– Rev. Dr. Victor George D’Souza
The term process has a number of meanings. Etymologically, it signifies a progressive motion or a forward movement. In the context of a legal trial, it refers to a series of successively ordained acts that tend towards resolving a controversy.1 Process may be defined as the juridic discussion of particular cases by a competent judge or superior according to a legitimate and special form. The form is legitimate because law prescribes it. In addition to the general procedural forms, such as, ordinary contentious process, the code contains special for process (e.g., matrimonial processes, under which there are processes (i) for the dispensation from ratified and non-consummated marriage; (ii) for the presumed death of a spouse; (iii) for separation of spouses and (iv) for the declaration of the nullity of marriage. The process for the declaration of nullity of marriage is a special procedure stipulated in law, which makes use of the general form of an ordinary contentious process.2
The matrimonial nullity process has hours distinct phases in the first instance: (a) introductory phase, (b) introductory or probatory phase concerning the collection of evidence, (c) discussional phase geared towards the discussion between parties and defender of the bond, promoter of justice at the direction of the judge, (d) decisional phase – the judgement/decision and its publication. After this instance, the case proceeds to a higher instance either for (i) ex iure review or by appeal of judgement and concludes with (ii) the execution of the judgement after two conforming sentences. In this paper, we shall restrict our reflections to the first period in the process, namely, the introductory or the initial phase. This introductory phase, which takes distinct acts that a judge must place. They are (i) the admission/rejection of libellus, (ii) the citation of the respondent, and (iii) the litis contenstatio (the joinder of issues) or the formulation of doubt.
1. For more on etymology of the terms, see M.J. ARROBA CONDE, Diritto processuale canonico, seconda edizione, Roma, EDIURCLA, 1994, pp. 33-44.
2. Certain matrimonial nullity cases can be processed through the documentary process (cann. 1686-1688). But, cases for the declaration of nullity of marriage cannot be dealt with by the oral contentious process (can. 1690).
The introductory phase has important consequences for an orderly and efficacious instruction as well as for discussion and decision. The first moment begins with the parties and the judges in presenting and framing the controversy. The procedural acts that are not done at this phase or those placed incorrectly tend to affect the validity of the sentence. In this study, we pay a close attention to cann. 1501-1516, and 1691.
I. LIBELLUS INTRODUCING THE SUIT (CONTROVERSY)
Libellus3 is a brief declaration, which a petitioner (actor) presents to the judge informing him about the controversy and the persons involved, and requests the ministry of the judge. The term ‘petition’ is a generic term, and libellum is a species of the petition that is in written form; there also exists oral petition4
1. Necessity of A Libellus
Nemo iudex sine actore (there is no judge without a petitioner). A judge cannot begin the case ex officio or motu proprio without the petition. It has to be done as per law. “A judge cannot investigate any case unless a plea, drawn up in accordance with cannon law, is submitted either by a person whose interest is involved, or by the promoter of justice” (can. 1501). However, once the case has been lawfully introduced, the judge can and must proceed ex officio. He can also supply for the negligence of the parties in some cases, such as when the parties fail to bring forward the proofs or fail to oppose exception.5
A judgement given without a petition becomes irremediably null (can. 1620, 4°). This means that a judge cannot decide ultra prtita. The libellus, relates the petitioner to the judge and enables him in the determination of the controversy, the object of proof, the discussion and finally, the decision. We can see a contiguous link between all these acts, as they proceed logically and successively.
1.1 Who can Petition?
By stating who can be a petitioner, the law positively expresses the same principle: nemo iudex sine actore. Any person who has an interest in nullity of some one’s marriage cannot be a petitioner. Cann. 1674-1675 provide a taxative list of persons who could petition for nullity in two situations: (a) while the spouses are living and (b) after the death of either or both spouses.
3. The term libellus (the Latin word for “bill f complaint”) is used when a right is being vindicated; the term ‘petition’ is used when a person is seeking a favour. In practice, many use these terms interchangeably.
4. In Roman Law there was no figure of libellus. In older times, the case was introduced before the magistrate who then gave it to the judge, an expert in law (iurisconsultor). The petitioner and the respondent together with respondent together with the witnesses explained to the magistrate the controversy, and the magistrate formulated the doubt. It was to this oral formula of doubt presented to him, the judge, gave the response after having examined the proofs. Only in the fourth century libellus became necessary but not always in a written form (See M. HILBERT, “l’Introduzione della causa,” in Forum, 3/1, pp. 46-47).
5. See can. 1452; cfr. can. 1600.
1.1.1. Before the Death of both Spouses
During their life span, either of the spouses or both of the spouses are able to challenge the validity of the marriage by seeking a declaration of nullity. The spouses themselves (can. 1674, 1° – whether baptized or not (can. 1476) can make a petition. They can present it through their duly appointed procurators. However, their relatives or others interested in economic succession or moral matters do not have this right. Moreover, the promoter of justice can petition for the nullity of marriage when it has already been made public and the marriage cannot be validated or it is not expedient to do so (can, 1674, 2°).
