His Eminence Raymond Leo Cardinal BURKE
Prefect of the Supreme Tribunal of the Apostolic Signatura
By way of introduction, I treat, first of all, the cooperation of two Apostolic tribunals, the Apostolic Tribunal of the Roman Rota and the Supreme Tribunal of the Apostolic Signatura, in the safeguarding of the administration of justice in the Church and, in particular, of sound canonical, especially matrimonial, jurisprudence. It is not a merely functional or practical cooperation but has its substantial foundation in the common service which the two tribunals offer to the Supreme Pontiff in his office of providing justice to the faithful of the universal Church, an office which he exercises in an unbroken line from the Apostle Saint Peter.
In the introduction to the Instruction DignitasConnubii, “To Be Observed by Diocesan and Interdiocesan Tribunals in Handling Causes of the Nullity of Marriage,” promulgated by the Pontifical Council for Legislative Texts on January 25, 2005, the fundamental necessity of unity in matrimonial canonical jurisprudence is underlined, in order that the truth of the Sacrament of Marriage be always honored and set forth in processes of matrimonial nullity. At the same time, the Instruction points out the distinct and complementary services of the Roman Rota and of the Apostolic Signatura, so that such unity is attained in the many ecclesiastical tribunals dispersed throughout the world. The Instruction declares:
Furthermore, in order to achieve in the Church that fundamental unity of jurisprudence which matrimonial causes demand, it is necessary that the tribunals of a lower level look to the Apostolic Tribunals, namely to the Tribunal of the Roman Rota, to which it pertains “to provide for the unity of jurisprudence” and “through its sentences, to be of assistance to lower tribunals” (Pastor Bonus, art. 126), and to the Supreme Tribunal of the Apostolic Signatura, to which it pertains, “besides the function which it exercises of a Supreme Tribunal”, to provide “that justice in the Church is properly administered” (Pastor Bonus, art. 121).
While the Apostolic Signatura has the universal concern for the right administration of justice in the Church, the Roman Rota supplies the unity of jurisprudence, both substantive and procedural, which is required for the administration of justice in accord with the teaching and discipline of the universal Church.
In the second chapter of the second title of the same Instruction, which treats the ministers of the tribunal, the study of the jurisprudence of the Roman Rota is found among the fundamental duties of the tribunal minister. Article 35 declares that the judges, the defenders of the bond and the promoters of justice “are to be diligent in continuing to deepen their knowledge of matrimonial and procedural law” and that “it is necessary that they study the jurisprudence of the Roman Rota, since it is responsible to promote the unity of jurisprudence and, through its own sentences, to be of assistance to lower tribunals (cf. Pastor Bonus, art. 126).”
The Authority of Rotal Jurisprudence
Before addressing more specifically the collaboration between the Roman Rota and the Apostolic Signatura on behalf of the right administration of justice in the Church, it is necessary to reflect briefly on the nature of Rotal jurisprudence. Rotal jurisprudence is constituted not by a single or even a number of Rotal decisions but by a manner of judging that is consistent in many decisions during a certain period of time. The consistent manner of judging unites the extrinsic authority of the Rota with its intrinsic authority. In the words of Aurelio Sabattani: “Thus jurisprudence is imposed not by reason of authority but by authority of reason.”
Since the Prelate Auditors of the Rota are human beings, it is possible that one or another decision may not express precisely the consistent manner of judging at the Rota in a determinate matter or may depart from such a stable manner of judging.
A practice proposed in an article written by a United States canonist in 1976 wouldtherefore not be correct. The canonist in question made the proposal, commenting on the “behaviorist and personalist tendencies” in certain Rotal decisions from the year 1969, while lamenting that other decisions of the Rota did not follow them. He proposed a “cafeteria” approach to the individual decisions of the Rota, writing:
It is a sound canonical principle to be ample and lenient in applying the ‘good things’ of the law. This means that the very best of the Rotal decisions should be applied widely, and practically speaking this means that titles for marriage nullity today include all sorts of disorders used in the psychiatric sciences if these illnesses would radically inhibit one from establishing a conjugal community of life and love.
