Notes, Commentary, Discussion, Papers & Bibliography
(Cann. 1400 - 1403) English (Cann. 1400 - 1403) Latin
Canon 1400 Object of a Trial
See also canon 221 - the right of each person to vindicate rights. Also #2 presumes guilt, however, the guilt is also a matter for the trial to determine. There is evidence of process in scripture and throughout history. Canon 221 calls for canonical equity epieikeia which mediates between blackletter law and doing justice in a particular case. It's goal is salus animarum c1752, but this is so fluid. Maintaining communion ecclesialis
Canon 1401 Church Adjudication By proper and exclusive right the Church adjudicates:
This could also touch sin. In scripture Jesus gives the power to judge. Church claims bishops are recipients of this power. The goal is to restore the broken communio, i.e. restorative justice. This has natural and supernatnatural dimensions. There is a tension between high spiritual principles and the concrete proceedural norms. All deserve justice, whether they are part of general priesthood or hierarchical priesthood.
Canon 1402 Canons on Tribunals The following canons govern all tribunals of the Church, without prejudice to the norms of the tribunals of the Apostolic See.
Canon 1403 Canonization
ambivalent terms in process law: remuneratio honesta, posse, gravis causa, gravissima, necessitas, justa causa
Canon 1404 First See The First See is judged by no one. It is derived from an interpretation of divine law. See c331 - supreme full universal and immediate power. It's a struggle because of many problems in history. LG 25, also from CIC17. Also c1372 - can't appeal to council.
Canon 1405 Competence of Roman Pontiff
Canon 1406 Incompetence
Canon 1407 Competence of Judge
Canon 1408 Domicile Anyone can be brought to trial before the tribunal of domicile or quasi-domicile.
Canon 1409 Transients
Canon 1410 Location of an Object By reason of the location of an object, a party can be brought to trial before the tribunal of the place where the object in dispute is located whenever the action is directed against the object or concerns damages.
Canon 1411 Location of Contract
Canon 1412 Location of Delict In penal cases the accused, even if absent, can be brought to trial before the tribunal of the place where the delict was committed.
Canon 1413 Location of Administration and Inheritance A party can be brought to trial:
Canon 1414 Joinder of Cases By reason of connection, interconnected cases must be adjudicated by one and the same tribunal in the same process unless a prescript of law prevents this.
Canon 1415 By reason of prevention, if two or more tribunals are equally competent, the right of adjudicating the case belongs to the one which legitimately cited the respondent first.
Canon 1416 The appellate tribunal resolves conflicts of competence between tribunals subject to it; if the tribunals are not subject to the same appellate tribunal, the Apostolic Signatura resolves conflicts of competence.
Canon 1417 Recourse to Apostolic See
Canon 1418 Tribunals to Assist Each Other Any tribunal has the right to call upon the assistance of another tribunal to instruct a case or to communicate acts.
Canon 1419 Bishop, First Judge
Canon 1420 Judicial Vicar
Canon 1421 Diocesan Judges
Canon 1422 Terms The JV, adjutant JVs, and other judges are appointed for a definite time, without prejudice to the prescript of can. 1420, §5 and cannot be removed except for a legitimate and grave cause.
Canon 1423 Interdiocesan Tribunal
Canon 1424 Assessors In any trial, a single judge can employ two assessors who consult with him; they are to be clerics or lay persons of upright life.
Canon 1425 Collegiate Tribunal Cases
Canon 1426 Collegiate Tribunal
Canon 1427 Religious Institute Controversies
Canon 1428 Auditor
Canon 1429 Ponens / Relator The president of a collegiate tribunal must designate one of the judges of the college as the ponens or relator who is to report about the case at the meeting of the judges and write the sentence. For a just cause the president can substitute another in place of the original relator.
Canon 1430 Promoter A promoter of justice for contentious cases which can endanger the public good and for penal cases to provide for the public good.
Canon 1431 Contentious Cases
Canon 1432 Defender A defender of the bond in nullity or dissolution of a marriage or ordination.
Canon 1433 Promoter & Defender Required If the promoter of justice or defender of the bond was not cited in cases which require their presence, the acts are invalid unless they actually took part even if not cited or, after they have inspected the acts, at least were able to fulfill their function before the sentence.
Canon 1434 Unless other provision is expressly made:
Canon 1435 Appointment. Bishop appoints promoter of justice and defender of the bond; clerics or lay doctors or licensed, prudence and zeal for justice.
