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THE JURISPRUDENCE OF THE TRIBUNAL OF ROMAN ROTA AS PRECEDENTS TO THE LOCAL CHURCH TRIBUNALS

Anthony B. C. Chiegboka

Senior Lecturer, Nnamdi Azikiwe University, Awka, Nigeria

INTRODUCTION

The Apostolic Constitution, Pastor Bonus of 28 June 19881, provided for the judicial competences of some tribunals of the dicasteries of the Roman Curia (e.g. Congregation for Doctrine of Faith on graviora delicta-art 53; Congregation for Divine Worship and Discipline of Sacraments, non-consummation-art 67 and nullity of ordination-art 68 etc.) apart from the de facto Apostolic Tribunals (i.e. The Apostolic Penitentiary-artt. 117-120; The Supreme Tribunal of the Apostolic Signatura-artt. 121-125 and The Tribunal of the Roman Rota-artt. 126-130). These dicasteries present different nuances of authority and authenticity. For instance, there is no appeal against the judgement of the Supreme Tribunal of the Apostolic Signatura (can 1629, 1°) and the Congregation for Doctrine of faith in graviora delicta (grave delicts) cases.2 In addition in situation of lacuna legis (i.e. where there is no express provision of neither universal and particular laws, nor custom, and always in a particular matter that is not penal), the legislator allowed recourse for interpretation and solution to “the jurisprudence and practice of the Roman Curia.” 3

This introduces the issue of the judicial value of the activities of Apostolic Tribunals especially the ordinary tribunal of the Roman Rota (cann 1443, 1444) charged with “the unity of jurisprudence”4 and that of the Supreme Apostolic Tribunal that oversees the “proper administration of justice.” 5 The legislator in this canon 19 affirms the interpretative value and principle of judicial precedents of especially the Roman curia, but elsewhere in the Code disposes that:

• The sentences of Church tribunals have no force of law except for the parties in a particular matter (can 16, §3);

• Adjudged matter (can 1641) has the force of law and juridic effect for the parties (can 1642, §2);

• Recourses and appeals are allowed against the judgement of the lower tribunals and also that of the Tribunal of the Roman Rota (cann 1628; 1643; 1644; 1683; 1619-1627; 1732-1739; 1445, §1, 2°; 1614).

In these provisions we can say in a strict sense that doctrine of judicial precedents (stare decisis) do not exist within the canonical jurisprudence of the Church. James H. Provost added:

Because Church courts are not governed by the stare decisis system of the Anglo-American legal system, but rather must authoritatively interpret the law for each individual case (c. 16, §3) in light of “the proper meaning of the words” of the law “Considered in their text and context” (c. 17), and are to look to “the jurisprudence and praxis of the Roman Curia,” among other sources, in supplying for an express prescription of law (c. 19), it is this doctrinal jurisprudence as reflected in various

1 John Paul II, Apostolic Constitution, Pastor Bonus, 28 June 1988, in AAS, 80 (1988), pp 841-932. 2 John Paul II, Apostolic Letter, motu proprio datae, Sacramentorum Sanctitatis tutela, quibus Normae de gravioribus delicts Congregationi pro Doctrina Fidei reservatis promulgator, 30 Apri. 2001, in AAS, 93 (2001), pp 737-739 where this congregation is raised with the dignity of an apostolic tribunal in this cases of graviora delicta. 3 CIC/1983, can 19; see also Cristian Begus, L’Armonia della Giurisprudenza Canonica, Vatican City: Lateran University Press, 2002, pp. 17-18. 4 Pastor Bonus, art. 126; Dignitas Connubi, art. 35, §3. 5 Pastor Bonus, art. 121, 124, 1°; can 1445, §3, 1°; Dignitas Connubi, Introduction, p. 17, Augustine Mendonça, Rotal Anthology: An Annotated Index of Rotal Decisions from 1971 to 1988, CLSA, Washington, D.C. 1992, p. 7.

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sentences to which the Rota itself turns to decide cases that is of most long-term value to local tribunals.6 This signifies that judicial decisions do not enjoy the status of law or authentic interpretation (can 16, §2). Its juridic value and binding effect is only for the parties (cann 16, §3; 1642, §2), that is to say, “when a matter calls for a former judicial resolution, however, the basic understanding is that a court is not bound by earlier judicial decisions on the same or a related matter, in order to dispose of the case at hand.”7 For the judicial decisions of the Apostolic See, the interpretative value comes when they are designated as authentic interpreters like the Pontifical Council for Legislative Texts (can 16, §1; PB art. 154, 155); or acts with delegated legislative power to issue general decrees (cann 29; 30); or have their general executive decrees or Instructions approved in forma specifica (can 1405, §2).8 This draws from the fact that the legislator remain the authentic interpreter of laws as John Paul II, remarked: “In a strict sense, the true authentic interpretation which declares the general meaning of the law for the entire community is reserved to the legislator, according to the well-known principle: ‘The source of the law is the source also of interpretation’ (unde ius prodiit, interpretation quoque procedat).”9

However, with regard to the jurisprudence of the tribunal of the Roman Rota, we experience circumstances that endow its jurisprudence with the status of judicial precedents even in a quasi level as John Paul II indicated that although judges undoubtedly enjoy a freedom of decision (cann 16, §3; 1642, §2), nevertheless the jurisprudence of the Roman Rota and the practice of the Roman dicasteries are to be considered “guides and orientation for interpretation of the law in some cases.”10 This is considered necessary in order to avoid jurisprudential laxity and arbitrary application of legislative dispositions, and specifically to enthrone the required jurisprudential unity (a unity that is not actually uniformity but harmony, respecting the liberty of judges [can. 16, §3], diversity of cultural contexts [can 17], and creative collaboration of all).11 In this context, John Paul II continued, “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 before God.”12 6 James H. Provost, “Sources for Canon 1095, 1°, Part One,” in The Jurist, 54 (1994), pp. 257-333, here in p. 257; see also Patrick S. Morris, “Alcoholism and Marital Consent,” in Studia Canonica, 34 (2000), pp. 155-195, here in p. 157: “Although the Code itself does not contain a principle of precedence and the principles of jurisprudence employed in a given case are binding only on the parties involved in the case, the application of the law in local courts finds guidance from and inspiration in the sentences of Rota auditors”; John Paul II, Allocution to the Rota, January 26, 1984, no 6, in AAS, 76 (1984), pp. 643-649, here in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, Ottawa: St Paul University, 2002, p. 184: The interpretative power, however, is to placed, above all, in the formation of jurisprudence, that is, of that ensemble of concordant decisions, which-without having the absoluteness of the ancient ?the authority of cases always decided in the same way (auctoritas rerum perpetuo similiter indicatarum), nevertheless plays a notable role in filling possible lacunae in the law”; Dig. 1. 3. De Legibus, 1, 38. Nam Imperator. 7 Norman Doe, “Canonical Doctrines of Judicial Precedent: A Comparative Study,” in The Jurist, 54 (1994), pp. 205- 215, here p. 206; see also Hugh F. Dorgan, “The Tribunals of the Catholic Church,” in Catholic Tribunals: Marriage Annulment & Dissolution, Hugh F. Dorgan, ed., New Town, Austrial, E.J. Dweyer, 1990, pp. 12-13; 8 This approval according to the Regolamento Generale Art 126, §4,: “Affinché consti dell’approvazione in forma specifica si dovra dire esplicitamente che il Sommo Pontefice *in forma specifica approbavit*”; Pastor Bonus, Introduction, No 18; Ladislas Orsy, Theology and Canon Law: New Horizons for Legislation and Interpretation, pp. 37-39; James Coriden, “Rules for Interpreters,” in The Jurist, 42 (1982), pp. 277-303; James H. Provost, “Approval of Curial Documents in Forma Specifica,” in The Jurist, 58 (1998), pp. 213-225; John M. Huels, “Interpreting an Instruction Approved in Forma Specifica,” in Studia Canonica, 32 (1998), pp. 5-46. 9John Paul II, Allocution to the Rota, January 26, 1984, no 6, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 184; Innocent III, X, V, 39, 31; CIC/1983, cann 16, §1; 17. 10John Paul II, Allocution to the Rota, February 26, 1983, no. 4, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 179. 11 Cf. Cristian Begus, L’Armonia della Giurisprudenza Canonica, cit., p. 9. 12 John Paul II, Allocution to the Rota, February 26, 1983, no 5, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 179; Mario F. Pompedda, “Il Tribunal della Rota Romana,” in AA.VV., Le

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Finally, therefore, it is within these provisions of the Code (can 19) and the expression of the mind of the legislator (can 17), that we intend to discuss the issue of jurisprudence of the Roman Rota as precedents to the local Church tribunals.

1. THE JURIDICAL STATUS OF THE TRIBUNAL OF ROMAN ROTA

The new Code and Pastor Bonus affirm the auxiliary and ministerial status of the Roman curia to the Supreme Pontiff, the Universal Church and the Particular Churches (PB 1; can 360).13 By this disposition its competence is essentially vicarious (PB 8) that is “it acts not in its own right or by its own initiatives, but always in accord with the will of the pope and in service to the good of the Church and service of the bishops.”14

Principally the curia operates according to the universal law (the 1983 Code) and special law (Pastor Bonus and Regolamento and ones particular to the individual dicasteries).15 The curia serves the finality of the Church which is the good of the Church especially the salvation of souls (PB 12, 15; can 1752). Principally from its title and focus, diakonia is the leitmotiv of Pastor Bonus.16 The fact that the curia draws its existence from the pastor of the universal Church (PB 7; Cf. can 331) and serves the whole Church (PB 12), makes it to have an ecclesial character (PB 7, 12). Hence by this disposition the curia serves not only the unity of discipline and unity of faith (PB11) for which the Pope, the College of Bishops and the diocesan bishops “are the visible source and foundation of unity in their own particular Churches”17 but also communion (PB 12) and collegiality (PB 10) in the Church. Suffice it to say that the curia has been the subject of four pontifical texts: Immensa aeterni Dei (1588), Sapienti consilio (1909), Regimini ecclesiae universae (1967), Pastor Bonus (1988).18

‘normae’ del Tribunale della Rota Romana, Studi giuridici vol. XLII, Citta del Vaticano, 1997, pp. 21-22: “sempre più diordinata interpretatione ed applicazione dellage legge canonica, soprattuto quando è in gioco la validità e la sacramentalità del matrimonio.” 13 Cf. CD 9 which emphasizes that it is for “the good of the Churches and in service to the sacred pastors”; see also James H. Provost, who added: “Since it is at the service of the pope, it is also at the service of the local pastors and Churches” (James H. Provost, “Pastor Bonus: Reflections on the Reorganization of the Roman Curia,” in The Jurist, 48 (1988), pp. 499-507, here in p. 509) ; Jean-Baptiste Beyer, “The Roman Curia: Official Organism of the Pope at the Service of the Particular Churches,” in The Bishop and His Ministry, Vatican City, Urbaniana University Press, 1998, p. 391. 14 James H. Provost, “Pastor Bonus: Reflections on the Reorganization of the Roman Curia,” cit., p. 509; see also CIC/83, can 131, §2. 15 Pastor Bonus regulates that there should be Ordo servandus or common norms for the Curia (Art 37: since its publication in June 28, 1988 and its coming into effect in March 1, 1989 we have experienced two common norms in 4 February 1992 and the last in 1 July, 1999) and also Ordo servandus or special norms for each dicastery, with the attendant obligation of publicity (Art 38) in accordance with operations of the Holy See (Cf. can 8, §1 on publications of Holy See). 16 Cf. The title and then the first paragraph (PB 1); John Paul II in another place said: “I have myself emphasized that the vocation of all those who collaborate in the Curia, has a directive and only norm, this generous service, the service of the Church and for the Church” (Allocution of 21 June 1986; Insegnamenti 9, 1- 1854-1986). 17 LG 23; Cf. also LG 26; PB 11; Matt 16, 18. 18 It is good to note that these calls for reforms in “head and members” preceded Council of Trent: Paul III in 1536 initiated reform of Curia which was voted in the Council of Trent later (see Hubert Jedin, A History of the Council of Trent, 2 vols., trans. Ernest Graf, Edinburgh, Thomas Nelson and Sons, 1957). Two Papal documents on the Curia (see Sixtus V, Apostolic Constitution, Immensa aeeterni Dei, 22 January, 1587; & Pius X, Apostolic Constitution, Sapienti consilio, 29 June 1908, in AAS 1 (1909), pp. 7-19) came after the Council of Trent; while the other two (see Paul VI, Apostolic Constitution, Regimini Ecclesiae universae, 15 August, 1967, in AAS 59 (1967), pp. 885-928; & John Paul II, Apostolic Constitution, Pastor Bonus, 28 June 1988, in AAS 80 (1988), pp 841-932 came after Vatican II Council. Hence the witnessed reorganization had been the product of four hundred years. The title reflects the mind of each legislator in the contents. For further readings see: John Paul II, Pastor Bonus Nos 3-10; Jean-Baptiste Beyer, “The Roman Curia: Official Organism of the Pope at the Service of the Particular Churches,” in The Bishop and His Ministry, Vatican City, Urbaniana University Press, 1998, pp. 391-

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The Apostolic tribunal of the Roman Rota has a long history from the Apostolic Chancery to its definitive competence as the ordinary tribunal of the Apostolic See. In addition, as curial department (can 360), the Rota carries out its work “in the service of the Apostolic See”19 and judging “in the name and with the authority of the Roman Pontiff.” 20 Significant interventions21 in the life of this tribunal were witnessed in the Pontificate of Innocent III, Innocent IV, John XXII (with unique special law through 1331 Constitution, Ratio iuris), Sixtus IV (1472, that mandated the 12 number of auditors), Benedict XIV (that definitively provided its clear competence with the 1747 Constitution, Iustitiae et pacis), Gregory XVI (1834, when Rota became also appeal tribunal for the Pontifical State), Pius X (reconstituted the Tribunal with 29 June 1908 Constitution Sapienti Consilio, i.e. long after the 1870 predicaments on unification of Italy). This last constitution opened the way for series of special law that guides the tribunal, first in 1908 (lex propria S. R. Rotae et Signaturae Apostolicae), 1910 (Le Regulae servandae apud S. R. Rotae Tribunal), 1 September, 1934 (Normae S. R. Rotae Tribunalis) and finally with the Paul VI, 1967 Regimini Ecclesiae universae and John Paul II, new Code of 1983 and Pastor Bonus of 1988 there emerged the last special norms for the Rota published on February 7, 1994 but came into effect on October 1, 1994.

The new Code and the Constitution Pastor Bonus provide the specific competence of the Roman Rota (cann 1405, §3; 1443; 1444; PB art. 126-130). The Rota operates in first, second, third and further instances.22 Essentially it is an appeal tribunal that judges in turns of three auditors (i.e. a collegiate tribunal). In summary, according to the Apostolic Constitution Pastor Bonus, its unique and specific competence is that, the “Roman Rota is a court of higher instance at the Apostolic See, usually at the appellate stage, with the purpose of safeguarding, and, by virtue of its own decisions, provides assistance to lower tribunals.”23 This competence as already indicated earlier, introduces our theme of discussion that is the service of the jurisprudence of the Rota as precedents to local Church tribunal.