In this context, it is helpful to recall what the then Dean of the Roman Rota, Monsignor Arturo De Jorio, wrote on the practice of Cardinal William Heard during his years of service as Dean. Cardinal Heard refused to permit the publication of individual Rotal decisions “because only he who reads all of the sentences given in a certain expanse of time by different rotations of judges, not only those written by a determinate Auditor can gather the guiding principle of Rotal jurisprudence.” To know Rotal jurisprudence in a given matter, therefore, requires the persevering study of all the decisions in the matter.
The authority of Rotal jurisprudence is unique in the whole Church because it is the ordinary tribunal of the Roman Pontiff for judicial causes. In the years just before the revision of the Code of Canon Law, there were authors who wanted to place on the same plane the jurisprudence of the Roman Rota and that of the lower tribunals. The question of the greater decentralization of Church procedural law, even to the establishment of autonomous regional and national tribunals, was raised during the formulation of the principles for the revision of the Pio-Benedictine Code. One United States canonist wrote in 1969:
Throughout Canada and the United States there are now many competent, efficient, and judicious marriage courts. Their decisions have exactly the same applicative and interpretative force as the decisions of the Rota and most often the same suppletive force, since generally the real value of jurisprudence is not extrinsic (based on authority) but intrinsic (based on the merits of the legal argument).
While it is true that the application of the law by all ecclesiastical tribunals has the same legal force, it is false to affirm that the jurisprudence of the lower tribunals has interpretative and suppletive force. It is also false to separate the extrinsic authority – the authority given by the Supreme Pastor of the Church – from the intrinsic authority –the authority deriving from the coherence with the truth – of Rotal jurisprudence. The very concept of Rotal jurisprudence honors the two aspects of its authority.
The Pio-Benedictine Code, in can. 20, accorded suppletive force to the “style and practice of the Roman Curia” alone. The present Code, in can. 19, retains the same discipline, attributing suppletive force to the “jurisprudence and practice of the Roman Curia.” The authority attributed to the Roman Curia is founded on its “more ample experience” and “the presumed greater preparation of the officials of the Sacred Congregations and Tribunals.”
Apart from the suppletive force of Rotal jurisprudencein the case of a particular lacuna in the law, the Roman Rota should enjoy the respect and the attention of all tribunals of a lower level because it has been established as an apostolic tribunal with the responsibility articulated in the Apostolic Constitution Pastor Bonus, which reads:
The Roman Rota is a court of higher instance at the Apostolic See, usually at the appellate stage, with the purpose of safeguarding rights within the Church; it fosters unity of jurisprudence, and, by virtue of its own decisions, provides assistance to lower tribunals.
This legislation leaves no place for doubts regarding the authoritative nature of Rotal jurisprudence for the lower tribunals in the interpretation of substantive and procedural canonical legislation. The authority of the Roman Rota, serving the unity of jurisprudence in the whole Church, offers a service to all tribunals, indicating both the just manner of judging in fidelity to the sacred realities which are under judgment in a particular case and the correct manner of proceeding to judgment. The tribunals which have had a cause in appeal at the Roman Rota have experienced directly this help, through both the “in iure” and the “in facto” sections of the definitive decision given by a turnusor panel of judges at the Apostolic Tribunal.
The attention given to Rotal jurisprudence is not legalistic or formalistic but derives from the moral necessity of each ecclesiastical servant of justiceto fulfill his sacred office in communion with the universal Church. Only operating thus, that is, in communion with the jurisprudence of the universal Church, can he, together with those for whom he is administering justice in the Church, be confident that the truth has been served in the best manner possible. In the address to the Roman Rota of February 26, 1983, Pope John Paul II recalled the theological importance of Rotal jurisprudence with these words:
While respecting a healthy pluralism that reflects the Church’s universality, the function of the jurisprudence of the Rota is indeed that of leading toward more convergent unity and substantial uniformity in safeguarding the essential contents of canonical marriage, which the spouses, the ministers of the sacrament, celebrate in adherence to the depth and wealth of the mystery, in reciprocal profession of faith before God.
Rotal jurisprudence, apart from its function of supplying for any lacuna in the law, defined legally in the Code of Canon Law, offers also the service, articulated for the first time in the legislation of the Church by the Apostolic Constitution Pastor Bonus, of providing for the unity of ecclesiastical jurisprudence and, through its decisions, helping the tribunals of lower level.
