PONTIFICAL UNIVERSITY OF THE HOLY CROSS
School of Canon Law
6th Renewal Course on Marriage Law and Canonical Procedure
C A S E S T U D I E S
Rome, September 19-23, 2016
Summary
PRACTICAL CASES REGARDING ADMISSION TO THE BRIEF PROCESS ...... 5 PROF. PAOLO BIANCHI Case A ...... 6 Case B ...... 21
CASE STUDY: INSTRUCTION AND DECISION IN THE “PROCESSUS BREVIOR” ...... 29 MSGR. FELIPE HEREDIA
CASE STUDY ON THE APPEAL OF MARRIAGE CASES ...... 34 PROF. DR. CARMEN PEÑA
PRACTICAL CASE ON FAITH AND MARRIAGE CONSENT ...... 36 PROF. GIACOMO BERTOLINI
PRACTICAL CASE ON THE GOOD OF THE SPOUSES ...... 47 PROF. HÉCTOR FRANCESCHI
VI RENEWAL COURSE IN MATRIMONIAL LAW AND CANONICAL PROCEDURE
Discussion of Monday, September 19th
PRACTICAL CASES REGARDING ADMISSION TO THE BRIEF PROCESS Prof. Paolo Bianchi
Outline of Presentation of the Proposed Cases
1. Two premises: - Both cases deal with defects of consent, one being voluntary and the other involuntary. One point to be discussed in general terms (or even prior to touching on the merit of the two single cases) would be the fact that doctrine (or at least parts of it) is quite prudent in the application of the processus brevior to issues of defect of consent, given the various and complex aspects that ascertainment in cases of this nature bears; - Of the two cases presented, one case moves toward admission to the processus brevior, and the second is denied this. From a didactic point of view the decision to present both possibilities is very instructive.
2. Regarding the details surrounding the case denied the brief process:
It is a case involving a voluntary defect of consent, or exclusion of fidelity.
The following are specific aspects of the case that might be points of discussion:
- There is not one libellus, but two. One is signed by the man, the other is signed by the woman. Apart from every purely formulistic concern, it might be discussed if this is to be understood as a joint question or shared in the sense of canon 1683, 1º Mitis Iudex Dominus Iesus (MIDI). - Each libellus and respective attachments seem to call into question not only the brief process, but the very foundation of the cause. An initial point of discussion might therefore be whether or not one shares the judicial Vicar’s reading of the cause on the basis of merit concerning the lack of the fumus boni iuris and admission of the libellus on account of the residual pretenses according to the prescriptions of canon 1505 §2, 4º and Dignitas Connubii art. 121 §1, 4º. A second point of discussion is whether or not a cause such as this one brought before the tribunal betrays a possible attempt to claim that it is enough that the two parties are in agreement in requesting the brief process, overlooking the second legitimizing condition, canon 1683, 2º MIDI, which in reality is what seems most in line with the ratio of this institution, or the evidence of nullity. - The tribunal’s response seems to be at least praeter legem. In fact, it skips over the passage in canon 1676 §1 MIDI and moved immediately to the selection of its procedural form (canon 1676 §2 MIDI), establishing the judging College and certainly giving impulse to the cause proceeding along the ordinary process. It is necessary that one asks whether or not he or she shares a decision of this nature, in that it is something to be applied in exceptional cases or in any case that is seen to manifest the groundlessness of premises needed for the processus brevior. - In the decree the problematic nature of any future recourse against the decision of the judicial Vicar is clearly indicated to the parties. A point of discussion here is what one thinks of this: whether, and which type of, recourse is even possible.
3. Regarding the case decided according to admission to the brief process:
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It is a case of involuntary defect of consent: in other words, based on canon 1095, 2º with respect to both spouses and canon 1095, 3º with respect to the man.
The following are specific aspects of the case that might be subject to discussion:
- There is an abundance or documentation attached to the libellus, including clinical and social services data. Is such documentation useful? Pertinent? Can one admit such a complex case to the brief process, and for a marriage celebrated so many years ago? - Among the attached documentation there are statements from persons who will be heard as witnesses, while the Advocate presents them with specific questions on which to be interrogated as well. A point of discussion is whether or not it is consistent (and even helpful) with the norms to attach the input of future witnesses to the libellus. Or is it more correct to clearly indicate the specific questions to be submitted to them, allowing the witnesses to express themselves only during the instruction of the cause. - One of the two Assessors is a peritus of the tribunal. This nomination was made so as to provide the Bishop with counsel of a clinical nature, given the kind of cause for which the Bishop must render a decision. Can the analogous application called for in the professional qualifications of the Assessors of the judge in canon 1673 §4 MIDI be used for the Assessors to the Bishop in the brief process (canons 1685 and 1687 §1 MIDI)? - Nominating a peritus to the tribunal as Assessor will in fact ensure that the opinion of the peritus to the Bishop will serve as a kind of expertise review of the proceedings. Is this practice useful? Licit? In other words, if the cause requires a clinical review, is its admission to the ordinary process more coherent, resulting in the naming of an expert of the tribunal (cf. canon 1578 §3)?
Case A
The grounds for nullity are canon 1095. There is heavy documentation attached to the libellus. There are also statements given by persons who will serve as witnesses (something to discuss). Another point of discussion will be the fact that one of the two Assessors is also a peritus of the tribunal. This is for the purpose of offering the Bishop clinical counsel.
The Case
To the Regional Ecclesiastical Tribunal of Lombardy Piazza Fontana, 2 20122 Milan
I, Chiara Roberta Celli, born in Naples on 3 December 1964, resident of Rho (MI) on Via Cormons, 16, request that this Tribunal declare null the marriage I celebrated on 23 April 1988, in the parish of Saint Phillip Neri in Milan, with Riccardo Vuocolo, born in Palermo on 27 November 1965, and resident of Rho (MI) on Via Cormons, 23, on account of a grave defect in discretion of judgment surrounding the essential rights and duties of marriage with respect both to myself and/or him, and also because of his incapacity to assume the essential obligations of marriage.
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I met Riccardo when I was around twenty-one because we lived in the same neighborhood in Milan and we had mutual friends. In that time I was practically living by myself because my parents moved to Trento after my mother was diagnosed with a tumor. I was by nature rather shy, sensitive and easily influenced. After a short time I broke up with a boy named Massimo and I felt very lonely.
I received the Christian sacraments of initiation, but afterwards I stopped practicing religion, also because my parents never considered it to be of any importance. My mother actually went to card readers and so-called fortune tellers and since I was a baby she sometimes used to bring me along when she went to these people. Riccardo, too, had an interest in the Tarot and often spoke of the influence of diabolical spirits on our lives.
One day we were at the house of a mutual friend, to whom Riccardo was reading the cards. I told him about my ex-boyfriend and I had one of his letters with me. Seeing how he was interpreting the Tarot cards for my friends I showed him the letter because I wanted him to examine the handwriting to tell me I should hope of getting back together with Massimo. Riccardo told me in plain words to forget this hope and I was impressed by his certainty in the manner he spoke regarding the questions that were asked of him. From that moment we began dating.
Differently than myself, Riccardo went to church and visited the parish. He sang in the choir at Sunday Mass and because he invited me I also began to attend Mass.
Riccardo had a very extroverted personality and exercised a tight hold on me, often managing to involve me in his activities. He confided in me that he suffered a lot as a child because of sexual abuse that happened in his own family and this brought me to justify both his confusing behavior and passive aggressiveness when it came to sexual matters as well as the fact that he always tried to control others.
We established between us a relationship with a very strong attachment in which Riccardo played the dominant role. My affection toward him was mixed with a sense of fear and this is why I was never able to put distance between us despite the fact that there were clear signs that ours was not a balanced relationship.
It was in this context that we decided to get married. Our parish priest, who knew Riccardo for a long time and had the opportunity to know me a bit as well, did not hide the fact that this decision worried him and tried, in vain, to persuade us not to do so.
A short time after our wedding I became pregnant and our daughter Marinella was born on 19 January 1989. We then had a second daughter, Samantha, born 2 June 1992.
From the very beginning our married life was characterized by serious difficulties. Gradually it became more and more clear that Riccardo had the need to have homosexual relations.
This led us to the decision to separate and then to divorce. Given the complex nature of the situation that we lived in, above all to help our daughters, we contacted social services.
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In recent years Riccardo has also manifested the need to introduce himself by a female identity: he has begun to make people call him Vanessa and has initiated measures that have of late allowed him to begin sex-change procedures.
I now bring this matter before the ecclesial authorities, for I believe that at the time of our wedding for my part as well as on Riccardo’s behalf we lacked the requirements necessary to establish a valid marital relationship. Signature of the Petitioner
I, Riccardo Vuocolo, having been made familiar with all that which has been recounted above by Chiara regarding the matter of my marriage, declare that I am in agreement with her reconstruction of the facts and her request that our marriage be declared null, according to reasons she has heretofore indicated. I declare that very shortly I will obtain a new certificate of identity under the name Vanessa and attached a copy of that which on 17 January 2011 was issued me under the name Riccardo. Signature of the Respondent
Attachments to the Libellus
1. Declaration of the Respondent and a copy of his identification He met the Petitioner in 1986. He has always practiced the occult (Tarot cards, for example) and homosexual relations, albeit living in a parish environment. He was married in order to conceal his homosexual tendencies, which he himself did not yet accept, even if he admitted them to Chiara and staged a suicide attempt with pharmaceuticals, something he later repeated in front of Chiara and her boyfriend Massimo. These two having broken up, he began dating Chiara, who was convinced of his psychic powers (in which he himself believed as well), and he even performed healing rites on third parties. Many people, including Chiara, were in fear of his claims of supernatural abilities. Having homosexual tendencies throughout, for him fidelity was never of any value.
2. Proceedings of religious marriage [Omitted]
3. Excerpt summary of the marriage proceedings [Official transcripts of the civil effects of the canonical marriage: omitted]
4. List of witnesses and points of interrogation for the witnesses [See infra list of witnesses and questions to ask them]
5. Statement of witness Rosy Collio, with a copy of her document of identification Already a sister-in-law to Chiara (wife of her brother), who knew the family since she was five years old. Attests to the fact that her parents were practically inexistent, above all her mother, given to card reading and visits to wizards and card-readers, blindly believing in the diabolical possession of relatives and acquaintances: her accounts of such things terrorized Chiara.
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Riccardo was a man of many perversions who plagued the girl, taking advantage of the fact that Chiara’s mother had recently passed away.
6. Statement of witness Cecilia Marcandalli, with a copy of her document of identification She knew Chiara since 1987, as a colleague and friend. Riccardo was an arrogant and pretentious person: he bragged about his psychic and para-psychic abilities, scaring people with accounts of his relations with the devil. He said he sent the devil into the cats of two people who did not believe in his powers and scared a lot of people. He also showed stains in his room as proof of the presence of the devil. Once he was married he was rowdy with the children and was physically harmful to Chiara even while she was pregnant with their second child. He also hurt her by his proposals that they participate in sexual threesomes. Such behavior persisted even after the separation. She remembers quarrels of him with Chiara at her place of work and that Riccardo at a certain point even declared himself proud of his homosexuality.
7. Statement of the witness Massimo Lunetti, with a copy of his document of identification He is Chiara’s ex-boyfriend, who remembers Chiara with regret as a sweet and fragile girl. Riccardo then stomped into her life, a manipulative person who took advantage of her insecurities and hidden weakness, faking powers of the occult, dedication to spiritualism, states of trance and feigned epileptic episodes. Revolted by his personality Massimo cut all ties, even with Chiara, whom Riccardo absolutely plundered.
8. Statement of the witness Basilio Bontempi, with a copy of his document of identification He managed a community of hospitality to whom the children of the parties were entrusted. He attests to the aggressive behavior of Riccardo, including false accusations of Bontempi being a pedophile. Episodes, however, occurred in 2004.
9. Oral audience and conformity of civil separation Dated 4 and 19 May 1995, the civil tribunal formalized the separation of the parties.
10. General diagnostic conclusions (23 March 1988) The doctor of a clinic following a visit does not reveal any physical, psychological and genetic indications against the marriage.
11. Photocopy of the work of the Respondent with a note regarding the activities undertaken during the period of 22 October 1987 and 20 September 1993 Work changed seven times with a total period of unemployment of eighteen months.
12. Certificate issued by Dr. Marletta (28 February 1994) Riccardo is suffering from serious depression and is not able to provide care for his second daughter of eighteen months.
13. Statement of Dr. Gianna Lovati (9 March 1994) The infant neuropsychiatrist confirms that the second daughter must be admitted to a nursery because the family cannot provide a suitable environment.
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14. Measures issued by the Milan Court of Minors (21 December 1994) The children show signs of suspicious bruising and problematic behavior. They are thereby entrusted to the municipality of Milan.
15. Statement from the team at Nursery of Love (21 November 1995) Accepts the mother and children after the measures issued by the Court of Minors (see 14). The woman is depressed and fragile, but has some means, yet attracted to Riccardo’s transgressive and hysterical personality, a man who is an untrustworthy and irresponsible father. She was married with full awareness of his homosexuality, which was attributed to the violence done him by a paternal uncle. This produced an uncertain sexual identity in him, triggered by his frequenting gay venues and above all by the birth of his first child. Riccardo lived at different intervals with social services as a means of self-pitying and to bring about the return of his wife and children. He threatened suicide and threw around accusations and was aggressive with social services.
16. Statement from the team of the Family Support Center (18 September 1995) The statement is given at the Court of Minors. The woman tends toward depression and resignation, but has made good use of feedback. For him, it can be said that there was violence very early on in childhood in his family environment, uncertainty as to his sexual identity, degrading homosexual relations (prostitution), symptoms of hysteria and two suicide attempts. He has always dominated the woman with his hysterical personality and his claims of paranormal powers. He is intelligent, but has a self-destructive attitude. Bulimic tendencies have also emerged with self- induced vomiting and use of anorexic-facilitating items. Only a massive cycle of therapy might render him a fitting parent. He is not proven to be the perpetrator of any of the two moments of violence on the children: the bruises are still suspicious, however, as to their origins. If there were two deserted islands, each parent alone with one of the children, perhaps things would be okay: but it is their relationship that is destructive for the children.
17. Petitioner’s exhibit to the police (25 November 1995) After legal separation. Chiara complains that Riccardo is not paying what he should for the children, that he is threatening death and suicide, and that he torments her via telephone and in person with vulgar names.