It is good to remark that Roman Rota has received credible remarks annually from the supreme legislator, who always confirms the value of their judicial decisions especially for the entire Church and especially for the lower tribunals. In fact, this ordinary collegiate tribunal of the Apostolic See is both historical and international tribunal “which brings together the contributions of the most diverse cultures and harmonizes them in the higher light of revealed truth,”24 serves the ecclesial and Christian families.25 It is indispensable, irreplaceable and most valuable collaborator of the First See.26

392; James H. Provost, “Pastor Bonus: Reflections on the Reorganization of the Roman Curia,” cit., & , “Local Church and Catholicity in the Constitution Pastor Bonus,” in The Jurist, 52 (1992), p. 301. 19 John Paul II, Allocution to the Rota, January 28, 19822, no 1, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 171. 20 John Paul II, Allocution to the Rota, January 30, 1993, no 1, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 223. 21 Information taken from Annuario Pontificio, Vatican City: Libreria Editrice Vaticano, 2005, pp. 1846-1847. 22 Cf. CIC/1983, cann 1444, 1405, §3; Pastor Bonus, artt. 128, 129; Instruction, Dignitas Connubi, artt. 27, 283. 23 Pastor Bonus, art 126; see also Instruction, Dignitas Connubi, Introduction p. 17. 24 Cf. John Paul II, Allocution to the Rota, January 22, 1996, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 240; cf. Pius XII, Allocution to the Rota, 1939, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 3 25 Cf. Pius XII, Allocution to the Rota, October 1, 1940, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 8; John XXIII, Allocution to the Rota, October 29, 1959, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, pp. 60-61; Paul VI, Allocution to the Rota, December 12, 1963, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 71; John Paul II, Allocution to the Rota, January 17, 1998, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 247: “Contribute to a correct and deeper understanding of marriage law” & January 21, 1999, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 249: “made knowledge of the institution of marriage by offering a very sound doctrinal reference point for other ecclesiastical tribunals” (see also John Paul II, Allocution to the Rota, January 21, 1981, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, pp. 168-169 & January 26, 1984, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, pp. 184-185). 26 Cf. Pius XII, Allocution to the Rota, October 1, 1940, p. 8 & October 3, 1941, p. 11; John XXIII, Allocution to the Rota, October 19, 1959, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 60;

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Furthermore, the Rota auditors and officials have been acknowledged as perfect devotees, wise interpreters, renowned masters and doctors of law,27 marked with judicial talents and learning;28 and identified as priests and administrators of justice. Their function in the Church is qualified as having pastoral solicitude29 that is a service to law, justice and unity in the church and indeed the Christian family with the spirit of religious devotedness.30

2. THE JURISDICTION OF THE ROMAN ROTA AND ECCLESIASTICAL JURISPRUDENCE

Owing to the value of this jurisprudence of the Apostolic Tribunals, the supreme legislator in his

ordinary exhortatory teaching have not failed to call on the local tribunals to have recourse to them. Here are their words:

• “It is our wish that all ecclesiastical judges would model themselves on you, so as neither too readily nor without legitimate cause to allow dispensations from these norms”.31

• “Indeed, any innovation of law, substantive or procedural, that does not correspond to the jurisprudence or practice of the courts and dicasteries of the Holy See is reckless.”32

• “To the healthy jurisprudence of the Rota must correspond equally wise and responsible work in the lower courts.”33

Paul VI, Allocution to the Rota, February 12, 1968, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 89; John Paul II, Allocution to the Rota, February 17, 1979, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 153: “I am delighted with this opportunity to meet for the first time those who, beyond all others, embody the Church’s judicial function in the service of truth and love for the building up of the body of Christ. I am happy to recognize in them, as in all administrators of justice and specialists in canon law, professionals of a vital role in Church, indefatigable witnesses to a higher justice in the midst of a world characterized by injustice and violence, and, consequently, most valuable collaborators in the pastoral activity of the Church herself”; NB as observed by Manuel J. Arroba Conde, Diritto processuale canonico, Roma, Editiones Institutum Iuridicum Claretianum, 4th ed., 2001, p. 94: “L’espressione “prima sedes” include la persona del Papa. … Senz’altro, l’espressione “prima sedes” non equivale sempre all formula “sede apostolica” (o “santa sede”), in quanto quest’ultima si referisce all’insieme di organismi di governo della curia romana (c. 361).” 27 Cf. Pius XII, Allocution to the Rota, October 1, 1940, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, pp. 7-10; John XXIII, Allocution to the Rota, December 13, 1961, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 68; Paul VI, Allocution to the Rota, December 12, 1963, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 79 & Paul VI, Allocution to the Rota, January 11, 1965, in Ibid., p. 80 & January 27, 1969, in Ibid., p. 97 & January 29, 1970, in Ibid., p. 104. 28 Cf. Paul VI, Allocution to the Rota, January 25, 1966, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 84 & February 12, 1968, in Ibid., p. 90 & January 31, 1974, in Ibid., p. 127 & January 31, 1974, in Ibid., p. 127; John Paul II, Allocution to the Rota, January 28, 1979, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 148. 29 Cf. Pius XI, Apostolic Constitution, Ad incrementum, August 15, 1934 in AAS 25 (1934), p. 497; Paul VI, Allocution to the Rota, January 11, 1965, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 80 & January 23, 1967, p. 86 & January 29, 1970, in Ibid., pp. 198-199; January 30, 1975, in Ibid., p. 130. 30 Cf. Pius XII, Allocution to the Rota, October 29, 1947, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 49; John Paul II, January 30, 1986, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 190 & January 30, 1986, in Ibid., p. 187 & January 25, 1988, in Ibid., p. 197 & January 28, 1994, in Ibid., p. 227 & January 28, 1991, in Ibid., p. 218. 31 Paul VI, Allocution to the Rota, February 9, 1976, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 136 & also January 28, 1978, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 148. 32 John Paul II, Allocution to the Rota, January 24, 1981, in Origins 10/34 (1981), p. 126. 33 John Paul II, Allocution to the Rota, January 24, 1981, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 168.

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• “If it is true that the new Code clearly imposes the obligation of rapidly bringing all processes of first and second instance to completion, this must not result in the detriment of justice and protection of the rights of all the parties to the cause and the community of which they are members. This requirement becomes the more urgent inasmuch as the jurisprudence of the Sacred Roman Rota, as that of the other apostolic tribunals, and also the practice of the dicasteries of the Roman Curia are considered to be guides and orientation for interpretation of the law in some cases. Along this line, the jurisprudence of the Rota has acquired increasing authority- not only moral but juridical authority- in the Church’s history in reference to the evolution of the norms.”34

• “The value of the Rota jurisprudence in the Church has always been noteworthy, given the knowledge and experience of the judges and the authority they enjoys as papal judges. Canon 19 of the new Code expressly confirms this.”35

• “If then we limit the significance of this expression to cases of marriage nullity. It seems evident that, on the level of substantive law, i.e. in deciding the merit of the cases presented, jurisprudence must be understood exclusively as that which emanates from the tribunal of the Roman Rota.”36

• “The office entrusted to tribunals is situated within this framework of the Church’s legal system (c. 16, §3) and, in a particular way and for a specific purpose, it is entrusted to the Roman Rota, inasmuch as the latter ‘fosters unity of jurisprudence, and, by virtue of its own decisions, provides assistance to lower tribunals’ (Pastor bonus, no. 126).”37

• “Lower courts ‘must conform’ to a wise and unambiguous jurisprudence, both as regards substantive law as well as procedural issues.”38

• Rota is always essential as “the instrument of a wise and unambiguous jurisprudence to which other ecclesiastical tribunals must conform as to their authoritative model. This is the same reason for the now timely publication of your judicial decisions which concern matters of substantive law as well as procedural issues.”39 With these clear exhortatory words of the supreme legislator on identity, dignity and

indispensability of the Rota in canonical jurisprudence, one is not in doubt of the quasi judicial precedents of this higher tribunal in both unity and harmony of jurisprudence and their suppletory judicial interpretative value. The tribunal personnel should know that the papal addresses even though it is neither a law, apostolic constitution nor an authentic interpretation of law (can 16, §§1-2),40 are nevertheless an expression of the mind of the legislator (can 17) and an ordinary teaching of magisterium which they owe religious submission of intellect and will (LG 25; can 752).41

The judges of the lower tribunals should, therefore, study these sentences, use them as guide and endeavour to conform their sentences to them within the ambient of harmony and unity of

34 John Paul II, Allocution to the Rota, February 26, 1983, no. 4, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 179. 35 John Paul II, Allocution to the Rota, January 26, 1984, no 7, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 185. 36 John Paul II, Allocution to the Rota, January 23, 1992, in L’Osservatore Romano, January 29, 1992, pp. 1, 4 or in Origins, 2 (1991-1992), p. 601. 37 John Paul II, Allocution to the Rota, January 30, 1993, no. 4, in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 225. 38 John Paul II, Allocution to the Rota, January 17, 1998, , in William H. Woestman, Papal Allocutions to the Roman Rota 1939-2002, p. 247; John Paul II, Allocution to the Rota, January 23, 1992, pp. 1, 4, L’Ossevatore Romano or Origins, 2 (1991-1992), p. 601. 39 John Paul II, Allocution to the Rota, January 17, 1998, p. 247. 40 Cf. Cristian Begus, L’ Armonia della Jiurisprudenza Canonica, cit., p. 37. 41 See also James H. Provost, “Canon 1095: Past, Present, Future,” in The Jurist 54 (1994), pp. 81-112, here in p. 107; Francis G. Morrisey, The Canonical Significance of Papal and Curial Pronouncements, Hartford, CT: CLSA 1974 &“Papal and Curial Pronouncements: Their Canonical Significance in Light of the 1983 Code of Canon Law,” in The Jurist 50 (1990), pp. 102-125.

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jurisprudence which Roman Rota serves (PB art. 126),42 aware that “the worth and efficacy of a higher tribunal depend not only on the greater theoretical proficiency or practical experience of the judges that compose it, but also on their judicial prudence.”43 For this reason, therefore, remarked, Patrick S. Morris, “It is clear that many Rotal sentences and Rotal jurisprudence (as an evolutionary science) are a rich source for the application of the law in the tribunals of particular Churches.”44

With these eloquent status and integrity and definitely through custom45 of uniform sentences over a long period of history, the Roman Rota provide the excellent juridical value as precedents for creative canonical jurisprudence, useful for the discernment of the will of the legislator and as suppletory sources of law (can 19), but always according to the established legal system, procedures and jurisprudential unity and harmony. This was expressed by Augustine Mendonça in these words: Neither the norm of law c. 19 nor papal teaching insist that to have suppletive efficacy the interpretation must become a legally established custom, rather both presuppose that the interpretation of law be definite, constant over a long period of time. Therefore, consistent repetition of the pronouncement on a particular matter for a long a period of time is necessary. If this requirement is lacking there is no jurisprudence in the true sense of the word, it has no normative value; nevertheless each judicial pronouncement or several of them have the juridic value intrinsic of its doctrine and the prominence of its author.46

However as John Paul II emphatically expressed his mind in the understanding of canon 19 saying, “If then we limit the significance of this expression to cases of marriage nullity, it seems evident that, on the level of substantive law, i.e. in deciding the merit of the cases presented, jurisprudence must be understood exclusively as that which emanates from the Tribunal of the Roman Rota.”47

The obvious reason for this position is that law is made by persons, for the community of faith and such requires the intervention of physical and concrete persons to interpret and apply as James

42 It is good to note that this consistence and customary sentences of the Rota have been collected since 1337 by Thomas Falstof and has appeared in these publications Roman Rota Decisions; Monitor Ecclesiasticus; Quarderni di studio rotale, Studia Canonica, The Jurist etc; Augustine Mendonça, Rotal Anthology: An annotated Index of Rotal Decisions from 1971 to 1988, CLSA publication, 1992; and in the writings of learned authors42 that appears constantly in other academic journals. These are published mostly in Latin language which creates problem for its awareness by some of the local tribunals. But recently in Journals like Studia Canonica published by the Faculty of Canon Law, St Paul University, Ottawa Canada, we have constantly since the 1990s the complete English translation of some of the outstanding Rotal Sentences and learned treatment of issues and trends in canonical jurisprudence according to this ordinary tribunal of the Apostolic See. 43 C. Burke, October 18, 1990, in Studia Canonica 25 (1991), p. 197; see also, Mario F. Pompedda, “The Probative Value of the Declarations of the Parties in the New Jurisprudence of the Roma Rota,” in AA. VV. Simulation of Marriage Consent, Doctrine, Jurisprudence, Questionnaires, William H. Woestman ed., Ottawa: St Paul University, 2000, pp. 146-170, here p. 158: “On the other hand, a sudden ‘flight to the front’ would be inconceivable on the part of a tribunal of the Holy See, whose decisions should be examples for other tribunals and should thus always inspire a reasonable prudence.” 44 Patrick S. Morris, “Alcoholism and Marital Consent,” in Studia Canonica 34 (2000), pp. 155-195 here in p. 195, also p. 157. 45 We remember the legal provision in canon 27 that states that “custom is the best interpreter of laws”; see also Cristian Begus, L’Armonia della Giurisprudenza Canonica, cit., pp. 39-40. 46Augustine Mendonça, Rotal Anthology: An Annotated Index of Rotal Decisions from 1971 to 1988, cit., p. 9, also pp. 10, 12, 17, 19; Augustine Mendonça, “Recent Trends in Rota Jurisprudence,” in Studia Canonica, 28 (1994), pp. 167-230, here p. 168; see also, J. Castino, “Studi esegetico doctrinale sulle tre figure del can. 1095,” in Angelicum, 69 (1992), p. 17; Mario F. Pompedda, “Jurisprudence as a Source of Law in the Canonical System of Marriage Legislation,” in Marriage Studies, Reflections in Canon Law & Theology, vol 4, J. A. Alesandro ed., Washington DC, CLSA 1990, p. 111; c. Wynen, October 25, 1945, in SRR Decisions 37 (1945), p. 378; C. L. G. Wrenn, “Notes on Canonical Jurisprudence,” in The Jurist, 29 (1969), p. 68; c. Ewers, April 4, 1981, in Monitor Ecclesiasticus, 106 (1981), pp. 295-302. 47 John Paul II, Allocution to the Rota, January 23, 1992, pp. 1, 4, L’Ossevatore Romano or Origins, 2 (1991-1992), p. 601.

