Formal Process for Marriage Nullity Cases By: Very Rev. Lawrence Rasaian, JCD

he , together with marriage may be invalid for T the tribunal staff, sends you all A three primary reasons: defective prayerful wishes on the Feast of St. Jo- Catholic form, a diriment impediment, seph. We discuss in this issue the use of or defective consent. In the previous the formal process for marriage nullity newsletter we had discussed the use of Volume 3, Issue 1 cases due to defective consent. Profes- the documentary process for cases con- sor Francis G. Morrisey, OMI, cerning either defective Catholic form March 2019 Paul University, Canada, has written an or existence of impediments for a valid article on the “Formal Process for Mar- marriage celebration. This issue brings riage Nullity Cases.” He explains beau- out the use of the formal process for tifully the use of the formal process for cases concerning defective consent. The a marriage nullity case due to defective formal process is in fact applied for the consent based on a biblical principle, majority of the cases coming to the tri- “State your case and bring your proofs bunal. Anyone baptized or not, who was and let them take counsel together” a party to a marriage may petition to the (Isaiah 45: 21). He highlights further tribunal for a declaration of invalidity of that the primary focus in church court is his/her marriage if he/she wishes on “the truth,” rather than justice. Its to remarry in the . Mar- primary focus is on the validity or not of riage nullity cases are handled as con- the sacrament of the marriage, and the tentious processes, even if both parties procedures are designed to enable those want the declaration of invalidity. Our involved to recognize the truth of their tribunal will be competent to accept and

situation. assist with the case if the marriage took place in the territory of our , if rofessor John A. Renken, , either or both parties have a domicile of Law, Saint (with the intention to remain here per- P manently or completed five years) or a Paul University, Canada, has written two articles on the “Nullity of Marriage quasi-domicile (with the intention to Due to Defective Consent,” and on the remain here for three months or com- “Process of Declaring the Nullity of pleted three months) in the territory of Marriage Due to Defective Consent.” our diocese, or if the most of proofs can The first article explains clearly that the be collected from any location of our formal process is specifically used for diocese. marriage nullity cases due to defective DIOCESE OF TYLER Inside this issue: consent. “Consent makes the marriage.” If one’s consent to marriage is invalid, Nullity of Marriage Due to Defective 2 the marriage itself is invalid. He gives Consent an overview of the “grounds of nullity” Administrator’s Corner 3 of marriage consent. The second article makes it clear that the tribunal process Did You Know? 3 does not make the consent or marriage invalid. Instead, after its study of the Formal Process for Marriage Nullity 4 broken marriage, the tribunal declares that this union was never a valid mar- Process for Declaring the Nullity of 5 riage since the consent of at least one Marriage Due to Defective Consent party was defective consent.

Tribunal Update 6 TribunalNewsletter Nullity of Marriage Due to Defective Consent By: John A. Renken Dean, Faculty of - St. Paul University, Ottawa, ON, Canada

The Church’s Understanding of All Marriages and, each party must also have the psychological ca- Marriage is understood as a partnership of the whole pacity to take on the life-long obligations of mar- of life between a man and a woman which is ordered riage. to the good of the spouses, and to the procreation and education of children. This partnership is indissolu- Grounds for the Nullity of Consent ble and excludes infidelity. This is the Church’s view On the part of both the man and the woman, consent is of every marriage, even if neither party is a Catholic a personal (1) act of the will by a person with (2) the or even a Christian. The Church believes this view is proper understanding of marriage, and which is ex- rooted in the very natural order of creation. pressed by a person with the (3) psychological capaci- ty to discern marriage and (4) the psychological ca- Moreover, if both parties in the marriage are baptized pacity to live out a life-long interpersonal marriage. Christians, their marriage is “sacramental” since eve- The Church holds that this pertains to every marriage ry marriage of two baptized Christians (Catholic or in the world. It follows, of course, that if something in not) is a sacrament. a party’s consent is lacking, the party’s consent is in- valid. And, since consent makes marriage, if consent The Nullity of Marriage is defective, the marriage is also invalid. A marriage is valid (1) if each party gives valid con- sent, (2) if each party is free from all impediments to Over the centuries, the Church has identified several marriage, and (3) for any marriage involving at least “grounds of nullity” of marriage consent. Below is a one Catholic, if the Catholic form for the celebration very elementary explanation of some of the most com- of marriage is observed (i.e., the marriage must be mon grounds of nullity. Those wishing more infor- celebrated in the presence of an authorized cleric and mation are invited to contact the local tribunal or par- two witnesses; this required “Catholic form” is dis- ish. pensed by the local ordinary on an ad hoc basis). Nullity due to “defects of the will” (i.e., not really If any of these factors wanting marriage) A marriage is valid is lacking (valid con- 1. Simulation: this happens when a person claims to 1. If each party gives valid consent, sent, freedom from impediments, ob- want to enter a marriage, but excludes marriage entire- 2. If each party is free from all ly, or excludes some essential element (openness to impediments to marriage, servance of the re- quired form for Cath- offspring, intention of spousal good) or some essential 3. For any marriage involving at least one olics), the marriage is property (indissolubility or fidelity). Catholic, if the Catholic form for the invalid. It can be de- 2. Conditional consent: this happens when a person celebration of marriage is observed ... clared “null” by the wants the existence of the marriage to depend on the Church. existence of something else, such that, if the other thing does not exist, then there is no marriage. Invalidity of a Marriage Due to Defective Consent It is a firm and constant principle: “Consent makes 3. Force and fear: this happens when a person enters marriage.” This consent is “personal” (i.e., it cannot marriage, despite an aversion to doing so, due to inter- be offered by someone other than the bride and the nal fear caused by external force/pressure. This com- groom). This consent is an “act of the will” (i.e., it is monly happens when a couple marry only due to pa- a free and deliberate choice) by a person who has a rental pressure because of premarital pregnancy. proper understanding (i.e., knowledge) of the true nature of marriage. Further, each party must have the Nullity due to “defects of the intellect” (e.g., a seri- psychological maturity and inner freedom to express ous misunderstanding of marriage) their consent after an adequate process of reflection; Continued on page 3...