18. Statement of the team at the Family Support Center (9 May 1996) Addressed to the judge of the Court of Minors. Chiara is beginning a new relationship and Riccardo reciprocates with pleas and threats. The two parties tend to hurt the other by way of the children. There was also noted an argument between Chiara and Riccardo with both seeming near violence in their gestures.
19. Statement of the team at the Family Support Center (20 May 1996) Addressed to the judge of the Court of Minors. It is a very emotional situation stirred up by Riccardo, who in the meantime works in a call center “reading cards.” He manifests suicidal thoughts and faints on the therapist, yet seems to come back to himself immediately. He is also the author of threats toward the man currently courting his wife, who have since separated. On his part, he seeks to live out “with as much peace as possible his homosexual self”. Provocative behavior toward his wife has been observed, also by the therapist, as well as new work changes lasting brief amounts of time.
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20. Statement of the team at the Family Support Center (11 February 1998) This contains two documents identical in the introduction ––in the part relating to the work undertaken with both parents–– but different in the parts pertaining to the work undertaken with each as individuals. This is also addressed to the judge of the Court of Minors. Riccardo has new work problems, arguments with his parents, aggressiveness toward Chiara and a new companion and refuses to see his children. He maintains that all that remains for him is suicide. He is aggressive and ambivalent toward the staff at the center as well. He shows signs of the diagnosis of borderline syndrome. He continues in his homosexual lifestyle, even if there was a pause in this on the advice of an unnamed spiritual director. He alternates between opposing moods, and always with verbalization of suicide. He mentioned doubts about his sexual identity: before he said he was bisexual, then homosexual, a condition he admitted existed already during the time of the marriage, and accused his wife of “aggravating” it with her lack of sexual interest. He is also uncertain and unrealistic about his own future. He still thinks there is some chance he might enter a monastic community. Immediately after it was known that Riccardo had begun a relationship with a man and found himself in a self-assessed praiseworthy situation: he already introduced him to his wife, to his children and even his spiritual director. Regarding Chiara, she noted the difficulty involved in dealing with Riccardo, of whom she underlined untrustworthiness and moments of aggression. Their temporary reunion of sorts is due to the fact that they had to confront a problem of sexual molestation of one of their children by an elderly relative.
21. Citation for the surgical sex-reassignment procedure According to current laws in Italy, the wife and children (now no longer minors) must be cited in the procedure leading to the authorization of the so-called surgical sex-reassignment procedure. In the proceedings it says that in 2009 Riccardo was diagnosed by a psychiatrist with gender identity disorder.
22. Letter of discharge from the University Hospital “Union Hospitals of Frosinone–School of Surgery and Medicine” (29 September 2015) Attests to the occurrence of the operation. The diagnosis is gender identity disorder of andro- ginoid (DIG). In the medical case history we can read that in 2004 Riccardo underwent gastric bypass surgery, in 2006 abdominal plastic surgery, and in 2013 breast enlargement surgery.
23. Citation for the correction of sexual attribution (2 December 2015) Immediately following the operation, Italian law requires that the wife and children are cited in the procedure of issuing Riccardo a female name.
24. Entire medical file relating to the operation of attachment 22 (15–25 December 2015) With respect to the letter of discharge, there is also the diagnoses of gender dysphoria and gender identity disorder without further specifications other than that it is an operation for an andro- ginoid transformation. Beyond the procedures noted in the letter of discharge (attachment 22) there followed hormone therapy and (date undefined) knee liposuction and thigh lifting. In the personal details it says that Riccardo’s religion is Buddhism.
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Cause Celli-Vuocolo LIST OF WITNESSES
Rosy Collio Sister-in-law of the Petitioner Born 03/02/1950 in […] Resident of […] Telephone: […]
Massimo Lunetti Friend of the Petitioner Born 06/16/1964 in […] Resident of […] Telephone: […] Email: […]
Cecilia Marcandalli Friend of the Petitioner Born 08/23/1996 in […] Resident of […] Telephone: […] Email: […]
Basilio Bontempi Director of the Community “Santa Marta” Born 09/21/1948 in […] Resident of […] Telephone: […] Email: […]
Father Mario Colonna Parish priest at Saint Phillip Neri Born 10/07/1940 in […] Resident of […] Telephone: […] Email: […]
Cause Celli-Vuocolo INTERVIEW QUESTIONS FOR PETITIONER
1. Personal details. Swearing of oath. 2. Are you aware of the libellus by which the present cause has been introduced? Can you, under oath, confirm its contents? 3. What was the structure of your family of origin? What was your course of study and work? What kind of education did you receive at home? Is there some aspect pertaining to your
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family that particularly disturbed or upset you? How would you describe the relationship you had with your family members at the time you met Riccardo? 4. How long was your relationship with your previous boyfriend, Massimo? For what reasons did it end? 5. What was the structure of Riccardo’s family of origin? What was his course of study and work? How would you describe his relationship to his family at the time of your meeting? What did he tell you about the sexual abuse he suffered as a child in his home environment? Were there any adults who defended or helped Riccardo deal with this experience? During the period of dating prior to marriage, were you aware that Riccardo had homosexual tendencies, or at least problems regarding his sexual identity? In what sense was his behavior “confusing” and “trangressive” in matters related to sexuality (cf. libellus)? Are you aware of the written attachment to the libellus dated 28 January 2015 that bears the signature “Riccardo Vuocolo”? What were the circumstances in which he prepared this? Do the facts given therein correspond to the truth? 6. How would you describe your relationship during the period of courtship? Why was your affection toward him “mixed with a sense of fear”? With the awareness you have today, what were the “clear signs” of the fact that your relationship was not a balanced one? 7. When did you make the decision to get married? How did your family members react? Did your parish priest explain to you the reasons he did not think the marriage was a good idea? Were you sent to a clinic? What happened during your time at the clinic? Were there more visits between you both and a doctor/staff member of the clinic? Were there other people who advised against the marriage? 8. How did the practical preparation for marriage unfold? What ideas did you have regarding the place you would live, work, and in general regarding the preparation for your future life together? 9. How did the religious preparation for your marriage unfold? Were you presented with the obligations that marriage brings? Did you feel open to share with Riccardo details of daily life, important life decisions, and intimacy that was both faithful and exclusive? Did you consider whether Riccardo was trustworthy in the obligation of faithfulness and in his capacity to care for and educate your future children? 10. When did marital problems begin? What kind of difficulties were they? 11. Did you both desire the birth of Marinella, and then Samantha? 12. Do you attribute to yourself serious shortcomings regarding the obligations of marriage? Were there grave shortcomings on Riccardo’s part? 13. How did you reach the decision to separate? 14. After the separation how are you caring for the children?
Cause Celli-Vuocolo INTERVIEW QUESTIONS FOR THE RESPONDENT
1. Personal details. Swearing of oath. 2. Are you aware of the libellus by which Chiara has introduced the present cause? Do you have any observations on this note? Is this your signature on the bottomed of the first page of the libellus and on the statement that one reads at the end of the second page? Are you aware of the written attachment to the libellus dated 28 January 2015 that bears the signature “Riccardo Vuocolo”? Do the facts given therein correspond to the truth? Do you recognize
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the act of citation for sex reassignment surgery attached to the libellus? Do you recognize the letter of discharge from your admission to the University Hospital (“Union Hospitals of Frosinone–School of Surgery and Medicine”) dated 25 September 2015 and attached to the libellus? 3. When you met Chiara and began dating, what aspects of her personality attracted you? How would you describe the relations Chiara had with her family members? 4. How would you describe your relationship during courtship? Did Chiara have any reservations about you? Did she let herself be influenced? 5. When you told Chiara that you suffered sexual abuse in your family environment, how did she react? Did Chiara learn about your homosexual tendencies prior to dating? Did you have other homosexual relations during or after the period of courtship? 6. When did you make the decision to get married? How did your family members react? Did your parish priest explain to you the reasons he did not think the marriage was a good idea? Were you sent to a clinic? What happened during your time at the clinic? Were there more visits between you both and a doctor/staff member of the clinic? Were there other people who advised against the marriage? 7. How did the practical preparation for marriage unfold? What ideas did you have regarding the place you would live, work, and in general regarding the preparation for your future life together? 8. How did the religious preparation for your marriage unfold? Were you presented with the obligations that marriage brings? Did you feel open to share with Chiara details of daily life, important life decisions, and intimacy that was both faithful and exclusive? Did you feel trustworthy in the obligation of faithfulness and in your capacity to care for and educate your future children? 9. When did marital problems begin? What kind of difficulties were they? Were you ever unfaithful to Chiara? 10. Did you both desire the birth of Marinella, and then Samantha? 11. Do you attribute to yourself serious shortcomings regarding the obligations of marriage? Were there grave shortcomings on Chiara’s part? 12. How did you reach the decision to separate?
Cause Celli-Vuocolo INTERVIEW QUESTIONS FOR WITNESS ROSY COLLIO
1. Personal Details. Swearing of oath. 2. What is your relationship to the parties? Do you recognize attachment number 5 to the libellus? Can you confirm its contents? 3. What kind of education did Chiara receive in her family of origin? Was her birth welcomed? Were her parents attentive to her needs? 4. Did Chiara’s mother visit card-readers or such people? Did she bring Chiara with her when she went to them? Did she recount in front of Chiara things pertaining to diabolical possession and suchlike? What effect did these tales and experiences have on Chiara’s upbringing? What was Chiara’s character as a child, and then as an adolescent (for example, did she seem shy, remissive, introverted, easily influenced, rebellious, hot-tempered, anxious, etc.)?
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5. What was Chiara’s course of study and work? Were there any difficulties encountered, for example pertaining to her performance, disciplinary issues, relations with classmates and colleagues, with her teachers or superiors? 6. How would you describe Chiara’s relationships with her family members at the time of her meeting, dating and engagement to Riccardo? Did any of them manifest doubts or reservations regarding their relationship? For what reasons? 7. How would you describe the relationship between Chiara and Riccardo before marriage? You might explain using example found in your statement, that is how Riccardo was “a man full of gaping holes, and perversions of every sort” and that he “plundered” Chiara? 8. How did the practical preparation for marriage unfold? What ideas did they have regarding the place they would live, work, and in general regarding the preparation for their future life together? 9. How did the religious preparation for the marriage unfold? Did they seem to understand the obligations that marriage would bring (to live together and help each other for all of life, to be mutually faithful and open to accept, raise and educate children)? Did they demonstrate the intention to assume these obligations? 10. When did marital problems begin? What kind of difficulties were there? 11. Did they both desire the birth of Marinella, and then Samantha? 12. Did one or the other have serious shortcomings regarding his or her role as husband/wife, father/mother?
Cause Celli-Vuocolo INTERVIEW QUESTIONS FOR WITNESS CECILIA MARCANDALLI
1. Personal Details. Swearing of oath. 2. What is your relationship to the parties? 3. Do you recognize attachment no. 6 to the libellus? Can you confirm its contents? 4. What was Chiara’s course of study and work? Were there any difficulties encountered, for example pertaining to her performance, disciplinary, relations with classmates and colleagues, with her teachers or superiors? 5. Considering that you knew Chiara in 1987, one year prior to the marriage, are you able to describe Chiara’s relationship with her family members during the time of her engagement to Riccardo? Did any of them express doubts or reservations regarding their relationship? For what reasons? 6. Prior to the marriage, did you spend time with Chiara and Riccardo? How would you describe their engagement? 7. How did the practical preparation for marriage unfold? What ideas did they have regarding the place they would live, work, and in general regarding the preparation for their future life together? Did you or another colleague or friend speak against the marriage? 8. How did the religious preparation for the marriage unfold? Did they seem to understand the obligations that marriage would bring (to live together and help each other for all of life, to be mutually faithful and open to accept, raise and educate children)? Did they demonstrate the intention to assume these obligations? 9. When did marital problems begin? What kind of difficulties were there? 10. Did they both desire the birth of Marinella, and then Samantha?
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11. Did one or the other have serious shortcomings regarding his or her role as husband/wife, father/mother?
Cause Celli-Vuocolo INTERVIEW QUESTIONS FOR WITNESS MASSIMO LUNETTI
1. Personal Details. Swearing of oath. 2. What is your relationship to the parties? 3. Do you recognize attachment no. 7 to the libellus? Can you confirm its contents? 4. What was Chiara’s course of study and work? Were there any difficulties encountered, for example pertaining to her performance, disciplinary, relations with classmates and colleagues, with her teachers or superiors? 5. How would you describe Chiara’s relationship with her family members during the time she met, dated and then was engaged to Riccardo? Did any of them express doubts or reservations regarding their relationship? For what reasons? 6. How would you describe the relationship between Riccardo and Chiara prior to their marriage? 7. Did Riccardo dabble in the occult? Did he feign epileptic attacks in your presence? Did he carry out a clear suicide attempt? How did Chiara react in such situations? 8. How did the practical preparation for marriage unfold? What ideas did they have regarding the place they would live, work, and in general regarding the preparation for their future life together? Did you or another colleague or friend speak against the marriage? 9. How did the religious preparation for the marriage unfold? Did they seem to understand the obligations that marriage would bring (to live together and help each other for all of life, to be mutually faithful and open to accept, raise and educate children)? Did they demonstrate the intention to assume these obligations? 10. When did marital problems begin? What kind of difficulties were there? 11. Did they both desire the birth of Marinella, and then Samantha? 12. Did one or the other have serious shortcomings regarding his or her role as husband/wife, father/mother?
Cause Celli-Vuocolo INTERVIEW QUESTIONS FOR WITNESS BASILIO BONTEMPI 1. Personal Details. Swearing of oath. 2. What is your relationship to the parties? 3. Do you recognize attachment no. 8 to the libellus? Can you confirm its contents? 4. What were the reasons the first child of this couple was admitted into the Community of Santa Marta? 5. Can you describe the relationship that the father and mother had with the child? Did they show interest, the capacity to understand her needs or the obligation to respond to them, or a sense of parental responsibility? 6. Beyond the episode that you recount in your statement, do you have other memories pertaining to the manner in which one or the other parent related to the Community staff?