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Coriden added, “Law is not self-implementing….No law works automatically, nor is its application a purely mechanical robot-like function. All law is applied by persons. Interposed between the general and abstract norm of law and the community for which it is intended is always a human person whether judge or executive, counselor or citizen, the law is understood, interpreted and applied by persons.”48 In most cases legislative dispositions are presented in general terms that offers greater horizons for jurisprudential navigation and determination especially from the Roman Rota. Examples are taken from the formulation of canons 1095 and 1098 as the Legislator indicated in these words: There still remain canons of great importance in matrimonial law, however, which have been necessarily formulated in a generic way and which await further determination, to which especially the expert jurisprudence of the Rota could make a valuable contribution. I am thinking, for example, of the determination of the ‘grave lack of discretionary judgment’, of the ‘essential matrimonial rights and obligations’ mentioned in c. 1095, as well as the further clarification of c. 1098 on error resulting from deceit, to mention only two canons.49 The Roman Rota remains not only sources of interpretation when there is lacuna legis (can 19) but also source of authentic and reasoned jurisprudence and even for the most part source of legislations.

3. THE INTERVENTION OF ROMAN ROTA IN THE LOCAL CHURCH TRIBUNAL JUDICIAL PRAXIS

Owing to this dignity in status and jurisdiction of the Roman Rota and the auditors, we have

witnessed a consistent intervention with the aim to assist the local Church tribunals towards a better reason sentence and healthy jurisprudence. In effect we have seen expressed appreciation on the positive efforts of the local Church tribunals especially within the bases of principle of canonical equity50 in application of the law in concrete cases. However, they auditors of the Roman Rota have not failed to use occasions of their excellent jurisprudence to point out some of the witnessed irregularities and anomalies in the jurisprudence of the lower tribunals. These include:

• Claim of local tribunals to have suppletory force51. However this observation cannot be sustained to the extreme because of the abiding testimonies of some sentences of the local courts that has the quality of rotal sentences as observed by A. Sabatani when he said, “Not only at the Commission of Vigilance for Ecclesiastical Tribunals of the Holy See but also in reviews including your own (Studia Canonica), I have had the occasion to read sentences for marriage nullity cases containing an excellent study in iure and a profound examination in facto: they are so well structured, and written with such a quality that they could appear in a

48 James Corriden, “Rules for Interpreters,” in The Jurist 42 (1982), pp. 277-303, here in p. 279; see also Richard A. Hill, “Reflections on the Interpretation of the Revised Code,” in The Jurist, 42 (1982), p. 311 where he maintained that law is not self-actualizing it require the services of persons. 49 John Paul II, Allocution to the Rota, January 26, 1984 in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, cit., p. 185; see also John Paul II, Allocution to the Rota, January 26, 1984, in AAS, 76 (1984), p. 648 or The Pope Speaks, 29 (1984), p, 177: “In the new Code, especially in the matter of marriage consent, not a few explanations of natural law from the rotal jurisprudence, have been codified”; Augustine Mendonça, “Consensual Incapacity for Marriage,” in The Jurist, 54 (1994), pp. 477-559 here in p. 480. 50Cf. c. Raad, April 14, 1975, in RR Dec 67 (1986), pp. 238-272; c. Di Felice, October 25 (1978), in Monitor Ecclesiasticus, 104 (1979), pp. 162-165 all in Augustine Mendonça, Rotal Anthology: An Annotated Index of Rotal Decisions from 1971 to 1988, p. 89. 51 Cf. R. L. Burke, “Canon 1095, 1° & 2°,” in Incapacity for Marriage: Jurisprudence & Interpretation, R. M. Sable, ed., Rome, Pontificia Universitas Gregoriana, 1987, p. 131; see also Augustine Mendonça, Rotal Anthology: An Annotated Index of Rotal Decisions from 1971 to 1988, p. 19; c. Egan, December 9, 1982, in Monitor Ecclesiasticus, 108 (1983), pp. 233-244.

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collection of rotal sentences;”52 and the invitation towards bi-directional collaboration and harmony by Cristian Begus.53

• Introducing grounds that are neither specified in law nor developed in jurisprudence.54 • Introducing juridic opinions and unorthodox views that are contrary to established

jurisprudence.55 Observing generally, William A. Varvaro said: “But we also have heard of the Rota which accepts the information presented by a lower court and examines it closely and then determines that the world is not ready for this jump in canonical thinking and so renders negative decision. We have also heard of the Rota which points out to a lower court that they seriously erred in handling a particular case. We have heard of the Rota which contributes greatly to the contemporary understanding of marriage, and then teaches lower courts of these insights.”56

• Operating a jurisprudence marked with procedural flaws and anomalies. These include: a. Multiple Assignments57: The practice of allowing officials to serve concurrently in two

hierarchically related tribunals or permit the same person to serve multiple roles in the same tribunal. The latter brings in the issue of incompatibility (can 152) and prohibition (can 1447) provided in the New Code. We give example of one person serving as the judge and the defender of bond or one person serving as defender of the bond and legal representative of the party. In relation to this anomaly, some have argued on the bases that it is not explicitly prohibited in the Code and refer to the praxis in the turnus of Roman Rota. However, Zenon Grocholewski was apt to add, “Everything which the Code does not forbid should not be considered simply as permitted.”58 The legislator resolved this doubt when he said: “the same person cannot exercise the two functions at the same time (contemporaneamente)- to be judge and defender of the bond”.59 This should be the case as Zenon Grocholewski added, that the two offices of judge and defender of the bond “involves completely different tasks each of which demands a specifically different perspective and stance in the handling of cases….Any confusion between such very different responsibilities destroys the necessary constructive dialectic of the canonical process.”60

In relation to the same person doing the work of defender of bond and the legal representative, we present the same argument based on the restriction placed on both officers by the Code. The Code restricts the defender of bond “to present and expound all that can reasonable be argued against nullity or dissolution” (can 1432) while the legal representative should defend the position of the party which may not be always in support of the bond (cann 1481-1490). It is then abnormal, incompatible and breach of office for the defender to act at the same time as legal representative. Both personnel are called to respond from different perspectives towards the finality of process, which is truth.

52 A. Sabatani “Iuris principia iuria morbo mentis et consensum matrimonialem,” given at the Canadian Canon Law Society Annual Convention 1967, quoted in Augustine Mendonça, Rotal Anthology: An Annotated Index of Rotal Decisions from 1971 to 1988, p. 18. 53 Cf. Cristian Begus, L’Armonia della Giurisprudenza Canonica, cit., p. 13. 54 Cf. c. Anné, April 15, 1975, in RRDec 67 (1986), pp. 273-300; c. Pompedda, October 27, 1975, in RRDec 67 (1986), pp. 587-597; c. Palazzini, October 8, 1975, in RRDec 67 (1986), pp. 540-549; c. Fiore, April 26, 1977, in RRDec 69 (1987), pp. 194-205 all in Augustine Mendonça, Rotal Anthology: An Annotated Index of Rotal Decisions from 1971 to 1988, p. 22. 55 Cf. c. De Jorio, June 25, 1977, in RRDec 69 (1987), pp. 343-351; c. Parisella, March 15, 1979, in Monitor Ecclesiasticus, 104 (1979), pp. 279-284; c. Egan, November 10, 1983, RR Dec 75 (1988), pp. 603-615 Augustine Mendonça, Rotal Anthology: An Annotated Index of Rotal Decisions from 1971 to 1988, pp. 32, 67. 56 William A. Varvaro, “Trends in Rotal Jurisprudence: Surveying U.S.A. Cases (1980-1985),” cit., p. 19. 57 Cf. John P. Beal, “Making Connections: Procedural Law and Substantive Justice,” in The Jurist, 54 (1994), pp. 113-182. 58 Zenon Grocholewski, “Current Questions Concerning the State and Activity of tribunals with Particular Reference to the United States of America,” in Incapacity for Marriage: Jurisprudence & Interpretation, Robert M. Sable, ed., Rome: PUG, 1987, p. 238. 59 John Paul II, Allocution to the Rota, January 28, 1982, in AAS 74 (9182), p. 453. 60 Zenon Grocholewski, “Current Questions Concerning the State and Activity of tribunals with Particular Reference to the United States of America,” cit., p. 237.

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b. Negligence of Responsibilities: This is another anomaly seen in the activities of the judge, defender of the bond and the legal representatives.

On the part of the judge, it is shown in abdicating his office as the expert of experts with responsibility to evaluate (can 1579) and to decide matrimonial cases (can 1608). The judge therefore fails in his duty if he bows to decisions of the experts without evaluating their reports or opinion from the perspective of authentic Christian anthropology proposed by the Magisterium of the Catholic Church. John Paul II exhorted the judge in these words:

The judge, therefore, cannot and ought not to expect from the expert a judgment on the nullity of marriage, and still less must he feel bound by any such judgment which the expert may have expressed. It is for the judge and for him alone to consider the nullity of marriage. The task of the expert is only that of providing the elements of information which have to do with his specific competence, that is the nature and extent of the psychic and psychiatric realities on grounds of which the nullity of the marriage has been alleged. In fact, the Code in cc. 1578-1579 explicitly demands from the judge that he critically evaluate the reports of the experts. In this evaluation it is important that he should not allow himself to be misled either by superficial judgments or by expressions that are apparently neutral but which in reality contain unacceptable anthropological presuppositions. 61 In summary, the judge should uniquely consider the fundamental facts (can 1579, §1), fundamental methods (can 1578, §2) and fundamental Christian anthropology underlying the report or opinion of the expert.62 The judge should therefore, avoid the scandal to the Christian community when he fails either to pay attention to this duty to critically evaluate experts’ reports or worst still consider failed marriages and irregular situation (“under the pretext of some immaturity or psychic weakness of the parties”)63 as grounds for declaring nullity of marriages. This negligence is seen when he abdicates the duty to instruct the cases or gather uncoordinated depositions without encounter with the parties or their witnesses. This was observed by John P. Beal in these words: Not only do judges sometimes neglect to utilize the full authority of their office by they too often relinquish control over the unfolding of the process to others. Sometimes judges completely surrender responsibility for the collection of evidence to those with only rudimentary canonical training. At other times, the only proofs sought are written (often handwritten) responses to standard questionnaires which are amassed by a tribunal secretary and turned over to the judge when the case is “complete”.64

Personal involvement in all process are imperatives for the judge who should arrive at moral certainty both through acts and proofs and in his conscience (can 1608) and on whom lies the discretion of evaluating proofs and discerning what weight to be given to them (cann 1531; 1536; 1537; 1563; 1579 etc.). This certainty according to the words of Pius XII, Is characterized on the positive side by the exclusion of well-founded or reasonable doubt, and in this aspect it is essentially distinguished from the quasi-certainty which has been mentioned; on the negative side, it does admit the absolute possibility of the contrary and in this it differs from absolute certainty. The certainty of which we are speaking is necessary and sufficient for the rendering of a judgment, even though in the particular case it would be possible wither directly or indirectly to reach

61 John Paul II, Allocution to the Rota, February 5, 1987, in AAS (1987), pp. 1457-1458. 62 Ibid; Manuel J. Arroba Conde, Dirrito processuale canonico, 4th ed., Rome: Editiones Iustitutum Iuridicum Claretianum (EDIURCLA), 2001, pp. 446-447; Aidan McGrath, “At the Services of the Truth: Psychological Sciences and their Relation to the Canon Law of Nullity of Marriage,” cit., pp. 390-391 that presented comprehensive guidelines for the jurisprudence of the Rota and writings of experienced authors for the evaluation of experts reports or submissions. 63 John Paul II, Allocution to the Rota, February 5, 1987, no 9, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 195 & Allocution to the Rota, January 29, 2005, no. 3 in www.vatican.va; Cf. FC, nos 69-85. 64 John P. Beal, “Making Connections: Procedural Law and Substantive Justice,” cit., pp. 143-144.

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absolute certainty. Only thus is it possible to have a regular and orderly administration of justice, going forward without useless delays and without laying excessive burdens on the tribunal as well as on the parties.65

In relation to the defender of the bond, he is bound to defend the bond and never to present briefs in favour of the nullity of marriage (can 1432). His briefs should not be scanty or canned devoid of commitment. This attitude is a “dereliction of duty for a defender of the bond to submit ‘boiler plate’ animadversions without a serious study of the case or to assume the role of the advocate.”66 On this bases, instead of taking this stance in trials, Pius XII recommended a principle of action for the defender of the bond in these words: “In the interest of truth itself and for the dignity of his office, therefore, it should be acknowledge as a principle for the defender of the bond that, whenever the case calls for it, he has the right to declare that after a careful, thorough, and conscientious examination of the acts, he has found no reasonable objection to propose against the petition of the plaintiff.”67 For the advocate, the witnessed show of lackadaisical or questionable integrity that affects the right of defence for the clients.68 The advocate is a legal representative of the private parties. He should endeavour to defend the position taken by their client and never to act against the party. Hence we see some anomalies where the defender of bond acts as the legal representatives or the same person acts as legal representatives without the mandate of both (“the formal nomination ex-officio of one patron for both parties who prosecutes nothing is more a substantial contempt for and mockery of the law than a protection of the rights of the parties”69), or the court appointed legal representative (cann 1481, §2; 1490) who act not on behalf of the party but the tribunal or when the tribunal to appoint the court appointed advocate to act as the parties’ procurator. These are breaches of law since the parties alone appoints the procurator and not the tribunal-except ad litem (cann 1481-1485). The tribunal can only appoint ex-officio advocate where a party lacks one (can 1481, §3). This praxis contrary to legal dispositions provokes at the end of the trials an irremediable nullity of sentence (can 1620, 6°). c. Laxity and Rigidity in Tribunal Praxis: These are still other anomalies in the effort to interpret and apply the legislative dispositions in concrete matrimonial nullity cases that must be avoided in tribunal practice. On the one hand, laxity allows permissiveness, erosion of law and easily

65 Pius XII, Allocution to the Rota, October 1, 1942, in AAS 34 (1942), pp. 338-343, here p. 339; John Paul, Allocution to the Rota, February 4, 1980, no. 6, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 162; Emilio Colagiovanni, “The Role of peritus & the Judicial Evaluation of the peritia,” in Forum, vol. 1, no. 1 (1990), p. 89: “The same should be said also of the judges who have to pronounce a sentence: to feel, which means that their certitude is not derived from some mechanical and mathematical calculation, but is something that pervades the total personality of the judges including their culture, education, capacity for insight and for comparing some facts with other facts, words, events, and circumstances”; Mario F. Pompedda, “Decision-Sentence in Marriage Trials: Of the Concept & Principles for Rendering an Ecclesiastical Sentence,” in Quarderni studio rotale, 5 (1990), pp. 73-97, here in pp. 84-85: emphasized that the total personality of the judge enters in decision making that is his adherence to Church teaching and conformity to the spirit, purpose and spirit of the law and the socio-cultural context of the judge and the people; Augustine Mendonça, “The Role of Experts in ‘Incapacity to Contract Cases (canon 1095’,” in Studia Canonica, 25 (1991), pp. 417-450 here p. 440; Augustine Mendonça, “Recent Rotal Jurisprudence from a Sociocultural Perspective, (Part 1),” cit., pp. 32-33; John Huels, “Interpreting Canon Law in Diverse Cultures,” in The Jurist 47 (1987), pp. 249-293, here in pp. 280, 289. 66 Ibid., pp. 148-149. 67 Pius XII, Allocution to the Rota, October 2, 1944, p. 26; see also Dignitas Connubi, art 56, §5 that compliments this directive in these words: “Defender can never act in favour of the nullity of marriage; if in a special case he has nothing that can be reasonably proposed or agued in favour of the bond the defender can remit himself to the justice of the court”; see also the recommendation to parties to which the defender is equal in canon 1606, where parties entrust themselves to the conscience of the judge. 68 Cf. John P. Beal, “Making Connections: Procedural Law and Substantive Justice,” cit., p. 149. 69 c. Giannechini, June 26, 1984 in Grzegorz Erlebach, “Le fattispecie di negazione del diritto di difesa causati la nullità della sentenza secondo la giurisprudenza rotale: criteri generali e parte statica,” in Monitor Ecclesiasticus, 114 (1989), pp. 545-556, here p. 549; see also c. Burke, December 13, 1989, in Studia Canonica, 25 (1991), p. 195.