Vigilance over the Correct Administration of Justice at the Apostolic Signatura
The Supreme Tribunal of the Apostolic Signatura has, among its competencies defined in the Code of Canon law, “to watch over the correct administration of justice and discipline advocates or procurators if necessary.” The Apostolic Constitution Pastor Bonus begins its treatment of the Supreme Tribunal with an article underlining both the responsibility of the Supreme Tribunal as a tribunal and its administrative responsibility for the correct administration of justice in the universal Church. Art. 121 of Pastor Bonus reads:
The Apostolic Signatura functions as the supreme tribunal and also ensures that justice in the Church is correctly administered.
Then, in article 124, it confirms said competence with the same text of can. 1445, § 3. From the text of art. 121, a double identity of the Supreme Tribunal is presented, that is, the identity of the highest judiciary organ in the Church and the identity of an administrative office or department of justice which has the care of the correct jurisprudence in all of the tribunals of the Church.
The Collaboration between the Apostolic Tribunals for Correct Jurisprudence
In looking at how the second part of the identity of the Apostolic Signatura works together with the Roman Rota which also has its own responsibility for correct jurisprudence in the tribunals of the Church, it is essential to note the proper law of the Apostolic Signatura, theLex Propria promulgated by Pope Benedict XVI on June 21, 2008, which defines the service of vigilance over the correct administration of justice at the Supreme Tribunal in the first chapter of Title V. Given the Apostolic Signatura’s manner of safeguarding the correct administration of justice, the question is now posed regarding how the Roman Rota collaborates with the Apostolic Signatura in the exercise of the same care.
Even after the promulgation of the Lex Propria, there were doubts regarding the matter. One Italian commentator observed:
The competence of “vigilance over the correct administration of justice” includes a vast field of difficult articulation (LP 35). The recent practice of the Apostolic Signatura tends to exclude from this task the “providing for the unity of jurisprudence and the help, by means of the sentences, to lower tribunals” (PB 126), confided to the Roman Rota, while setting apart for it the function of “safeguarding correct jurisprudence” (LP 111 § 1). On the question an adequate articulation of tasks and of the distinction of them between the two apostolic tribunals has not yet been reached.
Taking into account the justifiable observation of the author in question, one must indicate that the beginning of a response to the question is quite evident.
The Apostolic Signatura, in the exercise of its responsibility for correct jurisprudence does not invent a measure to which the diocesan and interdiocesan tribunals are to conform themselves. The measure is, instead, the discipline of the universal Church, articulated in the Code of Canon Law for the Latin Church and the Code of Canons of the Eastern Churches for the Oriental Churches, in the Instruction DignitasConnubii, and in the jurisprudence of the Roman Rota. In the exercise of the responsibility for the correct jurisprudence on the part of the Apostolic Signatura, the Supreme Tribunal has only two points of reference, that is, the law of the Church and its application in the Rotal jurisprudence.
With regard to the grounds of nullity of marriage, the rule is the discipline of the universal Church, articulated in the Code of Canon Law for the Latin Church and the Code of Canons of the Eastern Churches for the Oriental Churches, as those grounds are interpreted in Rotal must be clear that the only grounds of nullity of marriage are those established by universal Church discipline, that is, those named in the Code of Canon Law. The formula of the doubt “not only is to ask whether the nullity of the marriage is established in the case but also must determine on what ground or grounds the validity of the marriage is to be challenged.”
In this perspective, a collaboration with two principal modes is profiled. The Roman Rota offers to the Apostolic Signatura the jurisprudence according to which the Signatura can study the judicial activity in the lower tribunals. Without the Rotal jurisprudence, the Apostolic Signatura would be lacking the ruler by which to measure carefully the correct jurisprudence in the lower tribunals.
The second mode of collaboration is the constant reference to Rotal jurisprudence in the communications of the Supreme Tribunal with the diocesan and interdiocesan tribunals. The activity of the Apostolic Signatura in caring for the correct jurisprudence is, in itself, a sign of the irreplaceable service of the Roman Rota to the universal Church. Certainly, the individual tribunals which have a cause in appeal at the Roman Rota will receive directly indications on the adequacy of their jurisprudence, but for all tribunals which normally do not have a cause in appeal at the Roman Rota it is the Apostolic Signatura which provides the service of calling them to correct jurisprudence as manifested in the jurisprudence of the Roman Rota.