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Cause prot. no. 21.2016 Milan Celli/Vuocolo
DECREE OF ADMISSION OF THE LIBELLUS INFORMATION REGARDING THE PETITIONER AND THE DEFENDER OF THE BOND AND INCLUDING PRELIMINARY DOUBT OF THE CAUSE
The Judicial Vicar, upon the presentation of the libellus on 9 February 2016 by Mrs. Chiara Roberta Celli, by which she requests the declaration of nullity of the marriage contracted 23 April 1988 in Milan with Mr. Riccardo Vuocolo on the grounds of a serious lack of discretion on the part of both and/or for the incapacity to assume the essentials obligations to marriage on the part of the man; upon the verification of the competency of this tribunal according to canon 1672 on the basis of the location of the celebration of the marriage and the documentation produced; upon the consideration of the fact that the Respondent has signed the libellus confirming, “I am in agreement with her reconstruction of the facts and with her request to declare our marriage null, for reasons indicated”; upon the verification, furthermore, of the fulfillment of all requisites of law for the admission of the libellus;
HEREBY AUTHORIZES
1. the admission of the libellus presented by the Petitioner; 2. the designation of the Defender of the Bond in the present judgment to be Dr. Carmen Zubillaga Abascal, who has the right to fifteen days from notification to inform the tribunal of possible exemptions; 3. the transmission of the text of this libellus to the Respondent and Defender of the bond and including their judicial summons, or the information regarding its status; 4. the invitation of Respondent to in writing make it known to the tribunal ––within fifteen days of the notification of the present decree–– his position in regards to the present cause, and furthermore to adhere to the formula given in attachment; 5. the following statement as the doubt of the cause:
“Whether declaration of nullity is warranted by the marriage celebrated in Milan, in the parish of Saint Phillip Neri on 23 April 1988 by Chiara Roberta Celli and Riccardo Vuocolo, on the grounds of grave lack of discretion of judgment (canon 1095, 2º) on the part of both spouses or of one and/or the incapacity to assume the obligations essential to marriage (canon 1095, 3º) on the part of the Respondent”, given the same deadline pronounced in the previous point (n. 4) for any comments or questions;
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6. as information to the Petitioner, that she does not have the obligation to seek the assistance of a defender. She is fully free to whenever she sees fit to call upon a trustworthy defender or otherwise to make a reasoned and documented request to the tribunal for the assignment of someone who holds the office of defender. Regarding the selection of a trustworthy defender, the party may draw from the attached list of qualified advocates with this tribunal, or else request to consult, at the Chancellery of this same tribunal, a general index of Rotal advocates; 7. the assignment of Stella Migliori, who holds the office of advocate, to the Petitioner.
Those bearing rights are notified.
Milan, 19 February 2016 Mrs. Marisa Marcolini Msgr. Dr. Paolo Bianchi Chancellor Vicar General
Cause prot. no. 21.2016 Milan Celli/Vuocolo
Opinion of the Defender of the Bond
The Defender of the bond acknowledges the admission of the libellus dated 19 February 2016 and declares that, at the moment, there is nothing to further propose.
Milan 2 March 2016
Signature of the Defender of the Bond
Cause prot. no. 21.2016 Milan Celli/Vuocolo
Please Return to THE REGIONAL ECCLESIASTICAL TRIBUNAL OF LOMBARDY PIAZZA FONTANA 2 20122 MILAN
RESPONDENT REPLY FORM
I, Riccardo Vuocolo, the Respondent in the cause of matrimonial nullity advanced by Mrs. Chiara Roberta Celli;
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HEREBY DECLARE
Pertaining to the Request for Nullity (mark the selection with an X):
1) [ X ] to be in favor; 2) [ ] to be opposed; 3) [ ] to resign myself to the justice of the tribunal; 4) [ ] to reserve the right to present my position on the occasion of my deposition under scrutiny; 5) [ ] to confirm that I wish to participate through the request of the other party.
Pertaining to the possibility of utilizing the brief process (mark the selection with an x):
1) [ X ] to consent that the cause be treated using the form of the brief process; 2) [ ] to not consent that the cause be treated using the form of the brief process.
I sign in full faith. 8 March 2016 Riccardo Vuocolo
General Information
1. “To resign oneself to the justice of the tribunal” means that one does not intend to formally exercise his or her right to defense, although there may be future judicial questions that may be communicated, including the decree of the publications of the proceedings and all acts of the judicial college during the course of the ordinary process. 2. It must be reiterated that your participation in the process is both fitting (cf. canons 1477 and 1531 of the Code of Canon Law) and advantageous, as is already delineated in the attached instructions. You are kindly asked, if possible, to seek to participate and to give confirmation of this even if it be via telephone. 3. The “doubt of the cause” as delineated in the decree of admission of the libellus and based on what has heretofore been submitted in evidence of one’s position does not in any sense amount to a pronouncement of the foundation in question. It merely serves to render the issue clear for all interested parties regarding the object of the tribunal’s judgment and which furthermore determines the most fitting manner of conducting the instruction of the cause. 4. The position expressed in the present form may be modified during the course of the deliberation of the cause. Nevertheless, it is opportune that the Respondent have the courtesy to immediately inform the tribunal of his/her position on a point of the cause. 5. If the Respondent so desires, he/she can add to this form a personal statement, which will be inserted into the proceedings of the cause. 6. Upon the request of the other party, the brief process requires the prior assessment of the judicial Vicar on the conditions that would permit him to do so: 1) agreement between both parties and 2) probative allegations that would clearly manifest the nullity of the marriage. The brief process also means that the instruction of the cause pertains to what is essential
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and to fulfill the elements of proof already indicated, and furthermore that it will be decided directly by the Bishop of the diocese that possesses competency in said cause.
Regional Ecclesiastical Tribunal of Lombardy Piazza Fontana 2 – 20122 Milan tel. 02/8556223 – fax 02/8556414
Cause prot. no. 21.2016 Milan Celli/Vuocolo
DECREE OF DEFINITION OF THE DOUBT OF CAUSE, OF THE NOMINATION OF ASSESSORS, AND FURTHERMORE THE OPENING OF THE INSTRUCTION OF THE BRIEF PROCESS
I, the Judicial Vicar, upon consideration that the decree of admission of the libellus has been communicated to those entitled to rights according to canon 1676 §1; upon consideration that the other spouse has confirmed his consent to the cause of declaration of nullity of marriage and his agreement that the cause be examined according to the form of the brief process; upon consideration that the Defender of the Bond has declared that there are no exceptions pertaining to the formulation of doubt and that there are no further items of proof to add; upon conclusion that, according to canons 1676 §2 and 1683–1684, the cause might be treated with the brief process, and that the Bishop of Milan is competent to issue judgment; upon consideration that it is therefore necessary according to the prescriptions of canon 1685 and article 16 RP to nominate two Assessors who will offer counsel to the Bishop of Milan in his decision of the cause; upon consideration that the Moderator of the tribunal and deciding Bishop of the present cause has authorized, the present cause being such that it is, the nomination of Assessors chosen from the group of persons who serve as peritus for the tribunal;
HEREBY AUTHORIZE
1. the formulation of the doubt of the cause in the following terms and according to the prescriptions of canon 1676 §5:
“whether the marriage celebrated in Milan, in the parish of Saint Phillip Neri, on 23 April 1988 between Chiara Roberta Celli and Riccardo Vuocolo warrants the declaration of nullity on the
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Discussion of Monday, September 19th grounds of a grave defect of discretion of judgment (canon 1095, 2º) on the part of both spouses or one, and/or for the grave incapacity to assume the essential obligations of marriage (canon 1095, 3º) on the part of the Respondent,”
2. the designation of the following persons as Assessors:
Msgr. Paolo Bianchi Assessor and Instructor Dr. Cesare Maria Cornaggia Assessor
3. the designation of Chiara Rossoni as Notary of the cause;
4. according to canons 1685–1686 and art. 17 RP, the determination of the session of instruction of the cause held at this tribunal in the following schedule:
-Wednesday 13 April 2016, 9:15am Mrs. Chiara Roberta Celli, Petitioner -Wednesday 13 April 2016, 2:15pm Mr. Riccardo Vuocolo, Respondent -Thursday 14 April 2016, 9:15am Mrs. Rosy Collio, Witness to the Petitioner -Thursday 14 April 2016, 10:30am Mr. Massimo Lunetti, Witness to the Petitioner -Thursday 14 April 2016, 11:15am Mrs. Cecilia Marcandalli, Witness to the Petitioner -Thursday 14 April 2016, 12:00pm Mr. Basilio Bontempi, Witness to the Petitioner -Thursday 14 April 2016, 3:30pm Fr. Mario Colonna, Witness to the Petitioner
5. the present decree serves as the summons of both parties, whereas the Petitioner is responsible for the punctual arrival of the witnesses she has introduced;
6. the parties are reminded that in the event they have not already done so, they can present questions for the parties themselves and the witnesses no later than three days prior to the session, according to the prescriptions of art. 17 RP, taking care to focus on the specific object of the cause;
7. within the same deadline as set forth in point 6 immediately above, the Defender of the Bond may also present his or her own questions for the instruction.
Those bearing rights are notified. Milan, 11 March 2016 Mrs. Marisa Marisa Marcolini Msgr. Dr. Paolo Bianchi Chancellor Vicar general
Case B
The details of the present case are as follows:
- there are two libelli (this is out of the ordinary); - both libelli and attachments call into discussion not only the brief process, but the very foundation of the cause;
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- the tribunal’s response passes over canon 1676 §1 and moves directly to the selection of procedural form (canon 1676 §2).
The Case
To the Regional Ecclesiastical Tribunal of Lombardy Piazza Fontana, 2 20122 Milan
I, Pierangelo CARNIELLI, born in […] on 12 April 1980, resident of […], Catholic, set forth the following:
I met Lorella in 2004 during spiritual exercises organized by the Diocese of […]. After a short time we began dating. The relationship was always good, peaceful, and after about a year we decided to be sexually active. The relations, however, were often difficult. Indeed, on my part there was little involvement, but I thought it was just the way I was. We tried to limit the number of these relations, and actually from the time we decided to get married (around April 2009, a year prior to the wedding) we tried to remain chaste. It was no problem for me to renounce intimacy with Lorella. From about a month before the wedding (March 2010) I began to see an ex-work colleague of mine, Mariangela, whom at that time I had already known for about ten months. We had a “clandestine” relationship, secret, and it often led to full-out sexual relations. It was my intention to stop all this with the wedding, but we had relations even two days before the wedding. I didn’t realize it, but I was in love with her instead of Lorella and even during the wedding ceremony I looked to the back of the church hoping to meet her gaze, knowing she would have come to see me. The following night and during the honeymoon with Lorella we did not have relations, and during the next two years relations were sporadic and I had difficulty in reaching an erection. But I had, albeit occasionally, relations with Mariangela. I say occasionally because I often felt remorse betraying Lorella. I was not happy behaving like this. At the beginning of 2012 my situation became unbearable, in love with Mariangela and married to Lorella. It certainly did not make me happy betraying Lorella because I always thought of myself as an honest and upright person. So I made it so that Lorella could easily find my private journal in which I have always, from time to time, written down everything that was running through my mind. Thus my situation was revealed. I left our house for some months in an attempt to reflect a bit. Yet as one might imagine I understood that I could mean well by Lorella but our relationship, although very beautiful, was never true love. It was more like a strong friendship, esteem and fellowship. With Mariangela all the various aspects of the physical “phase” of the relationship were never just things that happened. This convinced me even more of the fact that the true error was not in betraying Lorella, but in not having acknowledged for so long that Lorella was not the person for me to marry, and that I let myself too easily be swept away by her marriage plans. After a brief explanation of the issue of my marriage, I now entrust myself to the justice of this same Ecclesiastical Tribunal, and request that this marriage be declared null on the grounds of the exclusion of the bonum fidei on the part of the man, according to canon 1101 §2 of the current Code of Canon Law in force, furthermore considering the new normative procedures pertaining to the so-called processus brevior, as I am confident that the facts of the case given above qualify for the so-called evident cases.
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[…], 4 June 2016
Respectfully Yours, Pierangelo CARNIELLI
To the Regional Ecclesiastical Tribunal of Lombardy Piazza Fontana, 2 20122 Milan
I, Lorella BRAMBILLA, born in […] on 5 February 1982, Catholic, resident of […], set forth the following:
Pierangelo and I met on a spiritual retreat. I had just ended a difficult relationship and I knew what I wanted from a relationship. [Pierangelo and I] had a long and serene history together. The first year we were not sexually active. When we decided to get married I was very involved, and I dragged Pierangelo into this euphoria of the wedding and married life. We agreed that for a year prior to the wedding we would abstain from sexual relations. And so it was. This ended up being difficult for me, as I wanted to be physical with him. For me physical contact with him went hand in hand with emotive attachment. Pierangelo was a bit more detached. We decided where to marry and we took the premarital course. For me our wedding day was so beautiful, as any bride imagines it to be, whereas for Pierangelo, though apparently happy he hid even from himself the fact that for months he had started seeing another girl from his work, to the point of falling in love and going all the way with her physically. He thought it was something temporary, that it would pass. He did not understand why this was happening, notwithstanding his desire to interrupt this relationship immediately after the marriage. I remember that the first night when we were alone at home, Pierangelo when taking off his shoes reacted harshly to one of my jokes. I had never seen him react like that and that reaction scared me. It was the first night of the wedding. In that moment I realized that Pierangelo felt as if he were “trapped in a cage.” We were so tired and did not even consummate the marriage. After the honeymoon I lost my job. Life as a couple was difficult, especially given that I became depressed. During conjugal life there were no sexual relations. The intimacy that could have been ours was lacking. Pierangelo was like a friend, a brother. To come to full physical intimacy was difficult to accomplish. I tried to stimulate him but it was always so difficult. It was as if I were never enough for him. I always wondered what it meant when he said, “I want to wait”. I thought it was the manner in which Pierangelo interacted with me. I thought it was hard for him to let himself go, and I became used to these sporadic relations, not as it should be in a couple. With the passing of time I became accustomed to this, and I desisted and he never came to me. It was a relationship of two good friends. Then one day he told me about Mariangela, and he told me that with her had a very physical relationship, and that these relations were spontaneous as they should be. Lately we had been seeing each other Saturday and Sunday. The only moments when we were a family were when we went out together with our dog. The dog was like a member of our family. I was really jealous, I was tired, and the marriage as it was going was not working for me. I let myself go, there was no dialogue between us. Pierangelo was not there for me and did nothing to help the situation.