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obtained sentence,70 while on the other hand, rigidity supports juridical formalism and runs counter to the spirit of the law. The later involves severe scrupulosity that applies the law “with exaggerated strictness and to ignore accepted jurisprudence, and so deprive people of a hearing that is truly just and fair”.71 The middle position to this is the option of canonical equity (cann 221; 1752) which is “an attitude of mind and spirit that tempers the rigor of the law… and a force for proper balance in the mental process that should guide a judge in pronouncing sentence”.72 d. Delays: This is besieging tribunals at all levels, i.e. at the local and the apostolic tribunals. The legislator disposed: “Judges and tribunals are to ensure that, within the bounds of justice, all cases are brought to a conclusion as quickly as possible. They are to see to it that in the tribunal of first instance cases are not protracted beyond a year and in the tribunal of second instance not beyond six months”.73 In many cases we experience delays in acceptance or rejection of libellus, instruction of cases and giving of sentences in all instances. Some faithful with genuine cases for nullity are turned back on the bases of accumulated and not yet disposed cases. One needs to see many carry over cases of more than a year in the annual reports of tribunals.

In spite of well-known procedural innovations in the new Code the problem continues unabated. In effect the Church tribunals are daily challenged to give justice to the people who visit the tribunal asking for their status in the Church. They should continue to attend to these petitioners diligently, prudently, conscientiously and with greater dedication on the part of the judges and the tribunal to exploit the provisions of the law and intensify their knowledge of these procedural laws in order to attend to this assignment promptly and urgently. However the judges are reminded that, every suspicion of injustice will be excluded in carrying on the proceedings, avoiding every delay not demanded by the particular nature or special circumstances of the individual case, and proceeding with attentive promptness, diligently and expeditiously in performing the juridical acts as in drawing up, notifying, and executing the judgments. You know, in fact, that every culpable delay, caused by the negligence or foreign occupations, in the administering and executing of justice is already in itself an injustice, which each member of ecclesiastical tribunals must meticulously strive to avoid at a distance.74 While this injustice should be avoided, other extremes are to be avoided which include: “pitfalls of haste which deprives the parties of a calm examination of the case and of delay which deprives the parties of timely replies to their problems that are often a source of suffering and call for prompt solution”75; “False speed to the detriment of the truth is even more seriously unjust.”76 This is a challenge to all tribunals of the Church.

On the one hand, however, the local Church tribunals have made genuine complaints on the complex nature of the ordinary process as in most cases reasons for on delays. The legislator allows for only ordinary process in handling matrimonial cases (can 1690) and if oral contentious process is used, the act is invalid and null (cann 1656, §2; 1669). Oral contentious process is allowed only in attending to incidental matters (can 1590, §1) or cases concerning separation of spouses (can 1693), while documentary processes are allowed in cases where a document confirms with certainty existence of diriment impediment, defect of canonical form or lack of valid proxy (can 1686). Thus the demands of

70 Cf. Paul VI, Allocution to the Rota, February 9, 1976, in AAS, 68 (1976), pp. 204-208 & January 28, 1978 in AAS, 70 (1978), p. 183; John Paul II, Allocution to the Rota, January 24, 1981, in AAS 73 (1981), p. 231 & January 29, 2005, no 6 in www.vatican.va: “outcome of the proceedings is taken for granted”. 71 Lawrence G. Wrenn, “In Search of a Balanced Procedural Law for Marriage Nullity Cases,” cit., p. 605. 72 Paul VI, Allocution to the Rota, February 8, 1973, in AAS, 65 (1973), p. 99. 73 CIC/1983, can 1453. 74 Paul VI, Allocution to the Rota, January 11, 1965, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 81. 75 Paul VI, Allocution to the Rota, January 28, 1978, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 145. 76 John Paul II, Allocution to the Rota, January 29, 2005, no. 6 in www.vatican.va.

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ordinary processes create tensions for certain local tribunals where means of communication are not in abundance or really scarce. e. Secrecy: The Church provides for various trends in observation of confidentiality and secrecy in procedural laws (cann 1455; 1508; 1598) and punishment to tribunal officials for breach of secrecy (can 1457). However, conflicts arise in the tribunal desire to observe secrets to the extent of breaching the demands of rights of defence. But Pope Paul VI remarked: “a trial or process is to be as a rule public; and yet justice itself may require that the matter be handled secretly.”77 This aspect is the issue in the area of rights of defence concerning the publication of acts (can 1598) and the sentence (cann 1614; 1615). Finally these observations are made in the interest of the Church with the commitment to healthy administration of justice and harmonized jurisprudence.

4. CITATIONS OF SOME JURISPRUDENTIAL PRECEDENTS OF THE ROMAN ROTA FOR CHURCH TRIBUNALS

Error Redundans

Canon 1097 concerns error of fact in contrast to error of law discussed in canon 1099. Canon 1097 in its two paragraphs treats the issue concerning error of person and error about quality of the person principally and directly intended.78 This is a natural law provision and as such retroactive.79 It is also based on the Council’s personalistic approach to marriage bond as ordained towards the good of spouses and for the partnership of life, love and mutual perfection of the spouses. This conjugal partnership is an affair of two real, concrete and certain heterosexual persons that originates from their irrevocable consent which is mutually and reciprocally given and received for the purpose of establishing marriage (can 1057).80

The spouses, the material object of the matrimonial consent which is the efficient cause of marriage cannot err with regard to the identity of the person with whom one intends to establish a partnership for the whole life (can 1055, §1; 1134). This person is the physical individual distinct form others, endowed with rights and duties in the Church (can 96)81 and marked with unique characteristics or qualities that individuate him or her and make him or her different from any other.82

In canon 1097, §2, therefore, the legislator canonized the doctrinal and jurisprudential trends in relation to error of quality redounding on the person (error redundans). The historical figures in these discussions include, Yves of Chartes, Gratian, Thomas Aquinas, Thomas Sanchez, Alphonsus Liguori and the jurisprudential precedents from Rota83 especially that of coram Canals (April 21, 1970) and

77 Paul VI, Allocution to the Rota, February 4, 1977, in AAS, 69 (1977), p. 152; Cornelius J. Van Der Poel, “Influences of an ‘Annulment Mentality,’” in The Jurist, 40 (1980), pp. 384-399, here 397. 78 Cf. Cristian Begus, L’Armonia della Giiurisprudenza Canonica, cit. p. 65. 79 Cf. c. Faltin, May 13, 1989 & c. Pompedda, March 2, 1994, 84: 129 all in Emilio Colagiovanni, “New (Hot) Grounds of Nullity in Marriage Cases,” in Monitor Ecclesiasticus, 122 (1997), pp. 521-552, here in p. 529. 80 Cf. GS 48; Paul VI, Allocution to the Rota, February 9, 1976, in AAS, 68 (1976), p. 134; Emilio Colagiovanni, “New (Hot) Grounds of Nullity in Marriage Cases,” cit., pp. 531, 545-546; Ernest W. Burgers-Harvey J. Locke, The Family, From Institution to Companionship, New York, 1963. 81 Cf. Augustine Mendonça, “Error of Fact: Doctrine and Jurisprudence on Canon 1097,” in Studia Canonica, 34 (2000), pp. 23-74, here in p. 40; Cristian Begus, L’Armonia della Giiurisprudenza Canonica, cit. p. 49. 82 John Paul II, Allocution to the Rota, January 22, 1996, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 239: “Man is one, unique and unrepeatable being. This unrepeatability concerns the human individual not taken abstractly, but immersed in the historical, ethnic, social and above all cultural reality that distinguishes him in his individuality”; John Paul II, Christmas Address, December 25, 1978, in AAS, 71 (1979), p. 66 or in Origins, 8 (Jan 4, 1979), p. 454; Cristian Begus, L’Armonia della Giiurisprudenza Canonica, cit. pp. 43-49. 83 Cf. Cristian Begus, L’Armonia della Giiurisprudenza Canonica, cit. pp. 53-66 for the chronological treatment of the trends in Rota which include: c. Mori, November 30, 1910; c. Sincero, May 27, 1911; c. Wynen, March 28, 1939; c. Heard, June 21, 1941 & August 7, 1948; c. Di Feice, March 26, 1977 and that of years following the publication of the new Code (see note 129, 130, in p. 61).

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coram Pompedda (July 23, 1980). The fundamental position is presented by Alphonsus Liguori who stood at the apex of this history in his famous rules: 1° when a person actually intends to contract under condition of this quality. When this quality is simply deficient, then the consent is altogether deficient. Trac no. 1014 2° when the quality is not common to others, but is proper and individual to some determined person (“error in person”). This quality is proper and individuation. Trac no. 1015 3° “Therefore, the third rule, which St Thomas gives […] is, that if consent bears directly and principally on the person, then error concerning a quality redounds to the substance as if the consent is principally directed to the person and secondarily to the quality.” Trac no. 1016.84

The jurisprudential precedents of Rota was witnessed in the famous sentence of coram Canals, April 21, 1970,85 that provided a consideration of the substantial value of quality and an accidental element in relation to the identity of the person noted in the words of Cristian Begus: Con la famosa sentenza coram Canals del 21 aprile 1970 la giurisprudenza giunge ad un punto di svolta, superandos l’interpretationze restritttiva del Sanchez, ed approdando al concetto di persona ‘magis complete et integre considerata’, il quale concetto porta all nascita di un nuovo orietamento interpretativo dell’error redundans per il verificarsi del quale dovrebbero considerare tutte le ipotesi nelle quali la qualità morale, giuridica e sociale ‘tam intime connexa habetur cum persona physica ut, eadem qualitate deficiente,e tiam persona physica prorsus diverse risulted’(c. Canals April 21, 1970, RRDec, 62 (1970), p. 371, no. 2).86 The turnus employed personalistic dispositions of the Council and the disposition of canon 1083 of the 1917 and provided as it were a landmark and new interpretation to the value of the quality of person.87 In this sentence, the quality is intended “more than the person.”

Continuing in this trend a decade later is the sentence coram Pompedda of July 23, 1980, that showed the fundamental relationship between the provision of canon 1083 of 1917 Code and canon 1097, §2 of the 1983 Code, i.e. on the interpretation of error redundans as error of quality directly and principally intended.88 In his remarkable sentence, Pompedda opined, “an error of quality has the same effect as an error about a person where the quality is intended more than the person, that is where the contracting party aims his consent directly and principally to a particular quality or qualities, and indirectly and in a subordinate way to the person. Hence, the quality shapes and specifies the person to

84 Alphonsus Liguori, Theologia Moralis, Lib. VI, Tract. VI, de matrimonio, Cap. III, Dub. II, n. 1009-1016 as quoted in Augustine Mendonça, “Error of Fact: Doctrine and Jurisprudence on Canon 1097,” in in Studia Canonica 34 (2000), pp. 23-74 here in p. 30; Patrick Hennessy, “Canon 1097: A Requiem for Error Redundans?” in The Jurist 49 (1989), pp. 146-181, here in p.178; Thomas Aquinas, ST, III, Suppl. q. 51, a.2, ad.3; Gratian, Decretals c. xxxix, q. 1, §1. 85 c. Canals April 21, 1970, RRDec, 62 (1970), pp. 370-375 (marital Status); Cristian Begus, L’Armonia della Giiurisprudenza Canonica, cit., pp. 58, 61. 86 Cristian Begus, L’Armonia della Giiurisprudenza Canonica, cit., p. 58, also for the qualities see pp. 61, notes 131, 132 & p. 134, note 134; Aldo M Arena, “The Jurisprudence of the Sacred Roman Rota: Its Development and Direction after the Second Vatican Council,” in Studia Canonica, 12 (1978), pp. 265-293, here p. 286: “The first time the moral, juridical and social qualities of a person were given prominence and considered was in a decision coram Canals, April 21, 1970. It was held that the human person is not only identified by biographical and biophysical details but also by psychological, moral and social qualities. Thus ‘error redundans in personam’ was seen to be applicable to these qualities as well.” 87 Elissa Rinere, “Error which Causes the Contract,” in Studia Canonica, 38 (2004), pp. 65-84, here in p. 77. 88 This approach responds to the disposition of the legislator in the 1983 Code, can 6, §2 that states: “To the extend that the canons of this Code reproduce the former law, they are to be expressed in the light also of canonical tradition”; see also John Paul II, Allocution to the Rota, January 30, 1993, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 225 & January 25, 2003, in www.vatican.va.

