The Catholic Lawyer

Volume 12 Number 1 Volume 12, Winter 1966, Number 1 Article 9

The Role of the Defender of the Marriage Bond

Msgr. Thomas V. Gallagher

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This Symposium Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE ROLE OF THE DEFENDER OF THE MARRIAGE BOND

MSGR. THOMAS V. GALLAGHER*

T HE DEFENDER OF THE MARRIAGE BOND is peculiar to canon law and is not found in other legal systems. The part and purpose of this unique canonical position can best be explained by its historical origin in ecclesiastical matrimonial procedures. Pope Benedict XLV, in 1741, insisted that every diocesan tribunal should establish the office of the Defender of the Marriage Bond.' He had been shocked to discover deplorable abuses in the Church's judicial system, whereby many marriages were being declared invalid by unlearned, careless, and even malicious judges, and through collusion at the trial by the spouses. Accordingly, the position of the Defender of the Marriage Bond was innovated in the eighteenth century to help safeguard the indissolubility of matrimony and it has, for over two hundred years, been successful in achieving this laudable goal. The present day Code of Canon Law,2 particularly as exposed and implemented in 1936 by the detailed instruction Provida Mater of the Sacred Congregation of the Sacra- ments,3 has retained and even strengthened the role of the Defender of the Bond. The intervention of the Defender of the Marriage Bond is now necessary in all judicial processes, both forma 4 and summary,5 and in the quasi-judicial procedures for non-consummation 6 and Petrine or Helena petitions.7 His intervention, however, is not required in cases of simple lack of forms or in those invoking the Pauline PrivilegeY

*Defender of the Bond, Archdiocese of New York. Constitution, Dei Miseratione, Nov. 3, 1741; I CODICIS IURIS CANONICI FONTES 695 n.341. 2 Canons 1586; 1587; 1967; 1968; 1969. 311 BOUSCAREN, CANON LAW DIGEST 471-530. 4 Instruction, Provida Mater, art. 15. 5 Canon 1990. 6 1 BOUSCAREN, op. cit. supra note 3, at 769. "It DOHENY, CANONICAL PROCEDURE IN MATRIMONIAL CASES 503 (1938). 8 Instruction, Provida Mater, art. 231. 9 Canon 1123. THE DEFENDER OF THE BOND