The Ground of Error of Law
On July 1, 2009, the Supreme Tribunal of the Apostolic Signatura wrote to the Moderator of a metropolitan tribunal requesting copies of two sentences emitted by the metropolitan tribunal on the ground of total simulation and two sentences emitted on the ground of error of law, which the Moderator forwarded to the Supreme Tribunal, in due course. In the meantime, the Apostolic Signatura also received copies of two additional causes of nullity of marriage, judged on the ground of error of law at the same metropolitan tribunal, in the course of its study of decrees of ratification, given by the appellate tribunal of the metropolitan tribunal. On July 21, 2010, the Apostolic Signatura responded to the Moderator, regarding the causes judged on the ground of error of law, with these words:
The Apostolic Signatura asked one expert to make a thorough study of the two decisions on the ground of total simulation and another expert to study the four sentences given on the ground of error of law. Please find enclosed their respective reports, which point out serious flaws and shortcomings (Enclosures A and B).
I will briefly indicate the observations of the expert regarding the sentences decided on the ground of error of law and then give some general doctrinal conclusions regarding error of law in what pertains to matrimony.
First of all, the expert indicated that none of the four sentences under study indicated the specific object of the error of the respondent, as is required by can. 1099. “This lack of specificity has its effects on the argumentation of the sentences.”
Secondly, in two sentences given before the same single judge, there is a “disproportionately long in iuresection.” In discussing error, the judge uselessly includes a presentation on error of person and error about qualities directly and principally intended (can. 1097). After making some further distinctions, the judge himself errs by affirming that can. 1099 “reflects a defect of knowledge rather than an intention contrary to the essence of marriage.” The expert concludes: “This shift from error about the essential properties to lack of knowledge of the essence of marriage has its effect on the argumentation of the sentence on this ground, which in both cases, consists of a single paragraph.”
Thirdly, in one case, the judge “perceives” that the Respondent did not have an understanding of marriage as a “communion of life,” apparently based only on the fact that the Petitioner and her two witnesses state that “he lived his life after the marriage the same as before the marriage.” In another case, the judge, considering the “extreme jealousy” and infidelity of the man, finds that “he could not see beyond himself to the nature of marriage as a communion of the whole of life.” The expert concludes: “On the basis of this supposed lack of understanding – in neither case is there a confession by the person in question – the judge immediately finds for the nullity of the marriage, even though for nullity it is required not only to prove error but also to prove that said error determined the will.”
Fourthly, in the two cases judged before another single judge, the in iure sections give the appearance “in the end” that the judge did not have a clear and accurate understanding of the ground of nullity, which impression is confirmed in the argument in facto. In one case, the judge argues that “the respondent’s family background ‘strongly suggests’ that his incorrect way of behaving during the marriage was due to ‘substantial error’ regarding ‘conditions sine qua non for a valid union’(!) that determined his will and, as it seems, his actions as well.” In the second case, the judge argues that “the combination of a problematic family setting and erroneous behavior during the marriage was proof of ‘substantial error’ that determined the will and even the behavior of the respondent, who ‘would not, and could not have acted otherwise.”
The expert offers the following general conclusion:
The in iure section should be limited to the ground of nullity in question, emphasizing those points most important for resolving the case at hand. The tribunal should develop a clearer approach to proving the alleged invalidating fact, namely that the object of the person’s consent was determined by the person’s error in such a way to choose a deficient marriage. In this it is helpful to remember that in regard to proof of such a defective intention, there is a convergence with the methods for establishing a ground of partial simulation/exclusion. Furthermore, the tribunal should be reminded that the formulation of the doubt in cases concerning can. 1099 should indicate the precise object of the error which is alleged to have determined the will of the person.
The Code of Canon Law treats error, in a general manner, in can. 126, which belongs to the general norms. Stating that an act “placed out of ignorance or error concerning something which constitutes its substance or which amounts to a condition sine qua non is invalid,” this norm clearly distinguishes between error about the substance of the act, which always renders it null, and error about anything that is not substantial, which renders the act null only when the erring persons makes of it a condition sine qua non. In this second hypothesis one must prove not only the existence of the error but also its reduction to a condition sine qua non. The canon adds that the act “is otherwise valid, unless the law provides differently.” The final clause of the canon about the possible rescission of the act has no importance for matrimonial law.
