess the situation of such persons in order to determine the legitimacy case to present petition to the competent tribunal. Faithfull in the pastoral inquiry should be acquainted with the procedure and should help them to prepare formally to start process to declare the nullity of marriage. Some situations do not qualify for declaring the nullity of marriage. Then the pastoral inquiry should help those who have experienced the breakup of marriage to point out other forms of help that will service them to find the role, the meaning, and the function in the community of the Church.For this reason, the ecclesiastical law obliged those responsible for carrying out this procedure to cooperate with other legal entity who have the possibility to provide adequate assistance within the framework of structures of pastoral care of marriage.

La preparazione degli sposi al matrimonio: una panoramica pastorale-giuridica

This brief analysis is inspired by the words of Pope Francis in his speech addressed to the officials of the Tribunal of the Roman Rota on 22nd January 2016: a fortiori, pastoral urgency involving all Church structures is leading us toward a shared intention to provide adequate for marriage in a kind of new catechumanate. In light of the recent reform of the process for the declaration of nullity of marriage, we have studied in deep both the need for a link between the pastoral and judicial praxis - for the purpose of proper preparation of engaged couples for marriage - and the new needs that the reality of family demands. So we have seen that from the court cases that the most frequent ones leading to the declaration of matrimonial nullity could be avoided and even forewarned by an effective of engaged couples, with a true journey of rediscovery of the faith. It is also clear from our research as the need for an ongoing tutoring for married couples in the first few years of marriage, is not only in conformity with the norms of the CIC, but for some time emerged in the documents of the Pastoral Family of the Holy See.

Dawne i obecne umocowania prawne procesu dokumentalnego

This study fundamentally applies with the genesis and the present legal basis of the documentary process for nullity of marriage. The documentary process was already used in pre-coded law, although it was determined as a summary process. The current name of this procedure was found in the 1983 Code. As in the past, also in the current legislation, the documentary process is an extraordinary procedure and applies only in strictly defined circumstances. According to can. 1688 MIDI documentary process can be applied 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. The documentary process is conducted by a sole judge, and it is the diocesan bishop or the judicial vicar or a judge designated. New since the entry into force of MIDI is the indication of the office of the diocesan bishop, who can give a judgment in this process. Court proceedings are reduced to the receiving of libellus, the appointment of the defender of the bond and the citation of the parties. After proof on the basis of the document, no publication of the act is envisaged. As a matter of discussion of the case only defender of the bond presents his observations, after which the judge pronounces the sentence.

Proces skrócony o nieważność małżeństwa przed biskupem

Pope Francis through motu proprio Mitis Iudex Dominus Iesus introduced a series of reforms of marriage processes. The most important of them was introducing the new institution of the briefer matrimonial process. Proceeding with the cases of the nullity of marriage with the briefer process can be taken whenever the petition is proposed by both spouses and in the circumstances of recurring evidences which render the nullity manifest (can. 1683).

El artículo 14 de las reglas de procedimiento del M. P. "Mitis Iudex". Supuestos de hecho y causas de nulidad

Pope Francis promulgated new regulations for the marriage nullity process in M. P. Mitis Iudex and the Rules of Procedure in the appendix. The new canons 1683-1687 in the Code foresee the possibility of a brevior process before the bishop in relation to certain grounds for nullity relating to defects in matrimonial consent, under certain conditions. Article 14 of the Rules of Procedure includes a list of cases in which these conditions may be present. In addition, a later Subsidium Applicativum of the Dean of the Rota Romana further elaborates on this point. The present text is based on the ius connubii that informs the legal order of marriage as a whole. Furthermore, it offers an analysis of each of the cases referred to in Article 14 of the Rules from a substantive viewpoint: namely, the good safeguarded by the corresponding ground for nullity and the criteria to assess the degree of harm that may be done in each case.

Relevancia procesal del fracaso de las relaciones interpersonales en el matrimonio

The main purpose of this paper is to offer an apt account of the breakdown in interpersonal relationships within the context of the canonical process for the declaration of marriage nullity. To this end, a comprehensive legal understanding of the nature and content of marriage «in fieri» and «in facto esse» is required, followed by an account of the declarative status of the process of nullity. A reading of recent papal teaching in this regard prompts the conclusion that the connection between marriage breakdown and the nullity process remains the same: love of truth; in other words, an inquiry into the truth concerning the issue of spousal consent as part of the annulment process. Furthermore, this view guards against misguided pastoral practices that may have been proposed by other scholars.