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One day while making the bed I found his private journal, where he kept a log of his thoughts. I immersed myself in the pages in which he, describing a moment of our intimacy, said that though being with me his thoughts went to her, Mariangela. I knew there was another person but I didn’t know who it was. Confronted with all this I could no longer hide the evidence of the facts. We had begun sleeping separately because I wanted to know if something was my fault, I wanted to understand what to do, look for clues. At that point, Pierangelo told me he wanted to understand what was in his head and so he decided to leave home, for about six months. Then he asked to return and resume married life. My one condition was that he break off all ties with Mariangela. But it was useless. The fissure it had created appeared to be by then definitive. It was thus that we lost sight of one another and lived only for ourselves, because I have always been told that one only lives once. I have since I was a little girl always wanted to be a wife and mother. The separation was official and legalized and after the presentation of joint petition the Tribunal of […] on 22 April 2013 pronounced a decree of homologation. Later I asked for and received a civil divorce. After having briefly related the issue of my marriage, I resign myself to and implore justice from this same Ecclesiastical Tribunal, requesting that the marriage be declared null on account of the exclusion of the bonum fidei on the part of the man, furthermore considering the new normative procedure regarding the so-called processus brevior, confident that the facts of the cause that I have set forth qualify it among the so-called evident cases.
[…], 4 June 2016 Respectfully Yours, (Lorella BRAMBILLA)
Attachments to the Libellus
1. Mandate to the Advocate […] [omissis]
2. List of Witnesses [Three names without any indication of the relationship of each to the parties and without proposed questions for these persons]
3. Proceedings of the Separation of the Parties [omissis]
4. Transcription of the private journal (submitted in the form of the original) of the man and co-Petitioner 5. 14 March 2010, Sunday “[…] not much time before our WEDDING […] oh my God! I hope everything goes alright […] this weekend I worked a lot…but everything’s ALRIGHT with Lorella. […] God, I know that her body is not as attractive to me as Mariangela or Flavia, whatever […] in the end it can’t be so important […] even if unfortunately Mariangela is on my mind a lot, at work there is so much to do, it’s hard […] it has never been like this before […] the others must have figured out that I have a bit of a crush on Mariangela […] I don’t care what others think, but it’s
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Discussion of Monday, September 19th annoying and I try to ‘notice it’ as little as possible […] I CAN SAY THIS: I WILL NO LONGER JUDGE THOSE WHO ARE IN THIS KIND OF MESS […] I can understand how they feel, and I will not judge and I won’t be the magistrate […] but it is easy to tire of Mariangela: she doesn’t believe in God and this already too much for me […] I cannot betray [Lorella] after the wedding in Church…NEVER! […] but now when I see her I have the desire to caress her, to kiss her, to look in her eyes, but I won’t do anything but this. It will soon go away. […] Actually, if she wants to stop so much the better, but then sometimes she has the desire to cuddle […] Ah! Let’s just hope for the best!”
16 April 2010 “TOMORROW I AM GETTING MARRIED […] this day has finally arrived […] it has cost us so much work! […] Actually, she did basically everything, thank you very much […] DOUBTS? I dunno […] none of this seems real to me!!! It is a choice with a lot of baggage, binding, but if lived well it will make our lives more beautiful, happier, and who knows maybe give us a child or two. […] With Lorella it’s hard for me to be intimate, it’s true […] I don’t know how much of it is Mariangela’s influence […] with Mariangela in fact lately we have been going a little bit too far […] yesterday WE HAD SEX […] WHO COULD HAVE SEEN THAT COMING?! […] it was more on her insistence, fine, but I went along willingly […] Oh God! For so many things she is better, but not for everything! But now it’s hard that we have fallen in love […] I hope this goes away and I go back 100% to Lorella, but Mariangela is special, she confides in me a lot, I WANT TO BE A GOOD FRIEND TO HER. […] Lorella, tomorrow we get married […] I want a life of love, affection and caresses […] I want to show you PARADISE. Lord, give me the strength and the wisdom to succeed in all these things. You are behind all this, otherwise what is the meaning of it all? If I had to live in the moment I would run away with Mariangela, but in the long term Lorella is the key to a happy life!!! I love you, Lorella. Lorella, I’m coming […] I AM READY TO LOVE HER ALWAYS, IF GOD WILL HELP US […].
6 August 2010 Friday “Last day of vacation, already!! […] It’s incredible, the honeymoon went well but there was little love-making. […] Even though I had decided to be faithful, already a few days after coming back I could not resist and little by little Mariangela and I do more, and it is better THAT I ADMIT IT […] it is a completely different planet […] we have had sex so many times […] it’s beautiful […] yet without even having full intimacy I think of her always […] but I WANT HER TO FIND A BOYFRIEND THAT TAKES CARE OF HER, IT WOULD BE EASIER, GIANNI DOESN’T DESERVE HER AND I […] AND SO I AM TEMPTED TO MAKE UP FOR IT. […] I hope the priest is right when he says that perhaps ‘we should not judge the errors of others, but only of the good that we ourselves have not done.’ […] With Lorella WE ARE LEARNING TO LIVE TOGETHER […] and it is hard because I think she is messy, and doesn’t clean enough, and she always comes home from work tired and depressed […] BUT WE ARE TRYING TO IMPROVE […] I obviously feel a little bit at fault, toward Lorella, God and everyone […] Damn! I am with Mariangela almost everyday for at least a half hour, in the car somewhere […] BUT I WANT TO RESIST AND NO MORE SEX (AT LEAST THAT!!!!!!) Help me, Lord […] I don’t deserve it but I need help so badly […].”
3. Email Exchange between Pierangelo and Mariangela on the Days of 16 and 17 February 2012 [omissis: in general reveal expressions of affection between the two]
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Regional Ecclesiastical Tribunal of Lombardy Piazza Fontana 2 – 20122 Milan tel. 02/8556223 – fax 02/8556414
Cause prot. no. 75.2016 […] Carnielli/Brambilla
DECREE OF ADMISSION OF THE LIBELLUS, OF INFORMATION REGARDING THE DEFENDER OF THE BOND, DEFINITION OF THE DOUBT OF THE CAUSE, AND THE ESTABLISHMENT OF THE COLLEGE FOR THE ORDINARY PROCESS
I, the Judicial Vicar, upon reviewing the joint question presented by Mr. Pierangelo Carnielli and Mrs. Lorella Brambilla dated 8 April 2016 ––in the most unusual manner of a double libellus–– by which the following is requested:
-the declaration of nullity of the marriage contracted between them on 17 April 2010 in […] on the grounds of exclusion of fidelity on the part of the man, co-Petitioner in the cause;
-the use of the brief form of the process; upon verification of the competence of the tribunal according to the prescriptions of law in canon 1672 on the basis (as one possibility) of the location of the wedding ceremony, with provided documentation; upon consideration that ––the proposed grounds being the exclusion of fidelity on the part of the man–– there are two libelli presented and likewise in the attachments elements appear that not only impede the recognition of the nullity of marriage that would seem apparent (cf. canon 1683, 2º), but that even cause serious doubt as to the foundation of the cause (that is, it lacks the so-called fumus boni iuris according to the prescriptions of canon 1505 §2, 4º and art. 121 §1, 4º DC), inasmuch as it is not possible to exclude that a better foundation might emerge from the process, and in fact:
-in the libellus submitted by Mr. Carnielli one reads, in relation to his relationship with the woman named Mariangela, that “with the celebration of the wedding it is my intention to break it off” and that still in 2012, two years after the wedding, “I was certainly not happy in betraying Lorella, considering myself to be an upright and honest person”;
-in the libellus submitted by Mrs. Brambilla one reads confirmation of the fact that regarding the relationship between Pierangelo and Mariangela, “he thought it was a temporary thing, that it would pass”, admitting also that “his intention was to break off the relationship after the wedding”.
-that in the personal journal attributed to Mr. Carnielli:
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• dated 14 March 2010, on reads, “but it is easy to tire of Mariangela: she doesn’t believe in God and this already too much for me […] I cannot betray [Lorella] after the wedding in the Church––NEVER!!! […] I won’t do anything else”. • dated 16 April 2010 (the day before the wedding), one reads and in a context of commitment to the marriage with Lorella and with the desire to overcome his relationship with Mariangela: “I hope this goes away and I go back 100% to Lornella […] in the long term Lorella is the key to a happy life!!! I love you, Lorella. Lorella, I’m coming […] I AM READY TO LOVE HER ALWAYS, IF GOD WILL HELP US […]”. • dated 6 August 2010, commenting on his infidelity in the meantime with Mariangela, one reads that (at the time of the wedding) “I have decided to be faithful” and that “BUT I WANT TO RESIST AND NO MORE SEX (AT LEAST THAT!!!!!!)”.
- that from the email exchanges occurring between the dates of February 16 and 17, 2010, nothing therein gives any indication of what Mr. Carnielli’s intentions were at the time of the wedding, above all there is inconsistency here when confronted with documents that have been previously examined; maintains that, therefore, the only possible procedure for the practical verification of a foundation for the question of this cause is the ordinary process; upon the understanding that neither the renewed procedural norms nor the doctrine that until this moment has been developed offer clarification whether and to whom one might have recourse upon the decision of the judicial vicar on the basis of his decision of procedural form, being furthermore sustained by the reasoned position that it is not grounds for appeal, as such a decision does not impede the judgment and does not impose any determined end to the instance or phase of the cause (cf. canon 1629, 4º and art. 280 §1, 4º DC); maintains that, therefore, the inevitable solution and that which is most economical procedurally to follow up the question of the parties is that of sending the cause immediately to the ordinary process, establishing a College and the doubt of the cause and moving the instruction of the cause to a concrete initiation:
HEREBY AUTHORIZE
1. the admission of the libellus presented by the parties, both co-Petitioners;
2. the designation of Dr. Carmen Zubillaga Abascal as the Defender of the Bond in the present judgment, and the designation of Mrs. Maria Teresa Pruonto as Notary in the cause, both having the right to within fifteen days give notification of any possible exemptions;
3. the designation of the following persons as Judges given the task of defining the cause:
Msgr. Dr. Claudio Giacobbi Assistant Judicial Vicar and Ponens Fr. Dr. Alvaro Conti, OFM CAP Judge and Instructor Dr. Angelo Chierichetti Judge
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each given fifteen days to make notification of possible impediments;
4. the formulation of the doubt of the cause is as follows:
“whether the marriage celebrated in […], in the parish of Saints […], on 17 April 2010, between Pierangelo Carnielli and Lorella Brambilla is declared null, on the grounds of exclusion of fidelity on the part of the man, co-Petitioner in the cause,” the parties given the same deadline, fifteen days, for further observations or requests;
5. the determination for the Defender of the Bond to have a deadline of fifteen days from the notification of the present decree to present any impediments surrounding the persons indicated as witnesses by the two parties, and likewise for the indication of the elements requiring proof;
6. upon the completion of the fifteen day period noted in points 2–4, the Ponens and Instructor will formally open the probatory phase of the cause.