Canon 1436 Conflicts. §1. One can be promoter and defender, but not in the same case. §2. The promoter and the defender can be appointed for all cases or for individual cases; however, the bishop can remove them for a just cause.
Canon 1437 Notary. §1. A notary takes part and signs. §2. Acts which notaries prepare warrant public trust. In practice notary just signs at the end.
Canon 1438 Appeal Without prejudice to the prescript of can. 1444, §1, n. 1:
Canon 1439 Appeal from Interdiocesan Tribunal
Canon 1440 Incompetence If competence by reason of grade according to the norm of cann. 1438 and 1439 is not observed, the incompetence of the judge is absolute.
Canon 1441 The tribunal of second instance must be established in the same way as the tribunal of first instance. Nevertheless, if a single judge rendered a sentence in the first instance of the trial according to can. 1425, §4, the tribunal of second instance is to proceed collegially.
Canon 1442 The Pope is the supreme judge for the entire Catholic world; he gives judicial decisions either personally though himself, through the Ordinary Tribunals of the Apostolic See, or through judges he has delegated.
Canon 1443 The Roman Rota is the ordinary tribunal established by the Roman Pontiff to receive appeals.
(1446 - 1475)
Canon 1447 A person who has taken part in a case as a judge, promoter of justice, defender of the bond, procurator, advocate, witness, or expert cannot later in another instance validly decide the same case as judge or perform the function of assessor.
Canon 1450 If the objection is accepted, the persons must be changed but not the grade of the trial.
Canon 1453 Without prejudice to justice, judges and tribunals are to take care that all cases are completed as soon as possible and that in a tribunal of first instance they are not prolonged beyond a year and in a tribunal of second instance beyond six months.
Canon 1454 All who constitute a tribunal or assist it must take an oath to carry out their function correctly and faithfully.
Canon 1456 The judge and all officials of the tribunal are prohibited from accepting any gifts on the occasion of their acting in a trial.
Canon 1458 Cases are to be adjudicated in the order in which they were presented and inscribed in the register unless one of them requires speedier treatment than the others; this fact must be established through a special decree which gives the substantiating reasons.
Canon 1461 A judge who becomes aware of being absolutely incompetent at any stage of the case must declare the incompetence.
Canon 1464 Questions concerning the provision for judicial expenses or a grant of gratuitous legal assistance which had been requested from the very beginning and other such questions as a rule must be dealt with before the joinder of the issue.
Canon 1466 When the law in no way establishes time limits for completing procedural acts, the judge must define them after having taken into consideration the nature of each act.
Canon 1467 If the tribunal is closed on the day scheduled for a judicial act, the time limit is extended to the first day following which is not a holiday.
Canon 1468 Insofar as possible, every tribunal is to be in an established location open during stated hours.
Canon 1471 If a person to be questioned speaks a language unknown to the judge or the parties, an interpreter designated by the judge and under oath is to be used. The statements, however, are to be put into writing in the original language and a translation added. An interpreter is also to be used if a speech or hearing impaired person must be questioned unless the judge may prefer the person to answer the questions in writing.
Canon 1473 Whenever judicial acts require the signature of the parties or witnesses and the party or witness is unable or unwilling to sign, this is to be noted in the acts; the judge and the notary are also to attest that the act was read to the party or the witness verbatim and that the party or the witness was either not able or unwilling to sign.
(1476 - 1490)
Canon 1476 Anyone, whether baptized or not, can bring action in a trial; however, a party legitimately summoned must respond.
Canon 1477 Even if the petitioner or respondent has appointed a procurator or advocate, they themselves are nevertheless always bound to be present at the trial according to the prescript of the law or of the judge.
Canon 1479 Whenever a guardian or curator appointed by civil authority is present, the ecclesiastical judge can admit the guardian or curator after having heard, if possible, the diocesan bishop of the person to whom the guardian or curator was given; if the guardian or curator is not present or does not seem admissible, the judge will appoint a guardian or curator for the case.
Canon 1481 Advocate
Canon 1483 The procurator and advocate must have attained the age of majority and be of good reputation; moreover, the advocate must be a Catholic unless the diocesan bishop permits otherwise, a doctor in canon law or otherwise truly expert, and approved by the same bishop.
Canon 1485 Without a special mandate, a procurator cannot validly renounce an action, an instance, or judicial acts nor come to an agreement, make a bargain, enter into arbitration, or in general do those things for which the law requires a special mandate.
Canon 1487 For a grave cause, the judge either ex officio or at the request of the party can remove the procurator and the advocate by decree.
