– Prof. Augustine Mendonca
In normal circumstances, an application for declaration of invalidity of a marriage is intended to ascertain, through a definitive decision of the Church, the canonical marital status of the parties in order to contract another marriage in accordance with the norms of ecclesiastical law. Canon 1684, §1 (CCEO c. 1370, §1) implicitly affirms this expectation of a petitioner whenit states: “After the judgement which first declared the nullity of the marriage has been confirmed on appeal, either by decree or by another judgement, those persons whose marriage has been declared invalid may contract a new marriage as soon as the decree or the second judgement has been notified to them, unless there is a prohibition of this appended to the judgement or decree itself, or imposed by the local ordinary.” 1 The key phrase in this canon is ‘confirmed on appeal.” What does this phrase really mean and when does such a confirmation actually occur?
The phase “confirmed on appeal” is closely linked with another legal phrase: “an adjudged matter” (“res iudicata”). In fact jurisprudence acknowledges that what is implied in “confirmed on appeal” is a particular application of the principle governing “an adjudged matter.” The definitive conclusion of a contentious case processed through an ordinary trial occurs only when two “conforming” sentences (affirmative or negative) are pronounced on the contentious issue brought before the court. When such conformity between two decisions is present, the contention resolved thereby is regarded by law as “an adjudged matter.” But then the question is: what does “conforming” really mean?
Canon 1902 of the 1917 Code declared: “An adjudged matter occurs: 1° When there are two conforming sentences.”2 This norm did not specify the elements necessary for two sentences to constitute the said “conformity.” However, the instruction, Provida mater of 15 August 1936,3 in art. 218, §2 identified these elements in cases of marriage nullity. This article read: “The above disposition is to be understood as applicable if there is question of the same case, that is, the same marriage and the same ground for nullity.” 4
1. Canon 1684, §1: “Postquam sentential, quae matrimonii nullitatem primum declaravit, in gradu appellationis confirmata est vel decreto vel altera sentential, ii, quorum matrimonium declaratum est nullum, possunt novas nuptias contahere statim ac decretum vel altera sentetia ipsis notificata est, nisi vetito ipsi sententiae aut decreto apposite vela b Ordinario loci statuto id prohibeatur.” English Translation as in : The Code of Canon Law,New revised English Translation, Prepared by The Canon law Society of Great Britain and Ireland in association with The Canon Law Society of Australia and New Zealand and The Canadian Canon Law Society, London, HarperCollins Publishers, 1997. This will be the source for the English translation of the canons of CIC/83 used in this study.
2. CIC/17, c. 1902: “Res iudicata habetur: 1° Duplici sentential conformi.”
3. See Acta Apostolicae Sedis (=AAS), 28 (1936), pp. 313-361; English Translation in Canon Law Digest (=CLD), vol. II, pp. 417-530.
4. Praelata disposition ita intellegitur, ut locum habeat si agatur revera de eadem, causa, hoc est, propter idem matrimonium et ob idem nullitatis caput” (AAS, 28 , p. 356). English transltion in CLD, vol. II, p. 524.
Rotal and Signatur’s jurisprudence on this matter developed along the lines provided by the Provida mater, especially for marriage nullity cases. However, the 1983 Code in c. 1641, 1° (CCEO c. 1322, 1°), which is the equivalent of c. 1902, 1° of the 1917 Code, in conformity with art. 218, §2 and established canonical jurisprudence, explicitly identifies, as a general principle, the elements of “an adjudged matter” (“res iudicata”) when there is “conformity” between two sentences. This canon reads: “Without prejudice to Can. 1643, an adjudged matter occurs when: 1° there are two conforming judgements between the same parties about the same matter and on the same grounds.”5 Even though a marriage case, since it concerns the status of persons, never becomes “res iudicata” (cfr. c. 1643; CCEO c. 1324), nevertheless doctrine and jurisprudence have considered the elements specified in c. 1641, 1° (CCEO c. 1322, 1°) as essential to thejurisdic notion of “conformity” between two sentences. In light of this canon, we can rightly say that, in marriage nullity cases, “conformity” between two sentences occurs when they involve: (a) the same persons; (b) the same matter; (c) the same ground of invalidity.
In a marriage nullity case, there is no difficulty in determining the first two elements, that is, the identity of the persons and of the object of trial (petitum), but it is not so in regard to the “same ground” for petitioning (“eadem causa petendi”).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 consents 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. This problem of conformity of sentences has been addressed by several authors in recent years and their conclusions confirm its complex nature.6
5. Canon 1641: “Firmo Praesripto can. 1643, res iudiciata habetur: 1° si duplex intercesserit inter easdem partes sentential conformis de eodem petito et ex eadem causa petedi.” Emphasis added.
6. See, for example, T. PIERONEK, “Le principe de la double sentence conforme dans la legislation e la jurisprudence ecclesiastique moderns concernant les causes matrimoniales,” in Ephemerides iuris canonici, 33 (1977), pp. 238-242 and 34 (1978), pp. 87-113; J. James CUNEO, “Toward Understanding Conformity of Two Sentences of Nullity,” in The Jurist, 46 (1986), pp. 568-601; Joaquin LLOBBEELL, “Note sulla congruenza e la conformita delle sentenze di nullita de matrimonio,” in lus Ecclesiae, 2 (1990), pp. 543-564 (this is a commentary on an interlocutory sentence c. PALESTRO, 31 January 1990, in lus Ecclesiae, 2 (1990), pp. 543-562); Aidan MCGRATH, “Conformity of Sentence in Marriage Nullity Cases,” in Studia canonica,27 (1993), pp. 5-22; Craig A. Cox, “Is It the Same Truth? Conformity of Sentences in Marriage Nullity Cases,” in CLSA Proceedings, 62 (2000), pp. 107-128.
A more recent very comprehensive study by Sebastiano Villeggiante fouses primarily on various jurisprudential issues involved in “equivalent” or “substantial” conformity of sentences.7 For the purpose of this presentation, I will provide only a brief analysis of some selected Rotal and Signatura’s decisions which have dealt directly with the question of “substantial conformity of sentences.”
1. ROTAL JURISPRUDENCE
The two most frequently cited Rotal sentences on our topic were written by De Jorio in 1964. This does not mean that “substantial” conformity of sentences was not an issue prior to De Jorio. Rotal jurisprudence provides ample evidence that the question of “equivalent” or “substantial” conformity of sentences has a long history in canonical doctrine and jurisprudence.8 De Jorio’s sentences provide brief and precise explanation of relevant principles. Therefore, we shall begin by reviewing what De Jorio has to say about “equivalent” or “substantial” conformity of sentences and then follow up on a few sentences by other Rotal Judges.
1.1 – Decision coram De Jorio, 13 May 1964 (Liège, Belgium)9
The invalidity of marriage in this case judged coram De Jorio was alleged on exclusion of indissolubility on the respondent’s part. In his petition the man had also stated that for the respondent marriage was a “sad comedy” because she saw it as an escape from her parent’s control and a way to unfettered lifestyle. It seemed that total simulation was implicit in this statement. Therefore, the first instance tribunal of Liège (Belgium) determined two grounds of invalidity, namely total simulation and exclusion of indissolubility, both on the part of the respondent. The first instance decision of 24 January 1961 was negative on both grounds. The tribunal stated: “There are serious reasons to doubt the validity of consent. But serious doubts also linger in favour of validity, even though the reasons for invalidity are notably more probable.”10
The second instance tribunal of Mechelen-Brussel ruled on 28 March 1962 that “there was proof of invalidity of marriage in the case on the ground of simulated consent on the part of the woman.”11 This was indeed an ambiguous and equivocal response it did not specify the exact ground on which the court found for invalidity. De Jorio says that in the absence of such specification the presumption would be for “defect of consent,” which is equivalent to total simulation. But, although exclusion of unity and indissolubility can also be regarded as simulation, it constitutes only partial and not total simulation.12
7. See Sebastiano Villeggiante, “La conformita equivalente delle sentenze affirmative nel processo canonico di nullita matrimoniale,” in Monitor ecclesiasticus, 123 (1998), pp. 295-377. This in-depth and long study contains numerous Rotal decisions which have dealt with this subject matter.
8. See ibid., pp.297-315. In these pages Villeggiante traces the important sentences on equivalent or substantial conformity prior to the one by De Jorio of 13 May 1964.
9. See decision c. DE JORIO, 13 May 1964, in SRR Dec.,66 (1964), pp. 352-359.
10. “Seria adsunt motia dubitandi de valore consensus. Sed etiam meant seria dubia in favorem validitatis, quamvis motive pro invaliditate sint notabiliter probabiliora” (ibid., p. 353).
11. “[…] constare de nulliate matrimonii, in casu, ex capite simulate consensus in muliere” (ibid.; emphasis added).
At the insistence of the defender of the bond, De Jorio requested the advocate of the petitioner to specify the exact ground or grounds on which the invalidity of marriage must be judged in this case. The advocate proposed to have the case judged on both grounds, namely total simulation and subordinately exclusion of indissolubility.
The important part of De Jorio’s law section of the sentence pertinent to this study concerns substantial conformity of sentences. He says the following in regard to this issue:
First, the grounds of fear and partial simulation can be dealt with only subordinately, if the marriage is accused of invalidity also on total simulation. In case of total simulation there is no internal assent, which means there is truly no consent. Therefore, a non existent consent cannot be declared invalid due to force or some other defect of the will.
De Jorio suggests that even in total simulation it is possible to have proper presentation of consent. This can occur in situations where the internal consent is directed toward some form of association between two persons other than a true marriage. In such cases of total simulation there is physical consent, which is only juridically inexistent.13
Second, De Jorio emphasizes the principle that it is for the judges to attribute the legal species or name to the facts introduced by either one or both parties, if the petitioner fails to present it or does not give a suitable one.14 From this principle De Jorio concludes:
It follows from the preceding that the Judges can declare a marriage invalid due to total simulation, even if the parties had accused it of invalidity on exclusion of the good of sacrament, and vice versa. There are cases in which a marriage can be declared invalid due to total simulation, although accused of invalidity on exclusion of the good of fidelity.
In other words, one must consider the facts presented and corroborated by the parties, and not the titles of law, which the parties might have given to the facts.