Page 2 TRIBUNAL NEWSLETTER ...Continued from page 2 Administrator’s Corner 1. Error about a quality of the intended partner: this happens when a person so intends a quality in the intended spouse that, if the quali- The first consideration for submitting ty is absent, the person does not want the marriage. Sometimes, this a formal case petition to the tribunal error is “imposed” by the intended partner (or even a third party) in is jurisdiction; is the tribunal compe- order to manipulate the consent of the person in error. tent to process the case? A petition- 2. Error about something essential to marriage: this happens when er or respondent must have a con- a person enters marriage while consciously holding to an error about nection to a particular diocese by marriage’s indissolubility, or the required fidelity, or its sacramental domicile, or quasi-domicile; where character (between the baptized). The person with this error con- the marriage was celebrated; or sciously chooses marriage precisely as he or she erroneously under- where most proofs can be collected. stands it. A petitioner must answer the ques- Nullity due to “psychological incapacity” 1. Incapacity to discern adequately the choice to marry for causes of tionnaire as thoroughly as possible a psychic nature: this happens when a person lacks the peace of and submit complete contact infor- mind, internal freedom, maturity, etc. to make the marital choice mation for the former spouse and with the appropriate balance, calm, and reflection proportionate to a witnesses who have agreed to coop- life-long union. erate. A copy of the marriage license and divorce should be en- 2. Incapacity to take on the essential obligations of marriage for closed. The tribunal will assist in ob- causes of a psychic nature: this happens when a person suffers some grave psychological condition or disorder which eliminates the per- taining Catholic baptismal certificates son’s ability to live out marriage. and prenuptial marriage preparation packets when necessary. Important Note - Margaret Oppenheimer The above presentation is a very simple overview intending to identi- fy the basics of what is required for valid matrimonial consent. If Email canonical questions to the someone believes that his or her marriage is invalid due to some de- Tribunal Office at: fect of consent, he or she is invited to approach the diocesan tribunal [email protected]; which will provide more information, and which will explain the the response from the Judicial Vicar Church’s process to study the consent of the parties in a marriage will be published in future issues which has ended in civil divorce. of the newsletter. Did You Know? Lack of quality witness testimony may be the most common problem the tribunal encounters in processing a formal case petition. As in civil law, an- yone alleging a former marriage is invalid bears the burden of providing the evidence to clearly establish proof, normally through personal testimony and testimony of knowledgeable witnesses. Witnesses are vital to this process, as a former spouse may refuse to participate, or give conflicting testimony.

The tribunal must have adequate testimony to determine if grounds for invalidity are evi- dent at the time of consent, and if the marriage did not meet the canonical requirements for a binding union. Other proofs may include medical, psychological, or criminal records/ police reports. - Margaret Oppenheimer

