Declaration of Nullity

I. One must regularly proceed to the declaration of the nullity of an invalid marriage: 1° if convalidation cannot have place, because the impediment cannot be removed; 2° if, all things considered, it is better for the parties to be separated.

II. The competent judge in this cause is the judge of the place in which the marriage was celebrated, or in which the respondent party, or, if one is non-Catholic, the Catholic party, has a domicile or quasi-domicile (canon 1964). Nevertheless, recourse can also be had to the Holy See.

1. The tribunal to be constituted by the Ordinary consists of three judges (canon 1576, § 1), to whom are added the "defender of the bond," as it is called, and an actuary.

2. The tribunal must proceed collegially and render sentence by the greater part of the votes (canon 1577, § 1).

3. If sentence is rendered for the nullity of the marriage, appeal should be made to a higher tribunal, different according to the circumstances (canon 1986; compare canon 1594, §§ 1 and 2).¹

4. After the second sentence, which has confirmed the nullity of the marriage, if the defender of the bond in the grade of appeal has not believed according to his conscience that appeal should be made, the spouses have the right, ten days having elapsed from the notification of the sentence, of contracting new nuptials (canon 1987).

5. Canon 1990 establishes when the solemnities enumerated can be omitted: "When from a certain and authentic document, which is subject to no contradiction or exception, there has been established the existence of an impediment of disparity of worship, order, solemn vow of chastity, bond, consanguinity, affinity, or spiritual relationship, and at the same time with equal certainty it has appeared that a dispensation over these impediments was not given, in these cases, the solemnities enumerated up to this point having been passed over, the Ordinary, the parties having been cited, will be able to declare the nullity of the marriage, with the intervention, however, of the defender of the bond." Nevertheless, canons 1991 and 1992 should be consulted.

6. A marriage between two Catholics or between a Catholic party and a non-Catholic party, contracted either merely civilly or by a non-Catholic rite, can be declared null by the Ordinary, or by the pastor after the Ordinary has been consulted, after only the investigation of which canon 1019 sq. treats has first been made.²

¹ Appeal can also be made to the Sacred Rota (canon 1599, § 1, 1°).

² Pontifical Commission, October 16, 1919, to 17 (A.A.S. 1919, p. 479); March 23, 1919 (Archiv fuer katholisches Kirchenrecht 1919, p. 64).

— General notions concerning competence. 1. "Matrimonial causes between baptized persons by proper right and exclusively pertain to the ecclesiastical judge" (c. 1960), who can also incidentally and accessorily, by his own authority, take cognizance of and define questions concerning the merely civil effects of marriage. These, however, in a principal action, belong to the civil magistrate (c. 1961).

2. Matrimonial causes are either of separation of spouses, or of dispensation over a ratified and non-consummated marriage, or of the use of the Pauline privilege, or of the faculty of passing to other nuptials on account of the presumed death of the spouse, or of a declaration of nullity on account of a defect of consent or an impediment.

3. But a) by reason of persons, the causes of supreme princes, of their sons and daughters, and of those to whom there belongs the next right of succeeding to the kingdom, are reserved to the Sacred Congregation, tribunal, or commission to which the Supreme Pontiff has committed them (cc. 1962 and 1557);

b) concerning causes of separation, nothing peculiar occurs that must be said. Competent is the Ordinary of the place in which the marriage was celebrated, or in which the respondent party (i.e., the one against whom the suit is brought), or the Catholic party, if the other is non-Catholic, has domicile or quasi-domicile (c. 1964);

c) causes of dispensation over a ratified and non-consummated marriage are reserved to the Sacred Congregation of the Sacraments; causes which refer to the Pauline privilege are reserved to the Sacred Congregation of the Holy Office, to which there also belong exclusively the impediments of disparity of cult and mixed religion;

d) causes of nullity of matrimony, unless it is requested that by Pontifical commission they be referred at once to the Sacred Roman Rota, belong in first instance to the tribunal of the Ordinary; in second instance to the tribunal of the Metropolitan; or if the Metropolitan, as Ordinary of the place, is the judge of first instance, to the tribunal of a suffragan once for all chosen for appeals from the tribunal of the Archbishop. But for validity itself there is required a collegiate tribunal of three judges. In the third instance the Sacred Roman Rota is competent.