It also follows from the preceding that two sentences must be considered conforming, which are based on the same facts,even if one might have declared the marriage invalid on total simulation, while the other on exclusion of the good of sacrament or of fidelity.15
14. “Animadvertunt quoque Patres iudicum esse speciem seu nomen iuris tribuere factis, ab alterultra vel ultraque parte allatis, si actor seu actrix id non praestiterit, aut verum non tribuerit” (ibid.).
15. “Ex praemissis consequitur Iudices posse matrimonium nullum declarare ob simulationem totalem, etiamsi partes id nullitatis accusassent ob exclusum bonum sacramenti, et versa vice. Nec desunt casus, in quibus matrimonium nullum declarai posit ob simulationem totalem, etsi ob exclusum bonum fidei nullitatis accusatum.
“Allis verbis, ratio habenda est factorum, quae partes attulerint atque comprobaverint, non nominum iuris, quae eisdem tribuerint.
“Consequitur quoque ex praemissis habendas esse conformes duas sententias, quae eisdem nitantur factis, etiamsi una matrimoniu nullum declaraverit ob simulationem totalem, altera ob exclusum bonum sacramenti vel fidei” (ibid., pp. 353-354; emphasis added).
However, De Jorio also adds: “One must conclude differently if two tribunals were to disagree among themselves not only in regard to the life of law, but also in regard to the proven facts, on which they might have relied.”16
In this case, the petitioner had at least implicitly alleged that the wedding was for the respondent a “sad comedy.” In other words, she had no intention to marry the petitioner. The respondent denied such an allegation. The turnus coram De Jorio concluded that there was no proof of intention on the respondent’s part to exclude marriage with the petitioner. The testimonial evidence seemed contrary to the petitioner’s claim. Therefore, De Jorio concludes:
All these statements are hardly compatible with total simulation, that is, with fiction of marriage consent.
Therefore, the fathers think that there is no clear proof of invalidity of marriage in the case due to total simulation, that is, fiction of consent.17
Was there proof of exclusion of the indissolubility of marriage on the respondent’s part? She admitted that it was not her intention to enter into an indissoluble marriage. The reason for such an act was her intention to get out of her parents’ control and to continue her sexual relationship with other men. The turnus concluded on the basis of evidence contained in the acts that the respondent had excluded the good of the sacrament, that is, indissolubility, at the time of contracting marriage with the petitioner.18
The turnus declared in its dispositive part: “There is proof of nullity of marriage in the case, but only on exclusion of the good of sacrament, that is, indissolubility, by the respondent, who should be prohibited from marrying[…].” This decision was executed.
16. “Aliter concludendum esset, si duo Tribunalia discordarent inter se non modo de nomine iuris, sed etiam de factis, utpote comprobatis habitis, niterentur” (ibid.).
17. “quae omnia admodum difficulter componuntur cum simulation totali seu fictione consensus matrimonalis.
“Itaque consent Patres non esse evictum constare de nullitate matrimonii in casu ob simulationem totalem seu fictionem consensus” (ibid., p. 356).
18. “[…] consent Patres ream conventam, in nuptiis cum actore ineundis, exclusivisse bonum sacrament seu indissolubilitatem satis superque cogi ex actis, si haec pressius perpendantur” (ibid., p. 357).
Is there conformity between the two affirmative sentences pronounced thus far in this case? The first instance, court which had originally determined the two distinct grounds in this case, had pronounced a negative decision in respect to both grounds (total simulation and exclusion of indissolubility). The second instance decision was affirmative on “simulated consent” ground. It was not clear whether this implied both or only one of the two grounds. The conclusion of the court could be interpreted to mean either ground. But as a principle, the two grounds could not have been treated as equally principal because in total simulation there is no consent while in any partial simulation there is consent but it is vitiated by an invalidating defect. For this reason, a partial simulation can be dealt with only in a subordinate way when it is combined in a case with total simulation. Therefore, when a marriage nullity case is presented to a court on grounds of total and partial simulation, the latter must be treated subordinately, which means the court must first deal with total simulation and, if its decision is negative, only then consider partial simulation. In cases of this kind, there cannot be an affirmative decision on both total and partial simulation grounds at the same time.
For reasons explained above, the decision of the second instance court in our case could not have been affirmative on both total and partial simulation grounds. If it was affirmative on total simulation, the court could not have dealt with the exclusion of indissolubility ground because an affirmative decision on total simulation necessarily implies juridical non existence of consent. A non existent consent cannot be considered partially vitiated. Therefore, the decision in our case could have been affirmative on only one ground, that is, total simulation. In this scenario, the second ground would remain open to future challenge. It may be fair to assume in this case that the second instance court had decided in favour of total simulation without seriously considering the consequences of its ambiguous and equivocal response to the doubt. This ambiguous approach of the second instance court has certainly led to serious questions concerning conformity between sentences. How do we reconcile this approach with the principle of conformity between sentences in this case?
To be conforming, there must be two affirmative decisions on each of the two grounds determined by the court. The turnus coram De Jorio found no convincing evidence in support of the ground of total simulation, but declared the marriage invalid on exclusion of the indissolubility of marriage. With which one of the two grounds implied in the preceding sentence does this present affirmative sentence coram De Jorio based on exclusion of indissolubility conform? The one on total simulation or exclusion of indissolubility? It certainly cannot be on total simulation because the turnus coram De Jorio clearly stated that there was no proof of invalidity of marriage on total simulation. Therefore, technically the Rotal decision would have to conform to the second instance decision on exclusion of indissolubility. But this latter decision did not expressly address the ground of exclusion of indissolubility in its dispositive part. But both courts declared with moral certainty that the marriage was invalid and that too on grounds of simulation. Both decisions were based on the same facts presented by the parties. Even though the turnus coram De Jorio did not explicitly state that there was conformity between the two affirmative sentences, in ordering the execution of its own decision, the turnus did seem to imply at least the present of substantial or equivalent conformity between the two sentences. This argument is in accord with the principles De Jorio has consistently stated in his judgements involving substantial or equivalent conformity of sentences.
1.3 – Decision coram DE JORIO, 5 December 1964 (Based, Switzerland)19
Joseph and Aloisia married on 4 October 1942. The common life lasted less than a year. The marriage was precipitated by Aloisia’s pre-marital pregnancy. It was also alleged that the couple had agreed in writing that the man would be free to terminate the marriage after it had been contracted. The man claimed that he agreed to marry so that, the child to be born would be considered legitimate. After obtaining civil divorce in 1944, the man requested the ecclesiastical tribunal of Basle (Switzerland) to declare his marriage invalid on grounds of “defect of matrimonial consent on the part of both parties.”20
The tribunal formulated the doubt as follows: “Whether there is proof of invalidity of marriage in the case on total simulation; subordinately on exclusion of indissolubility and exclusion of children.”21 As one can see, this formula of doubt did not indicate whether the doubt was determined on the part of one or both parties. The decision of the tribunal of 15 April 1961 read: “Omitting the exclusion of children as not proven; there is proof of invalidity of marriage due to total simulation (therefore, also due to exclusion of indissolubility).”22 Again in this statement, there is no clear indication of on whose part the declared invalidity was proven. It is also unclear why the court responded to the doubt on the “subordinated” ground when it pronounced an affirmative decision on the principal ground. As a principle, it is only when the principal ground is dismissed as unproven, the “subordinated” ground is addressed. The first instance judges probably did not realize the consequences of their questionable approach toward this issue. Upon appeal by the defender of the bond, the case arrived at the Rota to be judged coram Annè on 20 December 1963.23
The turnus coram Annè did not find sufficient evidence for the invalidity of marriage on total simulation ground as alleged. Despite the respondent’s denials about it, the existence of the written pact between the parties was admitted by the turnus as sufficiently proven. But the turnus felt that the pact on its own did not proven total simulation on the petitioner’s part. The conclusion of the turnus was that the petitioner in fact had the intention to marry in order to let the child be born legitimate. In other words, he entered upon a true marriage with a clear conscience to terminate it after the child was born. Therefore, Annè’s turnus concluded: “The Fathers, therefore, considered total simulation on the petitioner’s part not certainly proven from the acts heretofore presented.”24 But the turnus felt that there was sufficient proof of invalidity on exclusion of indissolubility ground because the petitioner was already in love with another woman prior to marriage and married the respondent only for the sake of the child to be born. Therefore, he did not intend an indissoluble marriage at the time of exchanging consent. The cause of simulation was his moral laxism. The reasons for marriage included, besides the need to make the child legitimate, pressure from his mother and from the respondent. Also the turnus did not find evidence to prove exclusion of the good of children. Therefore, the turnus coram Annè declared the marriage invalid only on the ground of exclusion of indissolubility of the petitioner’s part. The dispositive part of the sentence by Annè simply stated: “After having carefully weighed everything stated in law and in fact, We the undersigned Auditors of the turnus decide: There is proof of invalidity of marriage in the case.”25
19. See decision c. DE JORIO, 5 December 1964, in SRR Dec., 56 (1964), pp. 899-907.
20. “[…] ut matrimonium […] declaretur nullum ob defectum consensus matrimonialis in utroque contrahente” (ibid., p. 900).
21. “An constet de nullitate matrimonii, in casu, ob simulationem totalem; subordinate ob exclusionem indissolubilitatis et exclusionem prolis” (ibid.).
22. “Omittendo excusionem prolis non probatam; matrimonii nullitatem constare ob simulationem totalem (ideo etiam ob exclusionem indissolubilitatis)” (ibid.).
23. See decision c. ANNÉ, 20 December 1963, in SRR Dec., 55 (1963), pp. 923-929.
24. “Patres, itaque, censuerunt simulationem totalem ex parte actoris ex actis hucusque productis non tamquam certam probatam esse” (ibid., p. 927)
25. “Quibus omnibus tum in iure tum in facto rite perpensis, Nos infrscripti Auditores de turno sententiamus: Constare de nullitate matrimonii, in casu” (ibid., p. 929)
Although the dispositive part does not specify the exact ground of invalidity, the reasoning adduced in the argument section clearly demonstrates that the affirmative decision of the Annè’s turnus was on exclusion of indissolubility on the respondent’s part. The fact that Annè’s turnus found for the invalidity of marriage would have some significance for the argument in support of substantial conformity between sentences in this case.