1.1.2. After the Death of Either or Both Spouses
With the death of a spouse, the conjugal bond ceases to exist. However, there could be a question of validity of their marriage that is “prejudicial to the resolution of another controversy in either the canonical or the civil forum” (can. 1675, §1), such as, for legitimization of children and succession of property. The “another controversy” alluded in the canon need not be judicial one; even an administrative one is sufficient.6 However, the promotor of justice cannot challenge the validity of marriage after the death of a spouse. By officio, he is bound to safeguard the public good (can. 1430) and not the private affairs. The public good and the salvation of souls that has not been called into question while spouses were living cannot be a controversy after the death of a spouse.7 This principle also holds good the promotor of justice concerning the causes that have preempted while the spouses were living or those that the petitioner had renounced; consequently, they cannot be resumed after the death of a spouse or both spouses.8
1.2. From and Content of Petition
A petition must be “drawn up in accordance with canon law” (can. 1501). Cann. 1502-1504 put forward a basic norm that the petition must be written (libellus means small booklet, handbill, a written petition!). However, in exceptional cases, the judge can accept an oral petition.
The Written Petition
Can. 1504 contains specifications regarding the content of a libellus in which the matter in dispute is to be set out and the ministry of the judge is requested (can. 1502). In the case of marriage nullity, the petition should contain these indications:
6. SUPREMUM SIGNATURAE APOSTOLICAE TRIBUNAL, coram SABATTANI, 16 October 1982, n. 8, in Periodica, 72(1983), pp. 120-121.
7. See ID., coram STAFFA, 3 July 1971, n. 7, in Periodica, 61(1972), p. 145-151; G. USAI, “L’impugnazione del matrimonio dopo la morte di uno od entrambi I coniugi (can. 1675),” in Quaderni Studio Rotale, 3(1989), P. 48.
8. See decision coram POMPEDDA, 30 November 1987, in Quaderni Studio Rotale, 3(1989), p. 51-53.
a. Who is the petitioner (quis petit)
A petitioner may write his or her own libellus or be assisted by a procurator or tutor. Depending on the case, this assistance is required for a petitioner who lacks mental capacity or age or stable residence or time. A procurator or curator is chosen or given in accordance with cann. 1481 and 1479. A procurator needs an authentic mandate, which he must present to the tribunal as per can. 1484. A petition requires the name and address of the petitioner for the purpose of receiving judicial communication. If a petitioner has a procurator or a curator, the libellus should contain their address for the purpose of receiving the acts.
b. Who is the other spouse – the pars convent (a quo petatur)
The petition should indicate the name of the other spouse (can. 1504, 1°) and his or her the domicile or quasi-domicile (can. 1504, 4°). In other words, the name and address of the respondent makes the judge’s task easier since he is required to summon the respondent besides helping the judge in ascertaining the competence of the tribunal by knowing the domicile or quasi-domicile of the respondent.9
c. Before which judge/tribunal the libellus is introduced (coram quo)
The libellus must state the particular tribunal before whom the case will be heard. There is no need to name a particular judge as the assignment of the case to a particular judge is an internal matter of the tribunal. The petition could be addressed to the judge or the Bishop of […] Diocese, or the Judicial Vicar in as much as these have a judicial function. The petition could also be addressed as “Before the Ecclesiastical Tribunal of [Mangalore] Diocese.”
d. What is sought (quid petatur or petitum)
This concerns the object of the question: what is being petitioned. In our context, it is, the declaration of nullity of marriage. This concrete request can be made by the formula: “I request the tribunal to declare the nullity of my marriage with xxx, etc.”
e. On what right (quo iure or causa petendi)
The petition should answer the question: on which law it is based? In other words, in what account does the petitioner think that his marriage is null? Briefly, what is the ground of nullity (caput nullitatis)? The petition presented must at least indicate the basis for the ground of nullity. The petitioner is not obliged to indicate the technical legal name of the ground and the appropriate facts and arguments unless he knows the law well or a legal expert has assisted him. However, it is necessary that the libellus brings forth the circumstances which are really juridical, form which it is possible to deduce the ground; for example, force and coercion exerted on the spouse for consenting to marry, rejection of marital fidelity, etc.10 The legal label of the ground can be left to the judge or the tribunal as the saying goes: iura novit curia.
9. For a canonical concept of domicile and quasi-domicile, can. 102.
10. See A. STANKIEWICZ, “De libelli reiectione eiusque impugnatione in causis matrimonialibus,” in Quaderni Studio Rotale, 2(1987), p. 75.
f. On what facts and arguments
The facts and arguments presented at least in a general manner should bring out what is being alleged in the petition. If there are relevant documents, they may be attached to the libellus; if the facts are known to the witnesses, it should have their names and addresses; the petitioner can also refer to other documents that he intends to place forth during the trial, and the experts he proposes. The brief presentation of facts and proofs or motives for the request enables a judge to find out whether there is fumus boni iuris to accept the petition. It is not necessary to produce all the proofs at this juncture, for a petition is not a proof but something that has to be proved. It is sufficient that a petitioner indicates in a general manner how he is going to prove what he has asserted.
g. Signature, the day, month and year of preparing the libellus
The libellus, above all, as per can. 1504, 3° must be signed by the petitioner or the procurator.11 If the procurator signs it, there must be an authentic mandate to the procurator as per can. 1484, which must be presented to the judge along with the petition; otherwise the sentence would be irremediably null (can. 1620, 6°). When the mandate is not attached to the libellus, the judge may allow this to be sought within a peremptory time, say one month. If the procurator does not present it within the time limit, the judge can reject the libellus. There are two exceptions: for a minor, the parents or tutor should sign the petition;12 for those who are minus firmae mentis, it must be signed by their curator.