ANNULMENT OF MARRIAGE IN POLISH LAW AND DECLARATION OF NULLITY OF MARRIAGE IN CANON LAW – A COMPARATIVE STUDY

Annulment and nullity of marriage are two institutions that function in two separate and independent legal systems. Despite some similarities, they cannot be used interchangeably. The differences between the annulment and declaring nullityof marriage follow mainly from the fact that the canonical marriage between baptized persons is a sacrament, a lifelong and indissoluble bond. For this reason, once validly contracted, it cannot be annulled or dissolved by divorce, but only bythe death of a spouse or a dispensation from an unconsummated marriage and the privilege of faith. In the case when marriage is contracted, despite the existence of impediments to marriage, the ecclesiastical tribunal, after completing the relevant proceedings, declares its nullity whereby this judgment is of a declarative nature. In the case of annulment of marriage, the legislator provided for some restriction as to the persons authorized to file a claim, and it also listed the situations in which, even though marriage was contracted in breach of law, its annulment is not possible. Therefore, convalidation by force of law is permissible. Such validation and such restrictions have not been provided by the ecclesiastical legislator, although the convalidation of marriage is possible as long as the matrimonial consent continues and some additional conditions have been satisfied. The judgment regarding the annulment of marriage is constitutive, although the effects of annulment have retroactive effects, whereby the legislator stated that for certain relationships, the rules of divorce shall be applicable.
 Both in the state and canonical orders, there are three groups of reasons that are the basis for annulment and declaration of nullity of marriage. These are impediments to marriage, defects to the declarations of intention of the spousesand defects to the mandate to contract marriage. The individual reasons have been briefly discussed to present the differences in their understanding under canon law and state law.

The Reform of Canonical Marriage Procedures and its Effect on Spanish Law

This article analyses the impact of the 2015 Reform of Canonical Process on the recognition of civil effects to ecclesiastical judgments about marriage nullity in Spain. It departs from an historical overview of canon marriage regime in the State and the Concordats and follows with an explanation of the Spanish marriage system. The analysis focuses on the conditions required to ecclesiastical judgments to be declared adjusted to the State Law in order to have civil effects. This study takes into account the relevant jurisprudence of the Constitutional Court and the Supreme Court as well as the new Spanish legislation on the issue, including Law 29/2015, of international legal cooperation in civil matters.

The Pre-Judicial and Pastoral Inquiries in the Motu Proprio Mitis Iudex Dominus Iesus: Legislative Novelties and Critical Aspects

The contribution examines on the one hand the regulatory guidelines offered by the Pope about the prejudicial or pastoral inquiry in the wider context of the reform of the procedures for the declaration of marriage nullity, and on the other wants to emphasize the role of ecclesiastical lawyer in this particular inquiry, presenting the problematic aspects of the reform both in the judicial phase and in the broader pastoral horizon of the reform.

Study of Contra-Scripture and Tradition Condition in Marriage

The stipulation of marriage, that is commitment and obligation, meaning that each party to the contract are entitled to ask from the other party, a specific description, act or omission, or the result of another contract, or to get committed for the benefit of the other party. About the stipulation of marriage, it can be said that it is not true that people are entitled to sign a stipulation without any criterion, and then call it "be enforceable", rather the stipulation must be signed under the terms established by law and sacred religious of Islam. The stipulations of marriage must not be against the scripture and tradition. The majority of jurists of Imamiyeh religious, according to the Hadith "Believers should fulfill their conditions, unless these conditions turn a lawful issue into an unlawful one or an unlawful issue into a lawful one " believe that the principle is the fulfillment of any stipulation, unless it is a condition which turns a lawful issue into an unlawful one or an unlawful issue into a lawful one. The contra-scripture and tradition conditions are of those unlawful stipulations, as to not damage the marriage the main pillars; they do not cause the nullity of marriage. But if they damage the main pillars of marriage, not only the stipulation has been nullified, but the marriage itself is nullified as well. This paper scrutinizes the situation of contra-scripture and tradition, and the touchstone to distinguish such conditions, as well as to investigate the extent they influence marriage.

Kryteria oceny ekspertyzy psychologiczno-psychiatrycznej w kanonicznym procesie małżeńskim z tytułu niezdolności psychicznej