The affirmative decision coram Annè was appealed by the defender of the bond to the higher turnus coram De Jorio. Sebastiano Villeggiante was ex officio appointed as the petitioner’s advocate. Villeggiante argued against the defender’s appeal contending that there was already conformity between the first and the second instance sentences. But De Jorio decided to process the case through another sentence on the merit of the case rather than resort to resolution of the incidental question raised by the petitioner’s advocate concerning conformity between the two preceding affirmative sentences. De Jorio reasoned that even if the incidental question concerning conformity between sentences was resolved the defender of the bond could still appeal against the decree of such conformity. Nevertheless, he did not want to bypass the issue of conformity between the two preceding affirmative sentences pronounced on two formally distinct grounds of invalidity. He reiterated the same principles applicable to conformity of sentences he had already laid out in his sentence of 13 May 1964. In brief these principles are:
First, it is the prerogative of judges to attribute legal species or titles (caput) to the facts presented by the parties.
Second, judges can declare a marriage invalid on total simulation even if the parties had accused their marriage of invalidity on exclusion of indissolubility and vice versa. There are cases in which a marriage had been declared invalid on total simulation even thought it was accused of invalidity on exclusion of fidelity ground. In other words, judges must consider the facts presented and corroborated by the parties and not the legal title caput) which they might attribute to those facts.
Third, two sentences based on the same facts may be considered as conforming even if one were to declare the marriage invalid on total simulation while the other on exclusion of indissolubility or fidelity.
Fourth, one must conclude differently if two tribunals differ among themselves not only in regard to legal title(s) (caput or capita) but also in regard to the facts confirmed by the parties and are the foundation of both decisions.26
De Jorio, however, adds that “to demand some other kind of conformity would be pure formalism, which is already obsolete.”27
After stating these principles, De Jorio proposes the following view on the status of conformity between the two preceding sentences:
On the basis of these principles, the Fathers think and declare that there is conformity between sentences in the case, because the judges of the first and the second instance were led by the same facts to conclude for the invalidity of marriage.28
Despite this clear statement on the conformity between sentences, De Jorio’s turnus decided to judge the merit of the case in order to forestall further appeal from the defender of the bond. It is important to review here the approaches adopted by the preceding courts.
The invalidity of marriage in this case was originally alleged on grounds of total simulation on the part of both parties. The first instance decision was affirmative on total simulation, but the sentence did not indicate its subject. Furthermore, the response to the doubt on exclusion of indissolubility was absorbed in the affirmative decision. The second instance decision at the Rota was negative on total simulation and exclusion of children but was affirmative on exclusion of indissolubility. Thus far, therefore, there were two affirmative sentences on two formally distinct grounds, the first on total simulation and the second on exclusion of indissolubility. What was De Jorio’s response to the merit of the case?
The turnus coram De Jorio declared in unambiguous terms that the evidence was insufficient to prove total simulation on the respondent’s part because she was the one who pursued and induced the petitioner into marrying her. Therefore, the ground of total simulation could not be attributed to her.
26. See c. DE JORIO, 5 December 1964, p. 901.
27. Aliam conformitatem postulare esset purus formalismus, qui iamdiu obsolevit […]” (ibid.).
28. “His principiis innixi, consent atque declarant Patres in casu adesse conformitatem sententiarum, cum Iudices primae et alterius instantiae nullitatem matrimonii ex eisdem factis coëgerint” (ibid.).
On the other hand, a careful analysis of the testimonial evidence led the same turnus to conclude that the petitioner had indeed positively excluded marriage with the respondent. He was compelled to marry her because of the pre-marital circumstances and pressure from the respondent who had even threatened to commit suicide if he refused to marry her. Even though the alleged document had been destroyed by the petitioner after the marriage lest it should fall into the hands of his new wife and children, the turnus was convinced of its existence through credible witnesses. The circumstances antecedent and subsequent to the celebration of marriage were considered by the turnus sufficient to generate moral certitude in favour of declaring the marriage invalid on total simulation. The total simulation in this case implied that the petitioner did not intend to exchange the essential rights and relative obligations of marriage.29 The conclusion of the turnus was:
After carefully weighing all these [facts], the Fathers think that there is in the case sufficient proof concerning total simulation of matrimonial consent on the petitioner’s part, and therefore, the question concerning exclusion of the good of sacrament, that is, indissolubility, is to be set aside.30
We can see in this statement an affirmation of the invalidity of marriage on the same ground on which the first instance court had pronounced its affirmative decision. In its dispositive part we read confirmation of the first instance decision:
In view of these observations and after appropriate and mature evaluation, we the undersigned Auditors of the turnus sentence: The Rotal sentene of 20 December 1963 must be confirmed, but only to the extent it had declared that there was proof of invalidity of marriage in the case, not in regard to the ground considered by it as convincingly proven. The undersigned Fathers indeed decree and declare that there is proof of invalidity of marriage in the case on the ground of total simulation of matrimonial consent, and therefore, they confirm the sentence of the first and not of the second instance.31
What does De Jorio really say in this statement? The second instance decision by Anne’s turnus was affirmative on exclusion of indissolubility on the petitioner’s part but clearly negative on total simulation. De Jorio in essence states that his turnus confirms the decision of Annè’s turnus only in so far it is “affirmative,” but not on the specific ground (caput) on which it is affirmative. In this affirmation, De Jorio seems to be implicitly suggesting that the specific ground (caput) is irrelevant so long as the decision is affirmative, which seems contrary to the correct understanding of the institute of conformity decision expressed in general terms, De Jorio refuses to confirm it on the specific ground of exclusion of indissolubility. In this way De Jorio certainly closes the case by pronouncing a sentence which is in fact formally and not substantially conforming to the first instances sentence, that is, on total simulation.
29. “Cum ex document seu scripto, de quo disceptatur, cogatur virum in nuptiis cum Aloisia ineundis gessisse mentem neque iura matrimonialia tradendi neque relativas obligations amplectendi, evidens est eundem matrimonium simulasse. Nam ‘simulat matrimonium qui, dum profert verba consensum exprimentia, contrariam ferit mentem: non vult scilicet neque iura matrimonialia dare, neque relativas obligationes amplecti’ […]” (ibid., p. 906). Here the reference is to the sentence c. FELICI, 5 December 1951, in SRR Dec., 43 (1951), p. 752.
30. “His omnibus perpensis, consent Patres in casu satis superque constare de simulation totali consensus matrimonialis ex parte viri, et ideo seponendam esse quaestionem de exclusion boni sacramenti seu indissolubilitatis” (c. DE JORIO, 5 December 1964, p. 907).
31. Quibus omnibus praemissis atque rite ac mature prepensis, Nos infrascripti Auditores de turno sententiamus: Sententiam Rotalem diei 20 decembris a. 1963 esse confirmandam, sed solum quatenus declaravit constare de nullitate matrimonii in casu, non quoad nullitatis caput evictum habitum. Infrascripti Patres enim decernunt atque declarant in casu constare de nullitate matrimonii ob simulationem totalem consensus matrimonialis, et ideo re confirmat sententiam primae non alterius instantiae” (ibid.).
By its affirmative decision on total simulation, the turnus coram De Jorio certainly rendered the marriage case quasi res iudicata (an adjudged matter), and any further appeal against it was thereby forestalled. But in view of the principles stated in his sentence, I think De Jorio’s turnus could have closed this case one year in advance by declaring substantial conformity between the first and the second instance decisions, which would have been perfectly in conformity with the principles governing “substantial conformity” between sentences. In this way, De Jorio could have avoided any semblance of “pure formalism,” which he himself seems to reject in his sentence. Both courts reached an affirmative decision, that is, “there is proof of invalidity of marriage in the case” on the strength of the same juridical facts (e.g., compulsion to marry, persevering relationship with a lover, etc.), but the courts attributed to those facts different legal title(s) (capita), which they considered most suitable, an approach supported by Rotal jurisprudence. This was a clear case for the application of the principle of “substantial conformity between sentences.”
1.3 – Dicision coram PINTO, 6 May 1974 (Rome)32
Edward and Clotilda married on 4 July 1952 and by September of the following year they were definitively separated. The main reason for such a brief conjugal life was the man’s insistence on having their residence in Rome after marriage. He claimed that he had made it a condition for agreeing to marry Clotilda. But, because the woman was too emotionally attached to her parents, she reneged on the promise she had made prior to marriage.
On 1 April 1957 the man petitioned the Tribunal of the Vicariate of Rome to declare his marriage invalid on the ground “of condition de praesenti concerning future conjugal domicile he had attached and not fulfilled by the woman.”33 The decision of the first instance court was negative. This decision was appealed by the petitioner’s advocate, but because of inaction the case remained deserted. But the respondent activated the case by requesting the same tribunal to add the ground of “exclusion of indissolubility” on the man’s part to be dealt with as if in first instance. The time the decision of the court was again negative on condition but affirmative on exclusion of indissolubility. The case was then judged in third instance at the Rota coram Palazzini on 17 March 1971,34 and the decision was negative on exclusion of indissolubility. The higher turnus coram Pinto had to deal with the appeal against this negative decision.
Before examining the merit of the case Pinto decided to look into the question of conformity between the sentences of first and second instance. In dealing with this issue Pinto outlined the important principles applicable to conformity of sentences.
32. See decision c. PINTO, 6 May 1974, in SRR Dec., 66 (1974), pp. 339-348.
33. “[…] ex capita conditionis de praessenti circa futurum domicilium coniugale ab ipso apposite et a muliere non impleta […]” (ibid., p. 340).