The Oral Petition
The judge can admit an oral petition by way of an exception. The code indicates two cases in which he could, that is: (a) when the petitioner is impeded from presenting a libellus,13 and (b) when the case can be easily investigated and it is of minor significance (can. 1503, §1). While most of the matrimonial cases do not belong to the category of cases that are easy to investigate, all of the matrimonial cases are not of a minoris moment. Hence, in marriage cases a judge has only one possibility for accepting an oral petition, that is, when the petitioner is impeded. A petitioner can be impeded on account of his illiteracy, inability to know how to write, or inability due to sickness, etc. A petitioner can be considered impeded while having some ability to write, he does not know how to draft a petition as per the law. In these cases, it is advisable for the petitioner nominate a procurator and/or an advocate to draft and present the petition. Moreover, the judge can oblige a petitioner to submit a written petition. The code subtly says that a judge can admit (admittere potest) an oral petition (can. 1503 §1) but it does not say that he must admit (admittere debet) it.
11. The experience of those working in tribunals shows that there are cases of parish priests writing and submitting the libellus requesting the declaration of the nullity of the marriage of their parishioner. The tribunal cannot accept a petition of a third person without the legitimate mandate of the concerned party.
12. Minors can enter into marriage provided a man and a woman have completed their sixteen years and fourteen years of age respectively (can. 1083 §1). As marriage is a spiritual matter, the spouses as they have completed fourteen years, can stand before the court on their own behalf (see can. 1478 §2).
13. According to HILBERT, the canon applies even when a petitioner is morally impeded e.g. when his privacy cannot be protected and when he would suffer consequences if the petition becomes public (“L’Introduzione della causa,” p. 47). Grocholewski does not accept this interpretation for the following reasons: the canonical process by its nature must be public between the parties, that is why, even when the petition is oral, all that is stated by the petitioner orally must be written by the notary with due regard for can. 1598 §1. It is not possible at all to begin a case without the knowledge of other spouse. If for a grave reason, the libellus cannot be given to the party (can. 1508 §2) in a given case, after the deposition of the pars convent, the libellus must be notified. Secondly, for all other externs, the canonical process is in itself a secret. The code states that the judge and tribunal assistants are bound to observe secrecy, if revelation of the acts of the process could become prejudicial to the parties (can. 1455 §1). The judge can oblige witnesses, experts, and the parties and their advocates or procurators to observe secrecy (can. 1455 §3). Therefore, “the publication of the canonical judgement regarding parties in the case does not affect its reserved nature for all others […] ordinarily the faithful approach an ecclesiastical tribunal for a solution of their problem of conscience. For this reason they often say things that they would not otherwise have said. The witnesses also frequently testify under the condition, at least tacit, that their evidence will be used only for the ecclesiastical trial. The tribunal – for which the search for the objective truth is essential – must not betray their trust by revealing to outsiders what should remain secret” (JOHN PAUL II, Allocution to the Roman Rota, 26 January 1989, in W. H. WOESTMAN (ed.), Papal Allocutions to the Roman Rota: 1939-1994, Bangalore, Theological Publications, 1995, pp. 207-208). See Z. GROCHOLEWSKI, “De period initiali seu introductoria processus in causis nullitatis matrimonii,” in periodica, 85(1996), pp. 88-90.
In case of an oral petition, the judge must order the notary to draft it (can. 1503 §2). Evidently, it is necessary that this written must contain all the elements which a libellus should have besides the signature of the petitioner. The acts which the notary prepares by “faithful recording in writing what is done and signing the document, with a note of the place, the day, the month and the year” (can. 484, 2°), “constitute public proof” (can. 1437 §2). “This written record is to be read to, and approved by, the plaintiff, and it takes the place of a petition written by the plaintiff” (can. 1503 §2) and it must be considered as libellus in canon law since the norm comes under the heading “The Petition introducing the Suit.”
In practice, it is useful and expedient for every tribunal to have permanent legal representatives who are to exercise the office of advocate and procurator, whom the parties may choose especially in matrimonial cases (can. 1490). These persons would be of assistance to persons not only in drafting a petition but also in protecting the interest and rights of parties in a trial.
2. Constitution of the Tribunal
On receiving the libellus, the judicial vicar as early as possible, through a decree, must constitute a tribunal to consider the proposed case. As the petition is received, it must be entered in the register and assigned to judges on rotation basis unless in particular cases the bishop has decided otherwise (can. 1425 §3). There is a difference between receiving a libellus and accepting it; the constituted judge does the latter. As a norm, a judge is bound to treat or hear the petitions on a “first come first served” basis unless some case from among them needs to be dealt with more quickly than others. In this event, the judge, in each case, must motivate his decision in a special decree (can. 1458).
It may be noted that “the presentation of the petition and the act of receiving it (we do not say of accepting it) is of procedural interest, because the date of the drawing up and that of its presentation do not usually coincide. When the petition is presented, the notary of the tribunal should bear witness, with his or her signature or stamp, to the day of presentation and, if required provide the interested party with a receipt.”14
14. E. CAPARROS, M. THERIAULT, J. THORN (eds. Code of Canon Law Annotated, Montreal, Wilson & Lafleur Limitee, 1993, p. 909.