What is affirmed in a general way in can. 126 is made specific to Holy Matrimony in cann. 1096-1099. Questions about error iuris in matrimonial law must refer to cann. 1096 and 1099. Can. 1096 states: “For matrimonial consent to exist, the contracting parties must at least not be ignorant that marriage is a permanent partnership between a man and a woman ordered to the procreation of children by means of some sexual cooperation.”
In the same line, therefore, can. 1099 states the general principle that an error about the essential properties of marriage (unity and indissolubility) or the sacramentality of marriage (between the baptized) does not invalidate the marriage. In fact, for the valid celebration of marriage it is not required that the will of the spouses include the essential properties of marriage or its sacramentality, because these do not depend on the will of the spouses. Whoever wants marriage per se wishes also the essential properties of marriage and also its sacramentality, because they are inseparable from it.
Indeed, for the invalidity of juridic acts in general, and of marriage, in particular, there is never required either an exhaustive knowledge of the nature of the juridic act to be placed or a detailed knowledge of the concrete object of the specific act to be placed. If one were to require all this, one would render juridic life impossible; in particular, marriage would no longer be available to all persons, including those who, in the varying situations of the contemporary world, following a natural inclination to marriage, grasp in an intuitive manner its essential and distinguishing keeping with these principles, can. 1099 denies per se an invalidating effect to an error concerning the essential properties of marriage (unity or indissolubility) or its sacramentality.
Even so it can happen that an error, if it is stable, diffuse, persistent and deep-seated, can have the effect of determining the act of the will, to the point that one wills, for example, a dissoluble marriage, and thus an invalid marriage. This is the meaning of the clause “as long as it does not determine the will” in can. 1099. In such a case, however, it is not the error but rather the determination of the will that causes the invalid marriage. This possible determination of the will in any case must be sufficiently and properly proved.
It is necessary in such a case that error reach “such intensity as to condition the act of the will, thus causing the consent to be null,” according to the words of Pope John Paul II in his Allocution to the Roman Rota of 29 January 1993, or that it have “a determining influence on the will’s decision,” as the same Pontiff underlined in his Allocution to the Roman Rota of January 21, 2000. Pope John Paul II confirmed in this Allocution that an error, even if deep-seated, for example because of the widespread modern divorce mentality, does not per se make the consent null, unless in a particular case it should determine the act of the will so as to will a marriage lacking, for example, indissolubility:
No one can deny that the current mentality of the society in which we live has difficulty in accepting the indissolubility of the marital bond and the very concept of marriage as the “covenant by which a man and a woman establish between them a partnership of the whole of life (foedus, quo vir et mulier inter se totius vitae consortium constituent)” (CIC, can. 1056). But this real difficulty does not amount “sic et simpliciter”to a concrete rejection of Christian marriage or of its essential properties. Still less does it justify the presumption, as it is unfortunately formulated at times by some tribunals, that the predominant intention of the contracting parties, in a secularized society pervaded by strong divorce currents, is to desire a dissoluble marriage, so much so that the existence of true consent must instead be proven.
In conformity with the doctrine constantly professed by the Church, therefore, we must conclude that opinions opposed to the principle of indissolubility or attitudes contrary to it, but without the formal refusal to celebrate a sacramental marriage, do not exceed the limits of simple error concerning the indissobuility of marriage, which, according tto canonical tradition and current legislation, does not vitiate marital consent (cf. CIC, can. 1099).
Nevertheless, in virtue of the principle that nothing can replace marital consent (cf. CIC, can. 1057), an error concerning indissolubility, by way of exception, can have an invalidating effect on consent if it positively determines the will of the contracting party to decide against the indissolubility of marriage (cf. CIC, can. 1099).
This can only occur when the erroneous judgement about the indissolubility of the bond has a determining influence on the will’s decision, because it is prompted by an inner conviction deeply rooted in the contracting party’s mind and is decisively and stubbornly held by him or her.