Canon 1489 Advocates and procurators who betray their office for gifts, promises, or any other reason are to be suspended from the exercise of legal assistance and punished with a fine or other suitable penalties.
Canon 1490 As far as possible, legal representatives are to be appointed in a stable manner in each tribunal, who receive a stipend from the tribunal and are to exercise, especially in marriage cases, the function of advocate or procurator on behalf of parties who wish to select them.
(1491 - 1500)
Canon 1491 Every right is protected not only by an action but also by an exception unless other provision is expressly made.
Canon 1493 A petitioner can bring a person to trial with several actions at once, either concerning the same or different matters, so long as the actions do not conflict among themselves and do not exceed the competence of the tribunal approached.
Canon 1495 The counterclaim must be presented to the judge before whom the first action was filed even if the judge was delegated for only one case or is otherwise relatively incompetent.
Canon 1498 Sequestration of a thing and restraint upon the exercise of a right can in no way be decreed if the harm which is feared can be repaired in another way and suitable security for its repair is offered.
Canon 1499 A judge who grants the sequestration of a thing or a restraint upon the exercise of a right can first impose an obligation upon the person to compensate for damages if that person’s right is not proven.
Canon 1500 The prescripts of the civil law of the place where the object whose possession is in question is located are to be observed regarding the nature and force of a possessory action.
Section I. The Ordinary Contentious Trial
(Cann. 1501 - 1512)
Canon 1501 A judge cannot adjudicate a case unless the party concerned or the promoter of justice has presented a petition according to the norm of the canons.
Canon 1502 A person who wishes to bring another to trial must present to a competent judge a libellus which sets forth the object of the controversy and requests the services of the judge.
Canon 1504 The libellus, which introduces litigation, must:
Canon 1506 If within a month from the presentation of the libellus the judge has not issued a decree which accepts or rejects the libellus according to the norm of can. 1505, the interested party can insist that the judge fulfill his function. If the judge takes no action within ten days from the request, then the libellus is to be considered as accepted.
Canon 1510 A respondent who refuses to accept the document of citation or who prevents its delivery is considered to be legitimately cited.
Canon 1511 If the citation was not communicated legitimately, the acts of the process are null, without prejudice to the prescript of can. 1507, §3.
Canon 1512 When the citation has been communicated legitimately or the parties have appeared before the judge to pursue the case:
(Cann. 1513 - 1516) English Latin
Canon 1514 Once established, the terms of the controversy cannot be changed validly except by a new decree, for a grave cause, at the request of a party, and after the other parties have been heard and their arguments considered.
Canon 1515 After the issue has been joined, the possessor of the property of another ceases to be in good faith; therefore, if the possessor is sentenced to restore the property, the person must also return the profits made from the day of the joinder and repair any damages.
Canon 1516 After the issue has been joined, the judge is to prescribe a suitable time for the parties to present and complete the proofs.
Canon 1517 A trial begins with the citation; it ends not only by the pronouncement of a definitive sentence but also by other methods defined by law.
Canon 1518 If the litigating party dies, changes status, or ceases from the office in virtue of which action is taken:
Canon 1520 If the parties, without any impediment, propose no procedural act for six months, the trial is abated. Particular law can establish other terms of abatement.
Canon 1521 Abatement takes effect by the law itself against all persons, including minors or those equivalent to minors, and must be declared ex officio, without prejudice to the right of seeking indemnity against guardians, curators, administrators, or procurators, who have not proved that they were not negligent.
Canon 1522 Abatement extinguishes the acts of the process but not the acts of the case; indeed these acts can also have force in another trial provided that the case involves the same persons and the same issue; regarding those not party to the case, however, the acts have no force other than that of documents.
Canon 1523 Each litigant is to bear the expenses of the abated trial which that litigant has incurred.
Canon 1525 A renunciation accepted by the judge has the same effects for the acts renounced as the abatement of the trial; it also obliges the renouncing party to pay the expenses for the acts renounced.
Canon 1528 If a party or a witness refuses to appear before the judge to testify, it is permissible to hear them through a lay person designated by the judge or to require of them a declaration either before a notary public or in any other legitimate manner.
Canon 1529 Except for a grave cause, the judge is not to proceed to collect the proofs before the joinder of the issue.
Canon 1530 The judge can always question the parties to draw out the truth more effectively and indeed must do so at the request of a party or to prove a fact which the public interest requires to be placed beyond doubt.
Canon 1532 In cases where the public good is at stake, the judge is to administer an oath to the parties to tell the truth or at least to confirm the truth of what they have said unless a grave cause suggests otherwise; the same can be done in other cases according to the judge’s own prudence.