VOLUME 3, ISSUE 1 Page 3 Formal Process for Marriage Nullity Cases By: Professor Francis G. Morrisey, OMI - St. Paul University, Ottawa, ON, Canada The formal process that is used ments in favor of the validity of human sciences, new possible presently in marriage tribunals the marriage. grounds were added to the list of acceptable grounds. For instance, around the world for most of the There were additional changes cases that are presented to them in 1983, John Paul II added made in the procedure through various types of psychological in- has a long and evolving history. the last three centuries. The capacity (such as immaturity). In most recent revision took place the course of the proceedings, the in 2015, under Pope Francis. He grounds can be changed if new evi- ordered a simplification of the dence comes to light indicating entire procedure in order to other factors that were unrecog- make it easier for people to nized at the time the case was first Its basic elements can be traced come to the tribunal and to have presented. back to the Old Testament times. their cases heard. Tribunals are We read in Isaiah, 45:21: “State now using the renewed proce- Once the grounds have been deter- your case and bring your proofs. dures and these have proved mined, the parties then “present Let them take counsel together.” helpful to many people. their proofs”, by naming witnesses, presenting relevant documents, and There are three elements involved As it stands so forth. If witnesses live at a dis- here: (1) what is the case?; (2) how now, each tance, the tribunal of the place can I prove it?; (3) how can we diocese has where they reside can be asked to evaluate what was presented? its own tri- assist, so that they are not unduly bunal, or it inconvenienced. In many cases, In the early Church, we did not shares ser- have elaborate procedures in place. proof is provided by psychological vices with another diocese. Per- experts, or other qualified persons, The classic episode of Ananias and sonnel are appointed (judges, Sapphira in the Acts of the Apos- who have studied the evidence and notaries, defender of the bond, can indicate any underlying factors tles (Acts 5:1-11) shows how the and so forth). A person who couple were asked to tell the truth; that might have contributed to the wishes to have a case heard pre- nullity of the marriage. they lied; they died on the spot. sents it to the tribunal. Usually, The key point here is that they that person is assisted in the Since, in a manner that is some- were given the right to defend preparation of the request. This what different from the practice of themselves. corresponds to the first phase: the secular courts, the primary fo- “state your case” (Isaiah). cus in church courts is on “the Later on, arrangements were made to have certain persons designated truth,” rather than on “justice,” evi- If the Church court dence can be presented that might as judges, and their areas of com- is of the opinion petence were determined. Then not be acceptable in other legal that the case as pre- systems. The church courts do not later, proofs by oaths (invocation sented merits con- of the Divine Name were intro- have a system of cross- sideration, the oth- examination. duced). er party to the mar-

A major turning point occurred in riage is notified Once the proofs have all been gath- 1741 when Pope Benedict XIV and given an opportunity to pre- ered, the defender of the bond and reorganized the entire procedure, sent the other side of the story. the advocate for the party or parties examine the material that has been and introduced a new person into The judge will determine the the process: the defender of the gathered and present arguments. grounds upon which the case is This is the third phase of Isaiah’s bond (often called “the devil’s ad- to be heard. As the Church be- vocate” in popular speech). The recommendation: “take counsel came more and more comforta- together.” defender’s role was to uphold the ble with the contribution of the truth and present reasonable argu- Continued on page 6...

Page 4 TRIBUNAL NEWSLETTER Process for Declaring the Nullity of Marriage Due to Defective Consent By: Monsignor John A. Renken Dean, Faculty of Canon Law - St. Paul University, Ottawa, ON, Canada

Consent Makes Marriage riage. presumed to be valid) is in fact in- It is a firm and valid (due to the inadequate con- constant truth: It is most important to under- sent of at least one party). “Consent makes stand: the tribunal process does marriage.” This not make the consent invalid, nor The staff of every tribunal must principle reflects the personal na- does it make the marriage inva- include persons (men or women) ture of matrimonial consent, and is lid. Instead, after its study of a who have a graduate degree in rooted in ancient Roman law. The broken marriage, the tribunal canon law that provides them with principle is so important that the may declare that this union was the competence to study the con- Church contends that, if one’s con- never a marriage since the con- sent of the parties of a broken mar- sent to marriage is invalid, the sent (of at least one party) was riage in accordance with the long- marriage itself is invalid. defective consent. This marriage standing tradition and jurispru- is invalid because at least one dence of the Church. The study of Over the centuries, the Church has party’s consent was invalid. every broken marriage involves a articulated several factors which canon lawyer called the “defender make a person’s matrimonial con- Therefore, it is proper to say that of the bond” (whose role is to sent invalid. From the viewpoint of the tribunal issues a declaration point out truthful and reasonable the Church, these factors pertain to of nullity (meaning that the tribu- factors favoring the validity of the every marriage, even if neither nal declares that the marriage consent). This study also involves partner is Catholic or Christian. was null from its beginning be- three other canon lawyers called cause of defective consent). It is the “judges” (who make the deci- The Church has developed a pro- not precise to speak of an annul- sion whether or not the investiga- cess to study a marriage which has ment (which can give the mistak- tion reveals the invalidity of con- ended in civil divorce in order to en impression that the tribunal sent). By exception, due to a determine whether or not that mar- itself nullifies the marriage). shortage of personnel, this decision riage was invalid from its begin- can be made by one “judge” who ning due to the defective consent The Tribunal must have the assistance of two of a party. This study takes place The law of “assessors” who have solid for- in the “tribunal” of the diocese. the Church mation in marriage jurisprudence. The common good (and “common requires that every dio- sense”) require that we should pre- The Tribunal Process sume the validity of a person’s cese have a The process marriage consent (and, conse- tribunal. If this is not possible of investigat- quently, the validity of marriage). for a given diocese, then the di- ing a broken The tribunal studies a “broken ocesan bishop must arrange for marriage be- marriage” (i.e., one which has end- his faithful to have access to the gins when ed in civil divorce) to discover if services of a nearby tribunal out- either partner (or both partners to- its validity (which the law pre- side his diocese. Everyone has gether) approach the tribunal with sumes) never existed. In other the right to receive the services a “petition” to study the marriage. of a tribunal. words, if there is sufficient proof One of the judges studies the peti- of the invalidity of consent, the The tribunal exists to resolve dis- tion and, if it appears to have some tribunal issues a judgment which puted or unclear issues. When basis, the judge accepts the case overturns the legal presumption of studying a broken marriage, the and the investigation process be- the marriage’s validity and which tribunal investigates whether a gins. declares the nullity of that mar- given marriage (which is legally Continued on page 6...