— Concerning dispensation over a ratified and non-consummated marriage. In a twofold way one comes to the legitimate process.

1. When the spouse petitions, whose petition is accustomed to reach the Holy See through the Ordinary of the place, the Holy See gives the Ordinary the faculty of instructing the process. When this has been completed, the instructing judge transmits all the acts, together with the written vote of the bishop and of the defender of the bond, to the Sacred Congregation, which, after one consultor has been heard concerning the matter and another for defense of the bond, decrees whether there is or is not place for consulting the Most Holy Father concerning the dispensation.

2. In a cause of a marriage impugned under the head of impotence, the competent tribunal (e.g., that of the Ordinary) finds that there is proof not of the impotence of the spouse but of the non-consummation of the marriage. Thence it transmits the acts to the Sacred Congregation, which comes to a decision in the same way as above.

— Most causes concerning the Pauline privilege are doubts whether or not there is place for the privilege, or whether some dispensation, for example from interpellation, is to be granted. A strictly judicial cause could arise if a marriage is impugned on account of the illegitimate use of that privilege. The Holy Office will judge that cause according to its own method.

— Causes of nullity, or those which regard the bond, have these special things: a) that all things must be carried out with the defender of the bond intervening, who, insofar as is equitable, is to defend the reasons for the valid marriage; b) that after the first sentence which has declared the nullity of the marriage, the defender of the bond must appeal to the higher tribunal, nor is there a right for the parties to contract other nuptials unless two sentences have admitted the nullity. After the second sentence by which the prior one concerning nullity has been confirmed, it is indeed open to the defender of the bond, by a new appeal (to the tribunal of the Rota), to seek a third sentence. He can nevertheless abstain from this appeal; and then the spouses have the right, after ten days have elapsed from the notification of the sentence, to contract new nuptials.

— Exception from these solemnities. 1. "When from a certain and authentic document, which is liable to no contradiction or exception, there has been proof of the existence and of the non-dispensation of the impediment of disparity of cult, order, solemn vow of chastity, bond, consanguinity, affinity, or spiritual kinship, then, the other solemnities having been omitted, the Ordinary, the parties having been cited, can declare the nullity of the marriage, with the intervention nevertheless of the defender of the bond" (c. 1990). If he prudently doubts that the matter is certain, he must appeal to the judge of second instance, who, with the intervention of the defender of the bond alone, will decree whether the sentence is to be confirmed, or whether the cause is to be judged in the ordinary manner: he then remits the cause to the tribunal of first instance (cc. 1991-1992).

2. This simpler manner of proceeding in manifest causes was introduced by Leo XIII. It nevertheless supposes that some appearance of marriage is had. Wherefore, if the substantial form of matrimony was manifestly neglected, i.e., if parties certainly subject to the canonical form contracted merely civilly, no process is required, no intervention of the defender of the bond. These cases are to be solved by the Ordinary himself, or by the pastor after consulting the Ordinary, in the prior investigation for the celebration of marriage. Thus the Commission of the Code itself responded, October 16, 1919.

— Faculty of reopening the cause. As in all causes concerning the status of persons, sentences in matrimonial causes never pass into a thing judged, at least while both spouses are living. Wherefore, if nevertheless new and serious arguments are at hand, they will always be able to be reconsidered (cc. 1903, 1989). When one party has died, the Sacred Rota admitted, June 20, 1922, that a sentence concerning the nullity of marriage can pass into a thing judged (A.A.S., XIV, 600, or Periodica, XI, 199).

N.B. The moral part of the treatise on marriage is contained in volume IV of our work, nn. 23-81.

— For more things concerning the obtaining, use, and execution of dispensations, cf. the treatise itself.

Concerning matrimonial causes it will be enough to have said these few things. Dispensation over a ratified and non-consummated marriage belongs to the Sacred Congregation of the Sacraments, which is accustomed to give the local Ordinary the faculty of instructing the process. A cause which regards the Pauline privilege is to be referred to the Holy Office. Causes of nullity of marriage must be carried out with the defender of the bond intervening; and two sentences for nullity are necessary, unless, however, there is question of certain impediments concerning which proof can be had from a certain and authentic document. And while both spouses whose marriage was in question are living, causes never pass into a thing judged.

N.B. The moral part of the treatise is contained in volume IV, On Chastity and the Contrary Vices.