2.1. Collegiate Tribunal
With cases of marriage nullity being reserved for collegiate judges (can. 1425 §1) with the exception stated in can. 1425 §4, judicial vicar must designate a college of judges in the manner stated in can. 1425 §3. The bishop can also entrust more difficult cases to five judges (can. 1425 §2). Once judges have been designated, they should not be replaced except for the gravest of reasons, which must be expressed in a decree (can. 1425 §5). The college of judges must have a president. As far as possible, judicial vicar or his associates must take up this function (can. 1426 §2). In the introductory process generally everything must be attended to by the president, and the college does not intervene unless to resolve the recourse against the decision of the president.15
2.2. Sole Cleric Judge
In exceptional cases, where the college cannot be constituted and only until such impossibility lasts the episcopal conference can allow bishops to have sole clerical judge in the first instance, and where possible the sole judge should use assessors and auditors (can. 1425 §4).16 In sole clerical judge tribunals, the judicial vicar must through a decree designate the judge, unless, the judicial vicar himself is the only judge in the tribunal. The same decree of designating collegial judges or sole judge, should also contain the names of the defender of bond (and promotor of justice if required according to can. 1431 §1) and the notary where there are many notaries. If there is only one notary and one defender of the bond, then it is obvious that they take part in every case.
15. The code indicates the specific function of the president: to designate ponens (can. 1429) and the auditor (can. 1328 §1); to settle complaint against the promotor of justice, defender of the bond, and other tribunal personnel (can. 1449 §4); to admit or to reject the libellus (can. 1505 §1); to cite the parties and the defender of the bond (can. 1507 §1; 1677 §1 and 1434, 1°); formulate the doubt (can. 1677 §2); to begin the instruction of the case (can. 1677 §4); to resolve incidental questions through decree, etc. (can. 1590 §2); set the time and date for the deliberation of judges (can 1609 §1), and to direct the discussion at the session of the college (can. 1609 §3).
16. For the function of assessors, see cann. 1424, 1447-1448; for the office of the auditors, see cann. 1428, 1448 §2, 1561, 1590 §2.
This decree of the judicial vicar must be signed by the notary (can. 1437), and it must be notified to all those designated judges and other ministers as well as to the petitioner or to their procurators and curators. This decree is not immediately communicated to the pars conventa, who remains unaware of the case until this moment. Having received the decree, the president of the college must, “from his part designate one of the collegial judges as ponens or relator” whose function will be to write the sentence in the college (can. 1429). In marriage case, the president can assign them other functions.
Often the president himself assumes the function of the ponens and that is legitimate because often if the other judges do not enjoy suitable preparation or degrees, he can be the only person to fulfil these functions duly. The Apostolic Signatura is accustomed to grant dispensations from the academic degree as per can. 1421 §3 to judges under one condition that the dispensed person should not assume the office of the president or ponens.17
The president of the collegiate tribunal or even the sole judge can designate an auditor to instruct the case chosen either from the tribunal judges or from persons approved by the bishop for this office (can. 1428). As the function of the auditor begins at the instruction of the case (probatory period) and not before it, he can be designated even after the litis contestation. But nothing prevents to appoint him even earlier, if his services are required for the preliminary investigation, which facilitates the judicial decision whether to accept or reject the petition.
3. Pastoral Efforts before Accepting a Libellus
On receiving the libellus or during its of examination, or even before accepting the case, the judge must use pastoral means (can. 1676). This prescription of law highlights the interest of the Church towards the stability of matrimonial bond, which has to be protected and promoted by all means.18 The work of defending a valid marriage represents the protection of God’s irrevocable gift to spouses. Therefore, can. 1676 should not be taken as a mere norm of formality but it should be applied faithfully as a very important expression of pastoral concern for spouses experiencing difficulties. This canon demonstrates the canonical procedural law sharing in the pastoral character of the church law.19
17. See GROCHOLEWSKI, “De period initiali,” p. 93.
18. See Communicationes, 11(1979), p. 260.
19. See JOHN PAULS II, Allocution to the Roman Rota, 18 January 1990, in WOESTMAN, Papal Allocutions to the Roman Rota, p. 212.
The judge to whom it belongs to admit or to reject the libellus should make an effort to this pastoral means in so far as there is good hope (can. 1676), otherwise, he is not obliged. The norm should not be applied indiscriminately. The pastoral reconciliation can be excluded, if for example, a party suffers from an incurable impotency or a psychological infirmity. The pastoral means need not be done only before the acceptance of the libellus but it can be repeated during the trial in so far as there is some hope (can. 1446 §2). The judge can make use of the services of diocesan family life centres or parish priests in employing these pastoral means or he can even recommend some counseling to the couple. Persons should not be encouraged to present petitions without a “cooling down period” and when there is hope of reconciliation, petitioners should be convinced to delay the presentation of their petition. The judge can also suggest petitioners to obtain a letter from the parish priest or counselor about their efforts towards reconciliation of the spouses.
4. Examination of the Libellus
Presentation of the libellus does not amount to its introduction. The judge has an obligation to examine the libellus in order to decide whether to accept or to reject it. Can. 1505 §2 which offers reasons for rejecting a petition, employs the phrase “can be rejected only if” (reici potest tantum) and thereby indicates that the list of reasons it offers is taxative. Since interpret it strictly in those matters dealing with the rejection of a petition, because the rejection is a restriction of the right.
4.1. The Person to Examine the Libellus and Issue a Decree
In matrimonial cases which are reserved to the college (can. 1425 §1) – this examination must be made and decreed by the president of the college (can. 1505 §1). Where the sole judge handles these cases, he only examines the libellus and decides to admit or reject it. The judicial vicar does not examine the petition to make a decision to accept or reject it, unless he is the sole judge or the president of the college who handles or hears that particular petition.20
Instead of the presiding judge/sole judge, if the judicial vicar signs the decree of admission of the petition, then the decree lacks one of the conditions, that is, the admission by the competent agent. As a consequence, the attempted juridical act also lacks one of its formalities, that is, the signature by the appropriate person. According to can. 124, such a decree of admission is null and void. Since according to can. 1619 the judgement does not automatically remedy this nullity, by virtue of can. 1622, 5° the judgement itself is null with remediable nullity. The appeal tribunal can declare this remediable nullity of the judgement and order the first instance tribunal to issue a new admission of the petition signed by the presiding judge.21
20. According to M. THERIAULT, “an act signed by the judicial vicar as judicial vicar is an administrative act because he acts as the administrator of the tribunal under the moderator, while an act signed by the presiding judge as presiding judge is without doubt a judicial act within a specific case” (“The Nullity of Some Processual Acts in Light of Canon 124,” in Forum, 5/1, p. 38.