Those bearing rights are notified. Milan, 11 April 2016 Mrs. Marisa Marcolini Msgr. Dr. Paolo Bianchi Chancellor Judicial Vicar
______Sent to:
• Pieangelo Carnielli and Lorella Brambilla, co-Petitioners, by way of Procurator- Advocate […] • Dr. Carmen Zubillaga Abascal, Defender of the Bond
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Discussion of Tuesday, September 20th
CASE STUDY: INSTRUCTION AND DECISION IN THE “PROCESSUS BREVIOR” Msgr. Felipe Heredia
Javier Martinez, 23 years old, met Margarita Perez, 20 years old, late July of 2006. The parties were born in the same city, attended Catholic schools, and grew up in the same environments. They both lived with their respective families. Javier had finished his culinary studies successfully. He was born to a well-known family who owned one of the best restaurants in the city, famous for its specialization in regional food. Soon after Javier had completed his studies, he joined the family business giving it a big boost. Margarita, on the other hand, was continuing her law studies at the university. She was an intelligent, open minded, and serviceable young woman. Their families were Catholic and with good morals. Javier had one brother whom he got along well. Margarita had five sisters, she was the third oldest, and their relationship was very good, especially with the oldest one. Both Javier and Margarita maintained good relations with their respective parents. Javier and Margarita had a normal courtship that lasted five years. They saw each other frequently and got to know each better and better. They both wanted to form a family and have children; Margarita’s maternal instinct was very profound. There arose small arguments occasionally, but they handled them quickly. They related to the same group of friends; they all gathered and traveled together frequently. For their friends, the principals’ courtship was good; they were really in in love. Javier’s parents were very happy with the courtship. They noticed Javier happier every day. They indeed liked Margarita as the future wife of their son because of the stability and self- confidence she brought to him, who needed them at times. Javier became a famous cook at the family restaurant, which gained great prestige throughout the region. Margarita was never opposed to the professional promotion of Javier who frequently had to participate at national and international cooking contests, demanding them being separated at times. Javier likewise supported the professional future of Margarita who was still studying to become an attorney specialized in labor law. After four years of courtship, Javier proposed marriage to Margarita. She had already finished her studies, and worked at one of the most competent attorney offices in town. She was so happy, and quickly began with the wedding plans a year in advance. She wanted to get married at the Cathedral of the city and by the Bishop of the diocese who frequented Javier’s family restaurant. They asked Bishop to witness their marriage. The wedding was scheduled for August 14, 2011, according to the Bishop’s agenda. The couple had bought an apartment and furniture soon to be their future home. In a very special way, they got one room ready for their first-born baby, a child they desired so much. In May 2011, the parties started sending wedding invitations by mail. They had reserved already a restaurant for the wedding reception. They had also made travel arrangements for their honeymoon to South Africa. A month before the wedding, Javier had to do a regular physical-medical examination, as part of his job. He did it in a private hospital in town where one of his friends worked as a doctor. A few days later, Javier received an urgent phone call by the doctor who, with great concern, informed him about the results of his blood test. Javier was diagnosed with HIV positive. Javier was devastated with such news. This situation changed his life completely in every way, namely, from the perspective of marriage and his professional career as cook. Javier’s HIV infection was originated by a blood transfusion received during a medical emergency that required prompt
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Discussion of Tuesday, September 20th surgery, namely, appendicitis. The infection occurred a few months ago, in a very low-level hospital in an Asian country, when they and some friends were on vacation. Javier did not know how to communicate it to Margarita. He was not even sure about the upcoming marriage and entered into a severe depression. He lacked the courage to tell his parents and brother the truth; it would obviously be a disaster to the business of the family. He had to keep it a secret. Unfortunately, his doctor said that the disease was very advanced, and so he was afraid that Javier would die. Javier was very confused and did not see a way out of the future marriage. With such medical condition, Javier decided to communicate it to Margarita, after being advised by his doctor. She reacted with immense sadness. Even though she loved him deeply, she felt as if the marriage was totally up in the air. A few days later, they met the doctor, who informed Margarita, with total precision, of Javier’s medical condition. He warned Margarita of the serious consequences whenever they had complete sexual relations. There existed also the grave risk of transmitting the disease to their future children. Thus far they had not had sexual relations during their courtship due to moral reasons. The parties only had a month left for the upcoming wedding and did not know what decision to make. Margarita, after a thorough reflection, and moved by her love to Javier, wanted to continue with the marriage. Having taken into consideration what the doctor had said about Javier’s terminal disease and its rapid outcome, Margarita decided to marry him. She was going to take care of him during his final days. On the other hand, Javier did not want Margarita to feel forced to marry him. He was even willing to cancel the future wedding, without letting the public know about his healthy conditions, otherwise it would ruin the family business. However, Margarita, who loved Javier, made up her mind and convinced him to go ahead with the wedding. He was very confused. Finally, they held a meeting with his friend doctor. He told them to absolutely use condoms while having sexual intercourse in order to avoid any transmission of the disease to the future wife. This is how they came up with the idea of renouncing the children they so badly wanted. Consequently, Javier and Margarita decided to contract marriage, with the firm intention of using artificial means when having intimate relations, in order to avoid any contagious infection and having offspring. They both found it very difficult to take this determination, especially Margarita, who always had a deep maternal instinct. Javier’s brother was close to him and knew him well. He noticed his brother’s sadness and depressive state. One night, Javier finally opened his heart and told him the truth about his disease. He also said that Margarita had decided to give her life for him until the rest of his life, and that they had decided to use condoms when having sexual relations in order to avoid any infection. None of them said a word to anybody. They did not want to worry their parents. If the news of his illness were made known to the public, it could bring to the family business very negative consequences throughout the entire region. Under these circumstances, the couple finally contracted marriage on August 14, 2011. Both the religious ceremony and the wedding reception went pretty well. The diocesan Bishop was the celebrant of the ceremony. Nobody in the family, or friends, or the wedding guests could imagine the true interior situation of the spouses. Even though the honeymoon had gone well, the mood of the spouses was not that great. They both were suffering great pain with the unsought situation that had arisen suddenly just a month before the wedding. Back from their honeymoon, they moved to their new home. Javier was dedicated to his job as a cook and continued therapy with great caution. Even though he went through some crises, he got better and gave signs of good health. Margarita, on the other hand, worked in a law firm as an
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Discussion of Tuesday, September 20th expert in labor law. She also took care of the household and did not find it difficult to take care of Javier. With the passage of time, Margarita’s desire of mothering a child became stronger. Somehow, Margarita was deeply frustrated by “not being able” to have children. At the same time, she did not feel completely connected to Javier for he focused only on his disease and on his work. Javier felt guilty because of the family situation. He regretted that Margarita’s sadness increased each day. On the other hand, Javier seemed to feel much better thanks to the medical and pharmacological progress. This could make him live longer. In other words, the first diagnosis of his terminal illness had disappeared. Such good news made Margarita happy, but the impossibility of having her own children and her great desire of having children made her feel deeply empty. After three years of marriage, they both felt some bitterness and disappointment because they could not feel connected in conjugal love anymore, and because of the absence of children. They thought about adoption, but Margarita was reluctant because she felt a need to experience motherhood physically and spiritually. Javier, on the other hand, was disappointed every time he saw Margarita’s sadness. With the passage of time, conflicts arose in the relationship. They began having arguments as well as frequent frictions for no reason; they came to a point in which cohabitation was impossible due to the wife’s state of depression and the husband’s existential bitterness. Basically, the unsolvable problem and the cause of all their difficulties was their “inability” to have children. After so many efforts of reconciliation and of trying to save their marriage, they decided to separate. They could not even receive help from others because nobody knew the real issue in the marriage. The parties separated in September 2014, maintaining good relationships. With the passage of time, Margarita met a man, same age as her, with whom she would create the family she so longed for. Since she wanted to get married in the Church, she went to her parish church looking for an expert in canonical matrimonial matters to get advise on a possible declaration of nullity. She decided to communicate it to Javier, who, somehow, wanted to repair the damage that his illness had caused to the marriage. He firmly expressed his willingness to collaborate by recognizing the truth of the matter. For nullity process purposes, Javier wanted his brother to be a witness. He lived in another country, but they frequently had communication through Skype. Also, the Hospital, where Javier had been treated, had been closed. His medical files were transferred to the main regional Hospital where he was medically treated. As of his friend doctor, he had also moved to a neighboring town. He was promoted as department director in a Hospital nearby the place of domicile of the spouses. They continued to maintain a very good relationship. After the couple met with an advocate, they asked the advocate to advise and represent them before the ecclesiastical tribunal. Therefore, they both agreed in petitioning for a declaration of nullity. When they applied for the declaration of nullity, the diocesan bishop, who witnessed the marriage, knew about their petition and took an interest in the case. The couple had a conversation with him, but they did not tell him the motives to seek the nullity. Finally, the petition of nullity was accepted and the judicial vicar of the diocese established, by decree, that the case met the conditions to be treated according to the briefer process by the diocesan bishop. The defender of the bond also received, by order of the judicial vicar, a copy of the libellus, put it together by an expert in marriage law on behalf of both spouses. The same expert put together and submitted the required evidence along with the claim of nullity so that this case could be treated with the briefer process.
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Discussion of Tuesday, September 20th
QUESTIONS PERTAINING TO THE INSTRUCTION OF THE CAUSE AND ITS DECISION
1. Compose a decree that frames the main doubt of the cause, and include the ground(s) for nullity.
2. Identify the elements of proof relevant to this case. Find the arguments that have probatory relevance. Give a summary of the fundamental questions for the examination of the parties and witnesses.
3. Is it better that spouses declare their intentions in a joint statement or separately? Give reasons for your answer.
4. In relation to the witnesses, would it be better that they render their respective statements separately or in the presence of the spouses? Give the reasons for your decision.
5. Is it necessary to invoke the rogatory assistance of another tribunal? At what point in the process would it be done and who is competent to do so? Give reasons for your answer.
6. Is it proper to solicit ex officio the presentation of documents relevant to the merit of the cause? Does this mean private or public documents? When would such documents be presented?
7. Should the Defender of the Bond request that the parties and witnesses be questioned individually? In what moment of the process would this be done? Who makes this decision?
8. In this case, can the Instructor ask for evidence ex officio, a document for example or the examination of a new witness?
9. Can the Advocate ex officio ask for evidence? Whom must he/she ask and who makes the decision? Can he/she request that the rendering of evidence be done over the span of two sessions? Might he/she propose dates? Whom must he/she ask and who makes the decision?
10. In light of all that has been said, is it possible to give an account of the evidence in a single session or would it be fitting to establish a second session? Whom is to be asked and who is responsible for this decision? Give reasons or motives that would be considered, and arguments for and against such a move.
11. The Advocate has 15 days to compose the defense. What would be the essential points to consider herein?
12. Draft the Defender of the Bond’s observations, which focus on the procedural and substantive arguments that challenge the declaration of marriage nullity or, at the very least, demonstrate that a deeper investigation of the case is needed.
13. Arguments of the Instructor for the consultation that the diocesan Bishop must make use of with scope of reaching moral certainty in the case.
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Discussion of Tuesday, September 20th
14. Reasons of law and of fact that should be presented in a potential sentence of nullity and that should offer justification for the moral certainty in the mind of the Bishop. Would these same elements be necessary in order to issue a decree of the passage of the cause to ordinary examination?
15. Who can appeal the decision of the diocesan Bishop and to whom? What are the necessary requisites?
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Discussion of Wednesday, September 21st
CASE STUDY ON THE APPEAL OF MARRIAGE CASES Prof. Dr. Carmen Peña
APPROACH OF THE CASE
(Note: The procedural case is subdivided in two stages; one is focused on the criteria of the appeal by the defender of the bond (=DB), the other relates to the introduction of the appeal and the interposition of the incidental appeal by the private parties)
The wife, petitioner, applies before the tribunal of the place in which the marriage was celebrated, for a declaration of nullity of her marriage by means of the ordinary process, having as grounds the incapacity to assume the essential obligations of marriage (A) and the exclusion of indissolubility (B) on the part of the respondent, and grave defect of discretion of judgment (C) on the part of the petitioner. The libellus is admitted and the respondent is formally notified; he does not make any manifestation, and is declared absent from trial; in fact, the respondent does not appear to the judicial examination or to the expert’s examination. In the discussion of the case, the DB is opposed completely to the declaration of nullity on the grounds of incapacity to assume the essential obligations of marriage on the part of the respondent (A) and the grave defect of discretion of judgment on the part of the petitioner (C), because they are considered manifestly unfounded; with regards to the ground on exclusion of indissolubility on the part of the respondent (B), the DB recognizes the existence of some probatory elements favorable to the claimed exclusion, and underlines also some weighed objections against such ground. The petitioner, on the other hand, requests a declaration of nullity on all established grounds. At the conclusion of the case, the ecclesiastical tribunal pronounces the sentence declaring the nullity of marriage under the grounds of an incapacity to assume the essential obligations of marriage (A) and of the exclusion of indissolubility (B) on the part of the respondent, underestimating, on the other hand, the ground of grave defect of discretion of judgment on the part of the petitioner (C), that is not considered proven. Notified of the sentence, the DB studies the argumentation carefully, evaluates all collected proofs by the tribunal, and considers manifestly unfounded the declaration of nullity on the ground of the respondent’s incapacity to assume the essential obligations of marriage (A); doubts arise further on the ground of exclusion of indissolubility on the part of the respondent (B), in which the sentence presents a better argument, although doubts and objections made by the DB on the animadversions remain.
Questions relative to the interposition of the appeal:
1. Given the doubts of the DB regarding sufficient motivation of the declaration of nullity on ground B, should the DB lodge an appeal against this ground? 2. In case that the sentence’s argumentation declaring the nullity present one solid motivation of the declaration of nullity on ground B, dispelling the DB’s doubts, could the DB appeal only against the declaration of nullity on A, given that it is considered manifestly unfounded? Is it opportune to do so? What would the DB’s best approach be in this case?
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Discussion of Wednesday, September 21st
Finally, after duly consideration, the DB proposes, within the time-limit of 15 days from the notification of the sentence, an appeal against the two grounds answered in the affirmative. The petitioner, on one hand, had allowed the time-limit to lodge an appeal pass, likewise the absent respondent does not make any manifestation once the sentence was made known to him. Once the deadline for the appeal has passed for all parties, the tribunal pronounces a decree attached to the appeal of the defender of the bond against the sentence declaring nullity. Once the notification of this decree is received, the respondent presents in writing, before the tribunal of first instance, his desire to join to the appeal proposed by the DB regarding the ground of incapacity to assume the essential obligations of marriage on his part (A).
Within the allotted time to the prosecution of the appeal, the respondent requests in writing, before the tribunal of second instance, to continue the appeal, as well as the DB. The petitioner, on the other hand, presents in writing, before the tribunal of second instance, her opposition to such appeal and requests the tribunal to confirm by decree the first sentence, at least in relation to the ground of exclusion of indissolubility on the part of the respondent (B).
Having studied the acts and depositions of both parties and of the DB, the tribunal decides to admit the appeal against the grounds answered in the affirmative, remanding the proceeding of the case to second instance. The parties were notified by decree, 10 days later, and the petitioner requests that in the formulation of the doubt of second instance the ground of grave defect of discretion of judgment on the part of the petitioner be included (C), which was answered in the negative in first instance, as well as a new ground be added at this time – exclusion of the bonum prolis on the part of the respondent (D) - in order to be adjudicated as in first instance.
Questions relative to the prosecution and incidental interposition of the appeal:
3. Could the appellate court have confirmed by decree, in this case, the declaration of marriage nullity only on the ground of exclusion of the indissolubility on the part of the respondent (B)? 4. Can the tribunal admit the petitioner’s request of including in the formulation of the doubt the ground of grave defect of discretion of judgment on the part of the petitioner (C)? 5. Can the tribunal include in the formulation of the doubt the new ground added by the petitioner on exclusion of the bonum prolis on the part of the respondent (D)?
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Discussion of Thursday, September 22nd
PRACTICAL CASE ON FAITH AND MARRIAGE CONSENT Prof. Giacomo Bertolini
Practice Regional Ecclesiastical Tribunal of Liguria
Prot. No. 120/2009
Januen. Nullitatis matrimonii ROSSI/RODOLFI
Libellus Mrs. Marta Rossi, born in Genoa on 6 January 1975 and residing at Via Verdi 5, counseled and provided defense in the present judgment by Luciano Benassi, Advocate, duly appointed in the proceedings attached to the present document, in the cause whose object is the declaration of nullity of the marriage celebrated 2 September 2006 in the parish church of Saints Peter and Paul, Genoa, within the jurisdiction of the Archdiocese of Genoa, to Giacomo Rodolfi, born in Genoa on 11 March 1974 and residing at Via Puccini 5, sets forth the following: Mrs. Rossi and Mr. Rodolfi met in 2000 at their place of work in the hospital where both, each with degrees in medicine, practiced pediatrics. The Petitioner was 25 years and the Respondent was one year older. After an initial period of dating which consisted of a series of brief evenings out together, the couple considered themselves a romantic couple, or in an affective relationship, from July 2000 as from that moment there was an intimate relationship commenced between the two. The man was brought up with Christian values, in a family with a mother who was an elementary school teacher and a father who was a medical doctor. These were separated and divorced when the child was seven. He received Christian initiation and sacraments yet by high school he had completely distanced himself not only from practice but the faith. At the time of the meeting of the parties, the man exhibited unwavering atheism, claimed absolute distinction from the Church, acknowledged only civil marriage and expressed his favor for civil unions and as a doctor professed himself to be a proponent of abortion in cases of fetal malformation. He was furthermore opposed to conscientious objection in gynecologists and spoke in favor of divorce in cases of two persons who could no longer live together peacefully. The Petitioner came from a traditional family, very much adherent to Christian values, with a mother who was a housewife and parish catechist, and a father who was a businessman. She also received Christian initiation and maintained ties to the parish community and Catholic groups. When she began attending the university she received the sacraments less often although retained the habits of one who practices her faith. Beginning in 2000, the couple dated for a three-year period during which time they did not focus on developing their interpersonal relationship on account of their respective duties bearing upon their specialization that frequently called them out of town. But they did not pursue the discussion of children or possible marriage or a future life together. In 2003, the period of specialization had ended and both were hired as doctors. The Respondent proposed they move in together. The couple began to cohabitate in a newly renovated property that had belonged to the Respondent’s grandmother, who at the time was recently deceased.