34. This sentence remains unpublished in the 1971 volume of Decisiones. See SRR Dec., 66 (1974), p. XII, #54.
First, two sentences are to be considered “formally” conforming when they agree in affirming or rejecting the invalidity of marriage in “the same case, that is, the same marriage and the same ground of nullity.”35 The cases are identical when the elements of action are identical, that is to say, it involves the same persons (subject of the action), the same matter, that is, what is petitioned (object of the action), and the same motive for the petition (caput for the action).36
Second, two sentences are “equivalently” conforming when, although they may affirm the invalidity of marriage under different titles (capita), nevertheless they rely on the same juridic facts to prove their respective ground.37
Third, juridic facts are those which can render a particular marriage invalid; mere confluence of simple facts is insufficient to constitute equivalent conformity of sentences.38
Fourth, when judges of different grades, after admitting the same juridic facts, declare the marriage invalid on different grounds (capita), there is concurrence of juridic norms because the same facts can fall under different norms. Then the question would concern the juridic norm applicable to the case which must be determined by the judge.39
Fifth, two sentences of nullity are not conforming when one of them denies the juridic facts admitted by the other, which nevertheless are concordant in the dispositive part on the ground rejected by both of them. Such a conformity is only apparent and not real.40
35. This principle was stated in the instruction Provida mater of 15 August 1936, art. 218, §2; also in the decree of the Apostolic Signatura of 10 February 1971, in Apollinaris, 44 , pp. 13-17; Periodica, 60 , pp. 315-319).
36. “Formaliter conformes dicendae sunt duae sententiae quae concordant in matrimonii nullitate admittenda vel reicienda in ‘eadem causa, hoc est, propte idem matrimonium et ob idem nullitatis caput’ […]. Nam causae identificantur elementa action eo quod agatur de iidem personis (action subiecta), circa eadem rem seu petitum (actionis obiectum), ob eamdem causam petendi (actionis causa) …]” (c. PINTO, 6, May 1974, p. 340).
37. “Aequivalenter conformes suntn duae sententiae quae, licet matrimonii nullitatem ex diverso capite admittant, concordant tamen in agnoscendis iisdem factis iuridicis quibus comprobatur caput ab alterutra sentential non admissum” (ibid., p. 341).
38. “Agi tamen debet de factis iuridicis, factis nempe quae matrimonium in concreto invalidum redder valent, quin sufficiat concordantia circa facta simplicia” (ibid.).
39. “Quum iudices diversi gradus, iisdem factis iuridicis admissis, matrimonium ex diverso capite nullum declarant, normrum iuridicarum concursus habetur eo quod idem factum sub diversis normis cadere valeat. Tunc quaestio est de norma iuridica in casu applicanda, quae est a iudice solvenda etiam ex officio, nam iura novit curia […]” (ibid.).
40. “Conformes e contra non sunt duae sententiae nullitatis quarum una negat facta iuridica ab altera admissa, quae tamen concordant in parte dispositive quoad caput ab utraque reiectum. Conformitas haec est tantummodo apparens […]” (ibid.).
The statement of these principles is followed by Pinto’s analysis of the question of conformity between the first and second instance sentences in this case. He says that at first the two sentences appear conforming, because both reject the ground of condition de praesenti and the second expressly confirms the first.
The first instance court had rejected the ground of condition because it considered the condition alleged by the petitioner to be merely a “prerequisite” and not a true condition. The object of this prerequisite was “simple promise” from the respondent which she made as demanded. Therefore, according to the first instance sentence, the marriage was contracted absolutely and not conditionally. The prevalent will of the petitioner was to marry and not to set up residence in Rome. Therefore, the decision was negative on condition de praesenti.
The second instance judges on the other hand assessed the evidence differently. For the petitioner, his university studies and residence in Rome were more important than marrying Clotilda. His matrimonial consent was subordinated to their conjugal residence in Rome. This intention persevered in the petitioner even after the woman had pledged her willingness to move to Rome. This prevalent will did not constitute so much a condition as an intention contrary to the substance of marriage, that is, the indissolubility of marriage. This act is simulation would necessarily exclude condition.
Even though the third instance court at the Rota did not have to address the ground of condition, it nevertheless affirmed that there was no evidence in this case of a true condition, but only of a “postulate” or demand. However, the same Rotal turnus admitted that the petitioner was more dedicated to his pursuit of university teaching than to family life. He was not prepared to move to Milan as requested by his wife and even revoked his pre-matrimonial promises when such a demand was made. Thus, even though the decision of the third instance court was negative on exclusion of indissolubility, it stressed the presence of elements of the ground of condition in the case. In light of this analysis, Pinto concluded that the petitioner’s will was entrenched in the condition he had attached to his marriage consent:
Therefore, since the ground of condition had not been really dismissed by two conforming negative sentences, there is no reasons why we cannot deal with this ground that has already been accused. Should one refuse to accept what has been said, she/he should at least allow a new hearing of the case in light of new and serious argument.41
41. “Cum ergo conditionis caput duplici sentential conformi negative dismissum revera non sit, nihil obstat quominus de hoc capite iam accusato Nos agamus. Quodsi quis praefata cceptare renuat, saltem admittere debet, attentis novis gravibusque argumentis, causae retractationem” (ibid., p. 342).
Pinto argued that the grounds of exclusion by a positive act of will and condition differ by reason of form, object and proof, and yet they are “substantially identical.” Both essentially consist in the exclusion of indissolubility on the part of will, thus constituting one and the same ground (caput). Having said this, Pinto goes on argue that in this case there was no evidence to prove the ground of exclusion of indissolubility of marriage. in this he agreed completely with the preceding Rotal sentence. But his turnus admitted that the evidence available was sufficient to conclude in support of the presence of an invalidating licit condition de praesenti: “First of all, it is evident that a true condition had been attached by the petitioner in so far as he subordinated his matrimonial consent to the respondent’s since promise to establish conjugal residence in the city where he could take up the position of a university teacher.”42 The testimonial evidence pointed clearly toward the petitioner’s intention to establish conjugal residence in Rome, otherwise he would not have married at all. To this effect, he demanded a formal promise from his future wife. He was so infatuated with his university studies and career that they were at the centre of all his aspirations. Therefore, there was a true condition.43 The final conclusions of the turnus coram Pinto were:
Therefore, it is evident that the marriage was invalid due to condition de praesenti ttached by the petitioner and not fulfilled.
The sentences of the second and fourth grade are not formally conforming, for the former declared the invalidity on exclusion of the good of sacrament, while the latter did so on condition de praesenti was not fulfilled.
However, they are equivalently conforming because both admit the same juridic facts. Therefore, they really do not differ in respect to the ground (caput) of invalidity but only in regard to the juridic norm to be applied in this case. Indeed the distinguished Advocate Graziani seems to have admitted this in the case.44
42. “Constat imprimis veram conditionem ab actore fuisse appositam, quatenus suum consensum matrimonialem subordinavit sincerae promissioni conventae coniugalis domicilii habendi I urbe ubi munus magisterii universitarii capessere valeret” (ibid., p. 345).
43. See ibid., p. 346.
44. “Constat ergo matrimonium invalidum fuisse ob conditionem de praesenti ab actore appositam et non purificatam.
“Senteniae secundi et quarti gradus formaltier non sunt, nam illa nullitatem declaravit ob bonum sacramenti exclusum, haec autem ob conditionem de praesenti non purificatam.
“Sunt tamen aequivalenter conformes, quia eadem facta iuridica ab ultraque admittuntur. Quamobrem revera non different quod nullitatis caput sed tantummodo quoad normam iuridicam in casu applicandam. Quod quidem cl.mus Patronus Graziani, in casu, admisisse videtur” (ibid., p. 348).
Pinto makes a clear distinction in this statement between formal and equivalent conformity of sentences. Formal conformity consists in the identity of two sentences in respect to the persons, the object and the motive (caput) of a particular legal action. In the last point, the identity demanded by doctrine and jurisprudence consists of the real motive or cause of the invalidity of marriage, which is represented by the juridic facts in a given case, and not merely the legal title or juridic norm. In this case the equivalent conformity was declared between the second and the fourth grade sentences. The second grade sentence was affirmative on exclusion of the indissolubility of marriage, while the fourth grade sentence was affirmative on condition de praesenti. Apparently there is a difference in the legal titles used. Is this difference between the sentences real? Pinto would explain that there is no real difference between the two sentences because both relied on the same juridic facts: the intention of the petitioner to terminate marriage if the condition was not fulfilled. He was so obsessed with his own desire to set up conjugal residence in Rome that he was prepared to end his marriage if that desire was not fulfilled. The second instance judges interpreted the juridic facts in terms of the juridic norms on exclusion of indissolubility while the fourth grade court assessed the same juridic facts in accord with the juridic norms governing the caput of condition, both applying different juridic norms. The basic underlying facts which were able to render consent invalid were the same. This is not formal but equivalent conformity of sentences.
1.4 – Decision coram Stankiewicz, 22 March 199445
On 26 September 1986, the nullity of marriage in this case was accused on “total simulation” and subordinately on “exclusion of indissolubility” grounds both on petitioner’s part. The first instance decision of 9 May 1990 was affirmative on “total simulation” with the response to the subordinate ground: “provisum in primo.” The second instance court at the Rota submitted the case to an ordinary hearing and on 25 June 1993 pronounced an affirmative decision only on “exclusion of indissolubility”46 indicating in clear terms that the arguments proposed in support of exclusion of marriage itself were not strong enough to prove total simulation.”47 This was the second affirmative decision on defect of consent on the part of one and the same person, and yet, because the two sentences were on two formally distinct capita, the Rotal court did not execute the second decision, rather the case was sent on to the higher turnus. The advocate of the petitioner insisted on a declaration on equivalent conformity between the two preceding affirmative decisions.
The erudite discussion on “conformity of sentences” by Stankiewicz ends with the conclusion that the grounds on which the two affirmative decisions in this case were pronounced are formally distinct and autonomous. Therefore, the court could not declare conformity between those decisions. Even though the legal doctrine propounded by Stankiewicz in his sentence is not without its antagonists, his arguments seem systematic.