VOLUME 3, ISSUE 1 Page 5 ...Continued from page 4 ...Continued from page 5

Then, once the argu- Both parties are informed of the judge’s acceptance of the petition, ments have been and each is invited to take part in the process. (If the non-petitioning presented, the case party refuses to take part, the process continues nonetheless). Both goes to the judge or parties are offered the services of an “advocate” who “represents” judges for decision. them during the process. The advocates also have significant for- The parties are ad- mation in marriage jurisprudence. vised of the out- come. Since the common good (and common sense) presume the validity of every marriage until the contrary is proven, the purpose of the tribu- If one or other is not satisfied, there is nal’s process is to determine if this presumption is to be overturned – a right of appeal to a second court, that is, to determine if this marriage was in fact not a valid marriage and even, in some cases, to a third (which judgment overturns the presumption of validity) because of court (usually in Rome). defective consent. The process requires “proofs” to overturn the pre- sumption of validity. There are many kinds of proofs: the declara- When the time for appeals has tions of the parties (the most important proofs), the testimony of wit- elapsed, the parties are free to remar- nesses, documents, analysis by (psychological) experts, etc. The tri- ry in the Church, unless a prohibition bunal staff gathers these proofs at the direction of the judges. was placed on either or both parties because of underlying psychological Once the proofs are gathered, both parties have the right to see the issues that have not been addressed. proofs and to make observations, personally or through their advo- cates. Thereafter, the defender of the bond offers remarks, and then The procedure is a means to an end, the case is presented to the judges who decide if the broken marriage and, for this reason, it is not surpris- had been a valid marriage. This decision about the validity of the ing to see that the rules governing a marriage is rooted in the judgment about the validity of the party(ies) trial have varied and will continue to consent: if one’s consent was invalid at the wedding, the marriage has do so in years ahead. The primary always been invalid. focus is on the validity or not of the Sacrament of Marriage, and the pro- An “affirmative” decision means “YES, the invalidity of the consent cedures are designed to enable those has been proven through the tribunal process, and now the Church involved to recognize the truth of sees this as an invalid marriage.” A “negative” decision means “NO, their situation. the invalidity of the consent has not been proven by this tribunal pro- cess, so the Church continues to presume the validity of this mar- riage.” Tribunal Update After the diocesan tribunal gives its decision, both parties have the March 2019 right to “appeal” the decision to the appellate tribunal which may (or may not) accept the appeal. This appeal is not mandatory any longer Formal Petitions (opened) 14 (but appeal had been mandatory for very decision prior to the reforms of the marriage procedures enacted by Pope Francis in 2015). Prior Bond () 3 If there is no appeal, following an “affirmative” decision, both parties are free to enter new marriages, since the “affirmative” decision (opened) 0 means that the prior union had never been a valid marriage (due to the defective consent of at least one of the partners). Sometimes, though, Radical Sanation 3 following an affirmative decision, before a person enters a subsequent marriage, the Church requires him or her to take part in some pastoral Lack of Form 11 counseling in order to address appropriately the factors which caused the invalidity of the broken marriage. The Church wants to assist the Appeal Cases (opened) 4 party, to ensure that a future marriage is not invalid for the same (unresolved) issues which caused the nullity of the first marriage.

Saint Joseph was a good man, a tireless worker, the upright guardian of those entrusted to his care. May he always guard, protect, and enlighten families. - St. John Paul II