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Discussion of Thursday, September 22nd
This situation was later accepted by the Petitioner on the condition that they arrange a civil marriage as soon as possible. The parties therefore continued their cohabitation until 2005, deepening their interpersonal relationship all the while discussing in a very casual manner various subjects intrinsic to the faith, the Church, the family and children. The Respondent reiterated his aversion to the faith and ecclesiastical jurisdiction over marriage. The parents of the Petitioner were vehemently opposed to cohabitation, and threatened to take back the house in their possession that was renovated so as to be rented unless the couple celebrated their marriage in the Church, in which case it would be given to them. The Petitioner likewise began to pressure the Respondent, as she was eager for children and therefore wanted to formalize her position before God. The Respondent then still retaining unassailable aversion to the sacred and the Church proposed his acceptance of canonical marriage without civil effects and a separate celebration of civil marriage, the only one he acknowledged. The first inquiry into marriage was presented to the Local Ordinary where both parties resided, yet it was rejected according to the absence of a just cause. It was by obtorto collo that the man accepted religious marriage, yet with explicit aversion to it and there were witnesses to this fact indicated as witnesses in the present libellus. Mr. Rodolfi attended the pre-marriage course with his fiancé but expressly declared himself to be doing so merely as a formality and constantly remarked on how badly organized it was. In particular, he criticized the input and manner of the priests and lay persons who conducted it, saying that if he already felt distant from the faith the course certainly did nothing to facilitate his return to the supernatural. The man furthermore made it very clear that he meant only to assume “civil” responsibilities with respect to his wife and future children and in no circumstance would he acknowledge the sacred dimension of said responsibilities. This was the subject of several emails with his fiancé. The canonical wedding was thus celebrated on 2 September 2006 in the parish church of Saints Peter and Paul in Genoa, in the place of residence of the bride. The honeymoon followed, wherein the marriage was consummated. On 9 July 2008 their son Lorenzo was born and he was later baptized on the strong insistence of the Petitioner. The couple did not lead a shared life of faith. In 2009, conjugal life developed serious difficulties on account of the man’s work transfer to a hospital in Pisa. This provoked the wife to a greater closeness to other friends in the parish. This caused serious arguments when the husband returned, who apart from reiterating his secular positions desired to spend all his free time with his wife and son. The initial differences led the spouses to gradually distance themselves from each other until with mutual agreement they acted upon the desire to no longer cohabitate in December 2009. On 5 May 2010 the civil court of Genoa issued a decree of separation and on 7 July 2013 a decree of divorce. Mrs. Rossi all things considered and observing the need to clarify her status in the Church and the validity of her marriage, aware that she led her husband into marriage, the latter excluding from marriage the sacred dimension inasmuch as he was not a believer,
With the present libellus,
REQUESTS
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Discussion of Thursday, September 22nd
That the Regional Ecclesiastical Tribunal of Liguria, competent by way of ratione contractus, investigated the declaration of nullity of marriage celebrated between Marta Rossi and Giacomo Rodolfi on 2 September 2006 in the parish church of Saints Peter and Paul in Genoa on the grounds of:
-Exclusion of the sacramentality on the part of the Respondent, upon demonstrating the prescriptions of the norms of canon 1101 §2; Et quatenus negative -by the determining error of the will regarding the sacramental dignity of marriage, on the part of the very same Respondent, upon demonstrating what is prescribed according to the norms of canon 1099.
Attachments to the libellus: 1) Canonical proof of marriage; 2) Decree of divorce; 3) Excerpt of civil summary of the decree of divorce; 4) Mandate of appointment of Advocate Luciano Benassi; 5) List of witnesses; 6) Points of questioning for the parties and for the examination of the witnesses.
Genoa, 20 December 2013 Luciano Benassi, Advocate
Omissis
Exhibit 6
Questions for the Parties 1) General biographical details, swearing to the veracity of their responses; 2) Can you describe the environment and stages of your upbringing, with specific reference to your family of origin, received Christian education, friendships, orientation with respect to the issues of the faith and religious practice at the time of the marriage and at present? 3) Can you discuss the items of the previous question in light of your spouse? 4) When did you meet your spouse? When did courtship begin? Did you have prior experiences of this nature (i.e. affective)? 5) What were the shared expectations for the future of this affective relationship? Was there agreement of intent, affection and mutual feelings? 6) What venues did you frequent? Did you find yourselves in religious environments (parish or other groups, etc.)? 7) What did family members say about your relationship? Your friends? 8) Did you cohabitate? If so, when? For what reasons? How long did it last? How did it go? 9) Were there conditions placed on the initiation of this cohabitation? If so, what were they? 10) When, under what circumstances and at whose insistence was the decision to marry made?
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Discussion of Thursday, September 22nd
11) Was a merely civil marriage proposed? Why? 12) Were there doubts concerning the outcome of the marriage? If so, of what nature were these doubts? What was discussed regarding these doubts? 13) What were the plans for the family costituenda? 14) What was your notion of marriage? Did you share the Church’s doctrine regarding the sacrament of marriage? In particular, what meaning did the Christian principle of sacred and indissoluble union have for you? What were your thoughts regarding divorce? 15) Can you say something of your spouse’s answers to the previous questions? 16) Did you desire children? 17) And your spouse? 18) Please give an accurate account of the last months leading up to the wedding (daily life, manner of acting, wedding preparations, pre-marital counseling/course, vacations, etc.). 19) Why did you marry in the Church? 20) Did you know the parish priest who assisted at your wedding? What was the disposition of faith shown on your part(s)? 21) Can you describe the event of the wedding ceremony? Did you receive the other sacraments (confession, communion)? 22) Did you go on honeymoon together? When? How did it go? 23) Please describe the beginning, first days and months of the marriage. Did any problems arise? What were they? Give specific examples. 24) When was the marriage consummated? Was your sexual relationship from the very beginning an expression of authentic spousal affection? 25) Did both of you desire Lorenzo? On whose insistence and after how much time was he baptized? 26) After Lorenzo, were there other intimate relations that were potentially fertile? 27) In the context of your conjugal life did you both demonstrate affection and love? Did you foster the moral, physical and spiritual growth of the couple? 28) Did you lead a life of shared faith (prayer, sacraments)? 29) When and why did the conjugal union begin to experience crisis? Please describe the circumstances relating to the break-down of the relationship and relinquishment of living under the same roof. 30) Who witnessed the last months leading up to the wedding and the early months of married life? 31) Who witnessed the circumstances at the heart of the decision to abandon the conjugal home? 32) Do you have credible witnesses (priests)? 33) When, why and by whom was the decision to separate made? What were the circumstances? And what was the procedure followed in this? 34) Why was the present cause opened? Do you recognize the introductory libellus? Can you confirm its contents? If not, what amendments or corrections would you introduce? 35) Do you believe your spouse to be sincere in the present cause? 36) After having read the deposition, do you have anything further to add or anything to correct?
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Discussion of Thursday, September 22nd
Salvis juribus Genoa 04/16/2008 Visum 01/152014
Decree of the Establishment of the Tribunal [omissis] Decree of Admission of Libellus [omissis] Mr. Giacomo Rodolfi’s deposition and position in the cause, wherein he declares himself to be indifferent and yields to the judgment of the tribunal Decree of establishment of the doubt of the cause and the opening of the instruction: “Whether the nullity of the present marriage can be determined on the basis of the exclusion of the sacramentality on the part of the man, the Respondent, according to the prescriptions of canon 1101 § 2, and/or on the basis of determining error of the will regarding the sacramentality on the part of this same man, the Respondent, upon demonstrating the prescriptions of canon 1099.
Second Session
Today, 5 February 2014, at 9:15 the undersigning Judge and Notary present, the judicial questioning of Mr. Giacomo Rodolfi, Respondent, was begun. After producing the valid documentation of identity and having been sworn in, Mr. Rodolfi gave the following answers to the questions advanced by the Judge: The following are the questions proposed by the counsel of the Petitioner, Advocate Luciano Benassi, present during this session. n.b. For pedagogical reasons in this exercise the Petitioner’s answers are summarized and do not necessarily correspond to the questions given above. My name is Giacomo Rodolfi, born in Genoa on 11 March 1974, resident of Genoa, and occupation is medical doctor. My religion is agnostic. Let me preface my responses by saying that I submit to the present interrogation only on account of doing right by Marta, and the duties I assumed on the day we were married. I am not Catholic, rather agnostic, and therefore I will not swear on the Bible. 1. I met Marta in 2000 at my place of work in the hospital, where we were both doing our internship for our specialization. ¾. I come from a family that is not entirely united, even if I love my mother very much and have been raised by her in utter care and dedication. When I was 7 my parents (my father was a doctor and my mother a school teacher) divorced. I stayed with my mother and saw my father together with the new family that he started with a new partner, with whom he had another two children. This hurt me a great deal. I always scolded my father, telling him that he had responsibilities toward his family and that he did not respect these by running away to live with another colleague. I received the sacraments, but my mother was never a practicing Catholic and so nor did I ever go to Church. I must say that during high school I developed a strong atheism through my study of philosophy and through a strong aversion to the Church. I met priests who were not good examples. I did not accept the Church’s jurisdiction with respect to marriage and maintain even now that duties between husband and wife should be regulated by the State, which can accommodate other forms of civil unions as well. I am opposed to any and all religious interference and claim full freedom in a person’s self- determination and maintain that the State must remain secular even in that legislation that deals with divorce and abortion. Regarding the latter I have had many arguments with gynecologists who claim conscientious objection. In my view they have a professional duty to both society
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Discussion of Thursday, September 22nd and the State to which they are essentially bound by contract stipulated by their choosing their profession. It would be like a pediatrician refusing to do a blood analysis of one of the children in his or her care. When I met Marta I was 26, a shy and rather timid young man, and had a hard time relating to others. I was insecure and hungry for affection and a bit disappointed by life owing in large part to my family history. I exhibited firm dedication to my studies and specialization, always wanting to take care of others as my father did not do in his many shortcomings. I have never had psychological problems and have never sought the help of psychologists. I have always been a precise person, someone who after having started something sees it through to the end. I consider sincerity to be fundamental, as well as the civil values of life in community and social responsibility. I am a volunteer with the Red Cross. Marta, instead, grew up in a nice family, very united, something I always envied and to which I was also attracted. Her mother was a housewife and her father was in business. She had two other brothers and was quite coddled. She was always at the parish church and doing things with Catholic groups. She always attributed great importance to her life of faith and receiving the sacraments. I sometimes thought she was kind of a bigot. In particular, I never understood why she adhered to certain rules without understanding them, saying only that the Church said it was so. In my view, this kind of moral outlook is empty because it is not accompanied by any true conviction, whether in the practicalities of life or the expression of one’s true affective dimension. Marta is a cheerful woman. She likes being with friends, has a deep relationship with her parish priest (who assisted at our wedding), she liked taking vacations and she is a good mother to our son, Lorenzo. But I would say that she does not feel the gravity of the responsibilities she took on. She is too indulgent with herself and thinks that everything can always be fixed and she really does try to fix everything. Yet often she did not think of me and took it upon herself. Later apologizing, to arrange everything. We were always fiercely different in this respect. She had a good relationship with others and had many friends. 5. In regards to myself, I had no previous affective experiences, except those that are typical of one’s age, and I think it was also the same for Marta. 6. We met in the hospital in the year 2000. We were part of the same pediatrics departments working toward our specialization. Marta was physically attractive, as was her cheerful and pleasant character. These were qualities that I lacked. She was nice to talk to and so we began to see each other outside the hospital. One night when we stayed over at her place our relationship became intimate and from that moment onward we considered ourselves to be part of a couple. Our families knew about us from the beginning. We began to go to each other’s house even if honestly the truth is that I went essentially to her house, seeing as at my home things were not so serene. We also made visits to my father. For this reason, seeing the closeness of Marta’s family certainly made me feel drawn toward their family environment. On the part of Marta’s family, from the beginning they were positive with respect to our relationship. The fact of meeting the parents right away was another factor in our being able to see one another, for Marta’s parents exercised control over their daughter’s friendships. At my house no one cared about my relationship with Marta: I was always brought up in the utmost freedom. Comprehensively our period of courtship lasted 6 years, at first marked I a particular way by both our serious diligence at work, often out of town while completing a Masters required for our field of specialization. When we were both at home we saw each other in the evenings, often in the presence of friends, something which caused a superficial quality in the relationship.