21. See THERIAULT, “The Nullity of Some Processual Acts in Light of Canon 124,” pp. 38-39.
4.2. Object of the Examination
In the light of can. 1505 §§1-2, the judge during the examination of the libellus, has to take into account these things: (a) whether the tribunal is competent to treat the case; (b) whether the petitioner has legitimate standing in the court; (c) whether the libellus contains those things that are required; (d) whether the libellus contains some foundation. The first two belong to the process and the second two concern the case. A brief exposition:
The judge must place before him two question: (a) “Am I (and this Tribunal) competent?” (b) “Has the petitioner the capacity to stand for trial?” In order to answer the first question which deals with competence, the judge must study (a) the matter of controversy (b) the persons involved, and (c) the territorial competence.
As for the matter of controversy, some examples: if the matter concerns a recourse against the decree of the dicastery of the Roman Curia, then the diocesan tribunal cannot deal with such a matter but only the Sectio Altera of the Apostolic Signatura; if a petition concerns the declaration of the nullity of ordination, this matter does not come within the purview of diocesan tribunals.
As for persons, if it is a matter of petition for nullity of marriage by the Head of State or of those, which the Roman Pontiff has reserved, to himself (can. 1405), a diocesan tribunal has no competence.22 Furthermore, according to can. 1448 §1: “The judge is not to undertake the hearing of a case in which any personal interest may be involved by reason of consanguinity or affinity in any degree of direct line and up to the fourth degree of the collateral line23 or by reason of guardianship or tutelage, or of close acquaintanceship or marked hostility or possible financial profit or loss.” Can. 1448 §2 directs other tribunal ministers to refrain from exercising their offices in these circumstances. It is possible for the petitioner and the respondent to raise objections to certain persons in dealing with their case.
As for territory, the marriage cases which are not resolved to the Apostolic See, can be treated in the tribunals stated in can. 1673. If, for example, the petition is submitted under can. 1673, 3° while the parties lives outside the territory of the same Bishop’ Conference, the tribunal does obtain the territorial competence. When the judge or tribunal is not legally competent whether relatively or absolutely, the libellees must be rejected.24 The judge while giving the reasons for its rejection can direct the petitioner to the appropriate tribunal.
22. As regards the competence of the Roman Pontiff stated in can. 1405 §1 (also see can. 1472), the incompetence of other judges is absolute (can. 1406 §2) and the sentence issued by them would be irremediably null (can. 1620). There can be absolute incompetence even by reason of grade and matter. By reason of grade (can. 1440): if the case is introduced again in first instance after its definitive sentence, or if a case is introduced in the first instance in a tribunal meant only for the second instance. By reason of matter: if a marriage case is introduced at a tribunal, which is competent only for other cases, except marriage cases. The incompetence by reason of territory or palce is relative, and if no one raises exception as per can. 1459 §2 (see also can. 1460), it is sanated ipso iure.
23. For computation of affinity and consanguinity, see can. 108-109.
24. If without legal support the judges declare themselves competent and hear and determine cases they can be punished by the competent authority with appropriate penalty not excluding the loss of office (see can. 1457 §1).
4.2.2. Legitimate Standing of Person in the Court
The capacity to stand in court forms part of the general judicial capacity of a person, that is, the capacity to be the subject of right and duties within the particular legal order. In canon law the subjectivity is derived from baptism (can. 96). Nonetheless, the procedural law makes an exception to the principle by stating that any person, baptized or non-baptised is capable of possessing the procedural rights. The capacity of legitimate standing in court consists of: (a) procedural capacity (legitimatio ad processum) and (b) capacity to be a party in the case (legitimatio ad causam). This capacity has consequences in a trial, so much so, a sentence that is issued while the parties did not have the legal standing is irremediably null (can. 1620, 5 ).25
At this point of the process, we are concerned only with the petitioner’s legal capacity to stand in court and not that of the respondent. If the petitioner lacks this capacity, the judge should establish this fact beyond doubt in the light of can. 18. If he really lacks the capacity, then the judge can reject the petition to safeguard the validity of the acts of the always in favour of the capacity of the petitioner. Unless the judge has the positive proof of capacity, the petition cannot be rejected. If doubt cannot be resolved at this stage, going by the presumption, the judge should accept the libellus. However, in order to avoid difficulties, it is better that the appoints a curator ad cautelam in these cases.
4.2.3. Things Required in Libellus
The libellus must be presented according to the prescription of can. 1504, 1°-3°. In other words, a libellud that does not contain information about to whom it is addressed, by whom, what is being asked, the basis for the right, indication of proofs, signature of the petitioner, date, month and year, etc., is liable to be rejected. However, it cannot be rejected if it does not indicate the domicile or quasi domicile of the respondent.
4.2.4. Whether the Libellus has Foundation
The judge can reject a petition only if it lacks any foundation (causa petendi) and that there is no possibility that a foundation will emerge from a process. The libellus can be rejected when the reasons adduced for the nullity are those which do not render a marriage invalid or when they are adduced on a heading of nullity that does not exist (e.g., sterility, spouse being in love with someone else, etc), or when the libellus has a title of a ground that only exists in law but whatever is asserted in view of it is false.