45. See decision c. SRANKIEWICZ, 22 March 1994, in ME, 119 (1994). Pp. 341 351.
46. This decision was pronounced by the turnus coram Davino. See SRR Dec., 85 (1993), pp. 486-494.
47. See c. STANKIEWICZ, 22 March 1994, p. 350.
Through his analysis of c. 1641, 1°, Stenkiewicz argues that in marriage nullity cases the third element of conformity between sentences, namely causa petendi, is the same as ground(s) (caput or capita) on which the validity of a marriage is challenged.48 He stresses the point that the requirement of “identity” of the causa petendi in both sentences has been expressly prescribed in law.49 He admits, however, that jurisprudence has legitimately sanctioned conformity of sentences also in case of “equivalent ground of nullity” (“aequivalentis tantum capitis nullitatis”) in which case strict “identity” of the ground is not insisted upon. For this reason, in forensic usage, sentences which declare the nullity of marriage on grounds that are not “identical,” but are only “equivalent” are called “equivalently conforming.”50 Equivalent or substantial conformity of sentences is possible only when there is a principal fact which can have twofold juridic qualification or legal title. This can happen, for example, when the will is determined by error towards a dissoluble marriage (c. 1099) and the will excludes by a positive act the indissolubility of marriage (c. 1101, §2), or when there is a question of total simulation through exclusion of marriage itself and exclusion of the sacramentality of marriage (c. 1101, §2). In these instances, Stankiewicz claims that there is concurrence of the will, and therefore the foundation for equivalent conformity.
According to Stankiewicz, total simulation and exclusion of indissolubility are incompatible grounds. Therefore, in this marriage case the latter caput was considered only subordinately, and in light of the affirmative decision on total simulation ground, the court had ruled “provisum in primo.” What does this phrase really imply? According to established jurisprudence, the expression “provisum in primo” signifies that the subordinated ground is absorbed in the affirmative response to the principal ground. Therefore, a declaration of absorption of the same ground in the preceding ground cannot be considered equivalent to a negative or affirmative decision on it. It merely indicates that the court abstains from pronouncing a judgement for reasons of logic.51
48. “Haec tria elementa identitatis verificari debent etiam in sententiis, quae in causis de nullitate matrimonii proferunt, ut conformem ad normam iuris declarari possint. Ideoque, praeter identitatem personarum et identitatem petiti seu obiecti immediate et mediate actionis, quae ceterum nullam difficultatem interpretativam secum ferunt, hisce in causis ante omnia inspicienda est identitas causae petendi, quam caput, nullitatis sub formula dubii concordati (cfr. can. 1677, §3) constituit” (ibid., p. 343).
49. Art. 62, §1 of “Normae” governing the Roman Rota reads: “In causis matrimonii formula dubii est: An constet de matrimonii nullitate in casu, additis capita vel capitibus” (Normae Romanae Rotae Tribunalis, Vittà del Vaticano, Libreria editrice Vaticana, 1994, p. 22. Also cfr. c 1677, §3.
50. C . STANKO\IEWICZ, 22 March 1994, p. 344.
51. Ibid, p. 349. Cited here are the following sentences: c. SABATTANI, 24 March 1961, n. 9, in SRR Dec., 53 (1961), p. 163; c. PINNA, 5 October 1963, n. 4, in ibid., 55 (1963), p. 664.
In its second instance sentence the Rotal court had clearly stated that the evidence in the case was not sufficiently strong enough to prove the nullity on total simulation, while admitting that there was sufficient proof in support of exclusion of indissolubility. Therefore, the court coram Stankiewicz declared that there was no conformity between two affirmative sentences on total simulation and exclusion of indissolubility grounds. It should be noted here that there are several Rotal sentences which present arguments quite contrary to those adduced by Stakiewicz in this case.52 The negative decision coram Stankiewicz effectively sent the case to a further hearing in third instance, where, it seems that, contrary to Stankiewicz’s arguments, the higher turnus issued a decree presumably confirming conformity between the preceding two affirmative sentences.53
2. SINGNATURA’S JURISPRUDENCE
There have been in the past several decisions of the Apostilic Signatura which have explicitly dealt with controversies related to conformity of sentences. Ordinarily the Rota would be competent to decide on any appeal involving conformity of sentences. The Signatura’s involvement in this matter is restricted to marriage cases which are governed not only by ecclesiastical law but also by concordatory laws. The two cases discussed in this section involved Italian citizens. Therefore, the intervention of the Apostolic Signatura to resolve the dispute over conformity of sentences was necessary in those cases. Even though the jurisprudence of the Signatura clearly acknowledges the institute of “substantial” or “equivalent” conformity of sentences, its approaches to the topic preset some notable juridical nuances.
2.1 – Decree coram [Staffa], 10 February 1971 (Vicariate of Rome)54
The marriage in this case was celebrated on 12 September 1960. The petitioner was truly in love with the respondent woman, on the contrary, was involved in a serious relationship with another young man. It was alleged that she agreed to marry in order not to displease her parents. In fact even after celebrating the marriage, she continued her relationship with her lover. Although she had given birth to a child for her husband, she established an adulterous relationship with that person. A definitive separation was obtained in civil court and, on 12 December 1967, the man petitioned the tribunal of the Vicariate of Rome to declare his marriage null on grounds of total simulation, and subordinately, exclusion of the good of fidelity and of sacrament on the part of the woman, as well as reverential fear inflicted on her by her parents.
52. See CUNEO, “Toward Understanding Conformity of Two Sentences of Nullity,” pp. 581-595.
53. It was the turnus coram Pompeda which definitively concluded the case on 14 July 1995. The decision of the turnus is not available for our review since it has not been published. See SRR Dec., 87 (1995), p. XVI, #75. It is obvious that the Pompedda’s turnus did not judge the merit of the case. Because conformity between the preceding sentences was confirmed by decree, it is reasonable to say that the arguments adduced by Stankiewicz against the alleged conformity of sentences were presumably overruled by pompedda’s turnus. This turnus consisted of Pompedda as Ponens, and Serrano and Bruno as co-judges. At the end of the entry for this decision in the Decisiones of 1995, we find the following notation: “Decretum confirmatorium diei iulii 1995,” thus indicating the fact that the case was not submitted to an ordinary hearing in third instance, rather the turnus went on to issue a decree confirming the “conformity” between the two preceding affirmative judgements. One can certainly appreciate the equitable and pastoral sensitivity displayed by the Pompedda’s turnus in not allowing the case to proceed to further decisions thus causing unjustifiable delays in reaching the final decision.
54. See. Apollinaris, 44 (1971), pp. 13-17, also in Periodica, 60 (1971), pp. 315-319.
The first instance decision of 9 January 1969 by the Tribunal of the Vicariate of Rome was affirmative only on reverential fear. Upon appear the case arrived at the Rota instruction before proceeding to a definitive decision in second instance. Although there was no formal renunciation of other grounds presented originally by the petitioner, his advocate argued the case only on grounds of reverential fear and exclusion of the good of fidelity. The turnus coram Ewers pronounced an affirmative decision on the ground of exclusion of the good of fidelity and not on reverential fear on which the first instance court had pronounced affirmative in the case.55 Furthermore, the turnus expressed its view that the two affirmative sentences were substantially conforming. This decision was in fact executed.56 Immediately there arose a dispute over the arguments the Rotal turnus had used in justifying substantial conformity of the two sentences.
Because this marriage was between two Italians, the Apostolic Signatura had to intervene to declare such a conformity of sentences so that the parties could marry again in accord with the civil law of the country.
It is important for this study to briefly analyze first the principles stated in Ewers’ sentence about substantial conformity of sentences. After outlining briefly the essential elements of the object of consent, that is, “the exclusive and perpetual right to the body for acts apt for the generation of offspring,” and the principles governing the act of simulation, citing directly a sentence of 30 October 1963 coram De Jorio, Ewers says:
We hold it as certain that one excludes the good of fidelity and thereby contracts marriage invalidly, who, while presenting consent, has the intention not to dismiss his lover with whom he plans to establish an illicit relationship. Indeed, such a person does not hand over to his partner the exclusive right to his body, In like manner, we maintain that a woman, who at the time of marriage has the intention, whether actual or virtual, to make her body available to other men, even if she does not think about handing over to them the right to her body. Indeed, in this hypothesis the woman does not assume the obligation of maintain fidelity, which we consider more than sufficient to invalidate marriage.57
55. See decision c. EWERS, 17 October 1970, in SRR Dec., 62 (1970), pp. 892-901.
56. At the end of the sentence by Ewers we read: “Decisio facta est executiva” (ibid., p. 901).
57. “Pro certo habemus excludere bonum fidei et ideo invalide ex hoc capite contrahere virum, qui dum consensum praestat, propositum gerat non dimittendi concubinam, quacum consuetudinem stupri servare constituat: non tradit enim comparti ius exclusivum in proprium corpus. Item invalide contrahere censemus mulierem, quae in nuptiis ineundis propositum, actuale vel virtual perseverans, gerat corporis sui copiam faciendi et aliis viris, quamvis ne cogitet quidem iure in proprium corpus tradendi praedictis: in hypothesi enim mulier non assumit obligationem servandi fidem, quod satis superque habemus ad matrimonium irritandum” (ibid., pp. 893-894).
Fear invalidates marriage under specific conditions stipulated in c. 1087 [CIC/17], and no other kind of fear is sufficient to destroy the freedom of a person at the time of exchanging consent.58 Having said this, Ewers attempts to explain the relationship between the grounds of simulation and fear.
Ewers says that often the exclusion of a good (bonum) of marriage is excluded due to serious restriction of the freedom in choosing marriage. When a person is forced into marrying another person he/she denies the partner one or more goods (bona) of marriage. How to proceed in a case where the ground of fear and simulation are proposed together?
According to constant jurisprudence of the Rota, the grounds of force and fear and partial simulation can be treated only subordinately, if the marriage is also accused of invalidity on grounds of total simulation. When there is total simulation, there is no real internal consent. In other words, one who totally simulates consent does not give consent. Therefore, a consent that has not been given cannot be declared as forced or affected by some other defect of the will.