Canon 1533 The parties, the promoter of justice, and the defender of the bond can present the judge with items about which the party is to be questioned.
Canon 1534 The provisions of cann. 1548, §2, n. 1, 1552, and 1558–1565 concerning witnesses are to be observed to the extent possible when questioning the parties.
Canon 1535 A judicial confession is the written or oral assertion of some fact against oneself before a competent judge by any party concerning the matter of the trial, whether made spontaneously or while being questioned by the judge.
Canon 1537 After considering all the circumstances, it is for the judge to decide how much value must be accorded an extrajudicial confession introduced into the trial.
Canon 1538 A confession or any other declaration of a party lacks any force if it is shown that it was made due to an error of fact or extorted by force or grave fear.
Canon 1539 In any kind of trial, proof by means of both public and private documents is allowed.
Canon 1541 Unless contrary and evident arguments prove otherwise, public documents are to be trusted concerning everything which they directly and principally affirm.
Canon 1542 A private document, whether acknowledged by a party or approved by the judge, has the same force of proof against the author or signatory and those deriving a case from them as an extrajudicial confession. It has the same force against those who are not parties to the case as declarations of the parties which are not confessions, according to the norm of can. 1536, §2.
Canon 1543 If the documents are shown to have been erased, emended, falsified, or otherwise defective, it is for the judge to decide what value, if any, must be afforded them.
Canon 1544 Documents do not have probative force in a trial unless they are originals or authentic copies and deposited at the tribunal chancery so that the judge and the opposing party can examine them.
Canon 1545 The judge can order a document common to both parties to be presented in the process.
Canon 1547 Proof by means of witnesses is allowed under the direction of the judge in cases of any kind.
Canon 1549 All persons can be witnesses unless the law expressly excludes them in whole or in part.
Canon 1551 The party who has introduced a witness can renounce the examination of that witness; the opposing party, however, can request that the witness be examined nevertheless.
Canon 1553 It is for the judge to curb an excessive number of witnesses.
Canon 1554 Before the witnesses are examined, their names are to be communicated to the parties; if in the prudent judgment of the judge, however, that cannot be done without grave difficulty, it is to be done at least before the publication of the testimonies.
Canon 1555 Without prejudice to the prescript of can. 1550, a party can request the exclusion of a witness if a just cause for the exclusion is shown before the questioning of the witness.
Canon 1556 The citation of a witness occurs through a decree of the judge legitimately communicated to the witness.
Canon 1557 A witness who has been cited properly is to appear or to inform the judge of the reason for the absence.
Canon 1559 The parties cannot be present at the examination of the witnesses unless the judge has decided to admit them, especially when the matter concerns a private good. Their advocates or procurators, however, can be present unless the judge has decided that the examination must proceed in secret due to the circumstances of the matters and persons.
Canon 1561 The judge, the judge’s delegate, or an auditor examines the witness; the examiner must have the assistance of a notary. Consequently, if the parties, the promoter of justice, the defender of the bond, or the advocates present at the examination have any questions to be put to the witness, they are to propose them not to the witness but to the judge or the one who takes the place of the judge, who is to ask the questions, unless particular law provides otherwise.
Canon 1563 The judge is first of all to establish the identity of the witness, then ask what relationship the witness has with the parties, and, when addressing specific questions to the witness concerning the case, also inquire about the sources of his or her knowledge and the precise time when the witness learned what he or she asserts.
Canon 1564 The questions are to be brief, accommodated to the mental capacity of the person being questioned, not comprised of several points at the same time, not deceitful or deceptive or suggestive of a response, free from any kind of offense, and pertinent to the case being tried.
Canon 1566 Witnesses are to give testimony orally and are not to read written materials unless they are computations and accounts; in this case, they can consult the notes which they brought with them.
Canon 1568 The notary is to make mention in the acts of whether the oath was taken, excused, or refused, of the presence of the parties and other persons, of the questions added ex officio, and in general of everything worth remembering which may have occurred while the witnesses were being examined.
Canon 1570 Although already examined, witnesses can be recalled for examination before the acts or testimonies are published, either at the request of a party or ex officio, if the judge decides it is necessary or useful, provided that there is no danger of collusion or corruption.
Canon 1571 Both the expenses which the witnesses incurred and the income which they lost by giving testimony must be reimbursed to them according to the just assessment of the judge.