25. For the other concern relating to legitimate standing, see cann. 1478-1479. An example of procedural capacity (legitimatio/capacitas ad processum) is ability to plead, respond, and place juridic act for oneself. Minors and those who lack the use of reason do not have this capacity and suffice to initiate the petition seeking the ministry of the tribunal, the person also requires direct juridical relationship to the case or controversy or the right (legitimatio ad causam). For example, parish priest does not have legitimatio ad causam in the marriage nullity case, as he is not married. Even the adult children of the parents, cannot petition for the nullity of their parent’s marriage while both of them are living, because they lack legitimatio ad causam, even though they may have the procedural capacity.
A libellus can be rejected on account of defect of foundation (fumus boni iuris) only if: (a) “ex ipso libello” and not by other extra investigation it certainly appears that it lacks any foundation, and simultaneously, (b) it “would not be possible” that any foundation would emerge in the process.26 The phraseology in can. 1505, §1, 4° aspires to protect the petitioner’s right and to restrict the judge from rejecting a petition on the basis of this canon. In short, the lack of foundation and the lack of possibility for a foundation to emerge in the process must exist simultaneously; and along with it, the judge must have certainly about both these factors and this certainty must emerge from the petition alone.
On some occasions, the Apostolic Signatura has expressed its concern on the wide-spread praxis of rejecting cases by stating “sufficient grounds are not evident” or “the evidence presented is by no means sufficient,” so that only those cases which are practically certain to be judged affirmatively are given a formal hearing by the tribunal. This practice indicates the confusion between the question whether the petition has some fumus boni iuris and it can emerge during the process and the question whether the nullity of marriage has been proven.27
Pope Paul VI exhorted the tribunal judges: “In accepting or rejecting the petition, therefore, a vigilant sense of justice is needed so that causes without any foundation, those clearly based upon falsehood, or also based on the true facts but juridically inept to obtain the desired result be rejected with courageous steadfastness. Veneration for justice will cause you to avoid on one hand a kind of laxity, which could lead the parties to dangerous illusions, useless expenses, real harm by hampering more equitable solutions; and on the other hand you will free from an excessive rigorim, which denies reasonable trust in the petitioners with the danger of obstructing someone standing upon a just right, with fatal consequences for the person’s eternal salvation, when it is a question of remedying sorrowful moral situations.” 28
26. A Rotal decision addresses the need to consider whether or not the petitioner’s libellus shows a fumus boni iuris (a minimum possibility of having some legal bais): “Litigation, as well as consuming time, raises expectations which are not always fulfilled, and often causes further and deep bitterness between the disputing parties. That is why an initial libellus is required, setting forth ‘on what right the plaintiff […] (c. 1504, 2°) […]; if not, the libellus is to be rejected (c. 1505 §2, 4°), for it is an abuse if cases are admitted to hearing which are certainly groundless. Concretely, in cases brought under c. 1095 [unless the allegations point to some serious psychic anomaly, present at consent], and not just to slight or moderate pathologies or simple defects of character, then the libellus should not be accepted” (decision coram BURKE, 11 November 1994, in studia canonica, 30, p. 225; also see, decision coram BURKE, 15 October 1992, in Monitor ecclesiasticus, 118, pp. 573-574).
27. In this context, we may take into account the document from the Apostolic Signatura (prot. N. 1163/93 SAT – 2 June 1993) which states that this confusion could lead to two types of errors: (a) if the tribunal requires the nullity to be practically proven in advance and that it could reject a petition easily, then the petitioner is unjustly deprived of a canonical process (see can. 221 §1). (b) if the acceptance of the petition signifies exclusion of a negative decision, the subsequent judicial process amounts to a mere formality. If the process began only after a pre-judicial decision, one could ask whether in the subsequent judicial process the judge would still enjoy the freedom to make his judicial decision based on the acts of the process and the proofs gathered during the course of the trial (see can. 1608). At the very least, the judicial process would seem to be conducted with a prejudice towards the nullity of marriage in place of a serene concern to discover the truth about the marriage (see F. DANEELS, “Some Remarks Concerning the Concept of Fair Trial According to Canon Law,” in Forum, 6/2,” p. 74.)
28. PAUL VI, Allocution to the Roman Rota, II January 1965, in WOESTMAN, Papal Allocutions to the Roman Rota pp. 80-81.
5. Previous or Preliminary Investigations
Whether a previous investigation usually called extra-judicial is permitted to enable the judge either to accept or reject the libellus? We have to distinguish here between two things: (a) the question concerning the competency of the tribunal, legitimate standing of the petitioner, and (b) the question legitimate standing of the petitioner, and (b) the question concerning the merit of the case.
According to can. 1505 §1 before accepting or rejecting the libellus, the judge must verif on the competence of the tribunal and the capacity of the petitioner regarding the legitimate personal standing. Therefore, the judge can gather adequate proofs on these elements alone before accepting the libellus. This investigation cannot be considered as simple extra-judicial.