It is possible for a serious threat of harm to lead to either a forced or to a simulated consent. In such a situation the following procedure could be followed: When one or both of the spouses contend that they had pronounced the words of consent without internal assent because they, while rejecting marriage, could not avoid going through the nuptial ceremony without incurring their parents’, or some other persons’, displeasure, the judge must first look into the possibility of active compulsion, that is, serious threat of harm and then simulation. But if the threat of serious harm to either one or both parties is evident, and they claim to have rejected marriage, the judge must first ascertain whether or not the victim of alleged fear had simulated consent. And only when the judge is morally certain that the response to the doubt should be negative, the question concerning the invalidity of consent presented under coercion is to be considered.59
In other words, the undersigned judges think that, if the action of total simulation is combined with the action based on force and fear, the grounds should be treated subordinately, and after weighing the available evidence, the sentence to be pronounced cannot declare the marriage invalid on both alledged grounds.60
How should one proceed when the ground of partial simulation is combined with the ground of fear? Ewers says that in this situation, however, it is not necessary to deal with them subordinately. “Indeed, the consent extracted through force and fear does not prevent the same consent from being affected at the same time by simulation, called partial. In other words, such a consent is vitiated by the exclusion of one of the goods of marriage.”61
58. “[…] satis sit animadvertere istum [metum] ad irritandum consensum require specificis notis indutum de quibus in canone 1087, nec alium sufficere ad auferendam necessariam contrahentis libertatem in matrimonip innuendo […]” (ibid., p. 894).
59. Ibid., pp. 894-895.
60. “Aliis verbis, uti Infrascripti consent, si action simulationis totalis consensus cumuletur cum action ob vim et metum, capita nullitatis subsordinate tractanda sunt et, probatis probandis, ferenda sentential nequit nullum declarare matrimonium ob utrumque caput” (ibid., p. 895).
61. “Consensus enim vi et metu extortus non impedit quominus idem consensus laboret etiam simulation, uti vocant partiali, idest vitietur exclusione alicuis ex matrimonii bonis” (ibid.).
The turnus coram Ewers found sufficient evidence on the following facts: the respondent woman was madly in love with another man whom she had known from her school days. She would have liked to marry this man rather than the petitioner. She could not do this because of the intervention of their parents. This relationship, which included even sexual intimacy, existed both prior to and following marriage. For Ewer’s turnus there was conclusive proof on the respondent’s intention to continue her relationship with her lover even after the marriage which she did within two months of the wedding.
The turnus did not rule out the cause of simulation, both total and partial, that is, exclusion of indissolubility. The respondent’s testimony could be interpreted to conclude that she did not want to marry the petitioner or did not want to marry him for life because she was in love with someone else. But the turnus felt that the evidence was insufficient to support such a conclusion. On the other hand, the turnus was morally certain that the woman definitely intended not to fulfill the obligation of fidelity to her spouse as she wanted to give the right to her body only to her lover. In other words, she substantially excluded the assumption of the obligation of fidelity.62 The conclusion of the court: “Therefore, in the opinion of the fathers, the invalidity from the acts on the ground of exclusion of the obligation of fidelity.”63
In regard to reverential fear, the turnus concluded: “A careful weighing of the acts suggests without doubt that the respondent was not happy to contract marriage with the petitioner. But she was certainly not compelled to marry due to grave fear, including reverential fear. The gravity and injustice of fear are indeed difficult to prove in this case.”64 At the time of marriage the woman was of marriageable age and she was never subjected by her parents to any serious threats or scoldings. The respondent could not be considered to have been threatened with true harm.
The turnus coram Ewers felt that the appealed sentence declared the marriage invalid on reverential fear which is not evident in the proofs, while all the evidence pointed more conclusively toward exclusion of fidelity.
The following statement based on previous Rotal decision on substantial conformity of sentences contains several important jurisprudential principles relevant to the issue:
62. Ibid., p. 898.
63. “Patrum iudicio ideo nullitas consensus mulieris, ob reiectam obligationem fidelitatis, morali cum certitudine ex actis probatur” (ibid., p. 900).
64. “Procul dubio ex actis prepensis colligitur conventam aegre matrimonium contraxisse cum actore, sed ad id praestandum non fuisse adactam gravi metu, etsi reventiali. Difficilia etenim probate sunt in casu gravitas et iniustitia metus” (ibid.; emphasis added).
Therefore, one should not argue that Our sentence and that of the first instance are not conforming. On the contrary, the Fathers considered the two sentences in this case as substantially and equivalently conforming despite difference in the grounds on which the invalidity was declared in this present case. The invalidity of consent is indeed based on same facts in both decisions. Hence, because of identity of the facts, substantial conformity of the two sentences must be upheld. In fact, the Fathers, according to the adage: “give me the facts, I will give you the law,” thought that “it is the prerogative of the judges to attribute the species or the name to the facts introduced by one or both parties… In other words, consideration must be given to the facts which the parties might have presented and confirmed, not the name of law, which they might have attributed to the same facts […].” Therefore, “substantial conformity of sentences is also verified whenever the judges of one tribunal relying on the same facts conclude for fear which invalidates marriage, while the judges of another instance decree invalidity of marriage on simulation, which had as the cause fear inflicted on the person who was simulated.” 65
Several issues stand out in this sentence: First, the turnus coram Ewers admits that it did not have sufficient evidence in the acts to prove the different elements of the ground of reverential fear. It acknowledges, however, that there was some pressure, especially from the parents, on the couple to marry. But this pressure was not sufficient to deprive the respondent of the freedom to enter into a valid marriage. Second, the same turnus agreed with the first instance decision that the allegation of invalidity of the marriage on total simulation and exclusion of indissolubility, had no support in the testimonial evidence presented in this case. Third, the turnus was morally certain that the marriage was invalid on the ground of exclusion of the good of fidelity (bonum fidei). Its affirmative decision was based on the fact that the respondent, already before the marriage, was in love with someone else and this relationship continued into married life. Therefore, the turnus concluded that the respondent did not have the intention, at the time of exchanging consent, to maintain fidelity to her spouse. It would seem from this summary that the two decisions were based on two different sets of “simple facts.” Ewers argues that there is substantial conformity of sentences because both sentences are based on “identical facts.” He does not indicate in his sentence the facts he considers identical. This became an issue when the Apostolic Signatura had to deal with the declaration of conformity of sentences in this case.
65. “Nec ideo asserenda est sententiarum, idest primi gradus et Nostrae, difformitas. Patres e contran censuerut substantialiter et aequivalenter haberi in casu duas decisions conformes, haud obstante diversitate capitum ob quae matrimonii nullitas causa declarata fuit. Nullitas consensus etenim iisdem factis nititur in utraque decisione. Per istam igitur factorum identitatem substantialis conformitas habenda est duarum sententiarum. Equidem Patres, iuxta illud ‘da mihi facta, dabo tibi ius’, censuerunt ‘iudicum esse speciem seu nomen iuris tribuere factis, ab alterutra vel ultraque parte allatis …. Aliis verbis ratio habenda est factorum, quae partes attulerint atque comprobaverint, non nominum iuris, quae esidem tribuerint […] Igitur ‘substantilis conformitas quoque verificatur quoties iisdem nisi factis Iudices unius Tribunalis pro metu matrimonium invalidante concludunt, dum Iudices alterius instantiae pro matrimonii nullitate quidem decernunt, sed ob simulationem, quae causam habuit metum simulanti incussum […]’” (ibid., p. 901).
The decree of the Signatura begins its law section with this statement: “The reasons against conformity of the two sentences in this case are serious according to the cited canons [c. 1902, 1°, 1987 of CIC/17].” 66
The principal reason underlying this position of the Signatura is based on the requirement of “res iudicata” for a case to be considered definitively adjudged, or, in case concerning the status of persons, for the application of the effects stated in c. 1987 [CIC/17], which entitles the parties to contract a new marriage in accord with the norms of law. In other words, the Signatura’s decree acknowledges that the principle of “res iudicata” is analogously applicable to cases involving the status of persons. Two conforming sentences are necessary to conclude a marriage case with security about the presumption of truth concerning the validity/invalidity of marriage. When “res iudicata” is verified in a given case, it does not generate the presumption of truth, but it is considered to be “in the place of truth” or “like truth” in regard to the “ratio petendi (caput) on which the “object” (invalidity of marriage) is based.67
In our case, the Signatura states, it is a matter of obtaining security concerning the presumption of truth, namely both of the invalidity of marriage and of the respective grounds on which the invalidity is based: fear and exclusion of fidelity. The immediate task is to ascertain the truth about the grounds and, only consequently, although principally, the invalidity of the marriage. “Therefore, when it is said: ‘res iudicata is considered equal to truth’ (or something analogous), the truth refers to the matter, that is, the object of the dispute together with the ground on which it depends. There cannot be one truth without the other.” 68
The question the Signatura raised was: “Do we have the above-mentioned security in our case concerning the invalidity of marriage and the titles or title (rationes petendi), that is, the grounds (capita)?”. The Signatura’s answer was negative. The decree stated that there was no such security concerning the titles (rationes petendi), because on each of those titles only one tribunal had pronounced an affirmative decision. It is only when two conforming sentences are pronounced in a case can there be such a security of truth. Nor was such security present concerning the invalidity of marriage, because the invalidity is dependent on each title (caput) and not on both (capita). In fact, the first instance court did not find sufficient evidence for simulation and, consequently, it did not find the invalidity of marriage on that ground. Here is the text of the first instance sentence in this regard: “First of all, it is gathered from the procedural documents that there is no real proof of alleged total simulation or partial simulation due to exclusion of the good of fidelity [bonum fidei] and of sacrament … Nor does the relationship subsequently resumed between B and C prove it, because it had happened only chance that is to say, only through a meeting one month after the marriage.” 69
66. “Graves sunt rationes contra conforitatem duarum sententiarum in casu, ad norman citatorum canonum” (c. STAFFA, 10 February 1971, in Apollinaris, 44 , p. 14).
68. “Quando, ergo, dicitur: ‘res iudicata pro veritate habetur’, (aut aliquod analogum), veritas refertur ad rem seu ad ius obiectum litis una cum titulo a quo dependet. Non datur altera veritas sine altera” (ibid.).
69. “Ex tabulis processualibus colligitur, in primis, assertam simulationem totalem, vel partialem ob exclusa bona fidei et sacramenti, vera probatione career …Neque id probat resumpta relation B cum C; nam casu hoc accidit,nempe ex causali occurs, post mensem, ab initis nuptiis” (ibid., p. 15).