The Defender of the Bond may be per- of his duty were he to content himself manently appointed by the Bishop for all with a perfunctory review of the record the marriage cases of the diocese, or he and a few superficial remarks. On the other hand, it is not to be ex- may be specially designated by the Bishop pected that the Defender of the Bond shall 10 for an individual case. The Defender must elaborate and make up at all costs, an be a priest, not a layman. The Code of artificial defense without concern as to Canon Law recommends, as it does for whether or not his statements have a seri- judges and Advocates, that he possess a ous foundation. Such a requirement would be contrary to sound reasoning; it would Doctorate of Canon Law or at least have burden him with a useless and meaningless a profound, skilled knowledge of that task; it would not clarify but rather, con- subject. The Code also significantly adds fuse the question; it would do harm by that he should be a prudent and just dragging out the trial to intolerable lengths. person.11 In the interest of truth, itself, and for the dignity of his office, therefore, it should be The Defender's task is to uphold the acknowledged as a maxim for the Defender validity of the marriage that is allegedly of the Bond that, in a proper case, he null, and to argue for the continuing bind- has the right to declare that after a care- ing force of the marital bond where a dis- ful, thorough and conscientious examina- solution is sought. He must endeavor to tion of the record, he has found no rea- sonable objections to propose against the see to it that the substantive and pro- petition of the plaintiff or petitioner. cedural law regarding the sacrament and contract of matrimony is observed and Pope Pius XII of happy memory spoke that false or erroneous evidence is not of definite duties and particular rights that submitted. Nonetheless, his defense should are legally assigned to the Defender of not be at the expense of objective truth. the Marriage Bond. First of all, let us This was stressed by Pope Pius XII in an mention some of the major obligations allocution delivered in 1944 to the Sacred that the law prescribes that he should per- 13 Roman Rota.'2 The Holy Father stated form, especially in formal cases. First, on that occasion: the Defender must be present at the exam- ination of the parties, the witnesses and The Defender of the Bond must work to- ward the common end inasmuch as he the experts; he must give to the judge the seeks out, exposes and clarifies everything closed and sealed interrogatories that are which can weigh in favor of the bond. to be opened by the judge at the time of In order that he . . . may effectively the examination and that are then to be perform his duty, the procedural order proposed to the parties or witnesses; he gives him particular rights and assigns him must suggest to the judge new questions definite duties. .-. . It would be inconsis- tent with the importance of his office and that may arise during the course of the the careful and conscientious fulfillment examination. Secondly, the Defender must evaluate the items of testimony proposed by the parties and contradict them if 0 Canon 1588; Instruction, Provida Mater, necessary; in addition, he must scrutinize art. 15. 1 Canon 1589. 12 111 BOUSCAREN, op. cit. supra note 3, at 13Canon 1968; Instruction, Provida Mater, 612-16. art. 70. .12 CATHOLIC LAWYER, WINTER 1966 the documents presented by the parties. in the case. 7 The plaintiff, or petitioner, Thirdly, the Defender must write and is seeking that his marriage be annulled propose his observations against the nullity or that the bond of that marriage be dis- of the marriage and his proofs for its solved. The Defender of the Marriage validity; he must also adduce whatever Bond officially contests the declaration of he considers useful for the defense of the an annulment or the granting of a disso- marriage bond. Fourthly, the Defender lution from the marital bond. Conse- must request information, if the case de- quently, in a marriage case, the presence mands, from the Defender of the Marriage and the active participation of the De- Bond in the diocese where the marriage fender of the Bond is, as a general rule, under attack was contracted and from always required. Together with the other other possible sources. 14 Fifthly, the De- participants he is to be cited to appear by fender must appeal within the prescribed the presiding judge,18 although the citation time from the first sentence favoring does not require all the usual formalities. 19 nullity. 5 The acts of a session of, a court are invalid In order that the Defender of the Mar- if the Defender of the Marriage Bond has riage Bond may be able to fulfill these not' been dited, and if he is not actually obligations, he also has rights.16 Among present for that session. However, if the these are included the following: he may Defender happens to be present, even inspect the acts of the process at any time though he is not summoned, the acts of and at any stage of the trial, even though that session are valid. If he has been duly they have not been published; he may summoned but does not appear, the acts request new extensions of time 'for the of a session are also valid, but these acts drawing up of the written documents; he afterwards should, nevertheless, be sub- may request that other witnesses be intro- mitted to his scrutiny so that he may set duced or that the same ones be re- forth any observations or proposals that 0 examined, even though the 'trial has been he deems necessary or opportune.2 completed and the process published, and One of the important areas necessitating he may also present new observations or the Defender's presence and 'participation animadversions; he !may demand that other concerns his compositiofh of interroga- acts which he has suggested, be drawn tories that are to be proposed to the up, unless the tribunal refuses by unanim- parties and to the witnesses. Standardized ous vote. questionnaires or forms, with 'little or no The imposition of such grave obliga- variation for individual situations, may tions- and, the bestowal of such unusual frequently be used in the summary cases rights upon-the Defender lead to the con- clusion that he is really acting as a party 17 111 CAPPELLO, SUMMA TURIS CANONICI 280 n.340. is Canon 1587; Instruction, Provida Mater, 14 I BOUSCAREN, op. cit. supra note 3, at 797. art. 74. 15 Canon 1986. 19 I DOHENY, op. cit. supra note 7, at 158 n.5. 16 Canon 1969; Instruction, Provida Mater, 20 Canon 1587; Instruction, Provida 'Mater, art. 71. art. 15. THE DEFENDER OF THE BOND of Canon 1990, especially when the basis invalidity."4 of the alleged nullity is ligamen or bigamy, The composition of the interrogatories and where the evidence is largely docu- is but one of the serious duties incumbent mentary. In other cases, the preparation upon the Defender of the Marriage Bond. of the questions to be asked requires that Another major obligation is his presenta- the Defender make a thorough and consci- tion to the court of his written observa- entious study of the specific case, because tions or animadversions in defense of the each will have its own distinctive, differen- marriage's validity and in opposition to tiating qualities. The questions should be its alleged nullity."5 This presentation clear and should pertain to the issue, with occurs during the discussion of the case, special emphasis on ascertaining the real after all available proof has been offered truth about the impediment or the grounds and after the Advocate has submitted his for nullity that are alleged.2 ' Naturally, brief in behalf of the petitioner's claim of the questions are to be brief, uncompli- invalidity. The parties or the Advocate cated, relevant, and not leading or sugges- have the right to reply to the observations 26 tive of the answer. They should, more- of the Defender, but the Defender may over, be adapted to the intelligence and rejoin if he wishes,27 especially since the background of the person being questioned, law always gives him the right to be heard and they should be expressed in language last . 2 22 and terms that are easily understood. Neither the Code of Canon Law29 nor The questions are proposed to the par- the Instruction Provida Mater"° specifies ties and witnesses not by the Defender, the form or content of the Defender's 2 but only by the judge. 1 The judge must animadversions beyond rather general sug- not disregard the Defender's interroga- gestions. For clarity and order most tories, but, according to his discretion, he Defenders of the Marriage Bond emulate may also propose questions of his, own, the outline followed in the sentences of ex officio. The questions prepared by the the Sacred Roman Rota.' Accordingly, Defender would not necessarily be expect- there are three main sections or divisions ed to elicit complete and exhaustive in- followed by a conclusion. The first section formation about all the phases of the case sketches the facts, circumstances and his- because the Defender is primarily in- tory surrounding the marriage in question terested in upholding the validity of mar- and its adjudication; the second section riage. Thus, the examining judge has the expounds clearly and succinctly the prin- distinct obligation of preparing sets of ciples of law involved in the case; the questions that are designed to supplement third section demonstrates the relationship those of the Defender in seeking out all between the facts and the law that leads the arguments to establish validity or 24 1 DOHENY, op. cit. supra note 7, at 150. 2. Instruction, Provida Mater, art. 180.