Opinia biegłego jest środkiem dowodowym niezwykle istotnym, szczególnie w tych rodzajach spraw, które dotyczą sfery psychicznej człowieka. Biegły, dzięki swojej kompetencji, jest w stanie określić nie tylko istnienie jakiejś choroby psychicznej czy też zaburzenia osobowości w danym podmiocie, ale również nakreślić dynamikę zachodzących procesów psychicznych oraz ich nasilenie. W kontekście prowadzonej sprawy o stwierdzenie nieważności małżeństwa jest to bardzo istotne, gdyż tylko poważna anomalia psychiczna, istniejąca w podmiocie zawierającym małżeństwo, ma ewentualny destrukcyjny wpływ na ważność konsensu, czyniąc osobę niezdolną do jego wyrażenia.Jest rzeczą oczywistą, że ekspertyza nie jest wyrokiem w sprawie i nie ona decyduje o stwierdzeniu nieważności zawartego małżeństwa. Do sędziego przynależy jej krytyczna ocena oraz określenie wartości dowodowej. Funkcja biegłego ma jedynie pomóc sędziemu w dotarciu do prawdy procesowej, a sędzia wydaje wyrok na podstawie całości materiału dowodowego, w tym opinii przedstawionej przez biegłego. Fundamentalną pozostaje zasada wolnej interpretacji ze strony sędziego, która pozostawia mu dominującą rolę w ocenie wartości, jaką opinia biegłego może mieć w tworzeniu pewności moralnej koniecznej do wydania sprawiedliwego wyroku. Choć sędzia nie musi kierować się wnioskami eksperckimi, to jednak ze względu na istotną ich wartość w rozpatrywaniu spraw z tytułu niezdolności psychicznej, byłoby to niewskazane, o ile opinia ta posiada odpowiednie podstawy faktyczne i merytoryczno-argumentacyjne oraz nie pozostaje w sprzeczności z chrześcijańską wizją osoby i małżeństwa.

Nueva regulación de los procesos de nulidad matrimonial

On December 8, 2015 two new norms regulating the processes of nullity of marriage came into effect. These norms had been ordered by Pope Francis through his m.p. Mitis Iudex Dominus Iesus and his m.p. Mitis et misericors Iesus, the first for the Latin Church and the second for the Eastern churches. The present article offers a presentation of MI, with references to the most relevant developments and to the doctrinal opinions that have been expressed in relation to MI. In addition, the author of the article offers his opinion on particular issues which he considers of special interest.

Geneze, vývoj a opuštění principu dvojího shodného rozsudku v manželských záležitostech

The article examines the emergence and further development of the principle of dual and coinciding sentences (sententia conformis duplex) in the declaration of the nullity of marriage. This obligation instituted by Pope Benedict XIV in the Apostolic Constitution Dei miseratione from 1741 should have avoided too benevolent a declaration of the nullity of marriage by religious courts. In a modified form, it has been accepted into both Western Codes of Canon Law (of 1917 and 1983), as well as the Eastern Codex Canonum Ecclesiarum Orientalium. Pope Francis was the first who resigned to it in his motu proprio Mitis Iudex (for the Western Church), respectively Mitis et misericors Iesus (for the Catholic Churches of the East), in order to accelerate the matrimonial processes and enable applicants' access to the sacraments.

Mitis Iudex: Fuero competente y sistema de apelaciones

Two new norms regulating marriage nullity processes came into effect on 8 December 2015. These norms were established by Pope Francis in his motu proprio Mitis Iudex Dominus Iesus and motu proprio Mitis et misericors Iesus, the first for the Latin Church and the second for the Eastern churches. The present article offers an overview of motu proprio Mitis Iudex Dominus Iesus, with reference to the most significant developments concerning the issues of competent forum and the appeals system.

El servicio de indagación prejudicial: aspectos jurídico-pastorales

Pre-judicial inquiry is an authorized, optional service, established by the diocesan bishop as part of marriage pastoral work as whole. In this way, the Bishop shows his concern for separated or divorced persons who question the existence of their marriage bond. Firstly, this service offers the resources required to attempt to overcome the crisis in the marriage and restore it, by reaffirming the marriage if necessary. Secondly, should reconciliation prove impossible, the purpose of the prejudicial inquiry turns to the viability of the marriage nullity process, collecting the elements necessary for the presentation of the case before a competent tribunal. Clearly, a vademecum consolidating standards of practice in the pre-judicial stage would be a very useful resource; it would be also a way to grow in the missionary outlook of a Church which «goes forth» (EG 46).

Psychické příčiny jako důvod neplatnosti manželství u církevního soudu v Olomouci v letech 1983-2013

The article discusses the application of canon 1095 of the Code of Canon Law of 1983 in an ecclesiastical tribunal in Olomouc in the years 1983-2013. It presents the basic principles of application of that canon, and then makes an analysis of the application of this canon to the marriage cases resolved by the ecclesiastical tribunal in Olomouc. The article reflects on the reasons behind the increase in psychological causes of nullity of marriage in relation to other causes of marriage nullity. Possible reasons could be the absence of education involving sacrifice and the lack of positive examples for partnership and parental relationship in the primary family.

Legal Status and Justice To Illegitimate Children

A child born in illegitimate relationship or in a void marriage is innocent, and is entitled to all rights which are given to other children born in valid marriage.