In regard to error about the sacramentality of marriage, one must carefully keep in mind what Pope John Paul II taught in his Allocution to the Roman Rota of January 30, 2003:
One cannot posit, alongside natural marriage, another model of Christian marriage with specific supernatural requisites. This truth should not be forgotten when delimiting both exclusion of sacramentality (cf. can. 1101 §2) and determining error about the sacramental dignity of marriage (cf. can. 1099) as possible grounds of nullity. In both instances it is crucial to keep in mind that an attitude on the part of those getting married that does not take into account the supernatural dimension of marriage can render it null only if it determines its validity on the natural level on which the sacramental sign itself takes place.
In keeping with what is set out in the Code and with the Papal magisterium, proof of the invalidating influence of the error in question includes establishing the existence of a will which has led to a matrimonial consent lacking essential elements. In judicial practice, in order to prove the invalidating effect of an error iuris, that is, concerning unity, indissolubility or sacramentality, it is not enough: 1) to verify the presence of the error; 2) to prove that the party was “prone to share the contemporary divorce mentality”; and 3) for the judge “to perceive” that the party “had an understanding of marriage far different from the Church’s understanding,” or “could not intend marriage as a communion of life.”
Besides proving the existence of an error, one must prove that the erring person, in one way or another, willed his or her own concrete marriage to be without an essential property or sacramentality. Therefore it must always be proved that the erroneous opinions in question had in the concrete case a determining influence on the will of the party. In this context one must not forget that the will is not determined by understanding alone. In the case of marriage, the state of being in love, for example, by its very nature moves the parties toward a total relationship, including perpetuity and exclusivity. Consequently, even if it is possible that two young people who love each other can have a divorce mentality, this can hardly affect their concrete relationship, which they per se will want to endure, and one must presume that this intention is present at the moment of the celebration of the marriage.
Can. 1099 lists only three possible objects of error determining the will: indissolubility, unity and sacramentality. One cannot admit an extensive interpretation of the object of such error, which would apply it, for example to the marriage itself (matrimoniumipsum), to the good of offspring (bonumprolis) or to the good of the spouses (bonumconiugum).
In the formulation of the doubt, the judge must indicate also the object of the alleged error determining the will, for example: Whether the nullity of the marriage has been established because of error determining the will regarding indissolubility (according to the norm of can. 1099) on the part of the petitioner. The use of generic formulations of grounds of nullity, such as error iuris, without any further specification about the object of such error, is not a correct judicial practice and does not help at all in reaching moral certitude about the nullity of the marriage in question. In the same way, when preparing the Annual Report on the State and Activity of the Tribunal to be sent to the Apostolic Signatura in January of each year , one should indicate the specific ground of nullity based on error of law determining the will, just as one should do for grounds involving simulation.
Thus ignorance, and consequently error, which concerns this essential content of the act, always invalidates consent. Every other error iurisdoes not concern the essential content of the act. The principle enunciated in can. 126 is that, unless it be a question of a substantial error, error does not render acts null. Further determinations on the incidence of error in the matrimonial field must be found in the pertinent canons.
It is not necessary, I think, to insist very much on the seriousness of the care for the correct jurisprudence on the part of the Apostolic Signatura. How can the Church be a mirror of justice, when its tribunals declare null a marriage without sufficient attention to the due procedure for proving the truth and the nature itself of the reason why the marriage is held to be null. From what the Signatura was able to know from the sentences studied, one can justifiably ask how many marriages have been declared null without an adequate demonstration, according to proven Rotal jurisprudence, of the alleged heading of nullity.
In fact, when the Signatura needs to make such observations to a moderator of a tribunal, it is always clear that it has no intention of disturbing the parties involved in the causes, who must be presumed to be living in good faith. At the same time, it writes that it only desires to assist the tribunal to judge justly such causes in the future, insisting that the tribunal must correct its procedures according to the norm of the Instruction DignitasConnubiiand must adopt a sound jurisprudence in harmony with the teaching of the Church.
The Intention against the Good of the Spouses (BonumConiugum)
On June 26, 2004, the Apostolic Signatura wrote to the moderator of a metropolitan tribunal to request some sentences based on the ground of “Intention Contra BonumConiugum.” On the following August 17th, the Judicial Vicar sent three sentences to the Signatura, which the Signatura submitted to the study of an expert who offered pertinent observations. On February 2, 2005, the Supreme Tribunal responded to the Moderator, enclosing a copy of the observations of the expert.