21 Instruction, Provida Mater, arts. 70, 99. 26 Ibid. 22 Canon 1775; Instruction, Provida Mater, 27 Ibid. 2 8 183. art. 102. Id. art. 23 Canon 1742; Instruction, Provida Mater, 2, Canon 1968. art. 101. 30 Instruction, Provida Mater, art. 20. 12 CATHOLIC LAWYER, WINTER 1966 to the Defender's conclusion and to his in procedure and in purpose. In a matri- recommendation that the court should monial case that is adjudicated before an reject the decision or sentence that the ecclesiastical tribunal, the validity of a nullity of the marriage has been certainly sacrament and the welfare of souls are proved. involved. In conclusion, therefore, we Even after the Defender has submitted should call attention to the forceful and his final observations in defense of the pertinent words of Pope Pius XII at the validity and the court has rendered its time of his address to the Sacred Roman decision, his duties are not necessarily Rota: completed. The Defender, within the time The nuptial contract is by its very nature, prescribed by law, is always bound to and in the case of two baptized persons appeal to a higher tribunal from the first by its elevation to the dignity of a Sacra- sentence of a formal process declaring the ment, ordained and determined, not by the will of man, but of God. It is enough to invalidity of a marriage. This obligation recall the words of Christ: 'What God to appeal is so binding and urgent that hath joined together, let no man put should the Defender neglect to lodge the asunder' (Matt., 19:6), and the teaching appeal, he must be compelled to do so by of Saint Paul: 'This is a great sacrament; the presiding judge.3 1 Should the appellate but I speak in Christ and in the Church' (Eph., 5:32). The profound gravity of court affirm the nullity of the marriage in this obligation in the service of truth in its decision, the Defender in Second In- matrimonial trials, springing as it does stance must decide according to his own from the supreme and imperishable source conscience whether or not to appeal fur- of the law of God, must always be strongly ther. If there have been two sentences asserted and inculcated. In matrimonial upholding invalidity, and if there is no cases before ecclesiastical tribunals there is never room for trickery, perjury, subor- further appeal to a third tribunal by the nation, or fraud of any kind! Hence all Defender in Second Instance, the parties persons who have any part in these trials have the right to contract marriage ten must keep an alert conscience, and at need days after the declaration of the second must awaken and revive their conscience 2 sentence.3 to remember that basically these trials are conducted not before the tribunal of men This discussion of the role and inter- but before that of the omniscient God, vention of the Defender of the Marriage and that consequently the judgments ren- Bond may help us see the differences dered, if they are falsified by any fraud between a civil and a Church court, both affecting the substance of the case, are without value before God and in the realm of conscience." 31Canon 1879; Canon 1986; Instruction, Pro- vida Mater, art. 212. 32 Canon 1987; Instruction, Provida Mater, "'IIIl BOUSCAREN, op. cit. supra note 3, at art. 220. 613-14.