On the contrary, the tribunal which pronounced the second sentence did not think that there was sufficient evidence to prove reverential fear. Therefore, the invalidity of marriage was not proven on that ground. This is what the second instance sentence had to say about it: “A careful weighing of the acts suggests without doubt that the respondent was not happy to contract marriage with the petitioner. But she was certainly not compelled to marry due to grave fear, including reverential fear. The gravity and injustice of fear are indeed difficult to prove in this case. The respondent is depicted as timid, that is, fearful of parental indignation. But at the time when these things happened, she had attained the age of majority …” 70
Therefore, since there is only one sentence for the truth of each title, there is only one sentence for the invalidity of marriage, even if there are two affirmative sentences. In other words, the certitude concerning the invalidity of marriage is not increased by the two sentences in this case since they both are not based on the same foundation, because the invalidity of marriage depends on its foundation.71
The Signatura clearly disagrees with the statement of the Rotal court decisions. Hence, because of identity of the facts, substantial conformity of the two sentences must be upheld. … In other words, consideration must be given to the facts which the parties might have presented and confirmed, not the name of law, which they might have given to the same facts … Therefore, substantial conformity of sentences is also verified whenever the judges of one tribunal relying on the same facts conclude for fear which invalidates marriage, while the judges of another instance decree invalidity of marriage on simulation, which had as the cause fear inflicted on the person who was simulatinf.”72
70. “Procul dubio ex actis perpensis coliigitur conventam aegre matrimonium contraxisse cum actore, se ad id praestandum non fuisse adactam gravi metu, etsi revential. Difficulter etenim probate sunt in casu gravitas et iniustitia metus. Conventa pointer timid seu timens indignationem parentum. Sed tempore quo res gestae sunt, ipsa aetatem iam adepta erat maiorem …” (ibid.).
71. “Uno igitur verbo, cum pro uniuscuiusque tituli veritate non exstet nisi una sentential, pro nullitate ipsa matrimonii una partier habetur sentential, etsi duae exstiterint. Alliis verbis, certitude circa nullitatem matrimonii non augetur ex duabus sententiis in casu, cum non nitantur ambae eodem fundamento, dum nullitas [matrimoniit] a suo dependet fundamento” (ibid.).
72. Nullitas consensus etenim iisdem factis nitiur in utraque decisione. Per istam igitur factorum identitatem substantialis conformitas habenda est duarum sentenctiarum. Equidem Patres, iuxta illud ‘da mihi facta, dabo tibi ius’, censuerunt ‘iudicum esse speciem sue nomen iuris tribuere factis, ab alterutra vel ultraque parte allatis … Aliis verbis ratio habenda est factorum, quae partes attulerint atque comprobaverint, nn nominum iuris, quae eisdem tribuerint [….] Igitur ‘substantilis conformitas quoque verificatur quoties iisdem nisi factis Iudices unius Tribunalis pro metu matrimonium invalidante concludunt, dum Iudices alterus instantiae pro matrimonii nullitate quidem decernunt, sed ob simulationem, quae causam habuit metum simulanti incussum [….]” (ibid.).
The Signatura admits the possibility of equivalent conformity of sentences. The decree explains that this is possible only when the same facts lead two tribunals to pronounce for the invalidity of marriage on two different grounds, for example, one on fear and the other on simulation. In such a case, the difference would lie in the choice of titles of the grounds based on the interpretation of available evidence or proofs. This would, in the Signatura’s view, constitute equivalent conformity of sentences, that is, invalidity of marriage based on two equivalently or substantially identical grounds. The Signatura contends that this is not the situation in our case. The elements of facts on which each court based its decision were different. Thus, while the first instance affirmative decision relied on facts which proved reverential fear, the second instance tribunal pronounced its affirmative decision on the basis of a different set of facts which proved simulation. Fear can exist without simulation, and simulation can occur without fear, or at least without grave fear, as it happened also in this case.73
In essence the Signatura argued that one tribunal examined the facts and concluded that the facts which were presented in view of proving simulation were insufficient for an affirmative decision on that ground, but pronounced affirmatively on reverential fear on the basis of a different set of facts. On the other hand, the second instance tribunal scrutinized the facts which were intended to prove fear and found them insufficient to prove that ground, while a different set of facts enabled the judges to conclude in favour of an affirmative decision on exclusion of fidelity. This was quite evident in the argument sections of the two sentences, where different proofs were adduced to prove the grounds of fear and simulation.74
The conclusion of the Signatura was that in this case the two tribunals depended on two different sets of facts to prove the invalidity of the marriage, one on fear and the other on exclusion of fidelity. It rejected the argument that fear could have been the cause of simulation in this case. The decree stated that each court used different sets of facts to prove their respective decisions. Therefore, the Signatura declared that there was no conformity of sentences in this case.75
Even though the principle of substantial or equivalent conformity of sentences is now commonly admitted in canonical jurisprudence, the argument sections of each sentence clearly indicate that the first and second instance courts had used different sets of facts to prove the invalidity of marriage on two clearly distinct grounds. In other words, the two affirmative decisions were based on different facts. Therefore, the Signatura correctly declared that there was no conformity of sentences in this case.
73. “Ad haec non deest efficax responsio. Si enim facta conduxissent revera ad nullitatem etiam ex metu, iudicio obiter expresso tribunalis secundae instantiae, ita ut selection alius capitis (simulationis) facta fuisset ex sola praevalentia evidentiorum rationum, dictum illud sustineri fortasse posset; sed tunc nullitas esset saltem aequivalenter ex duplici capite; cum vero ita non fuerit, mullatenus sustinetur. Immo, deducitur exinde, facta non esse reapse eadem. Etenim alia fuerunt elementa facti quae comprobarunt exsistentiam simulationis, alia vero, quae comprobarunt exsistentiam metus. Quare haberi potuit metus sine simulation, immo, ita evenit in casu nostro, iudicio primi tribunalis; et dari potest simulation sine metu, aut saltem sine metu gravi, sicuti in nostro etiam accidit casu, prout iudicavit tribunal secundae instantiae” (ibid., pp. 15-16).
74. See ibid., p. 16.
75. Ibid., p. 17.
2.2 – Declaration of the Apostolic Signatura, 16 June 199876
The first instance tribunal of X pronounced an affirmative decision on exclusion of children ground on the part of the woman respondent. The appeal tribunal of Y confirmed by its decree of 26 February 1996 the invalidity of marriage not on the ground of exclusion of children but on grave lack of discretion of judgement on the part of the same woman. And in the same decree the appeal tribunal declared “equivalent” conformity between its decision and that of the first instance. This meant that the parties could enter upon a new marriage immediately following notification of the declaration of invalidity, unless otherwise legitimately prohibited from doing so (cfr. c. 1684; CCEO c. 1370).
However, the judicial vicar of tribunal Z sent out a query on 10 April 1996 to the Apostolic Signatura asking whether the petitioner (man) in this case could be allowed to contract a new marriage in view of the preparations already made for its celebration.77
After diligent investigation of the subject matter on hand, the Apostolic Signatura, the new marriage of the man petitioner. The motivating part of the decree of 10 April 1996 [sic]: “After diligently weighing the matter; having examined the documents sent here; after considering the decree of 26 February 1996 mentioned above, admits: (a) absence of sexual union during the canonical marriage; (b) stubborn resistence on the respondent’s part of sexual intercourse after its celebration; (c) aversion on the part of the woman toward the man even prior to the celebration of marriage; despite great perplexity over the juridprudence used by the tribunal of second instance relative to the ground of grave lack of discretion of judgement in the case; after hearing the promoter of justice, asked for all the acts of the case in order to see whether or not something should be brought to the notice of the appeal tribunal so that it would hereafter proceed correctly in judging cases.” 78
76. SUPREMUM SIGNATURAE APOSTOLICAE TRIBUNAL, “Qaesitum circa decretum quo sentential affirativa primi gradus confirmatur, decisione ‘aquivalenter conformi’ (1682, §2),” 16 June 1998, in periodica, 87 (1998), pp. 613-616.
77. The published details of this case do not provide any reason for direct involvement of the judicial vicar of Z. It is quite possible that the planned marriage was to take place in his diocese.
78. “Re sedulo perpensa, hoc Supremum Forum die 11 aprilis 1996 declaravit: ‘Non apparet ratio satis cogens ad novum matrimonium viri actoris ex parte huius Signaturae Apostolicae impediendum. Pars motiva decreti d. 10 aprilis 1996’ […]: ‘Re sedulo perpensa; Visis documentis huc transmissis; Attento quod decretum diei 26 februarii 1996, de quo supra, admittit: (a) absentiam unions sexualis in matrimonio canonico; (b) conventae pertinaciam in recusanda unione sexuali post eius celebrationem; et (c) aversionem mulieris a viro iam ante eiusdem matrimonii canonicii celebrationem; Non obstante magna perplexitate quoad iurisprudentiam Tribunalis secundae instantiae instantiae cira caput gravis defectus discretionis iudicii in casu; Audito Promoter Iustitiae, attamen omnia acta causam respecientia exquisivit ad videdum utrum, necne, aliquid animadvertendum esset ad adiuvandum Forum Appellationis ut deinceps in causis pertractandis recte procederet” (ibid., pp. 613-614).
It seems obvious that the Signatura’s declaration signed by Cardinal Agustoni certainly displays a great deal of pastoral prudence by not getting into the fine juridic technicalities which might have led to a more restrictive interpretation of the principle of “equivalent conformity” of sentences, thus affecting the celebration of the planned marriage in this case. Rather, by his nuanced response Augustoni acknowledges, at least implicityly, that when two affirmative decisions are pronounced, on the basis of same juridic facts, there is “equivalent” conformity of sentences.
From the dispositive parts of preceding decisions, Augustoni attempts to identify the motive underlying those decisions for the invalidity of marriage in question. The motives consisted in the woman’s resistence to establish an intimate sexual relationship and her aversion toward the man. These motives are deeply psychological in nature and they could easily prove to be a legitimate source of grave lack of discretion of judgement or of exclusion of the good of offspring. Did the second instance court change the ground of nullity? There is no evidence in the Signatura’s declaration that the second instance court had “formally” changed or added a new ground. Rather it seems that the court had merely confirmed the preceding affirmative decision by decree as allowed by c. 1682, §2 (CCEO c. 1368, §2). Its decision seems to have been based on a set of juridic norms different from those used by the first instance tribunal in attributing the legal title (caput) to the facts. It would be correct to deduce from this reasoning that when two decisions are based on the same juridic facts they can be legitimately declared “equivalently” conforming.