In its letter, the Signatura indicated that a correct understanding of the ground of “Intention Contra BonumConiugum” is that of an exclusion, by a positive act of the will, of the ordering of the marriage to the bonumconiugum. Such an exclusion must be proven by the same means used in proving other kinds of exclusion, that is, “the confession of the simulating party, corroborated by testimony; the reason why the marriage was nonetheless celebrated; the reason for the simulation; and the circumstances preceding, accompanying and following the marriage which support the presumed exclusion.”
The Apostolic Signatura further noted that the correct use of such a ground necessarily requires the specific identification of the bonumconiugum as an essential element of marriage (cf. can. 1101, § 2). The Signatura further observed:
On the one hand, the bonumconiugum in this context has to be distinguished from the bonumsacramenti (indissolubility of marriage), the bonumfidei (unity of marriage and fidelity) and the bonumprolis; on the other hand the bonumconiugum understood as mutuumadiutorium can only refer in this context to the minimum and essential requirements of the same. The exclusion of the bonumconiugum as ground of nullity of marriage would therefore indicate the decision, existing at the moment of the celebration of the marriage, not to foster in any way the well-being of the spouse.
In its response to the Most Reverend Moderator of another diocesan tribunal, the Signatura continued its observation by adding:
In other words, a distinction between the central element and other supplementary elements must be made: the essence of the bonumconiugum is the intention to promote the good of the spouse and the exclusioboniconiugum is a positive intention to exclude the good of the spouse. The fact is that it would appear to be very rare that someone enters marriage with the intention not to promote in any way the good of the spouse.
What should be evident is that there is not an established Rotal jurisprudence regarding this so-called new ground of nullity, which represents a development at lower tribunals without respect for the rule of Rotal jurisprudence.
The expert consulted regarding the sentences from the Metropolitan Tribunal offers the following helpful observations. First, “the bonumconiugum, understood as one of the ends toward which the consortium totius vitae is ordered and now explicitly mentioned in the 1983 Code (can. 1055 § 1) has been considered up to now in the jurisprudence of the Roman Rota almost exclusively in the context of the incapacity to assume the essential obligations of marriage (can. 1095, 3°).” As a result of the consideration of the bonumconiugum in the framework of simulation of consent at the lower tribunals, the Roman Rota has now begun to examine the matter.
Regarding the contents of the bonumconiugum, there continues to be debate among the authors. The expert observes: “It goes without saying that not all elements pertaining to the bonumconiugum can be considered as essential with respect to the consortium totius vitae, and consequently the exclusion of the non-essential elements does not bring about the nullity of the marriage.” In other words, while now the bonumconiugum is considered an essential element of the consortium totius vitae, there is no accepted description of the contents of the bonumconiugum, both regarding its essential and non-essential elements.Regarding the contents of the bonumconiugum, the expert notes that “the majority of authors are in agreement that – along the lines of the ends of marriage – it certainly includes “mutuumadiutorium” and “remediumconcupiscientiae”, which in their generality indicate all the aspects (above all interpersonal) that render the life of the spouses better and happier.
That being the case, the expert concludes:
It goes without saying that when the cause is admitted it is necessary to specify the formula of the doubt well, and the grounds of nullity to be used must follow the causes and facts that allegedly led to the nullity of marriage. The use of very generic grounds of nullity may perhaps facilitate declarations of nullity, but do not help at all to discover the truth about the validity or not of the marriage.
He notes that such an exclusion as “an autonomous grounds of nullity requires not only the specification and clarification of the essential juridic contents of this bonum but also the proofs of its exclusion, as required for all the causes of partial simulation: the confession of the simulating party, corroborated by testimony; the reason why the marriage was nonetheless celebrated; the reason for the simulation; and the circumstances preceding, accompanying and following which support the presumed exclusion.”
In the causes studied, the argumentation of the sentence also introduces a discussion of the error treated in can. 1099, which I have already again, I simply refer to the text of the Allocution to the Roman Rota of Pope John Paul II in the Great Jubilee Year 2000.
