A PRELIMINARY INVESTIGATION IN MARRIAGE NULLITY TRIALS by Rev. Robert J. Sanson Priest of the Diocese of Cleveland, Ohio A Dissertation submitted to the Faculty of Canon Law of Saint Paul University, Ottawa, in partial fulfillment of the requirements for the degree of Doctor of Canon Law 8/etlOTHEQOES * u Ottawa LflRArtlES ***** d ^ t J. Sanson, Ottawa, Canada, 1976 UMI Number: DC53922 INFORMATION TO USERS The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleed-through, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. UMI® UMI Microform DC53922 Copyright 2011 by ProQuest LLC All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 TABLE OF CONTENTS CHAPTER PAGE INTRODUCTION v ACKNOWLEDGMENTS xi 1. THE HISTORY OF "PRELIMINARIES" TO TRIAL 1 I. Roman Law 2 A. The "In Jure" Hearing 3 B. The Three Periods of Roman Law ^ C. The Litis Contestatio 6 II. Church Law 10 A. A Solemn Judgment 11 B. A Summary Judicial Procedure 19 C. Fundamental Bipolarity of Marriage Processes 21 D. Dei Miseratione 25 E. Cum Moneat Glossa 26 F. The Austrian Instruction 29 G. Contemporary Views of the Austrian Instruction kS H. Criminal Cases Before the Code of Canon Law 63 2. TYPES OF PRELIMINARY INVESTIGATIONS SINCE THE CODE OF CANON LAW ?0 I. The Code of Canon Law 70 A. The Petition 73 B. Rejection of the Petition 77 C. Canon 1730 77 D. Preliminary Inquiries in the Code 79 II. After the Code of Canon Law 83 A. Declarations of Marriage Nullity 8^ B. Nullity or Dispensation from Obligations of Priesthood 9^ C. Dispensation from a Non-Consummated Marriage ic4 ii CHAPTER PAGE 3- SECULAR PRE-TRIAL INVESTIGATIONS 109 I. General Notions 109 II. Common Law Tradition (U.S.A. and Canada) 116 A. The Trial 117 B. The Pre-Trial Conference 121 C. The Purposes and Advantages of a Pre-Trial Conference 131 D. Pre-Trial Discovery 13^ E. Canada: De Bene Esse 1^-1 III. Civil Law Tradition (Continental) 1^3 A. Civil vs. Common Law Tradition 1^3 B. Italy 1*1-9 C. France 158 D. Germany 163 k. SOME CURRENT PRACTICES IN NORTH AMERICA 168 I. Personnel 169 A. The Tribunal Staff and a Search for Truth 169 B. The Judge 170 C. The Advocate 176 II. Format 179 A. Plaintiff 181 B. Respondent I83 C. Witnesses 18^- D. Preliminary to Acceptance or Rejection of a Petition 185 E. Subject and Object of Interview 186 iii CHAPTER PAGE III. Case History 188 IV. Use of Experts Before Acceptance of a Petition 193 5- PARTICULAR CONDITIONS IN NORTH AMERICA 201 I. No Civil Effects to Church Annulment 202 II. Credibility of Plaintiff and Others 210 III. "Declaration" More Often Than "Confession" of a Party 218 IV. Greater Extension of "Non-Suspect Time" 222 6. A CANONICAL APPRAISAL AND CRITIQUE 227 I. Rejection of Groundless or False Petitions 227 A. Coram Adam Pucci 230 B. Little Rock Cases 237 C. Criticisms of Some U.S.A. Procedures 2^3 D. German Conference 2*1-7 E. Permissibility and Utility 251 II. Discovery of Difficult Grounds 255 A. The Tribunal as Advocate 255 B. Advocates and Procurators 258 III. Probative Value as Judicial Proofs 270 A. Admissibility 270 B. Evaluation 273 C. "Judicial" 277 iv CHAPTER PAGE IV. Other Pastoral Benefits 287 A. Reconciliation 289 B. Conjugal Counselling After Divorce 291 C. Pastoral Approach 293 D. Total Pastoral Care 29^ SUMMARY 300 CONCLUSIONS 311 BIBLIOGRAPHY 313 INTRODUCTION This dissertation—"A Preliminary Investigation in Marriage Nullity Trials"— concerns a procedural law topic with pastoral significance: the common practice in the United States and Canada of gathering a considerable amount of information and even testimony before the acceptance of a petition for a formal marriage annulment process, espe­ cially in cases based on psychological grounds. There have been a number of criticisms of this practice as an abuse of the process as regulated in the Code of Canon Law and the Instruction Provida Mater of 1936. This thesis is a positive evaluation of whether any preli­ minary investigation is justified in law and in good tri­ bunal practice, especially in view of the alleged psycho­ logical grounds and the need for more background information to process a case, or even to see if any grounds of nullity are present. These preliminary examinations will also be evaluated in the context of the Church's total pastoral care for broken marriages. When a petition, which would require a formal judi­ cial process, is presented to a tribunal, a preliminary de­ cision must be made either to accept the petition for adju­ dication, or to reject it for reasons clearly