It does not belong to the judge to verify before the joinder of issues through some investigation concerning the merits of the case or what is contained or asserted in the petition. The judgement about the acceptance or rejection of the libellus must be made per se on the basis of the libellus alone and not on the basis of eventual proofs. If the judge thinks that the libellus has some foundation for the request, then he must admit it. If from the examination of the libellus the foundation does not emerge then the judge can make a very limited preliminary investigation only for the purpose of finding out the possibility of emergence of some foundation.29
In this regard, it is worthwhile to know that “unless there is a grave reason, the judge is not to proceed to collect the proofs before the joinder of the issue” (can. 1529). An example of such a grave reason can be that proofs would not be collected late during the instruction because the witness is in danger of death or proofs can be collected but only with great inconvenience on account of someone leaving on a long journey. The acceptance or rejection of the libellus cannot become the context for the collection of evidence. After the joinder of the issue, the judge should make a decree incorporating into the acts of the case all the evidence collected before the joinder of issue.
29. See Z. GROCHOLEWSKI, “Canons 1505-1529: The Gathering of Proofs before the Joinder of the Issue,” in P. J. COGAN (ed.), CLSA Advisory Opinions, Washington, DC, Canon Law Society of America, 1995, pp. 459-460; also see G. SHEEHY, “Introducing a Case of Nullity of Marriage: The New Code and the Practice of Local Tribunals,” in Z. GROCHOLEWSKI and V. CARCEL ORTI (eds), Dilexit iustitiam: Studia in honorem Aurelii Card. Sabattani, Città del Vaticano, Libreria Editrice Vaticana, 1984, pp. 345-346.
6. Decree Admitting or Rejecting the Libelllus
The pronouncements of a judge other than the judgement are decrees. If these are more than mere directions about procedure, they have no effect unless they give at least a summary of their reasons or refer to motives (can. 1671). A decree rejecting the libellus is a decisional decree and not merely directional (ordinatoria). It has the weight of a definitive sentence, which prevents trial and judgement (can. 1618). Therefore, it must be motivated for validity. This express motivation is required for the petitioner to know the defect and then to correct the petition or to challenge the decree of rejection.
For validity, the decree admitting a petition does not have to indicate the motives for its acceptance because this decree is considered as directional. Some authors, however, state that even this decree of admission has to be motivated and it is decisional. There are others who think that only when petition is rejected without motivation, there remains a doubt whether it could be re-presented or corrected or challenged. On the other hand, if it is accepted without indication, it is obvious that the petition is legitimate and conforms to the legal requirements, and therefore, it is accepted as per the law. Nonetheless, the practice of motivation a decree of accepting a petition is praiseworthy. The decree admitting a petition could state: “Having considered that the tribunal has proper competence and having determined that the petitioner does not lack the capacity to stand before the tribunal; having ascertained that the petition contains all that is prescribed in law, and having considered that the petition does not lack foundation, I decree that the petition of […] dated […] requesting the declaration of the nullity of his marriage with […] is hereby accepted.” These same reasons, on the contrary, hold good to reject a petition!30
The decree accepting or rejecting a petition must be made “as soon as possible” (cn. 1505 §1), that is, “within one month” (can. 1506). If the judge considers that because of the complexity of the cause and for other reasons, he would not be in a position to decide in one month, then, he must state this through a decree. The words “his decree” (suo decreto) in the canon indicate that the judge or the president of the college must decide and act personally without delegating this duty to others, such as to the collegiate tribunal. When the petition is rejected, the petitioner can either emend the errors and present the libellus anew or he can place a recourse against the decree.
6.1. New Presentation of a Libellus
The petitioner can correct the libellus that is rejected because of defects, and present it again to the same judge (can. 1505 §2) at one’s own convenient time because law does not prescribe a time limit. He can change the ground or propose new matter, provide a procurator, etc. The judge retains the right to examine it again and to decide whether to accept or reject the emended petition. Similarly, the petitioner holds the right to rectify the mistakes and present it anew. This reflection libelli is not recourse in the strict sense but only a proposition of newly emended libellus before the same judge.31
30. See CROCHOLEWSKI, “De period initiali, p. 106; HILBERT, “L’Introduzione della causa,” p. 55.
31. See HILBERT, “L’Introduzione della causa,” p. 56.
6.2 Recourse Against the Rejection of a Libellus
A party is always entitled to have a recourse within ten canonical days (can. 1505 §4). Time does not run for the ignorant or for those who cannot act. If the petitioner fails in this regard, there is no higher remedy. Therefore, it is better for him to emend the petition and present it again. In case of recourse, the petitioner must give reasons why he or she thinks that the libellus should have been accepted or why it was illegitimate to reject.
The canon states that the recourse is to be made either to the tribunal of appeal or if the petition was rejected by the presiding judge, to the collegiate tribunal.32 There is a controversy as to: who is the judge ad quem in this case? There is no difficulty if the petition was rejected by a sole judge. In this case, the judge ad quem would be the appellate tribunal (can. 1505 §4). The question remains in the case of the president of the collegiate tribunal rejecting the libellus. In this case, to whom should the petitioner have recourse? There are four opinions:33
The first opinion is held by many canonists who hold that the recourse could be made only before the college and if the college confirms the decision of the president, then there is no further possibility for recourse on the basis of can. 1629, 5°.
The second opinion is held by some canonists like Stankiewicz, who while holding the first position, go a step further and state that if the collegiate tribunal rejects the petition, further recourse can be made to the appellate tribunal. They base their reasons principally on the formulation of can. 1504 §4, the analysis of the parallel places containing the “recourse”, the use or application of the word expeditissime, and the mind of the legislator. For Grocholewski these arguments do not seem conclusive and moreover, according to him the text of can. 1505 §4 does not lend itself to this interpretation.