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such an extent that the object of consent substantially contains that quality in its scope, and if the quality is missing the consent itself therefore disintegrates.”89

These jurisprudential landmarks of coram Canals in 1970, followed a decade later by coram Pompedda influenced jurisprudence90 till the official intervention of the legislator in 1993 allocution to the Roman Rota.91 In this allocution, John Paul II expressed the mind of the legislator in relation to meaning of quality directly and principally intended in these words: “However, in the matter of error of fact (error facti) too, specifically when it is a question of ‘error of person’ (error in persona), one may not attribute to the terms used by the legislator a meaning alien to canonical tradition; even as ‘error about a quality of the person’ can impugn the consent only when a quality, neither frivolous nor trivial, was ‘directly and principally intended’, that is, as Rotal jurisprudence has effectively asserted: ‘when the quality is intended before the person’ (quando qualitas prae persona intendatur).”92

These qualities to be invalidating (i.e. requisites for the syllogism of proofs) must be present and certain, be the motivating force for marriage (highly estimated), be directly intended by the individual (and not through an intermediary), be principal intended (i.e. above all else), and finally, there is need to evaluate the first reaction of the individual on discovering the presence or no of the quality in question. These qualities may be marital status, social, educational or economic status, political affiliation, age, physical health, mental health, virginity, procreative capacity, religious belief, projeny, moral qualities, pregnancy etc.93 These qualities are normally bases of the very communion of life and love among people in different cultural contexts and the imperative for conjugal personal self gift and grounds for the invalidating effect of error of fact. However, Emilio Colagiovanni cautioned properly that “It often happens after the celebration of the marriage, with the onset of new and unexpected circumstances, one demands from the other spouse exceptional qualities and virtues which he had never thought about before the wedding. Indeed, many do make an error unless it is of the person or about a quality directly intended at the moment of giving consent, does not render the marriage invalid.” 94

Error Pervicax

Jurisprudence has also identified indirect proofs95 like: adminicula: supporting or auxiliary proofs;

adiuncta: circumstantial evidences like motives (e.g. deep-seated error-error pervicax)96 and indices

89 c. Pompedda, July 23, 1980, in RRDec, 72, p. 534; see also c. Pompedda, February 6, 1992, pp. 49-62; c. Ferraro, July 18, 1972, in RRDec, 64: 464-475; c. Ewers, February 10, 1973, in RRDec, 65: 88, no 3; Augustine Mendonça, “Error of Fact: Doctrine and Jurisprudence on Canon 1097,” cit., pp. 27-34; Patrick Hennessy, “Canon 1097: A Requiem for Error Redundans?” cit., pp. 146-181; Ladislas Orsy, Marriage in Canon Law, cit., pp. 137-138; M. Hubert, “Error in qualitate personae (c. 1097, §2),” in Periodica, 87 (1998), p.429. 90 Cf. c. Di Felice, November 16, 1985, RRDec, 77 (1985), pp. 495-503 (social status); c. Stankiewicz, July 22, 1993, in RRDec, 85 (1993), pp. 560-600 (political affiliation); c. Pompedda, February 6, 1992, in RRDec, 84 (1992), pp. 49-62 (Age); c. Bruno, March 25, 1994, in RRDec 86 (1994), pp. 164-172, (health-leprosy disease); c. Augustoni, July 10, 1984, RRDec, 76 (1984), pp. 442-461 (mental hereditary illness); c. De Lanversin, March 20, 1985, in RRDec, 77 (1985), pp. 166-179 (mental health); c. Funghinin, November 23, 1988, in RRDec, 80 (1988), pp. 636-651 (drug addiction); c. Faltin, May 26, 1989, in RRDec 81 (1989), pp. 379-388 (virginity); c. Stankiewicz, December 13, 1990, in RRDec, 82 (1990), pp. 847-855 (Procreative capacity); c. Jarawan, February 10, 1993, in RRDec, 85 (1993), pp. 42-46 (moral qualities); see other references in Cristian Begus, L’Armonia della Giiurisprudenza Canonica, cit., pp. 51-70 especially note 129 & 130, p. 61. 91 Augustine Mendonça, “Error of Fact: Doctrine & Jurisprudence on Canon 1097,” cit., pp. 23-24. 92 John Paul II, Allocution to the Rota, January 30, 1993, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, cit., p. 226. 93 Cf. c. Di Felice, March 26, 1977, in RRDec, 69 (1987), pp. 147-156 or in Monitor Ecclesiasticus, 103 (1978), pp. 265-272; c. Palestro, June 24, 1987, in Monitor Ecclesiasticus, 112 (1987), pp. 472-483; c. Ewers, February 10, 1973, in RRDec, 65 (1982), pp. 86-94; c. Stankiewicz, February 24, 1983, in RRDec, 75 (1988), pp. 42-53. 94 Emilio Colagiovanni, “New (Hot) Grounds of Nullity in Marriage Cases,” cit., p. 537. 95 For comprehensive presentation of this see John P. Beal, “The Substance of Things Hoped for: Proving Simulation of Matrimonial Consent,” in The Jurist 55 (1995), pp. 745-793, here in pp. 765-780.

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(“an index is an established fact that reveals or points to the existence of a distinct and as yet unknown fact in virtue of the a nexus between the two facts”97).

In relation to the later it is acknowledged adage that “action speaks louder than words,”98 that is to say that non verbal confessions (cann 1535-1536) need not be made only in words. In coram Fiore, “the mind is discerned from what is done…for, although the mind and intention of a person may be discerned well from words, nevertheless facts are stronger than words for demonstrating a mind of this kind.”99 Also coram Felice added: “The confessions (…) need not necessarily be made in words; deeds, which are sometimes more eloquent than words, are sufficient provided, however, that the deeds are many, certain, and unequivocal, they demonstrate in the common estimation that the contracting party did not want to bind himself in marriage.”100

This trend is seen in the issue of radical error which determines the will (can 1099) in action, choice and way of life. In this context we experience a fixed mind set or a habit of mind that exalts the subjective end (finis operantis) of the individual which in the context of simulated consent is radically contrary to the objective end of matrimonial covenant (finis operis). The Benedict XIV 1767 presumption (seen in can 1101, §1: “the internal consent of the mind is presumed to conform to the words or the signs used in the celebration of marriage”) is rethought in jurisprudence in the light of error pervicax. Summarizing this trend, Pompedda said: It would seem, therefore, as regards both Catholics and others, that the principle should be retained that, the more deeply and radically an error is ingrained and endorsed, the easier it is to establish a presumption in favor of an essential property of marriage being excluded. The will, which is a kind of blind faculty of the soul, generally goes along with whatever is presented to it by the intellect….Indeed it sometimes happens that a person holds an opinion (rightly or wrongly) with such intense conviction that the opinion becomes, as it were, part of his or her personality and when that happens, the will follows along almost irresistibly.101

Error pervicax creates implicit intention and positive act of exclusion; proves itself with such intensity with its attachments to an erroneous wish or way of life or an ideology contrary to teaching of the Church or the presumption of law in canon 1101, §1. This tendency is observed in the erroneous life situations of the egotist, atheist, hippy, one imbued with divorce or anti-child mentalities. The precedents from Antoni Stankiewicz suffices as a perfect example for the deep seated errors of the hippies that combine a philosophy of non-violence with rejection of all human institution that impinge upon personal freedom; existing firm mind set and pervasive will to break all connections with the past, steadfast rejection of any sort of long-term human behavior/commitments because of their conviction about fragility of everything, opposed to matrimonial bond and permanent obligations. Thus, “among young people who are commonly called ‘hippies,’ who were opposed to every bond of marriage and to any permanent obligation resulting from marriage, and proposed free love, and lived out such principles in their life and were directed thus to act by an attitude of their will, there exists the implicit will of rejecting marriage or at least a grave presumption of a positive act of the will excluding marriage.” 102

96 Cf. c. Faltin, June 21, 1993, in Monitor Ecclesiasticus, 118 (1993), p. 553; c. Pompedda, February 3, 1981, in RRDec, 73: 69; c. Ewers May 1968, in RRDec, 60: 351; C. Huot, April 22, 1982, in RRDec, 74: 194 97 John P. Beal, “The Substance of Things Hoped For: Proving Simulation of Matrimonial Consent,” cit., p. 768. 98 See Robert J. Sanson, “Implied Simulation: Grounds for Annulment? in The Jurist, 48 (1988), pp. 747-770, here p. 747 ad 747-748: “Deeds speak louder than intentions”; c. Bejan, July 16, 1965, in RRDec, 57 (1965), p. 566, no. 5: “Sometimes facts outweigh words, provided that they be numerous, unequivocal and certain” 99 c. Fiore, April 16, 1988, in RRDec, 80:246 and also c. Bruno, June 15, 1990, in RRDec, 82: 517. 100 c. Felice, April 24, 1956, in RRDec, 48 (1956), p. 403. 101 c. Pompedda January 23, 1971, in RRDec, 63: 54 (see also Edward G. Pfnausch, “Simulated Consent: A New Way of Looking at an Old Way of Thinking, Part II,” in The Jurist, 55 (1995), pp. 721-739) 102 Antoni Stankiewicz, “Recent Jurisprudence of the Roman Rota Concerning Total and Partial Simulation,” in Simulation of Marriage Consent, Doctrine, Jurisprudence, Questionnaires, cit. pp. 171-211, here p. 187;c. Stankiewicz, July 23, 1982, in RRDec, 74 (1982), pp. 421—32, here p. 426, no 7; c. Stankiewicz, April 25, 1991,

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Hence whether through radical error or deep seated error (error pervicax) or life style or ideologies which definitely determines the will (can 1099) and changes this presumption of the law, one contracts invalidly. By way of definition, error pervicax is “that habit of mind which vehemently resists the truths of faith and the institution of Christian marriage itself”.103

The requisite for a valid human act of consent is that it should proceed from the intellect and will since an adage holds: ubi intellectus ibi voluntas and nihil est intellectu quod non fuerit in sensu; nihil volitum nisi praecognitum. Consent involves sufficiently informed mind, sufficient knowledge, free will and capacity for self determination.104 The moments in these processes include: deliberation, judgment and decision.105 Hence, “If that moment of free consent is missing or in any way flawed, there is no valid marriage, no marital relationship, no bond or obligation arising from marriage.” 106

In coram Felici, “The erroneous opinions fix their root so deeply in the soul that they constitute in them firm and steady grip almost a new nature, and if no reason is apparent for withdrawing from the erroneous idea (then) it can be prudently concluded that the marriage was contracted in accordance with the error”.107 This has been the constant precedents in the jurisprudence

in Ius Ecclesiae, 4 (1992), pp. 553-566 or Monitor Ecclesiasticus, 118 (1993), pp. 376-388; Antoni Stankiewicz, “De errore voluntatem determinante (can. 1099) iuxta rotalem iurisprudentiam,” in Periodica, 79 (1990), pp. 441-494; Antoni Stankiewicz, “Errore circa le proprietà e la dignità sacramentale del matrimonio,” in Apollinaris, 57 (1984), pp. 547-565 or in Monitor Ecclesiasticus, 109 (1984), p. 180; Antoni Stankiewcz, “De simulatione totali consensus matrimonialis apud iuvenes qui vulgo ‘hippies’ vocanture,” in Periodica, 72 (1983), pp. 129-140; D. M. Campbell, “Canon 1099: The Emergence of a New Juridic Figure,” in Quarderni studio rotale, 55 (1990), pp. 35-72; c. De Lanversin, February 18, 1984, in RRDec, 76 (1984), p. 103; c. De Lanversin, Decree, April 11, 1985, no. 4 and C Davino, May 30, 1985, in RRDec 77: 180-188; John G. Johnson, “Total Simulation in Recent Rotal Jurisprudence,” Studia Canonica, 24 (1990), pp. 383-425). 103 c. Stankiewicz, April 28, 1982, in RRDec, 74 (1982), pp. 248 also 247-249; Thomas P. Doyle, “A New Look at the Bonum Fidei,” in Studia Canonica, 12/1 (1978), pp. 5-40, here in p. 30: “Just as error about a person is a false judgment about the identity of the person, error of quality of marriage is a false judgment about the very substance of marriage. It is a judgment which is theoretical understanding of marriage so firmly entrenched in the mind that the person rejects marriage under nay other form. The error concerning the nature of marriage, and in this case absolute nature of marital fidelity, can be such that it results in an implicit condition contrary to the substance of marriage. If such is the case, the marriage is invalid according to can 1095, 2”. 104 Cf. John Paul II, Allocution to the Rota, January 21, 1999, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, cit., p. 251: “conscious, responsible assumption of a commitment through a juridic act”; John Paul II, Allocution to the Rota, February 1, 2001, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, cit., p. 263: “most unique act of will free and representing true vocational path of the spouses whereby the live out their personhood”; John Paul II, Allocution to the Rota, January 28, 1992, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 173 where he asserts that the consent should be free, total, irrevocable and without reservation; c. Masala, June 19, 1984, in RRDec, 76 (1989), pp. 357-366; c. Jarawan, June 19, 1984, RRDec, 76 (1989), pp. 367-379; c. Giannecchini, January 20, 1984, in RRDec, 76 (1989), pp. 25-33; c. Serrano, January 20, 1994, in RRDec, 86 (1997), pp. 42-46 or p. 244-248, here in p. 245; 105 Cf. S.Th, I-II, q. 1, a.1; Augustin Mendonça, “Consensual Incapacity for Marriage,” cit., p. 487; Mario Pompedda, “l’incapacità consensuale,” in Ius Canonicum, 31 (1991), p. 119 106 Michael G. Lawler, “Blessed are Spouses who Love for their Marriages will be Permanent: A Theology of the Bonds in Marriage,” in The Jurist, 55 (1995), pp. 218-242, here p. 227; CCC 1627: “The consent consists in a ‘human act by which the partners mutually give themselves to each other’. ‘I take you to be my wife’- ‘I take you to be my husband.’ This consent that binds the spouses to each other finds its fulfilment in the two ‘becoming one flesh’”; “Rite for Celebrating Marriage,” in The Rites of the Catholic Church, New York: Pueblo, 1976, p. 554. 107 c. Felici, May 12, 1959, in RRDec, 51 (1959), p. 394; also c. Felici, December 17, 1957, in RRDec, 49 81957), p. 844; c. Stankiewicz, April 29, 1982, RRDec, 74 (1982), pp. 248-249; c. Stankiewicz, July 23, 1982, in RRDec, 74, p. 426, no. 7; c. Serranno, March 23, 1984, in RRDec, 76 (1989), pp. 182-188; c. Colagiovanni, April 26, 1983, in RRDec, 75 (1988), pp. 187-196John G. Johnson, “Total Simulation in Recent Rotal Jurisprudence,” cit. pp. 394-403; Robert J. Sanson, “Implied Simulation: Grounds for Annulment” cit., p. 758; Thomas Doyle, “A New Look at the Bonum Fidei,” in Studia Canonica, 12/1 (1978), pp. 5-40, here in p. 24; c. Faltin, June 21, 1993, in Monitor Ecclesiasticus, 118 (1993), p. 553; c. Pompedda, February 3, 1981, in RRDec, 73: 69; c. Ewers May 1968, in RRDec, 60: 351; C. Huot, April 22, 1982, in RRDec, 74: 194

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of the Roman Rota108 and used in cases of simulation (can 1101), incapacity (can 1095) and force and fear (can 1103) and error that determines will (can 1099). The Good of Fidelity and Property of Unity

The new way of thinking initiated by c. Mattioli109 got flowered in the jurisprudential precedents of c. De Jorio of October 30, 1963 with a distinction between fidelity and unity: “An intention contra bonum fidei not only included violations of unity (e.g. by polygamy), but also included an intention against the exclusivity of sexual relations.”110 This position becomes judicial precedents in the canonical jurisprudence.111 Summarizing this trend therefore, Lawrence Wrenn said: “According to the older jurisprudence …fidelity was reduced to mean unity; whereas, according to newer jurisprudence…unity was extended to mean fidelity.”112

This new trend and new way of thinking is drawn from the provisions made in canon 1057 on the formal object of consent as conjugal self donation and acceptance and complemented by canon 1134 that disposed that in the consent that give rise to the marriage bond, there is also a creation of right that is permanent and exclusive. In this context, “the property of ‘unity’ and ‘bonum fidei’ are two distinct element, unity signifying unicity of the bond and bonum fidei denoting exclusivity of extra marital relationship (conjugal acts) and now it includes also other essential elements of consortium totius vitae”.113 In jurisprudence, therefore, property of unity is violated by polygamy (polyandry and polygyny), while the good of fidelity is violated by adultery.