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Discussion of Thursday, September 22nd
Ours was a relationship built on great friendship, with both affective and intimate involvement. We were in love with each other. But the relationship didn’t really develop into something deeper. There were no break-ups. One source of arguments was Marta’s stubbornness in wanting to impose her habits and customs on me and the fact that with respect to some of these she had no rational basis. She said she had a great faith, that she was against abortion and divorce, that she had to go to Mass, etc. But when I pressed her in trying to understand the reasons for her faith, she always said that faith is a gift. This angered me even more because it showed me that her own faith did not convince her. For my part, I was totally convinced in my positions. In 2003, after fulfilling the specialization we began to work in the same pediatric department where we were both established professionally. Our relationship up to that point had remained constant, and I would say that it was neither increasing nor decreasing, but had become something of a routine with arguments that I describe above. Given the type of life we led it was going well for both of us. It was after we began working that on account of economic independence cohabitation was proposed. It was mainly because of work, that we were seeing less of each other and this bothered me. Everything revolved around the sphere of the sentimental, which also meant that our relationship was highly influenced by this. I proposed to Marta that we begin living together. Marta at first was scandalized and refused. Even her family made a scene. This made me very upset and I fought with Marta’s father, and with my girlfriend as well. Her mother, the catechist, only made bigoted comments to which I did not see fit respond. I told Marta and her parents that I loved my girlfriend, and them as well, but that if they loved Marta they would have to accept her free choices. I presented Marta with an aut-aut situation. In retrospect, I acknowledge that I was here imposing my own ideas. I said we should rent a house. Marta’s parents, however, (and I must say I know they had an affection for us as a couple) with a heavy heart told us they had renovated an apartment belonging to a paternal grandmother recently deceased. It was ready to be let out. They said we could move in, but only if we were within sight of marriage. At this Marta accepted to move in upon the condition that we arranged marriage, at least civilly, as soon as possible. In reality, with this concession the first small element of a kind of extortion was in place. I accepted her condition, thinking that in any case I would be doing exactly as I wanted, that all would be figured out and that I was certain of my feelings for Marta. 7. We continued to have a premarital sexual relationship that was both complete and protected. I have to say, that on my part I have always been really attracted to Marta on the level of intimacy. Yet I noted that Marta was a bit cold. I think there were moral regrets on her part. We never really discussed this or confronted this between us, simply took note of this behavior thinking it would evolve in the future. 8/9. Regarding my notion of marriage in general, I have to say that above all I do not think it is a sacrament and that I do not acknowledge the power of the Church over the citizens of the State inasmuch as it has to do with something that persons of any religion can undertake independently of any profession of faith. I believe strongly in the secularity of the State, and the social responsibility of collectivity, as is demonstrated by my choice of occupation and the volunteer work that I do. I do not think it is necessary that two people who live together must marry, but instead think that they can just share life or acknowledge their relationship in various ways according to civil contracts. Yet I maintain that once civil marriage is enacted this bond is quite serious, as the law demands, until it is dissolved by way of divorce. And yet even divorce cannot dissolve the natural bond one has with possible children. I therefore fully acknowledge
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Discussion of Thursday, September 22nd the value of marriage not to mention all the rights and duties that derive from it, but only those marriages that are civil. In response to the question of the judge, I answer that with respect to my relationship I never considered divorce before my wedding. I thought cohabitation was enough, I thought that I absolutely did not want to marry in the Church because I was not a believer and I even professed to be an atheist and so it seemed farcical for me to marry in a religious rite. But I must say that once I decided to marry I accepted my responsibilities both to Marta as well as to society and any future children we might have. We were both pediatricians and I took for granted the desire to have children of my own. To a further question of the Judge, I answer that I never reflected on the indissolubility of marriage because civil marriage does not demand this obligation. In general, I can say that if two people can no longer live together peacefully and life has become a living hell for both they are not required to continue living together. Yet it appears to me that somewhere I read that even in the Church there is allowance made for separation of spouses when it is impossible for them to stay together and even allows certain kinds of divorce in the interest of the faith. The fact remains, however, that I was in love with Marta and can honestly say that I never thought of this issue. I do not understand the question: if a person marries, even if he or she is in general supportive of divorce, one would be crazy to already be thinking of divorce and not have the hope that the relationship will endure. Everyone wants what is good to last forever. I know your tribunals declare this type of nullity but in my view it is just one way of allowing divorce. To a further question of the judge, I repeat and reiterate that I do not hold marriage to be a sacrament, and that I do not acknowledge any efficacious effect of any sacrament. Instead for Marta, at the time it was inconceivable that we not get married in the Church. She was too involved in the parish to think otherwise. Even her super religious family (her mother was a catechist) did not give her any option. I think Marta was very much convinced of the indissolubility of marriage but only theoretically, because she later in fact allowed our separation and divorce. 10. Our relationship underwent a transformation in 2005 when Marta began to feel the desire for motherhood. On the other hand there was pressure from Marta’s family and she continually reminded me that her parents would have given us a house on the condition that we marry as soon as possible. Marta had no reason to delay the wedding. She said that were both professionally established and so there was no reason to wait to get married. The argument that had an effect on me was the question of children. Marta maintained that she would never have kids without the assurances of a certainty that only marriage could provide. So on the one hand I felt a moral obligation toward Marta’s family and on the other hand toward our future children that I, too, desired. Marriage then became a responsibility. I then proposed we get married civilly. Initially Marta refused, even though prior to moving in together she set the condition of marriage that was at least civil/ I did not back down and declared myself absolutely decided and Marta understood that I would not change my mind. The decision had to be made: break-up or get married in the Church. I could see that Marta was becoming more and more upset by the lack of a decision, and the threat of her parents was effective. They had made it clear that if we married civilly we would be doing so freely but that it would mean giving back the house in which we lived. I then proposed an “anti-contract” marriage: I would get married only insofar as I did not accept marriage as a sacrament and therefore I would accept to be married in the Church without any civil effect and then separately be married in city hall. I would acknowledge as meaningful only those civil duties deriving from civil marriage. Marta was happy with this
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Discussion of Thursday, September 22nd solution. So we went to the parish priest who asked the Vicar General. He in turn consulted the Bishop and then refused to issue us a license because he maintained that a merely canonical wedding had been requested for immoral reasons, or rather for reasons contrary to the faith. After nearly a year of arguments and discussion Marta’s parents became even more insistent and Marta even told me that she had no longer any desire to have children or to stay in the relationship. We loved each other and I felt very much at fault for having stood by my ideas to the point of endangering our relationship. My thought was that I could make everyone happy, marrying in the Church with a contract marriage, which in my heart would be acknowledged only in its human and civil dimension of the obligations toward my spouse, children and society and this I would be married in that manner but it would not be a sacrament. My assent cleared up the situation and Marta was effectively a new person and lit up in affection. We attended the pre-marriage course. I must say it was a very negative experience and a source of new arguments. There were priests who continued to tell us that marriage is a sacrament but no one explained it to me beyond certain phrases noting the difference between the sacrament and natural marriage. There were lay persons who came to talk about pre-marital chastity and natural family planning. But for us, medical doctors, this was all totally ridiculous. 11/13. Regarding our marriage, once the decision was made on my part there were no concrete doubts that made me speculate about the failure of our marriage. The only thing that concerned me was Marta’s coldness with respect to physical intimacy. This made me fear that a sexual relationship might be absent later on in marriage, but at the same time I thought that the wedding would resolve the problem. I knew more or less that Marta did not have specific doubts, and in reference to our marriage not once did she reference separation or divorce. With respect to children we decided to have them as soon as possible. 14. Marta’s mother was the one who was totally in charge of preparations. We were more than happy with this and willingly delegated all things to her. 15. I have already spoken of the premarital course. During these sessions I spoke at length with Marta’s parish priest. I admit I wanted to provoke him. At a certain point arguing the indissolubility of marriage (when confronted with my insistence that marriage was a binding civic duty between persons and not indissoluble in that as some think it is a sacrament) he said he could not assist at our wedding. I remember this made me very angry. He pressed me on my thoughts of being more at ease in wanting to take on my civic duties, and that many Catholics are divorced and that their marriages have been “annulled.” The parish priest then called Marta who reassured him that even though I was far from the faith I meant to stay with her and start a family with children. With conviction I confirmed that I intended to establish a stable family with children, to love my wife as I did love her and that this should all be sufficient. I added that I had respect for the stability of marriage. The parish priest then wrote that I accepted the values of marriage. 16. The wedding was celebrated 2 September 2006 at the church of Saints Peter and Paul in Genoa, my girlfriend’s parish. Everything went well and I have no outstanding memory of the day save my feeling of being so tired. I did not receive the Eucharist and I did not go to confession. 17. We honeymooned in Paris. Our marriage was regularly consummated and Marta was less cold in physical relations, and she probably felt morally free after the marriage took place. 18. Like I said, from the beginning we decided to have children. This was something that was not possible right away, with great anxiety, uncertainty and desperate tears on both ends. I remember how tense this made us in 2007 and how we often argued. Our relationship was
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Discussion of Thursday, September 22nd affected by this. We both unconsciously shifted the blame on the other. I began to have potency issues in a sexual sense on account of my stress. Every time we were intimate we set a benchmark, all in our great desire to have children. At the time we spoke of these things with our closest friends (a way of exorcising the problem), and with my mother. I was never particularly open with her but I remember being so desperate that I confided in her. I visited a friend of mine who is an endocrinologist and underwent a series of tests and luckily no anomalies were detected. And then in October of 2007 when physical relations had become less frequent because of the indifference that gradually crept in between myself and Marta, she became pregnant with Lorenzo who was born 9 July 2008. Lorenzo brought a kind of relief to the problems that had arisen between Marta and me. The joy of bringing a child to the world jumpstarted our marriage and we rediscovered happiness and affection. Lorenzo was welcomed with much joy and is loved abundantly by both of us. I have to say that even now we have a magnificent relationship with Lorenzo, who nonetheless often expresses his disdain for our having separated. In response to the Judge, who asks whether Lorenzo has been baptized, I answer yes, he was baptized at six months after countless arguments with Marta. I was not opposed to it in my prejudice and I was not against Marta’s educating him in religious values. I was merely convinced that he should be able to choose whether or not he wanted to be baptized when he was older. Marta’s mother, the catechist was nevertheless so insistent that in the end I backed down. 20. The worst thing that happened to our relationship was when in September 2009 I applied for a position as researcher in pediatrics in the School of Medicine in Pisa and was chosen to fill it. This was a well-paid university position to which I would have compounded my medical practice, thereby guaranteeing the well-being of my family. I brought all this to Marta who told me that could not come with me to Pisa because in Genoa she had the help of grandparents in caring for our son, Lorenzo. Being in a new city she would have no help and she said we could not afford a nanny. She said that I could go to Pisa but in retrospect I understood that Marta was against this for two reasons: on the one hand, she interpreted my distance as abandonment and on the other hand, and more pointedly, she was jealous of my career advancement. She was also a pediatrician and always had an inferior complex, and my successful application only served to increase her jealousy. I always came home as soon as I could, but I observed that Marta was drifting farther and farther away. In particular, when I was at home she was never around. Either she was in the hospital at work or she was spending her free time with mom friends in the parish with Lorenzo and the other children, with whom she had made a little group. She knew I would never go with her there on account of my secular notions. And so our relationship iced over even more, intimacy decreased and I stayed on longer in Pisa. The little time I was home I argued all the more frequently with Marta. I accused her of living in too much autonomy. I argued that we entered into a commitment when we were married and that one couldn’t just mess it up. She showed herself to be evermore hostile and taciturn, always on the offensive, treating me with disdain and resentment, and never giving me a reason why. I kept asking her what was troubling her and she always said, “Nothing, I’m just tired.” And then she would simply fall silent. The separation was Marta’s doing, who on 15 December 2009 during who knows what number of argument told me that she didn’t love me anymore and asked me to give her space to think about things. I returned to Pisa a desperate man and took up residence there. I returned to Genoa
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Discussion of Thursday, September 22nd only to see my son. Marta sent me a letter from her lawyer right after Christmas holidays in which he requested separation. This was a blow to my heart. I knew it was over. I argued many more times with Marta and we threw out mutual accusations of many terrible things. I do not wish to speak of that period wherein we hurt each other deeply and for which I suffered greatly. I can only say that I have always been aware of my duties toward Lorenzo. When we reached definitive separation Marta’s parents took the side of their daughter and wanted nothing more to do with me. The decree of separation came in 2010 and that of divorce in 2013. Both were consensual. I repeat that it was Marta who first requested separation. The divorce was decided by us both. 21. I am currently living with a person who I met afterwards, with whom I have a son and with whom I am very happy. Marta also lives with a new companion and I know that she has opened this cause to clarify her status in the Church. At the moment we have a good relationship even with respect to the education of our son and we share joint custody of him. 23. I hold Marta to be a sincere and credible person in these matter, even if I think her desire to excuse herself for certain mistakes and desire to start a new life have both led her to excessive self-justification and to reinterpret the history of our marriage in a manner that is less than objective. In my view the problem is that the responsibilities that we took on when we got married were simply not respected. The Judge presents me with an explanation of the grounds of nullity as dictated by Marta during her questioning, and asks me if I hold any part of this to be untrue. I answer that it does not seem fitting to place the culpability of nullity on me. It was I who first proposed cohabitation and it did not go well. I then proposed civil marriage and nor did this go well, for Marta said that only religious marriage is forever and the lasting obligation is only part of sacramental marriage. It now seems quite evident to me that there is no difference between civil and religious marriage. The obligations are the same, people can have the same problems and in both cases can separate. In civil marriage there is divorce, and for religious marriage there is nullity. I do not understand how I can say that our marriage never existed because we were both capable of intention and of willing it, we loved each other and wanted to stay together and have children. Once again, I am convinced of the irrationality of the Church. 24. I have no witnesses to present. Our mutual friends have already been given by Marta.
I have nothing further to add.
The deposition concluded and reviewed, it is confirmed and signed as follows:
Giacomo Rodolfi, Respondent Luciano Benassi, Advocate and Procurator to Petitioner Msgr. Giuseppe Bortolotti, Instructing Judge Fastino Monari, Notary
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Discussion of Friday, September 23rd
PRACTICAL CASE ON THE GOOD OF THE SPOUSES Prof. Héctor Franceschi
1. It presents a case of nullity according to the canon 1095, 3, which came to the Roman Rota after a first judgement had been in the affirmative and the judgement of the second instance court in the negative. 2. The first instance based its judgement, though in very imprecises terms, on the incapacity of the respondent to carry out his marital obligation (bonum coniugum). 3. As can be deduced from a reading of the case, one of the fundamental elements to be determined, and on which more discussion could take place either in the doctrinal and jurisprudential fori, is the minimal but necessary content of the good of the spouses and its juridical dimension. 4. In the context of this case, the discussion could address the following issues: a) It’s possible to talk, either with reference to exclusion or incapacity of the good of the spouses as a right/duty or as an essential element of marriage? On what grounds could this be based? b) What is your opinion concerning the affirmations reported in the case by judges of the first and second instance courts? c) What do you think of the way in which in the two instances the judges worked through the formulation of the doubt, and eventually took a decision? d) What is your assessment regarding the declarations of the parties and testimonies? Why were these conclusions made? e) Do you think the conclusions of the expert can be shared? In order to give an answer, one needs to take into account the anthropology underlying the decision of the expert, the acts of the case, the motivations of the expert enabling to get to his conclusions. f) Finally, if you were one of the judges of the Rotal panel, would you give an affirmative or negative sentence? What would be the reasons in iure and in facto of your conclusion?