By stating “It seems there is no sufficiently cogent reason to impede the new marriage,” the Signatura implicitly admitted “equivalent conformity” between the two preceding sentences. It affirmed the juridic effects of two affirmative decisions mentioned in c. 1684 (CCEO c. 1370). However, it was evident that the second instance court had violated some important procedural norms even in confirming the first instance decision. Therefore, Agustoni goes on to declare some of the procedural violations perpetrated by the second instance court.
The acts of the case were received in July 1996, and after obtaining an expert opinion on the issues involved, the Signatura noted the following in regard to the questionable way the second instance court had conducted itself in regard to confirmation of an affirmative decision at the appeal level.
In this case, by the above “decree,” the Appeal Tribunal in fact pronounced a negative decision on the ground dealt with in first instance, that is to say, on exclusion of the good of offspring on the woman respondent’s part, and gave an affirmative decision on the ground of lack of discretion in the same woman. Indeed:
– When the first instance court has pronounced an affirmative decision on the invalidity of marriage, the appeal tribunal can only confirm immediately by decree that decision on the ground of invalidity which had received an affirmative decision in the first grade of jurisdiction; otherwise the case must be admitted to an ordinary examination at the appeal level and a decision for the nullity of marriage cannot be pronounced through a decree.
– A fortiori, an affirmative decision cannot be issued by decree if it concerns a ground of invalidity on which the appeal tribunal pronounces the first decision. Evidently in this case the tribunal of appeal observing all principles of law, can deal with the matter only through an ordinary process.79
Evidently the Apostolic Signatura touches here on several important points for our consideration:
First, it implicitly admits the principle of “equivalent conformity” between two sentences when they are based on same juridic facts. This is clear from the way the Signatura desisted from prohibiting the petitioner from contracting anew the planned marriage after the notification of the second instance affirmative decision. The first instance decision was affirmative on exclusion woman did not want to give to her husband the right to sexual acts apt for the generation of offspring. The woman was persistent in refusing to have sexual intercourse with the man during the marriage, and she had aversion toward the man already before the marriage. These behaviours were the motive for the exclusion of offspring. Then did the respondent suffer from grave lack of discretion of judgement? This possibility was not even contemplated by the first instance. But the appeal tribunal seems to have assessed the same facts on which the first instance court had based its decision, but had arrived at an affirmative decision on grave lack of discretion of judgement, and not on exclusion of children. The Signatura, while pointing out the procedural improprieties committed by the second instance court, implicitly acknowledged the invalidity of the marriage declared by the two courts, although on two formally distinct grounds of invalidity.
79. “In casu, praefato ‘decreto’ Tribunal Appellationis de facto negativam tulit decisionem quod caput de quo in prima instantia, seu quoad exclusionem boni prolis ex parte mulieris conventae, et affirmativam dedit decisionem quoad caput defectus discretionis in eadem muliere conventa.
“- Lata in primo iurisdictionis gradu sentential pro matrimonii nullitate, tribunal appellationis tantummodo decreto suo illam decisionem continenter confirmare potest relate ad caput nullitatis de quo in primo gradu habetur sentential affirmative; secus causa in gradu appellationis ad ordinarium examen admittenda est et decision pro nullitate matrimonii per decretum ferri nequit (cf. can. 1682 §2).
“- A fortiorin decision affirmative per decretum ferri nequit, si agatur de capite ullitatis de quo forum appellationis primam fert decisionem. Evidenter hoc in casu tribunal appellationis, servatis servandis, tntummodo per processum ordinarium de re videre potest” (ibid., pp. 614-615).
Second, the Signatura’s declaration insists on the norm of c. 1682, §2 (CCEO c. 1368, §2) which allows the appeal tribunal only to confirm by decree a first instance affirmative decision. If the appeal court decides to examine the case on a different ground, it must submit the case to an ordinary examination. In such a situation, the appeal tribunal cannot pronounce an affirmative decision by a decree.
Third, should the appeal tribunal decide to issue an affirmative judgement on a ground of invalidity for the first time, it can do so only through a sentence and not by a decree. The requirements of law governing ordinary process must be followed. The Signatura seems to insist on the necessity of an ordinary (and not an abbreviated) trial at the appeal level when it decides to deal with a case on a ground different from the one already considered by the first instance court. It would seem reasonable to argue that should the appeal tribunal find for the invalidity of the marriage it is judging, but it convinced that the ground should have been different, it would be more appropriate to confirm the first instance affirmative decision without getting into juridical technicalities.
The institute of “conformity of sentences” plays an important role in ascertaining moral certainty concerning the truthfulness of an allegation placed before an ecclesiastical court. During the past few decades both law and jurisprudence have shed considerable light on the notion and content of this institute. The following conclusions could be drawn from this study of the matter:
First, both law and jurisprudence make it abundantly clear that what we are dealing here with is not an “identity” of two sentences but a “conformity” of two sentences. Identity means agreement in every detail of a thing. And this is certainly not what is necessary for a case to be considered an “adjudged matter” (“res iudicata”), because the two sentences required do not have to be identical in all essential aspects. Of course the first two elements, namely the principa parties involved in a trial and its object (petitum) must be identical. But the “ground” (caput) on which the two decisions are based do not have to be “formally” identical. Therefore, “conformity” in this context connotes a more flexible concept expressive of an identity in some but not in all aspects of the two decisions required by law for a case to become “res iudicata.”
Second, on the basis of the above distinction, doctrine and jurisprudence differentiate between two types of “conformity,” namely “formal” and “equivalent” or “substantial.” Formal conformity would be present when the “causa petendi”(caput) on which both judgements required by law to render a case “res iudicata” are founded is formally identical. For example, this would be the case when a first instance affirmative decision is based on error of quality and the second instance judgement confirms it on the same ground either by a sentence or by a decree. In this scenario, there is “formal” conformity between the two sentences. Whereas, “equivalent” or “substantial” conformity would result from two affirmative or negative judgements on two formally distinct grounds of nullity, but based on the same “juridic facts.”
Third, again the above distinction between formally distinct but substantially conforming sentences acknowledges another important procedural principle which determines the person competent to attribute appropriate juridic title to the facts introduced by the parties in a given case. Both law and jurisprudence clearly affirms the principle that it is the judge, and not the parties, who assigns appropriate juridic title(s) to the facts. Therefore, the formal juridic title suitable to a particular set of facts may differ according to the assessment of them by the judge in charge of the case. The classic adage followed in this situation is: “Iura novit curia.” This principle essentially means that it is possible for different judges to attribute different grounds of nullity they consider as suitable to the juridic facts. In other words, the difference in title of the grounds of nullity would not diminish the effect of the otherwise conforming decisions.
Fourth, to be substantially or equivalently conforming, the decisions must be based on the same facts. This is an essential requirement for a declaration on substantial conformity. Jurisprudence makes a distinction between iuridic facts and simple facts. Juridic facts are those which can render a particular marriage invalid. For example, the obsessive-compulsive disposition characteristic of affective immaturity can be the source of lack of discretion of judgement (lack of internal freedom) or exclusion of one of the essential goods of marriage. Or again, reverential fear can very well be the motive for simulation or lack of internal freedom. Such motives may be present in cases of certain defects of consent. As Pinto rightly says, mere confluence of simple facts is insufficient to constitute equivalent conformity of sentences.
Fifth, two sentences of nullity cannot be considered substantially or equivalently conforming when one of them denies the juridic facts admitted by the other, even if they should agree in the dispositive part on the ground rejected by both of them. According to Pinto, such conformity is only apparent and not real.
Sixth, when a court declares a second affirmative judgement in the same case between the same persons and on the basis of same juridic facts but on two formally distinct titles, the same court can declare conformity of sentences, unless there is an appeal, in which case it would be the responsibility of the higher court to make the declaration to that effect.
Seventh, on the basis of jurisprudential insights provided by the Rotal and Sigatura’s judgements analyzed above, it seems reasonable to suggest that the principle of “substantial conformity” of sentences can be applied even to cases which are resolved through the “abbreviated process” provided in the norm of c. 1682, §2). From a practical point of view, therefore, if the second instance judges have moral certitude concerning the a ground different than the one on which the first instance court had pronounced its affirmative decision, nevertheless they should just go ahead and confirm by decree the preceding sentence without getting into the discussion on “substantial conformity.” In case an appeal court should conclude a case with an affirmative decision on a ground formally different from the one on which the preceding tribunal had pronounced its affirmative decision, but does so without formally changing the ground, then the appeal court could declare substantial conformity of sentences. On the other hand, should the appeal court decide to formally change the ground of nullity, then it must proceed the way of ordinary examination. Again, should the appeal court admit the case to an ordinary examination and arrive at an affirmative decision on the ground it legitimately added to be deal with “as if in first instance,” it can declare “substantial conformity” between the two sentences but only if both grounds are intrinsically compatible and its affirmative judgement is based on the same juridic facts from which it derived its moral certitude. If these conditions are not verified, and the first instance judgement is overturned, despite the two affirmative judgements, the case must proceed to the Roman Rota for further examination.
Eight, there are two ways of declaring substantial conformity between sentences. Generally this declaration is done by the higher tribunal (“tribunal superius”), and at the Rota by the superior turnus (turnus superius).
The superior tribunal or turnus would determine whether or not there is conformity between sentences and order execution of the conformity sentence. But Rotal jurisprudence approves declaration of conformity between sentences also by the judge of the appeal tribunal who has pronounced the second conformity sentence. This the judge can do in two ways: either by a decree separate from the sentence or through a simple declaration to that effect attached to the end of the sentence with a statement like: “There is equivalent conformity of sentences” having seen that “the nullity of marriage, although declared on distinct grounds, was nevertheless based on the same facts and proofs.” 80
Finally, we should always note well that the institute of “substantial conformity of sentences” is after all a legal tool placed implicitly by the legislator at the service of our tribunal ministry which is guided by the supreme law: “the salvation of souls” (c. 1752). Therefore, it is important that this tool is used with utmost prudence and canonical equity.
80. See decree c. STANKIEWICZ, 26 February 1987, in ARRT, Decreta, 5 (1987), p. 36