108 c. Felici, December 15, 1957, in RRDec, 49 (1957), p. 844: error “so permeate the personality… that he does not wish anything contrary to his serious reflections and his aims and activity do not go against his convictions;” c. Felici, May 12,, 1959, in RRDec, 51 (1959), p. 257: “nevertheless if the erroneous opinions fix their root so deeply in the soul that they constitute in their firm and steady grip almost a new nature, and if no reason is apparent for withdrawing from the erroneous idea (then) it can be prudently concluded that the marriage was contracted in accordance with the error; ” c. Felici, July 13, 1954, in RRDec, 46 (1954), p. 616; c. Felici, December 17, 1957, in RRDec, 49 (1957), p. 844; c. Ewers May 16, 1968, in Monitor Ecclesiasticus, 94 (1969), pp. 395-407p. 402; c. Pinto November 6, 1972, in RRDec, 64: 673; c. Serrano, February 22, 1985, in RRDec, 75 (1985), pp. 122-137; Thomas P. Doyle, “A New Look at the Bonum Fidei,” in Studia Canonica, 12/1 (1978), pp. 5-40, here p. 24: “The approach to fidelity by people entering marriage today is greatly shaped by the world around them. Some reject the traditional notion of marital fidelity outright; some may be honestly confused about right and wrong and others may qualify fidelity so as to allow for extra-marital sexual experiences while establishing reservations in the area of serious emotional relationships” and), p. 195; David Fellhauer, “The Exclusion of Indissolubility: Old Principles and New Jurisprudence,” in Studia Canonica, 9 (1975), pp. 105-133; Lawrence Wrenn, “A New Codition Limiting Marriage,” in The Jurist, 34 (1974), pp. 292-315 109 Cf. c. Mattioli, October 30, 1953, in RRDec, 45: 641-642. 110 c. De Jorio, October 30, 1963, in RRDec, 55: 716-725; Other references that cited decisions of Mattioli and De Jorio include: c. Pompeda, February 16, 1972, in RRDec, 64: 101; c. Parisella, April 29, 1976, in RRdec, 53:76; c. Funghini, November 19, 1985, in RRDec 77: 506; c. Palestro March 13, 1987, in RRDec, 79: 121-131; c. Funghini, November 25, 1987, in RRDec, 79: 682-699; c. Ragni, November 21, 1989, in RRDec, 81: 698; c. Faltin, July 21, 1993 in Ius Ecclesiae, 7 (1995), pp. 239-253, all these sentences are cited in Edward G. Pfnausch, “Simulated Consent: A New Way of Looking at an Old Way of Thinking, Part II,” in The Jurist, 55 (1995), pp. 721-739, here in pp. 722-724; see also Aldo M. Arena, “The Jurisprudence of the Sacred Roman Rota: Its Development and Direction after the Second Vatican Council,” in Studia Canoica, 12 (1978), pp. 266-278. 111 Cf. c. Pompedda, February 16, 1972, in RRDec, 64: 101; c. Parisella, April 29, 1976, in RRDec, 53: 76; For these developments see, Aldo M. Arena, “The Jurisprudence of the Sacred Roman Rota: Its Development and Direction after the Second Vatican Council,” in Studia Canonica, 12 (1978), pp. 266-278; Edward G. Pfnausch, “Simulated Consent: A New Way of Looking at an Old Way of Thinking, Part II,” cit., pp. 723-724. 112 Lawrence G. Wrenn, Annulments, 5th Ed. Washington: CLSA, 1988, p. 102 113Augustine Mendonça, “The Theological and Juridical Aspects of Marriage,” cit., p. 294 also p. 303; Augustine Mendonça, “Recent Trends in Rotal Jurisprudence,” cit., pp. 198-199; Augustine Mendonça, “Exclusion of the Essential Properties of Marriage,” in Simulation of Marriage Consent, Doctrine, Jurisprudence, Questionnaires, cit., p. 91; Augustine Mendonça, “Consensual Incapacity for Marriage,” cit., pp. 523-524; Ladislas Orsy, “Christian Marriage: Doctirne & Law, Glossae on Canons 1012-1015,”in The Jurist, 40 (1980), pp. 282-348, here p. 307: “Unity can be understood in two senses: it can mean either not having several partners at the same time,

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Interpersonal Relationship

The ordination of marriage to the good of spouses is one of the crowning achievements of the Council114 and the new Code (can 1055, §1). The controversy was concluded by Cardinal Pericles Felici insisting on its inclusion in these words: “The expression ‘ad bonum coniugum’ ought to remain. The ordination of marriage to the good of the spouses is an essential element of the matrimonial covenant, not a subjective end of the parties.”115 In spite of this conclusion and its final outcome in the new Code, canonical doctrine and jurisprudence are still determining this obvious generic provision of the Code on the good of spouses as an end and the also as an element as drawn from the position of the president of the Code Commission. Jurisprudential attentions116 are focused in determining the content of the good of spouses (can 1055, §1); the rights and obligations of marriage (can 1095, 2°, 3°); and the essential elements of marriage (can 1101, §2) etc. It is good to mention that jurisprudence has endeavored to draw its conclusions by departing from the canonical provisions on the material (the spouses) and formal (conjugal self gift) objects of matrimonial consent (can 1057, §2).

However, in all sincerity, the concept is pregnant with meaning and all embracing implying physical, emotional, intellectual and spiritual well being of the couple.117 The meaning should therefore emerge from the identity and status of the spouses as human persons inscribed in a given socio-cultural context.118 The good of spouses is acknowledged as the fourth good of marriage,119 involving as it were conjugal partnership and interrelationship; conjugal love and perfection and conjugal heterosexuality. These belong to the essence and essential elements of marriage and belong to those things which the spouses have right to as already confirmed in doctrine and jurisprudence.120

or not having several partners successively while the first is still alive. The second sense overlaps with the issue of indissolubility”; GS 49. 114 Cf. Edward G. Pfnausch, “Simulated Consent: A New Way of Looking at an Old Way of Thinking, Part II,” in The Jurist, 55 (1995), pp. 721-739, here p.735. 115 Pericles Felici, Relatio, 1981, in Communicationes 15 (1983), p. 221 [also Communcationes, 9 (1977), p. 123]; see also Edward G. Pfnausch, “The Good of the Spouses in Rotal Jurisprudence: New Horizons?” cit., p. 533; Augustine Mendonça, “The Theological and Juridical Aspects of Marriage,” cit., p. 286. 116 Cf. Mario F. Pompedda, “The Bonum Coniugum in the Canonical Doctrine on Marriage,” in Simulation of Marriage Consent, Doctrine, Jurisprudence, Questionnaires, cit., pp. 27-41; Edward G. Pfnausch, “The Good of the Spouses in Rotal Jurisprudence: New Horizons?” cit. pp. 527-556; Sebastiano Villeggiate, “Il ‘bonum coniugum’ e l’oggetto del consenso matrimoniale in diritto canonico,” in Monitor Ecclesiasticus, 120 (1995), pp. 289-323; Rinaldo Bertolino, “Gli Elementi Constitivi del ‘Bonum Coniugum’: Stato della Questione,” in Monitor Ecclesiasticus, 120 (1995), pp. 557-586; Augustine Mendonça, “Exclusion of the Essential Elements of Marriage,” in Simulation of Marriage Consent, Doctrine, Jurisprudence, Questionnaires, cit., pp. 42-88; Augustine Mendonça, “Consensual Incapacity for Marriage,” cit., pp. 477-559; Augustine Mendonça, “Recent Trends in Rotal Jurisprudence,” cit., pp. 167-230; J. Anthony Dewhirst, “Consortium Vitae, Bonum Coniugum & their Relation to Simulation: A Continuing Challenge to Modern Jurisprudence,” in The Jurist, 55 (1995), pp. 794-812; 117 Cf. Mario F. Pompedda, “Incapacity to Assume the Essential Obligations of Marriage,” in Incapacity for Marriage, Jurisprudence and Interpretation, Acts of the III Gregorian Colloquium, cit., p. 192; Ladislas Orsy, Marriage in Canon Law, Texts & Commentary, 1988, p. 53; Augustine Mendonça, “Exclusion of the Essential Elements of Marriage,” in Simulation of Marriage Consent, Doctrine, Jurisprudence, Questionnaires, cit., p. 73. 118 Cf. John Paul II, Allocution to the Rota, January 21, 1999 in L’Ossevatore Romano, February 10, 1999, p. 3; Augustine Mendonça, “Exclusion of the Essential Elements of Marriage,” in Simulation of Marriage Consent, Doctrine, Jurisprudence, Questionnaires, cit., p. 81. 119 Cf. Lawrence Wrenn, The Invalid Marriage, Washington DC, CLSA, 1998, p. 204; Lawrence Wrenn, “Refining the Essence of Marriage,” cit., pp. 537-547; Michael R. Prieur, “The Articulation of the Ends of Marriage in Roman Catholic Teaching: A Brief Commentary,” cit., p. 535; c. Pinto, May 27, 1983, in Monitor Ecclesiasticus, 110/3 (1985), p. 330. 120 Cf. Apostolic Signatura in the famous Utrecht (Holland) case of November 29, 1975, in CLD 8: 781 in Edward G. Pfnausch, “Simulated Consent: A New Way of Looking at an Old Way of Thinking, Part II,” in The Jurist, 55 (1995), pp. 721-739, here p. 746; c. Serano, July 9, 1976, in RRDec, 68 (1987), pp. 308-327 or Monitor Ecclesiasticus, 102 (1977), pp. 363-381; c. Palestro, December 18, 1991, in Monitor Ecclesiasticus,

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The good of spouses calls for mutual help as expressed in the book of Genesis (Gen 2: 18-25) since “to be human means to be called to interpersonal communion” especially in the marital community”.121 Hence, the good of the spouses concern the sum total of all the goods within this interpersonal and intrapersonal relationship and integration. It concerns all that is necessary to maintain, establish and fulfill a true and a healthy conjugal life. It implies true friendship, companionship, capacity and willingness to love, trust, relate, communicate, mutual understanding and authentic conjugal self gift etc. 122

Remarkable in this area is the reasoned sentence coram Anné of 1969 where he brought to focus the Conciliar teaching to the level of law with marked jurisprudential breakthrough on importance of intimate community of life and union of person and conjugal life (GS 48). In his words Anné affirmed, Married life, that is, the state of marriage, principally consists in an interpersonal exchange which has a healthy interpersonal orientation in each person as its foundation. It follows that if the life history of the person marrying, according to the opinion of experts, clearly indicates that the person even before marriage had been seriously deficient in intrapersonal and interpersonal integration, that person must be considered incapable of understanding correctly the distinctive character of the communion of life directed toward the procreation and education of children, which is marriage and consequently,

117/2 (1992), pp. 188-189; c. Stankiewicz, December 16, 1982, in Ephemerides iuris canonici, 39 (1983), pp. 252-265; c. Srankiewicz, June 23, 1988, in RRDec, 80: 415-426;c. Faltin,October 28, 1988,in RRDec, 80: 575-588; c. Bruno, December 16, 1988; in RRDec, 80: 745-754;c. Parisella, May 11, 1978, RRDec, 70 (1988), pp. 288-295 or in Monitor Ecclesiasticus, 103 (1978), pp. 394-402; c. Pinto, December 18, 1979, in RRDec, 71 (1988), pp. 586-601 or in Monitor Ecclesiasticus, 105 (1980), pp. 375-388; c. Pinto, November 9, 1984, in Monitor Ecclesiasticus, 110 (1985), p. 321; c. Pinto, February 6, 1987, in RRDec, 79:33; c. Giannecchini, January 26, 1984, in RRDec, 76: 390-398; c. Giannecchini, June 17, 1986, in RRDec 78: 380; c. Colagiovanni, February 2, 1988, in RRDec, 80: 46-66; c. Pompedda, April 11, 1988, in RRDec, 80: 198-210; Mario F. Pompedda, “The Bonum Coniugum in the Canonical Doctrine on Marriage,” in Simulation of Marriage Consent, Doctrine, Jurisprudence, Questionnaires, cit., p. 39; Augustine Mendonça, “The Theological and Juridical Aspects of Marriage,” cit., pp. 275, 282, 287; Augustine Mendonça, “Exclusion of the Essential Elements of Marriage,” in Simulation of Marriage Consent, Doctrine, Jurisprudence, Questionnaires, cit., pp. 55, 61, 63, 64; Augustine Mendonça, “The Nature of Matrimonial Consent,” in Studia Canonica, 16 (1982), pp. 79-80; Augustine Mendonça, “Recent Trends in Rotal Jurisprudence,” in Studia Canonica, 28 (1994), p. 188; Augustine Mendonça, “Consensual Incapacity for Marriage,” cit., pp.508-509; Ignatius Gramunt-Leroy A. Wauck, “Capacity & Incapacity to Contract Marriage,” in Studia Canonica, 22 (1988), pp. 147-168, here in p. 166; J. Anthony Dewhirst, “Consortium Vitae, Bonum Coniugum & their Relation to Simulation: A Continuing Challenge to Modern Jurisprudence,” cit., pp. 794-812 121 John Paul II, Encyclical Letter, Mulieris Dignitatem, August 15, 1988, in AAS 80 (1988), pp 1653-1729. 122 These requisites are not exhaustive and even the check list by Germain Lesage cannot exhaust the content of the good of spouses which should be evaluated with the context of a given marriage and a given cultural values. For authors that gave us insight on the content of the good of spouses see: Augustine Mendonça, “The Theological and Juridical Aspects of Marriage,” cit., pp. 282, 287; Augustine Mendonça, “Exclusion of the Essential Elements of Marriage,” in Simulation of Marriage Consent, Doctrine, Jurisprudence, Questionnaires, cit., pp.55, 61; Lawrence Wrenn, The Invalid Marriage, Washington DC, CLSA, 1998, p. 206-214; Germain Lesage, “The Consortium Vitae Coniugalis: Nature & Applications,” in Studia Canonica 6 (1972), pp. 99-113; c. Serrano, November 22, 1985, in RRDec, 77: 517-518; c. Bruno, December 16, 1988, RRDec, 80: 746-749 or Monitor Ecclesiasticus, 114/3 (1989), pp. 299-306; c. Bruno, February 23, 1990, in RRDec, 82: 138-151; c. Bruno, July 19, 1991, in RRDec, 83 (1991), p. 466; c. Bruno, May 17, 1996, in RRDec., 88 (1996), p. 390; c. Collagiovanni, May 8, 1990, in RRDec, 82: 356-363; c. Palestro, December 18, 1991, in RRDec 83: 818-830; Augustine Mendonça, “Consensual Incapacity for Marriage,” cit., pp. 514-515: “It is now commonly admitted in jurisprudence that “interpersonal relationship” (communion of life) is an essential element of the “consortium totius vitae” and the spouses have a right to that element. An ‘interpersonal relationship” implies a true and special relations between two persons, a true friendship based on mutual trust and self-giving. Two persons should, before anything else, be able and willing to be friends, to love, to respect, to trust, to relate to and communicate with each other or in Wrenn’s words, be capable of “self-revelation”, “understanding” and “loving”. This is the basis or foundation of conjugal relationship”.