Ground of Defective Convalidation
Another so-called ground of nullity of marriage, developed at the level of the lower tribunals, is the ground of defective convalidation. On the basis of canonical doctrine and the jurisprudence of the Roman Rota, the Apostolic Signatura has responded to various tribunals in the matter.
The first point which the Apostolic Signatura has made with regard to this supposed ground of nullity is to recall the presumptions of the law which govern every marriage, namely, that a marriage is presumed to be valid until the contrary is proven, and the internal consent is presumed to be in conformity with the signs or words used in the celebration of the marriage. When these two presumptions are applied to a marriage celebrated according to the canonical form, “the consent expressed according to the canonical form must be presumed valid, until the contrary is proven,” and “the proof of a defect of consent in view of a declaration of the nullity of the marriage must therefore follow the usual criteria, taking into account the established Rotal jurisprudence that has developed secure models of proof regarding defects or flaws of consent.”
Next, it is noted that can. 1160 refers to the convalidation of a marriage contracted invalidly because of a defect in the canonical form. Received doctrine does not consider the canon in question to refer to an attempted civil marriage or a marriage in a non-Catholic rite by a party who is bound to the canonical form. Regarding the marriage contracted without the canonical form, the Apostolic Signatura reminded the Moderators of the tribunals which were using the so-called new grounds that “no judicial process is required for the declaration of nullity of such an attempted marriage.”
Thirdly, can. 1157 refers to the convalidation of a marriage which is invalid because of a diriment impediment and not to the convalidation of a marriage which is null because of a defect in the canonical form. The Apostolic Signatura goes on to clarify the erroneous application to a case of lack of canonical form:
At times it is claimed that from the psychological point of view there cannot be a matrimonial consent when one does not know or at least suppose that the attempted marriage was null. In this regard, it is important to keep in mind that:
-psychologically it is sufficient to have a vague understanding that the attempted civil marriage or the one attempted in a non-Catholic rite lacked some element which the Catholic Church considers significant;
-this sufficient understanding does not require that the parties know how to explain it in a technical-canonical manner, nor does this sufficient understanding exclude the possibility that on the emotional level the parties continue to attribute some value (e.g. existential or in civil law) to the preceeding union, for example, by celebrating its anniversary;
-nor is it required that the parties be able to explain in a technical-canonical manner what happened in the celebration of the marriage in the canonical form; even when they use certain non-technical expressions such as “blessing” to describe it, one must presume, until the contrary has been proven, that in the celebration in the canonical form consent was duly expressed and given;
-even when a party considered the celebration of the marriage in the canonical form to have no value, can. 1100 should be considered: “The knowledge or opinion of the nullity of a marriage does not necessarily exclude matrimonial consent.”
Basing itself on canonical doctrine and its application in Rotal jurisprudence, the Apostolic Signatura has assisted a number of tribunals to avoid the use of an erroneous jurisprudence regarding so-called invalid convalidation.
I hope that this presentation on the mutual responsibility of the Apostolic Tribunals of the Roman Rota and the Apostolic Signatura for the correctness of the jurisprudence in the lower tribunals has shown how the two tribunals fulfill a most important responsibility by means of collaboration. Certainly what the Instruction DignitasConnubii affirms regarding the achievement of the fundamental unity of jurisprudence which the just decision of matrimonial causes requires, that is, the necessary attention of diocesan and interdiocesan tribunals to the Apostolic Tribunals, is true, and, therefore, it is also true that the Apostolic Tribunals must manifest unity between themselves in providing for the correct jurisprudence in the universal Church.
Finally, it is my hope that the discussion of three so-called new grounds of nullity of marriage, developed at the level of lower tribunals, has helped to illustrate the irreplaceable service of Rotal jurisprudence. Without the service of Rotal jurisprudence, the unity of the administration of justice on behalf of those who accuse their marriage of nullity will not be served and, therefore, the truth about marriage risks betrayal. All judges and other ministers of justice at the diocesan and interdiocesan levels handle the most sacred reality of marriage, the first cell of life of the Church. The offices they fulfill involvethe most serious responsibility. Great comfort and courage come to them through the assistance given by the Apostolic Signatura for the right administration of justice.
CANON LAW SOCIETY OF SOUTHERN AFRICA
UKUPHILA RETREAT HOUSE
AUGUST 13, 2014