stated. Any case, then, must have some grounds in law and in fact which, if substantiated, could lead to the moral certitude required for a declaration of nullity. Courts have always required vi some indications of nullity and means of proving it, before a case will be accepted for the long judicial procedure. With the newer "psychological grounds," which make up an estimated 80$ of all formal grounds in North American tri­ bunals, the importance, and often the necessity of some preliminary investigation seems even more evident. Without it, judges often fail to see any possibility of a case; with it, judges may discover clear indications of nullity, and means of establishing the required moral certitude. The dangers must also be clearly investigated. By requiring too much before the probative part of the process begins, a court could literally prejudice (pre-judge) a case, before all the testimony and evidence is properly and fully gathered. By requiring too little, a court could make a too facile decision of rejection. The problem can be reduced to these questions: is there a lacuna legis which is being justifiably supplemented by court procedure? Or is it a practice contrary to the law, prejudicial to the rights of persons, and, therefore, to be corrected? Or, finally, is it a practice extra legem since circumstances not foreseen in the law (especially the greater acceptance of psychic incapacity cases) have arisen, which require such a practice for true justice to be achieved? And if it is justified, should the revised Code of Canon Law mention and sanction such a procedure, or should it be left vii to the judge to use it where necessary? The indefinite article in the title of this thesis is deliberate, since we cannot speak of the preliminary investigation in canon law. The concept is not univocal, but rather connotes different purposes in different types of procedure used at diverse times. The only "canonical institution" of an officially approved (in forma ordinaria) preliminary investigation for marriage nullity cases was in the Austrian Instruction of 1855- This was approved only for the Empire of Austria, but served as a valuable precedent for other countries, including the United States, as witnessed by the Third Plenary Council of Baltimore. A preliminary investigation is understood only if it is clear what the process is, and what steps are con­ sidered as preliminary. In Church procedures which are more administrative in nature, the investigation had as its pur­ pose to guarantee some basis to various types of cases, before a full-scale investigation was begun with procedures which are very time-consuming. Thus, a bishop, for example, in petitions for dispensation of a non-consummated marriage, was to make sure that the request he signed have a solid basis in law and in fact before he asked permission to open a case officially. Otherwise, it might be summarily re­ jected by the competent Sacred Congregation, or delayed by viii many dilatory responses asking for more information. This would indicate that the bishop or his delegate had not done their homework, and presented a well-founded case for decision. The central concern of this dissertation is whether any type of preliminary investigation is suitable to the formal judicial process for marriage cases. Other processes will be studied which often share, to some degree, in the same judicial elements as a formal trial. The reader would do well initially to place a question mark after the title. There are only three authors, it seems, who comment on this precise topic at any length. R. Bassibey of France and S. B. Smith of the United States both wrote at the end of the nineteenth century. Joseph Berger wrote a thesis at the Gregorian University in 196*1- on the rejection of the petition. He has a brief treatment of the legal and practical arguments for and against a preliminary investi­ gation, but mostly from the aspect of rejecting unworthy petitions. He bases this upon his survey of United States tribunals. This thesis will investigate the legality and use­ fulness of an investigation in accepting more petitions, and also in giving the judge a clearer idea of the direction of a case, economizing on witnesses within the process, etc. The search for present practices in North America was aided ix by John V. Dolciamore's survey of selected United States tribunals in 1973. which he graciously made available, and the author's own survey of Canada's regional tribunals in October, 1975.