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incapable likewise, of making a correct reasoned judgment about establishing that permanent communion of life with another person; and so, in this case that maturity of judgment which can lead to the valid choice of marital partner is lacking. Yet the person can remain able to fulfill other responsibilities which do not involve this intrapersonal and interpersonal integration.123 Other outstanding sentences with laudable provisions in the law sections are that of coram Pompedda who summarized the good of spouses as involving the right and correlative obligations to communion of life that is, “the rights and obligations associated with a unique or specific way of acting in interpersonal relationships proper to spouses determined by what is essentially required and adequate from the nature of marriage and having juridical importance,”124 and also coram Bruno who declared with clarity that the “Good of spouses as an end and essential element of the nuptial covenant, is the sum of all goods which flow from the interpersonal relationship of the same spouses. If they do not suffer from any psychic anomaly of personality, they together, through apt interpersonal relationship, enrich each other as individual persons and the entire conjugal life”125 Double conformity of sentence

The necessity of two conforming sentences in marriage nullity cases was made obligatory by the Apostolic Constitution Dei Miseratione of Benedict XIV.126 This entered into further legislations on the Church in the old Code of 1917127 and the Instruction, Provida Matter Ecclesia of 1936128 and finally in the new Code in the area of adjudged matter (can 1641, 1°).129 The fundamental reason for this requirement is the Church’s obligation to preserve the sanctity of marriage bond. Pope Benedict’s Constitution and subsequent legislative dispositions and Instructions, the institution of the office of defender of bond and confirming act of second Instance (or further) tribunal are ways to establish truth and moral certainty for the affirmative decisions in matrimonial trials.130

The disposition of the legislator in the new Code reads: “Without prejudice to can. 1643, an adjudged matter occurs when: 1° there are two conforming judgments between the same parties about

123 c. Anné July 22, 1969, SRRDec, 61 (1969), p. 865 or CLD, 8 (1973-1977), pp. 680-681; c. Anné February 25, 1969 in Ephemerides iuris canonici, 26 (1970), pp. 419-442 here no. 16 : “Hence, the formal substantial object of this consent is not only the right to the body which is perpetual and exclusive for the acts apt in themselves for the generation of children, excluding every other formal essential element, but it embraces also the right to the communion of life, i.e. the living together which is properly called matrimonial, and also the related obligations, i.e. the right to the intimate partnership of persons and of acts by which they perfect each other, so that they may cooperate with God in the generation and rearing of new lives” 124 c. Pompedda, April 11, 1988, in RRDec 80:202. 125 c. Bruno July 19, 1991, in Monitor Ecclesiasticus, 117 (1992), p. 170 or RRDec, 83: 466; see also c. Bruno February 23, 1990, in RRDec, 82: 138-151; c. Colagiovanni, May 8, 1990, in RRDec, 82 : 356-363; c. Palestro, December 18, 1991, in RRDec, 83: 818-830; Martin E. Lavin, “Approaches to the Traditional Grounds & the Bonum COniugum: Something Old, Something New, Something Borrowed, Something Askew,” in CLSA Proceedings, 55 (1993), pp. 121-140; Augsutine Mendonça, “Recent Trends in Rota Jurisprudence,” in Studia Canonica, 28 (1994), pp. 167-230, here p. 211 “Marriage is a personal & social (communal) reality….Marriage as a union between two persons comes into being when their consents meets. Both in the aspect of ‘union’ and in the aspects of ‘consent’ marriage is an interpersonal reality” 126 Cf. Benedict XIV, Apostolic Constitution, Dei Miseratione, November 3, 1741, in P. Gasparri & J. Serédi, Codicis Iuris Canonici fonts, Romae, Typis Polyglottis Vaticaniis, 1926-1939, vol 1, pp. 695-701, no 318 esp. art 8, 11 & 14 of the Constitution seen as sources of CIC/1917, cann 1986-1989. 127 CIC/1917, cann 1987; 1989; 1903; 1891 128 Provida Matter Ecclesia, art. 217-220 129 Cf. Dignitas Connubii, art 291, §1. 130 For further readings see, James Cuneo, “Toward Understanding Conformity of Two Sentences of Nullity,” cit., pp. 5-22.

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the same matter and on the same grounds.”131 The elements for double conformity involve: between the same parties (inter easdem partes), about the same matter (de eodem petito) and on the same grounds (ex eadem causa petendi). The problem that emerges from an attempt to apply this norm touches not the issue of identity of persons or the matter but more on issue of the third element i.e. the same ground(s)- “caput or capita” of petitioning (eadem causa petendi). Jurisprudence now distinguishes between formal conformity of sentences (i.e. based on the same grounds of nullity) and substantial or equivalent conformity of sentences (i.e. based on different grounds of nullity). Speaking on this later developed jurisprudential precedents, Augustine Mendonça holds: The difficulty consists in the fact that all grounds of nullity intrinsic to marriage consent are “defects of consent”. But in law all defects of consent are formally distinct, and therefore, if two conforming decisions, whether affirmative or negative, are pronounced in a particular case on two distinct grounds (capita) there cannot be a quasi res iudicata unless recourse is made to the principle of “equivalent” or “substantial” conformity of sentences. 132 Here Augustine Mendonça presents both the statement of the problem and an answer at the same time. The canonical provisions exalt the issue of grounds as important in marriage trials not only in the issue of conformity but also on movements of the entire processes. The trial is initiated formally by a petition (libellus) from one of the parties who has a legal standing to impugn marriage (cann 1501; 1674). This petition must endeavor to state the ground upon which the intervention of the judge is requested (cann 1502; 1504; 1505). The action of the judge to summon the parties by decree is further to clarify this ground of nullity i.e. to establish the joinder of issues (contestation litis- cann 1507; 1513-1514; 1677; 1639). This is the issue which the judgment on the pain of irremediable nullity must at least address (can 1620, 8°). In essence this ground determines also the issue to be studied, orientates the questions to be asked to parties, witnesses, the terms of reference for the expert and the action of the Instructor Judge (can 1528). According to doctrine and jurisprudence,133 and because of the disadvantage of the parties in relation to canonical knowledge, it is the responsibility of the judge to determine the final structure of this ground. This draws for the principle which states: “You give me the facts, I give you the law”, (da mihi facta, dabo tibi ius). This he does through consultation of both private and public parties and their legal representatives (cann 1513-1514; 1677). The legislator gives the judge also the duty to supply for the negligence of the parties (can 1452, §2). This allows judge ample latitude to actually establish the ground upon which pronouncement of judgment will be based. In canonical jurisprudence this ground must be clear and limited; requires the intervention of the party for its change (can 1514; DC, art. 136); requires case of status of persons and serious proofs for new grounds and new examination at the appeal grade (can 1683; 1644; 1639; 1684); and finally in relation to cases of defects of consent can stand alone or in subordination or connection (this we explain later).

Coram De Jorio’s two classic sentences of 1964134 provide the required foundation for the consistent and constant development of jurisprudence with regard to the resolution of the problems

131 CIC/1983, can 1641, 1°. Canon 1643 states: “Cases concerning the status of persons never become an adjudged matter, not excepting cases which concern the separation of spouses.” For these cases on separation of spouses see canons 1692-1696. 132 Augustine Mendonça, “Jurisprudential Approaches to Equivalent or Substantial Conformity of Sentences in Marriage Nullity Cases,” cit., p. 345. 133 Cf. Augustine Mendonça, “Jurisprudential Approaches to Equivalent or Substantial Conformity of Sentences in Marriage Nullity Cases,” cit., 346ff; James Cuneo, “Toward Understanding Conformity of Two Sentences of Nullity,” cit., p. 589; c. De Jorio, May 13, 1964, RRDec, 56 (1964), pp. 352-359 & December 5, 1964, in RRDec, 56 (1964), pp. 899-907; c. Lefebvre July 1, 1968, in CLD 7, pp. 943-945; c. Ewers, October 17, 1970, in SRR Decision 62, pp. 892-901 here p. 901; c. Serrano October 24, 1986, in RRDec, 4 (1986), pp. 143-156, here pp. 144-145, in Monitor Ecclesiasticus 114 (1989), pp. 283-297; c. Pinto, May 6, 1974 in RRDec, 66 (1974), pp. 339-349. 134 Cf. c. De Jorio, May 13, 1964, RRDec, 56 (1964), pp. 352-359; c. De Jorio, December 5, 1964, in RRDec, 56 (1964), pp. 899-907; c. De Jorio, March 14, 1973, in RRDec, LXV: 257, no 13; Cristian Begus, L’Armonia della

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concerning double conformity of sentences especially on different titles of nullity, a position that has influenced jurisprudence up till date.135 This later developed jurisprudence is called the principle or doctrine of equivalent or substantial conformity of sentences (DC, art. 291, §2).136 Commenting on the sentence coram De Jorio, Cristian Begus said: Possiamo ora passare ad esaminare la sopra ricordata sentenza coram De Jorio del 13 maggio 1964. Sono due i principi base su cui il ponente fonda le sue deduzioni in tema di conformità, ossia “iudicum esse speciem seu nomen iuris tribuere factis, ab alterutra vel utraque parter allatis” e “ratio habenda esse factorum, quae partes atulerint at que comprobaverint, non nominum iuris quae eisdem tribuerint” Da queste persmesse si fa consequire che “habendas est conformes dusa sententias, quae eisdem nitantur factis”, mentre a conclusione opposta si deve giungere “si duo Tribunalia discordarent inter se non modo de nomine iuris se etiam de factis, quibus utpote comprobatis habitis niterentur.”137 The sentence coram De Jorio, affirms that it belongs to the competence of the judge to give title of nullity in marriage cases and based on substantial facts and under different titles of nullity in different instances equivalent conformity of sentences that is executive emerges. Following this trend R.C. Bauhoff and A. Mendonça remarked, The principle of “substantial conformity of sentences” has been explained […] as follows: each sentence which is declared to be conforming must be weighed in light of all the acts of the case. It is also necessary to see whether or not the two conforming decisions depend entirely on the same facts or proofs. The basis of decisions is not the legal designation (caput) but the facts and proofs presented by the parties. Therefore, if certain intrinsic correlation between both grounds is present, the declaration of substantial conformity of sentences is legitimate.138

The existence of this principle draws from the legislative provision and use of language i.e. “conforming” (can 1641, 1°), which is not to be interpreted strictly as identity or formally conforming

Giurisprudenza Canonica, cit., pp. 89-126 especially p. 98; Augustine Mendonça, “Jurisprudential Approaches to Equivalent or Substantial Conformity of Sentences in Marriage Nullity Cases,” cit., p. 346; J. James Cuneo, “Toward Understanding Conformity of Two Sentences of Nullity,” in The Jurist 46 (1986), pp. 568-601, here in p. 582. 135 Cf. Cristian Begus, L’Armonia della Giurisprudenza Canonica, cit., pp. 97, 99, 101, 102, 105, 108; J. James Cuneo, “Toward Understanding Conformity of Two Sentences of Nullity,” cit., p. 581: “Which have been cited repeatedly in other decisions.” 136 For writings on this confer: J. M. Pinto, “De sententiarum conformitate in causis matrimonialibus,” in Periodica 62 (1973, p. 231ff; J. James Cuneo, “Toward Understanding Conformity of Two Sentences of Nullity,” cit., pp. 568-601; Joaquin Llobell, “Note sulla congruenza e la confromità delle sentenze di nullit° del matrimonia,” in Ius Ecclesiae 2 (1990), pp. 543-564; Aidan McGrath, “Conformity of Sentence in Marriage Nullity Cases,” in Studia Canonica 27 (1993), pp. 5-22; Manuel J. Arroba Conde, “Verità e principio della doppia sentenza conforme,” in AA. VV., Verita e definitività della sentenza canonical (Studi giuridici vol. XLVI), Città del Vaticano 1997, pp. 59-77, this edition treats issue of conformity of sentences; Sebastiano Villeggiate, “La Conformità equivallente delle sentenze affirmative nel processor canonico di nullità matrimonial,” in Monitor Ecclesiasticus 123 (1998), pp. 295-377 with indepth studies of Rota actions in this sector of jurisprudence; Declaration of Signatura June 16, 1998 in Supremum Signatura Apostolicae Tribunal “Quaesitum circa decretum quo sentential affirmative primi gradus confirmatur, decisione ‘aequivalenter conformi’ 1682, §2,” June 16, 1998, in Periodica 37 (1998), pp. 613-616; Craig A: Cox, “Is it the Same Truth? Conformity of Sentences in Marriage Nullity Cases,” in CLSA Proceedings 62 (2000), pp. 107-128; Cristian Begus, L’Armonia della Giurisprudenza Canonica, cit., pp. 89-126; Augustine Mendonça, “Jurisprudential Approaches to Equivalent or Substantial Conformity of Sentences in Marriage Nullity Cases,” in Studia Canonica 36 (2002), pp. 343-418. 137 Cristian Begus, L’Armonia della Giurisprudenza Canonica, cit., p. 98 on c. De Jorio, May 13, 1964, RRDec, 56 (1964), pp. 353-354, no. 2. 138 R.C. Bauhoff-A. Mendonça, “Psychic Impotence,” in Studia Canonica 24 (1990), p. 326; see also c. De Lanversin, October 27, 1982, in RRDec, 74 (1987), pp. 492-496.

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in all the three elements, but also admit of substantial or equivalent conformity.139 This word will be interpreted from the basis of lacuna legis i.e. appeal to the jurisprudence of Roman curia which in our case the practice of the Apostolic Signatura and the Tribunal of the Roman Rota. These two Apostolic Tribunals, especially the Rota have maintained and sanctioned a constant and customary jurisprudence that has now assumed the status of judicial precedents among local tribunals as far as this doctrine of equivalent or substantial conformity is concerned.

The consistent position of the jurisprudence of the Rota140 establishes that for the declaration of the principle of equivalent or substantial conformity of the sentences, the two sentences based on different grounds must be founded on the same solid juridical facts i.e. such facts and proofs that is at the foundation of both sentences and have the capacity to render the concrete marriage invalid. Hence the presence of the equivalent or substantial conformity of sentences does not depend on the legal formula or title given or the different grounds; neither does it depend on mere confluence of simple facts or circumstances; nor be based on distinct probative facts and worst still experience admit of situation where one sentence denies the juridical facts admitted by the other sentence. The essence depends on unity and solidity of the same juridical facts141 even though there are different grounds. Such declarations may occur in cases based on this distinct grounds but may be equivalently or substantially conforming based on the same solid provable juridical facts. For example142: Total Simulation and Partial Simulation (can 1101, §2); Will determined by Error (can 1099) and Will that exclude by Positive Act the Indissolubility (can 1101, §2); Total Simulation (can 1101, § 2) and Grave Fear (can 1103); Conditional Consent (can 1102) and Partial Simulation (can 1101, §2); Total Simulation (can 1101, §2) and Grave Lack of Discretion (can 1095, 2°); Exclusion/Simulation (can 1101) and Consensual Incapacity (can 1095), etc.