The case Giovanna Bianco, born on April 14, 1965, got married on April 21, 1990 to Pietro Verdi, born on August 22, 1963, in St. Joseph's parish in Rome. They met in 1989, and became immediately mutually attracted to each other. Soon after they became engaged and in less than a year they got married. Almost immediately after the wedding their married life proved unhappy, due to the husband's nasty character, but also due to the failed attempts to beget offspring and equally due to the economic problems that arose due to the construction of their house. After the wedding there were two spontaneous miscarriages, then they gave birth to the firstborn child who lived for only five days, and then there was a third spontaneous miscarriage. Being devastated by these events, the woman made a petition to the doctors who, after many tests and analyses told the woman, the husband had a problem and was suffering from oligospermia. Her husband, after receiving this news, denied the fact of having a problem or that he was the cause of the difficulties in the pregnancies of his wife, rejecting that he was in any way impaired or inadequate. In fact, her husband refused to undergo any medical treatment. Giovanna became depressed, and in 1996 left the matrimonial home. There were several attempts at reconciliation between the spouses, but because of the total egoistic temperament of her husband and his refusal to consider the possibility of adopting children, the separation became definitive
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Discussion of Friday, September 23rd
Giovanna presented herself to the competent tribunal requesting the declaration of the nullity of her marriage due to, «(...) the incapacity of the husband, Pietro, to create a good conjugal environment in their marriage». During litiscontestatio the woman insisted in so far as the formulation of the doubt is as follows, to speak the truth peculiar and imprecise, «the natural incapacity to form a bearable “living together” and the complete disorder of her husband, a situation in which I can never expect to have a baby». The doubt was formulated on January 24th 1998 with the same formula, that is: «It is considered that the nullity of marriage is proven (...) due to the natural incapacity of the head of the family to form a bearable living environment and due to the organic disorder of the husband, due to which one cannot expect a child». It is clear that such a formula is not acceptable, especially in its second part when it says «the organic disorder of the husband due to which the birth of a child cannot be expected, something concerning a fact that in itself does not render null a marriage, as we are reminded by canon 1084 § 2 regarding sterility. However, it can be seen that, the case concerns canon 1095, 3 from the words "natural incapacity to form a bearable atmosphere for living together». After listening to the parties and the witnesses, without any expertise being made – not even an opinion on the acts – as the respondent refused to present himself to the expert, the Court of First Instance gave an affirmative sentence on May 25, 1999, concluding that the nullity of the marriage is proven due to the «natural incapacity to provide the good of the spouses because of the husband’s fault and due to the consequent psychic breakdown of the woman in the light of canons 1055 and 1095». The case was transmitted to the tribunal of second instance, which decree the pass into the ordinary examination. The doubt was formulated thus: «If the sentence issued by the tribunal of first instance has to be confirmed or reformed, according to which has been proven the invalidity of marriage (...) on the grounds of the incapacity to constitute the good of spouses on the part of the husband, the respondent in this case in accordance with can. 1095, n. 3». Supplementary Investigation were done in which the petitioner was listened again. Neither was expertise sought for or expert’s opinion obtained in the second instance on the acts of the case. The husband again refused to present himself. The second instance sentence was negative, that is, «non constare de nullitate matrimonii in casu ob incapacitatem viri assumendi onera coniugalia essentialia iuxta c. 1095, n. 3». The petitioner appealed to the Roman Rota against the judgement of the court of second instance. After some clarifications made by the Defender of the Bond, the formulation of the doubt, was formulated thus: «An constet de nullitate matrimonii, in casu, ob incapacitatem assumendi onera coniugalia essentialia ob causas naturae psychicae ex parte viri conventi iuxta c. 1095, n. 3 C.I.C». The Rota appointed the psychiatrist Paolo Rossi as the designated expert, who gave an expert's opinion on the acts of the case.
Extracts of the investigation We present to the participants of the course various elements of the investigation which can help in the evaluation of the case from the perspective of incapacity to assume the essential obligations of marriage, particularly if this incapacity concerns more or less the incapacity to assume the bonum coniugum. In the evaluation of these proofs, note should be taken that in the first instance there was concordance on the doubt, but in a misleadingly way, as follows, «The nullity of marriage is considered proven (...) on the grounds of the natural incapacity to form a conducive environment for living together...»; and then it was decided in the affirmative in an even more confusing way for the following reason: «the natural incapacity to provide for the good of the
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Discussion of Friday, September 23rd spouses due to the husband’s fault and because of the consequent psychic breakdown of the woman in the light of canons 1055 and 1095». Then, in the second instance the ground was further clarified talking about «the invalidity of marriage (...) on the ground of incapacity to constitute the good of the spouses by the husband, the respondent in the case in accordance with can. 1095, n. 3». The second court referred to the norms of the code to decide negatively that: «non constare de nullitate matrimonii in casu ob incapacitatem viri assumendi onera coniugalia essentialia iuxta c. 1095, n. 3». As we have seen, in the Rota, the same formulation of the doubt was agreed upon.
a) Some passages of the affirmative sentence of first instance «It can happen that on the part of the parties (...) there is no serious or severe mental situation, and that they possess sufficient intellectual capacity and the freedom to decide, but that there is in man such a somatic defect (...) which renders impossible the procreation of children, which in turn provokes in the woman a psychic depression which makes her unable to maintain a stable conjugal life (...). People who find themselves in these situations, (...) find themselves incapable to perform certain acts, arising from the marriage contract». «Due to Pietro's natural defect (...) there we have to consider the marriage in question as invalid».
b) A few passages of the negative sentence of the second instance «Now it is evident that there is an error, because canon 1095 paragraphs 2 and 3 concerns uniquely and exclusively disorders of psychic nature which causes a serious lack of discretion of judgment (1095, n. 2) or the incapacity by oneself to assume the essential obligations of marriage (canon 1095, n. 3). The declaration of nullity of marriage for a somatic defect (disorder) of one of the parties becomes impossible according to the Code of Canon Law».
c) Declaration of the Petitioner The petitioner, in her narration of the facts, narrated that Pietro Verdi was always taken by the love of himself. And he always imposed on all his will. He was taken by an irrational jealousy, and often acted in a way not normal and frequently assaulted his wife physically: - «He is selfish in principle»; - «He is not a man who thinks and acts in a normal way»; - «The fundamental cause of the marriage breakdown was his nature and his selfish character»; - «He thought only of himself»; - «He always clung to his own point of view, was stubborn and uncompromising»; - «His stubbornness annoyed his co-workers at the job side, they did not love him»; - «The main cause of the marriage breakup was the stubbornness or obstinacy of Pietro, his thirst to command (...), Pietro made his will to prevail systematically (...). The Petitioner did not like his selfish behaviour (...); He began giving her blows (...) He had his principles to which he would not give up (...) He said there was no need in trying to have or adopt another child. Again in this I discovered his selfishness (...); he was terribly jealous of any person, with whom the petitioner spoke to. Even with my mother». «Besides him, I felt as if I was his property (...) in the countryside house, and which we built together, I was obliged to live like a servant and not as an equal member of the family. He considered all our common property as his own. He reiterated that nothing was belonging to me. And I felt really like a slave».
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Discussion of Friday, September 23rd
d) Declaration of the Respondent The respondent defends himself by saying he got married with the upright intention and the will to be faithful to his wife: «I was going to contract marriage voluntarily and out of love (...). I had the intention to persevere in good and in bad with Giovanna and to observe fidelity». Pietro, after clinical proofs, became aware of his sterility, but due to his character he tried to render others responsible: "We went for a number of medical examinations, and the doctors found the defects in both of us». But the medical records, also known to him, clearly said: «Oligospermia in the husband (...) the serious oligospermia of the husband», while concerning the wife mention was made only of: «on the other side (...) a slight follicular insufficiency». The same man recognizes his way of being uncompromising: «I am conscious of having been stubborn and inaccessible in many things (...) I confess for having been stubborn. (...). My uncompromising fidelity to principles came from my function as master in the workplace» His intransigence is also seen in his negative tenacity to submit himself to medical treatment due to sterility and in the refusal to submit himself to expertise information in all instances.
c) Deposition of the witnesses - The witness Maria Morrone, sister-in-law of the petitioner affirms: «Pietro made his will to be very dominant in a way (...). Pietro has a very violent character (...); he wants only to put in evidence his will. The main reason for which Giovanna abandoned the marital home was not only those abortions (...) but also all his way of acting». - The witness Anna Azzurro, friend of the petitioner supports: «Pietro did not succeed in being gentle with Giovanna (...). Pietro was always obstinately firm on his point of view (...). In their marriage there were many small problems, which degenerated from being very small to become gigantic due to the jealous, violent, stubborn and uncompromising personality of Pietro». - The witness Francesco Giallo, the neighbour of the couple says that, regarding the good of the spouses, «Pietro did not treat his wife as an equal that needs to be respected, but rather as something that you own, or as someone who should be considered as a slave of its proper owner, something which always struck me very much».
d) From the expert’s opinion on the acts carried out by Prof. Paolo Rossi The expert says that he has reached scientific certainty of existence in the respondent, already at the time of the wedding, of a «Personality disorder not otherwise specified», according to the type of DSM IV-R. «From the acts appears indicative elements of the presence in the respondent (...) of particular personality traits (...). When these traits (rigidity, stubbornness, obstinacy, ostentatiousness, persistence imposition that everything be done only in the way he deems appropriate, incapacity or extreme difficulty of recognizing others views (cf. DSM-IV, p. 730) (...), constantly represents ways of perceiving, relating, thinking about the environment and oneself are manifested in a wide spectrum of social and personal contexts, and when they are rigid, non adaptable they cause significant functional impairment or subjective suffering, they constitute personality disorders». «Well, these general and diagnosed criteria highlighted by DSM seemed to me present in the respondent (...). These personality traits of Pietro Verdi, which undoubtedly exceeded the normal, depict a real personality disorder (...). One could talk (according to the terminology of DSM) of personality disorder not Otherwise Specified». «When the development of the will stops at this first stage we also find in a male adult an attitude of obstinacy and stubbornness which we have to interpret as a state of psychic infantilism,
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Discussion of Friday, September 23rd as a state of insufficient personality growth (...). In this sense, we can see in the respondent a state of profound immaturity, probably rooted in a level of deficient self-esteem, artificially compensated for by a hypertrophy tendency of the ego». «At the time of the wedding (...) Mr. Pietro Verdi was suffering from personality disorder (...). The origin of this disorder is to be found in endogenously-constitutional factors (...). Because of this structural personality disorder (...) the subject (...) was not able to establish a sufficiently adequate interpersonal relationship, being truly incapable of assuming in a sufficient manner the participation of others perspective and to take charge of the feelings and needs of the other apart from himself, and thus to form a community of life with at least sufficient characteristics»
Some jurisprudential references useful to the case - c. Ewers, 4 luglio 1981, in RRDec., vol. 73 (1981), p. 221): «(…) ut constet de vera incapacitate adsumendi onera coniugalia, constare debet de gravi defectu psychico vel de gravi psychopathia, non sufficiere e contra leves vitiositates indolis, quae tantummodo plenam ac perfectam vitae coniugalis consuetudinem impediunt (…) Insuper Rotalis iurisprudentia docet agi debere de vera incapacitate neque tantummodo de mera difficultate, atque eandem verificari dumtaxat in casibus morborum psychicorum at non sufficere simplicem characteris incompatibilitatem (…)». - c. Egan, Mediolanen., 19 luglio 1984, in RRDec., vol. 76 (1984), p. 470: «In causis nullitatis matrimonii propter rationes psychicas distinguatur oportet inter nullitatem ex defectu debitae iudicii discretionis et nullitatem ex incapacitate adimplendi necessaria onera coniugalia. Prior enim nullitas habetur quoties alteruter vel uterque nupturiens, quamvis idoneo praeditus sit usu rationis probeque sciat matrimonium esse “consortium permanens inter virum et mulierem ordinatum ad prolem, cooperatione aliqua sexuali, procreandam” (cf. c. 1096 § 1), non tamen valet de connubio ineundo deliberare illo modo quem postulat negotium tanti ponderis ideoque caret illa libertate “interna”, quam vocant, quae e tali dumtaxat deliberatione proficiscitur; posterior autem quoties alteruter vel uterque nupturiens, quamvis idoneo praeditus sit usu rationis, scientia naturae matrimonii, capacitate deliberandi necnon libertate, non tamen valet satisfacere oneribus quae necessario suscipiuntur cum in matrimonium consentitur eo uno modo quo quis potest in matrimonium consentire, videlicet, tradendo et accipiendo iure perpetuo atque exclusivo ad copulam coniugalem».
- c. Pinto, Hagulstaden. et Novocastren., 30 maggio 1986, in Monitor Ecclesiasticus (1986- IV), p. 390: «Bonum coniugum complectitur obligationes illas sine quibus est saltem moraliter impossibilis intima personarum atque operum coniunctio, qua coniuges adiutorium et servitio mutuo praestent, et ad quam coniugium ex natura sua ordinatur. Cf. etiam Conciliare Decretum Gaudium et Spes, n. 48». - c. Bruno, 17 maggio 1996, in RRDec., vol. 88 (1996), p. 390: «affectus sit personalitate graviter distorta vel deordinata ob causas naturae psychicae, uti sunt neuroses, turbae personalitatis, gravis immaturitatis psycho-affectivae, e quibus non solum incapacitas assumendi onera coniugalia exurgere potest, sed nonnumquam eaedem sufficientem quoque cognitionem ac ponderationem matrimonialium obligationum vel internam libertatem electionis limitare ac praepedire valent». - c. Bruno, 19 luglio 1999, in RRDec., vol. 91 (1999), p. 466: «Bonum coniugum, uti finis et elementum essentiale nuptialis foederis, est veluti omnium bonorum summa, quae promanant ex relationibus interpersonalibus eorumdem coniugum. Ipsi enim, si nulla personalitatis psychica anomalia laborent, per adaequatas relationes interpersonales insimul seipsos ditant, uti singulas personas, et totam vitam coniugalem. Adest enim verus amor coniugalis, qui non est mere eroticus et sexualis, sed totalis cum perpetua donatione animae et corporis in responsabili foecunditate iuxta
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Discussion of Friday, September 23rd leges a Creatore statutas, favetur mutuum auxilium in prospera et adversa sorte, profectus spiritualis, religiosus et moralis, necnon concordia in vigili custodia et educatione filiorum, pax familiaris, bona relatio socialis, etc.». - - c. Pinto, 13 de diciembre de 2002, en RRDec. vol. 94 (2002), p. 780-786, n. 11: «Sententia primi gradus saltum facit a matrimonii naufragio usque ad habendum uti probatum actum positivum voluntatis contra bonum coniugum in consensu eliciendo. Sententia omnino errat cum contendit ex viri personalitate actum virtualem exortum esse, cum re vera actus virtualis tantummodo adesse potest si antea voluntas actum emiserat, qui interea manet, dummodo ipsa voluntas illum haud mutet. Omnino patet quod Iudex primi gradus pro nullitate sententiam prodidit recipiens tantum voluntatem interpretativam, quin probaret Actorem posuisse actum voluntatis contra bonum coniugum». - Ibid.: «Nullatenus ex actis eminet virum respuisse bonum morale alterius coniugis necnon vitam iugalem cum uxore agendam... Nec actus implicitus voluntatis contra bonum coniugum ex factis univocis, gravibus, ac certis depromi potest; cursus enim tum relationis praenuptialis tum consuetudinis coniugalis, quae saltem per decem annos aequo animo profluxit, facta significantia pro excluso bono coniugum afferre non potest».
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