By Bai Macfarlane

Is it fair for defendants’ rights to vary from court to court, and be based on handed-down policies from previous decades, subjectively determined by judges, under the oversight of no one?

This is occurring in Roman Catholic diocesan Tribunals in America in marriage annulment cases. The non-profit organization Mary’s Advocates assists defendants in nullity of marriage cases by publicizing the procedural rights helpful for those defending their marriage against an accusation of invalidity. For over fifteen years, I’ve been corresponding with defendants (who are technically called the respondents).

The former prefect of the highest tribunal in the world, Cardinal Raymond Burke, says that some bishops, “do not provide well-prepared and just workers for their tribunals” (source).  Rather than discovering that a marriage broke up because of the sin of one or both spouses reneging the marriage promises, unjust tribunal personnel might just grant an annulment.

I telephone-surveyed tribunals that issue many decisions. Quantitative data is publicized by the Canon Law Society of America (source).  From the tribunals, I sought to learn how the uphold rights of respondents defending the validity of their marriage. When the right of defense is denied, the whole case must be thrown out (i.e. irremediable 1983 CIC can. 1620, 7^o). Personnel from 17 diocesan tribunals answered my questions:

Illicit Beginnings

The initial challenge faced by defending respondents is that secrets are kept from them when they are advised their spouse petitioned for an annulment. Respondents are supposed to name witnesses and describe the details about which each witness can testify, but are told nothing about the facts being alleged by the petitioner to prove the invalidity of the marriage. Imagine you were accused of stealing a car, and you had to name witnesses, and list (in advance) specific questions the judge should ask witnesses. Imagine you were, however, not told the model of car, the date, or time of the alleged car theft.

Canon law requires the petitioner to describe–from the start–the general facts supporting his accusation of invalidity (c. 1504, 2^o). That general description must be given to the respondent (Mitis Iudex c. 1676 §1). The right to get a precise petition is so important the whole case should be thrown out if a precise petition is not sent to respondent with his first contact and citation (Dignitas Connubii. Art. 128).

When the respondent is first contacted by the tribunal, six out of seventeen tribunals surveyed said they do NOT give the respondent the petitioner’s summary of the facts upon which petitioner is basing the case.

Furthermore, according to a book co-authored by the dean of the Canon Law School at Catholic University of America (Dignitas Connubii: Norms and Commentary), the tribunals are not supposed to collect answers to a long questionnaire with each petition. Rev. Ronny Jenkins says, “it is not permitted to require the petitioner to include with the petition answers to a lengthy series of questions regarding the pre-matrimonial and matrimonial period. The petition should not be seen as a vehicle for an early instruction of the cause” (p. 209)].

Impairing Defense

Justice demands a defendant has the right to see the testimony and accusations made against him. Defendants must have the real possibility of rebutting false statements when the defendant submits rebuttals to nonsensical accusations. When the defendant submits rebuttals he weakens the accusation of invalidity. A judge could form his opinion on nonsensical assertions and falsehoods unless “other elements are present which weaken them” (Mitis Iudex c. 1678 §1). However, if the local tribunal impairs the defendant’s ability to give rebuttals, something has gone afoul. Tribunals are required to give the respondent a chance to read the full record of the case (also called the acts of the case).  A respondent that intends to submit rebuttals to the tribunal is aggrieved if the tribunal will not let the respondent write and keep his own notes when he reads the testimony and proofs in the record.

Former University of Notre Dame sociology professor Robert Vasoli, who specialized in criminology, wrote about tribunal practices in his book, “What God has Joined, The Annulment Crisis in America.” Vasoli talks about taking notes:

When the parties read the record of the case, twelve out of seventeen tribunals surveyed said they do NOT allow the respondents to make and keep his own notes.  Four tribunals do let parties make and keep their own notes, and one said it depends.

Secretive Decisions

At the conclusion of the case, canon law requires that parties be given their own copy of the full definitive sentence that clearly explains the reason for the decision based in law and supported by facts about the parties’ marriage.  For an aggrieved respondent, his own copy of the definitive sentence is the beginning of the appellate process wherein he must show why he believes the decision should be overturned. Seven of the seventeen tribunals surveyed said they do NOT give the parties their own copy of the definitive sentence and, instead, only allow parties to read the full sentence at the office of the tribunal.  A respondent, in those dioceses, must figure out how to write an appeal based on what he remembers being in the sentence.  Moreover, it is impossible for the respondent to satisfy the lawful obligation of pursuing an appeal; a copy of the tribunal’s full definitive sentence must be attached to the appeal (c. 1634 §1).

Survey Findings:

• Does the first letter to the Respondent include a summary of the facts upon which petitioner is basing the case?
• During the review of the acts of the case, are parties free to write and keep own notes?
• Does your tribunal mail parties a copy of the definitive sentence?

Mary’s Advocates’ interest in ecclesiastic cases of nullity of marriage is rooted in efforts to reduce unilateral no-fault divorce. Canonical grounds for separation of spouses are required to be investigated prior to any civil divorce action. If canonical grounds for nullity of marriage were also investigated at the time of separation, the obligations of parties toward each other could be determined based on natural and divine law, rather than determined by principles practiced by no-fault divorce professionals.  As a result, for example, a husband would not owe support to a woman who was mentally incompetent (grave lack of discretion) on the wedding day, because they were never really married. Furthermore, children could be protected from unsupervised visits or lodging with a parent who was mentally incompetent.  A groom or bride who committed fraud during their wedding ceremony could be found obligated to repair damages as much as possible.