It is good to indicate here that the tribunal with the authority and jurisdiction to declare equivalent or substantial conformity of sentence is the tribunal of the second instance or appeal tribunal (cann 1682, §2; 1684, §1) and for the Roman Rota the higher turnus. The new Instruction, Dignatis Connubii confirmed this “Without prejudice to art. 136 and without prejudice to the right of defense, the tribunal of appeal which issued the second decision is to decide about the equivalent or substantial conformity, or else a higher tribunal.”143 Finally, we have endeavored to present certain areas of marriage nullity cases which has witnessed unique and significance jurisprudential precedents and determinations which will be of immense

139 Cf. c. Serrano, Decree, October 24, 1986, in RRDecr., vol. IV, pp. 144-146, nos. 3-5; also Cristian Begus, L’Armonia della Giurisprudenza Canonica, cit., pp. 108-110. 140 Refer to this published sentences and articles: c. De Jorio, May 13, 1964, SRR Decisions 56 (1964), pp. 352-359 & December 5, 1964, in SRR Decisions 56 (1964), pp. 899-907 & March 14, 1973 in SRR Dec 65, pp.248-257; c. Lefebvre July 1, 1968, in CLD 7, pp. 943-945 & July 22, 1972 in SRR Dec 64, PP. 494-500; c. Ewers, October 17, 1970, in SRR Decision 62, pp. 892-901 here p. 901; c. Serrano October 24, 1986, in RRT Decreta 4 (1986), pp. 143-156, here pp. 144-145 or in Monitor Ecclesiasticus 114 (1989), pp. 283-297; c. Pinto, May 6, 1974 in RRT Dec 66 (1974), pp. 339-349; c. Bruno February 24, 1989; c. Stankiewicz, July 22, 1982, in RRDec, 74 (1982), pp. 421-432; c. Stankiewicz, February 26, 1987 in RRT Dec 5 (1987), pp. 32-40; c. Davino, March 20, 1985, in RRDec, 77 (1985), pp. 180-188; c. Collagiovanni, April 7, 1992, in Monitor Ecclesiasticus 117 (1992), pp. 508-511 & March 22, 1994, in Monitor Ecclesiasticus 119 (1994), pp. 341-351; c. Rogers, January 21, 1969 in SRR Dec 61, pp. 63-67; c. Bejan, March 27, 1974 in SRR Dec 66, pp. 236-246; Augustine Mendonça, “Jurisprudential Approaches to Equivalent or Substantial Conformity of Sentences in Marriage Nullity Cases,” cit., pp. 416-418 & “Exclusion of the Sacramentality of Marriage,” in William H. Woestman, ed., Simulation of Marriage Consent: Doctrine, Jurisprudence, Questionnaires, cit., pp. 112-145; James Cuneo, “Toward Understanding Conformity of Two Sentences of Nullity,” cit., p. 594; Aidan McGrath, “Conformity of Sentence in Marriage Nullity Cases,” cit., p. 22. 141 Cf. Cristian Begus, L’Armonia della Giurisprudenza Canonica, cit., p. 112. 142 Ibid., pp. 110-111, 114-118. 143 Dignitas Connubii, art. 291, §3; see also, Normae Romanae Tribunalis, Città del Vaticano, Libreria Editrice Vaticana, 1994, art. 18, §2 & also art 62, §1; c. Serrano October 24, 1986, in RRT Decreta 4 (1986), pp. 143-156, here pp. 144-145; Augustine Mendonça, “Jurisprudential Approaches to Equivalent or Substantial Conformity of Sentences in Marriage Nullity Cases,” cit., p. 385; Aidan McGrath, “Conformity of Sentence in Marriage Nullity Cases,” cit., p. 20.

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assistance to the local Church tribunal in their respective efforts to receive and apply the laws of the Church at both substantive and procedural levels. There exists also precedents in relation to simulation (can 1101); force and fear (can 1103); deceit (can 1098); impotence (can 1084), condition (can 1102) and significantly on consensual incapacity to marry (can 1095) which is the most frequent title of nullity in many tribunals now. 144 CONCLUSION

Jurisprudence drawn from two latin words “iuris” and “prudentia” is interpretation and application of law in concrete circumstances and cases.145 The Church has operated significant judicial system and sound jurisprudence directed always to her finality which is salvation of souls (can 1752), finality of process which is truth (cann 1530; 1531, §1; 1548, §1; 1562, §1) 146 and also the purpose of

144 Cf. John Paul II, February 5, 1987, in AAS, 79 (1987), p. 1454: “I wish to devote particular attention today to psychic incapacities, which especially in some countries have become a high number of declarations of nullity”; Augustine Mendonça, “Conceptual Incapacity for Marriage,” cit., pp. 477, 492, 547-548; Emilio Colagiovanni, “Immaturità: per un approcio interdisciplinare alla comprensione ed applicazione del can. 1095, n° 2 e n° 3,” in Monitor Ecclesiasticus, 113 (1988), p. 546; Raymond L. Burke, “Serious Lack of Discretion of Judgment: Residual or Autonomous Ground of Nullity?” being Opening Address to the 27th Annual Convention of the Canadian Canon Law Society, October 19-22, 1992, Toronto; Cormac Burke, Some Reflections on Canon 1095,” in Monitor Ecclesiasticus, 117 (1992), pp. 133-150, here in p. 138; James H. Provost, “The Volume of Cases in United States Tribunals: A Canonical Reflection,” in The Jurist, 55 (1995), pp. 381-394; James H. Provost, “Simulated Consent: A New Way of Looking at an Old Way of Thinking, Part I,” in The Jurist, 55 (1995), pp. 699-700 where he observed the call for Apostolic Tribunal of the Signatura to local tribunals to make more use of the traditional grounds like simulation of consent instead of the obvious difficult ground of consensual incapacity; Zenon Grocholewski, “Current Questions Concerning the State and Activity of Tribunals with Particular Reference to the United States of America,” in Incapacity for Marriage, Jurisprudence & Interpretation: Acts of the III Gregorian Colloguium, ed. Robert M. Sable, Rome: PUG, 1987, pp. 219-253. 145 Augustine Mendonça, “Recent Trends in Rota Jurisprudence,” in Studia Canonica, 28 (1994), pp. 167-230, here in p. 168. 146 Cf. John Paul II, Allocution to the Rota, February 5, 1987, no. 9, , in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 195: “the foundation, mother and law of justice”; John Paul II, Allocution to the Rota, January 25, 1988, in William H. Woestman, ed. Papal Allocutions to the Roman Rota,

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process which is defence and vindication of the rights of the faithful (cann 221; 1400, §1; 1598, §1; 1620, § 7°).

To accomplish this onerous and noble judicial mission the Church has established personnel and organs that vicarious exercise judicial power of governance both at the universal (apostolic tribunals) and the particular (diocesan and Inter-diocesan tribunals) levels. The Roman Rota as the ordinary tribunal of the Apostolic See exercises its jurisdiction not only for suppletory services (can 19) but for unity and harmony of jurisprudence (PB art 126). We have presented the status and jurisdiction of this tribunal especially in the context of serving or assisting the local tribunals safeguarding the stability of marriage bond through its ‘quasi jurisprudential precedents’.

In the local Church we have testimonies of dearth of personnel147 and efforts of the few available personnel to apply the law within their contexts. While on the one hand, some of these tribunals and their sentences are credible, on the other hand however, some demonstrate serious situations of laxity and flaws in the observation of canonical substantial and procedural laws. Some of these anomalies we have made effort to present in this academic exercise. It is really within this framework that we see the justification of the jurisdiction of tribunal of the Roman Rota in providing unity, harmony and guide to the local tribunal personnel. Within these tribunals, lies a heavy obligation to operate a healthy jurisprudence aimed at safeguarding the matrimonial bond and the defence of the rights of the faithful. The personnel operating in these tribunals should be imbued with the zeal for justice, unshakeable honesty, and fidelity to law- divine natural and positive law and ecclesiastical laws.148 Thus exhorted Pius XII: The conscientious observance of these norms is a matter of duty for the judge; but on the other hand in their application he must remember that they are not ends in themselves, but means to an end, that is, to attain and guarantee a moral certainty with an objective foundation as the reality of the fact. It should not come about that, what the will of the legislator intended as a help and security for discovering the truth, become instead an obstacle to its discovery. If ever the observance of formal rules of law results in injustice or is contrary to equity, there is always a right of recourse to the legislator.149

In this onerous duty, therefore, the tribunal officials should in applying the law take cognizance of the values underlying the laws, their proper interpretation and genuine application within socio-cultural context guided by the principle of equity,150 and the jurisprudence of the Roman Rota.

1939-2002, p. 203 & February 4, 1980, in Ibid., pp. 159-163 & January 28, 1994, in Ibid., pp. 227-228 & January 17, 1998, in Ibid., p. 247 & January 21, 1999, in Ibid., p. 249; January 29, 2005 in Origins 34 (2004-2005), pp. 587-588; John XXIII, Allocution to the Rota, December 13, 1961, , in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 70; Paul VI, Allocution to the Rota, January 31, 1974, , in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 126. 147 Cf. CIC/1983, can 819; John Paul II enjoined the Bishops of United States of America during their ad limina visit that, “concern for the future also demands (that) you spare no effort in ensuring a sound continuing education for the clergy, and in particular, to consider it an essential part of your governance to send young priests for advanced studies in the ecclesiastical sciences, especially theology and canon law”; Paul VI, Allocution to the Rota, February 12, 1968, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, p. 92; Paul VI, Allocution to the Rota, February 8, 1973, in Ibid., p. 122; Dignitas Connubi, Introduction, pp. 18-19; also Art. 33: “For this reason it falls to the Bishops, and this should weigh on their consciences, to see to it that suitable ministers of justice for their tribunals are trained in canon law appropriately and in a timely manner, and are prepared by suitable practice to instruct causes of marriage properly and decide them correctly”;. 148 Paul VI, Allocution tot he Rota, January 29, 1970; January 28, 1971, p. 110; John Paul II, Allocution to the Rota, February 4, 1980, p. 163. 149 Pius XII, Allocution to the Rota, October 1, 1942, p. 20. 150 Cf. Augustine Mendonça, “The Rights of the Parties to Inspect the Acts and Its Relation to the validity of a Definitive Sentence in a Marriage Nullity Process,” in Studia Canonica 33 (1999), p. 314.

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They151 should up-date (can 279) 152 and widen their knowledge of the Code; legislative and doctrinal dispositions of the Church at both universal and particular Church levels; praxis and jurisprudence of the superior tribunals especially that of the Apostolic See; the publications of learned authors; Behavioural Sciences (i.e. Psychology, Psychiatry etc.) and Medical Law. He should attend professionally organized conferences and seminars in order to improve their knowledge. John Paul II exhorted: The law (ius), which gives you the ideal measure or criterion of discernment to apply in the evaluation of the facts. This law (ius), which will guide you, giving you sure parameters, is the new Code of Canon Law. You must know it perfectly, not only in the procedural and marriage sections which are so familiar to you, but in its entirety, so that you may have complete knowledge of it, as magistrates (magistrate), that is, as masters of the law that you are. This knowledge presumes an assiduous scientific, deep study which is not limited to pointing out the possible variations with respect to the previous law or to establishing its purely literal or philological meaning, but which takes into consideration the mind of the legislator (mens legislatoris) and the reason of the law (ratio legis).This will give you a global view which enables you to penetrate the spirit of the new law. For the issue in substance is: The Code is a new law and it is to be evaluated primarily in the perspective of the Second Vatican Council to which it is intended to conform fully.153

Finally, the local Church tribunals and the apostolic tribunals have the obligation to hearken to these words of the Supreme Legislator in the implementation of Law. Granted that the Rota jurisprudence serves as suppletory law and help to local Church tribunal, however, the liberty of judges affirmed in the legislative dispositions (can 16, §3; 1642, §2) calls on both levels of Church’s judicial praxis be open to one another in responsible co-operation, coordination and collective solidarity since the Spirit that guides the Church is profoundly present in all places and in the community of faith. This is all the more necessary especially when conflicting sentences emerge from Roman Rota, making it impossible for the local Church tribunal to discern the “true custom” to follow which is really according to the reason of the law and mind of the legislator.154 Nevertheless, according to the mind of 151 Cf. Sacred Congregation of the Sacraments, Instruction, Provida mater Ecclesiae, August 15, 1936, in AAS 28 (1936), pp. 313-361, here p. 314: “However it must be observed that such rules will be insufficient to achieve their stated purpose unless diocesan judges know the sacred canons thoroughly and are well prepared through an experience of tribunal work;” Zenon Grocholewski, “Current Questions Concerning the State of Activity of Tribunals with Particular Reference to the United States of America,” in Incapacity for Marriage: Jurisprudence and Interpretation, Robert M. Sable, ed., Rome , PUG, 1987, p. 227: “No one can carry out the above-mentioned responsibilities without a solid and specific preparation and a precise knowledge of substantive and procedural law as well as jurisprudence”; Richard A. Hill, “Reflections on the Interpretation of the Revised Code,” in The Jurist 42 (1982), p. 318: called on the judge to study the law so as to serve the people. 152 Cf. Congregation for the Evangelization of Peoples, Pastoral Guide for Diocesan Priests in Churches Dependent on the Congregation for the Evangelization of Peoples, 1 October 1989, p. 19. 153 John Paul II, Allocution to the Rota, January 26, 1984, in William H. Woestman, ed. Papal Allocutions to the Roman Rota, 1939-2002, pp. 182-183; see also Sacred Congregation of the Sacraments, Instruction, Provida mater Ecclesiae, August 15, 1936, in AAS 28 (1936), pp. 313-361, here p. 314: “However it must be observed that such rules will be insufficient to achieve their stated purpose unless diocesan judges know the sacred canons thoroughly and are well prepared through an experience of tribunal work;” Zenon Grocholewski, “Current Questions Concerning the State of Activity of Tribunals with Particular Reference to the United States of America,” in Incapacity for Marriage: Jurisprudence and Interpretation, Robert M. Sable, ed., Rome , PUG, 1987, p. 227: “No one can carry out the above-mentioned responsibilities without a solid and specific preparation and a precise knowledge of substantive and procedural law as well as jurisprudence”; Richard A. Hill, “Reflections on the Interpretation of the Revised Code,” in The Jurist 42 (1982), p. 318: called on the judge to study the law so as to serve the people. 154 Cf. Cristian Begus, L’Armonia della Giurisprudenza Canonica, cit., pp. 39-40; Aidan McGrath, “On the Gravity of Causes of a Psychological Nature in the Proof of Inability to Assume the Essential Obligation of Marriage,” in Studia Canonica, 22 (1988), pp. 67-75, here p. 73: This was the observation of Aidan McGrath in relation to cases on canon 1095 that treats consensual incapacity. He said inter alia, “It has been argued, with more than a little validity, that the only normative jurisprudence for tribunals is that of the Roman Rota. The basis

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the legislator (as cited in this work), the local Church tribunals must definitely look up to the tribunal of the Roman Rota as precedents and authentic guidance both in interpretation and application of law in their various context.

for this claim lies in c. 19.Yet given the rather diverse nature of Rotal jurisprudence on this aspect of inability/incapacity, where does the average judge look for guidance, for a norm to follow?”