According to the third opinion of Daneels and others, the petitioner can place recourse either to the college or directly to the superior tribunal. If he makes recourse to the college, then there is no possibility of having it at the appeal tribunal. This opinion seems plausible because the arguments seem convincing: Firstly, in the text of the canon there is conjunction – vel vel. It does not exclude the direct recourse to the superior tribunal against rejection, but it gives also the possibility to have the recourse to the college. Secondly, the matter has “to be decided with maximum expedition” and therefore, it does not permit to appeal against this decision or to have a further recourse. Thirdly, this interpretation yields to the procedural intention for a speedy resolution and besides, it does not abridge the exercise of the right.
32. While there are some who consider that this recourse must be made before the judge a quo and then proceed to make it before the judge ad quem, the canon does not state this expressly. It is sufficient that it is placed before the judge ad quem. Although nothing prevents one to have it before the judge ad quo, so that he sends it to the judge ad quem, Grocholewski is of the opinion that two acts are not necessary for placing and prosecuting a recourse (see GROCHOLEWSKI, “De period initiali pp. 107-108).
33. For a summary of various opinions and authors, see GROCHOLESWKI, “De period initiali” pp. 108-111; HILBERT,
“L’ Introduzione della casusa,” pp. 56-63.
The fourth opinion concurs with the possibility of having recourse against the decision of the president either to the college or to the tribunal. But it differs in those cases where the option was made to the college and it confirmed the rejection. In this case, some seem to hold that the petitioner can have recourse to the appeal tribunal. These canonists argue stating that the college presided by the judge does not constitute another judge properly speaking; it is only an intermediary stage, where one has the possibility of resolving the issue by continuing to remain at the same instance. Yet, this intermediary stage does take away the petitioner’s right to appeal to a superior tribunal. If the college admits the petition, the matter is closed expeditiously; but if it confirms the rejection, and in addition, the petitioner is denied the passage to the appeal tribunal, he would suffer an irreparable damage, which the legislator does not wish him to undergo. However, according to Grocholewski, this possibility of further recourse against the decision does not seem to be admitted.
Evidently, in cases of recourse to the appeal tribunal (in case of sole judge decision of first instance or against the decree of the president to the appellate tribunal) where the previous decision is overturned and the libellus is admitted, then the case is remitted for judicial trial to the tribunal a quo. If the recourse was made to the college, which decided to accept the libellus, then the same tribunal should treat the case.
6.3. Complaint of Nullity (querela nullitatis)
There is no doubt that against the decree of rejection of libellus, the petitioner can avail the possibility of proposing complaint of nullity (cann. 1619-1627). The complaint has to be proposed before the judge who issued the decree (cann. 1621 and 1624) or along with the recourse before the college or the appeal tribunal (can. 1625).
6.4. Restitutio in Integrum
There is a controversy regarding the possibility of seeking this restitution in integrum (cann. 1645-1648) against the decree confirming the rejection of the libellus. In his decree 10 October 1985, Stankiewicz denied the concession against the decree confirming the rejection of a libellus in matrimonial cases in which the status of person does not become res iudicata (can. 1643) and restitution is given only against a sentence which makes a cause res iudicata (can. 1645 §1). An appeal was placed against this decree of Stankiewicz to the superior turnus in which Bruno through his decree of 23 May 1986 reformed the earlier decision because: the decree confirming the rejection of libellus constitutes res iudicata (an adjudged matter) as long as the libellus can’t be presented anymore and there is no remedy to uphold hid right except through restitution. The prevalent Rotal jurisprudence admits the restitution in integrum. If a contrary opinion is admitted, then against the grave manifest injustice there would be no legal remedy.34
34. For diverse opinions on this, see GROCHOLESWKI, “De period initiali,” 111-114.
6.5. Challenging the Admission of Libellus
As there could be a challenge against the decree of rejection, there could be a challenge also against the decree of acceptance either by the pars convent or by the defender of the bond. However, the challenge is placed only after the citation.
7. Admission of Libellus Ipso Iure
The sole judge or the presiding judge of the collegiate tribunal must admit or reject the petition as soon as possible by means of a decree (can. 1505 §1). If within a month of the reception of the libellus, the judge does not issue a decree either admitting or rejecting it, then the petitioner can insist (instare potest), the judge to perform his duty. If the judge does not respond, then after 10 days from time the party’s request, the libellus is considered as having been admitted (can. 1506). This “automatic” admission which is a fictio iuris serves as a mechanism for protecting the right of the faithful against the negligence of the tribunal in favour of a speedy process.35 The procedural law considers that justice delayed is justice denied. The mind of the legislator is that “every culpable delay, caused by the negligence or foreign occupations, in the administering and executing of justice is already in itself an injustice, which each member of ecclesiastical tribunals must meticulously strive to avoid at a distance.”
35. What if the judge fails to issue summons as per can. 1507, that is, within 10 days of the automatic acceptance of the petition? The code is silent and it has no canon to force him to act. As for the gravely negligent judge, some commentators have proposed denunciations according to can. 1457 and even sanctions based on can. 1389. The consultors during the revision of the code preferred not to impose a penalty by law on the negligent judge for the reason that such cases must be resolved through the ordinary vigilance of the legitimate superiors (see Communicationes, 11, p. 87).
Often times, it is possible that the judge is not culpable for his negligence because of the number of cases the tribunal receives, the paucity of judges in the tribunal, and his work load. As a consequence, instead of considering to penalize the judge, bishops should make efforts to prepare suitable persons for the tribunal ministry and thereby avoid injustice caused to the faithful petitioners (see HILBERT, L’ Introduzione della causa,” p. 65).