- Posted by Mary's Advocates
- On August 6, 2016
Dear Rev. Name Named
Case No.: XXXXXX Name-Name
Exception to the Citation
I am raising the exception that the acts of this process are null because my citation does not contain those things that are necessary (X-pages attached, [enter description of documents that you received], dated MONTH XX, 20XX). I did not receive petitioner’s libellus. This cannot be a libellus because it is missing content required by law.
There is no description, in a general way, of the facts and proofs on which the petitioner is relying in order to demonstrate what is being asserted. Petitioner only states [enter quote of short statement from petitioner, or text associated with check box indicated on petition].
Can. 1459 § 1. Defects which can render the sentence null can be introduced as exceptions at any stage or grade of the trial; the judge can likewise declare them ex officio. Can. 1459 § 2. In addition to the cases mentioned in § 1, dilatory exceptions, especially those which regard the persons and the manner of the trial, must be proposed before the joinder of the issue unless they emerged after the issue was already joined; they must be decided as soon as possible.
Can. 1504 The libellus, which introduces litigation, must: … 2o indicate the right upon which the petitioner bases the case and, at least generally, the facts and proofs which will prove the allegations.
Can. 1509 The notification of citations, decrees, sentences, and other judicial acts must be made through the public postal service or by some other very secure method.
Dignitas Connubii (D.C.) Art. 116 §1 A libellus by which a cause is introduced must: … 3o indicate at least in a general way the facts and proofs on which the petitioner is relying in order to demonstrate what is being asserted (cf. can. 1504).
Motu Proprio Mitis Iudex Can. 1676 § 1. After receiving the libellus, the judicial vicar, if he considers that it has some basis, admits it and, by a decree appended to the bottom of the libellus itself, is to order that a copy be communicated to the defender of the bond and, unless the libellus was signed by both parties, to the respondent, giving them a period of fifteen days to express their views on the petition
Note: The option for a judge to delay, for grave reasons, giving a copy to the respondent, until after the respondent’s judicial deposition (cf D.C. Art 127 §3) has been abrogated by Motu Proprio Mitis Iudex Can. 1676 § 1.
D.C. Art. 128. If the citation does not contain those things which are necessary in accordance with art. 127, § 3 or if it was not legitimately communicated to the respondent party, the acts of the process are null, without prejudice to the prescriptions of Art. 60; 126, §3; 131 and with the prescriptions of art. 270, nn. 4, 7 remaining in force (cf. can. 1511).
Exception to the decree accepting the petitioner’s libellus
I am raising an exception, in accord with Dignitas Connubii Art. 77, by proposing that the decree wherein the tribunal accepted the libellus should be vacated because libellus does not contain the facts and proofs in a general way upon which the petitioner is relying to demonstrate nullity. If the libellus does contain these thing, please provide it to me. Otherwise, the libellus should be rejected.
Canon 1505 §1. When a single judge or the president of a collegiate tribunal has seen that the matter is within his competence and the petitioner does not lack legitimate personal standing in the trial, he must accept or reject the libellus as soon as possible by decree. §2. A libellus can be rejected only: […] 3o if the prescripts of canon 1504, nn. 1-3 have not been observed;
DC Art. 77 §1. At any stage or grade of trial, defects by which the nullity of a sentence can occur can be proposed as an exception and likewise declared by the judge ex officio (can. 1459, §1).
Rotal Jurisprudence describes elements of the Petitioner’s libellus that are missing: those that show the “fumus boni iuris” (smoke of law).
II The Law […] Section 16. Finally we would note a procedural norm that must be followed in first instance, at the very beginning in fact of a case: the need to consider whether or not the Petitioner’s libellus shows a “fumus boni iuris“. 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 “the basis for the petitioner’s right and at least in general the facts and proofs which will be used to prove what has been alleged” (c. 1504, 2o). The court must then consider the libellus, to decide if there is in fact a minimum legal basis to the claim, a minimum possibility of its being upheld after formal judicial investigation; if not, the libellus is to be rejected (c. 1505 §2, 4o), 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 brought forward give some grounds to consider that one may be dealing with a grave defect of discretion regarding some essential right/obligation of marriage (c. 1095, 2§), which moreover would point to some serious psychic anomaly, present at consent, and not just to slight or moderate pathologies or simple defects of character (cf. Addresses of Pope John Paul II to the Roman Rota, 1987 and 1988: AAS, vol. 79, 1457; vol. 80, 1181), then the libellus should not be accepted. (SOURCE Sentence of Oct. 15, 1992 Dublin http://www.cormacburke.or.ke/node/402)
… III The Argument ” […] “26. Finally, as indicated above, the Court of first instance does not even address the very important question of which were the essential matrimonial obligations in regard to which the Petitioner was held to have laboured under a grave lack of discretion of judgment. (SOURCE Sentence of Oct. 15, 1992 Dublin http://www.cormacburke.or.ke/node/402)
… Expert opinions in Law Only […] It follows that for a libellus to be accepted under c. 1095, there must be some allegation of a gravely anomalous condition – present at the moment of the marriage – in the person accused of consensual incapacity, accompanied by assertions or claims relating to signs, symptoms or events which, if substantiated, could make the presence of such an anomaly more likely. If nothing gravely anomalous is alleged, if nothing is asserted that could point to at least the possibility of a grave psychic anomaly, if there is no pre-wedding (or even post-wedding) medical history of some definite psychic disorder, if all that is spoken of is simple “immaturity” or commonplace character defects, etc., then there is good reason to consider that the libellus should not be accepted as clearly lacking in sufficient foundation (cfr. c. 1505, §2, 4º). Church Tribunals are not fulfilling their essential ecclesial role when they devote time to cases without substance, lacking in that minimum “fumus boni iuris” which suggests that there is a true issue of justice to be resolved. (SOURCE Sentence of Jan 20, 1994) http://www.cormacburke.or.ke/node/413)
I request that this tribunal disregard petitioner’s allegations of my (or either party) having had an incapacity to assume essential obligations of marriage (or having a grave lack of discretion of judgement regarding the the essential matrimonial rights and duties of marriage) because
a) petitioner made no allegations of any gravely anomalous condition present at moment of marriage
b) petitioner made no assertions or claims relating to signs, symptoms or events, which if substantiated, could make the presence of such an anomaly more likely.
c) there is no pre-wedding or post wedding history of some definite psychic disorder of respondent, nor is one alleged by petitioner
d) the petitioner alleged that the respondent was (quote from petition) immature, controlling, manipulative, disrespectful etc., which (thought the respondent denies) are not grave psychic anomalies, but only commonplace character defects.
I understood that the allegations brought forward in the libellus should describe the grounds being considered while identifying a specific defect regarding some specific right or obligation. If the libellus you present to me simply states the proposed ground is canon 1095, I find myself ill-equipped to provide any relevant reply to effectively.