Canon 1572 In evaluating testimony, the judge, after having requested testimonial letters if necessary, is to consider the following:
Canon 1573 The testimony of one witness cannot produce full proof unless it concerns a qualified witness making a deposition concerning matters done ex officio, or unless the circumstances of things and persons suggest otherwise.
Canon 1574 The assistance of experts must be used whenever the prescript of a law or of the judge requires their examination and opinion based on the precepts of art or science in order to establish some fact or to discern the true nature of some matter.
Canon 1575 After having heard the parties and their suggestions, it is for the judge to appoint the experts or, if the case warrants, to accept reports already drawn up by other experts.
Canon 1576 Experts are excluded or can be objected to for the same reasons as a witness.
Canon 1580 The judge must justly and equitably determine the expenses and fees to be paid to the experts, with due regard for particular law.
Canon 1582 If, in order to decide a case, the judge considers it opportune to visit some place or to inspect some thing, the judge, after having heard the parties, is to order it by a decree describing in summary fashion those things which must be exhibited during the visit or inspection.
Canon 1583 When the visit or inspection has been completed, a report about it is to be drafted.
Canon 1584 A presumption is a probable conjecture about an uncertain matter; a presumption of law is one which the law itself establishes; a human presumption is one which a judge formulates.
Canon 1585 A person who has a favorable presumption of law is freed from the burden of proof, which then falls to the other party.
Canon 1586 The judge is not to formulate presumptions which are not established by law unless they are directly based on a certain and determined fact connected with the matter in dispute.
Canon 1587 An incidental case arises whenever, after the trial has begun through the citation, a question is proposed which nevertheless pertains to the case in such a way that it frequently must be resolved before the principal question, even if it was not expressly contained in the libellus which introduced the litigation.
Canon 1588 An incidental case is proposed in writing or orally before the judge competent to decide the principal case, indicating the connection between this and the principal case.
Canon 1591 Before the principal case is completed, the judge or the tribunal can revoke or reform the decree or interlocutory sentence for a just reason either at the request of a party or ex officio after the parties have been heard.
Canon 1594 If the petitioner has not appeared on the day and at the hour prescribed for the joinder of the issue and has not offered a suitable excuse:
Canon 1597 After having heard the parties, the judge must summon to the trial a third person whose intervention seems necessary.
(Cann. 1598 - 1606) English Latin
Canon 1601 After the conclusion of the case, the judge is to determine a suitable period of time to present defense briefs or observations.
Canon 1605 A notary is to be present at the oral debate mentioned in cann. 1602, §1 and 1604, §2 so that, if the judge orders it or a party requests it and the judge consents, the notary can immediately report in writing about what was discussed and concluded.
Canon 1606 If the parties have neglected to prepare a defense brief within the time available to them or have entrusted themselves to the knowledge and conscience of the judge, and if from the acts and proofs the judge considers the matter fully examined, the judge can pronounce the sentence immediately, after having requested the observations of the promoter of justice and the defender of the bond if they are involved in the trial.
Canon 1607 When a case has been handled in a judicial manner, if it is the principal case, the judge decides it through the definitive sentence; if an incidental case, through an interlocutory sentence, without prejudice to the prescript of can. 1589, §1.
Canon 1611 The sentence must:
Canon 1613 The rules proposed above for a definitive sentence are to be adapted for an interlocutory sentence.
Canon 1614 The sentence is to be published as soon as possible, with an indication of the means by which it can be challenged. It has no force before publication even if the dispositive part was made known to the parties with the permission of the judge.
Canon 1615 Publication or communication of the sentence can be done either by giving a copy of the sentence to the parties or their procurators or by sending them a copy according to the norm of can. 1509.
Canon 1617 Other pronouncements of the judge besides the sentence are decrees, which have no force if they are not merely procedural unless they express the reasons at least in a summary fashion or refer to reasons expressed in another act.
Canon 1618 An interlocutory sentence or a decree has the force of a definitive sentence if it prevents a trial or puts an end to a trial or some grade of a trial with respect to at least some party in the case.
(1619 - 1640)
Canon 1619 Without prejudice to cann. 1622 and 1623, whenever a case involves the good of private persons, the sentence itself sanates the nullities of acts established by positive law which were not declared to the judge before the sentence even though they were known to the party proposing the complaint.
Canon 1620 A sentence suffers from the defect of irremediable nullity if:
Canon 1621 The complaint of nullity mentioned in can. 1620 can be proposed by way of exception in perpetuity and also by way of action before the judge who rendered the sentence within ten years from the date of the publication of the sentence.
Canon 1622 A sentence suffers from the defect of remediable nullity only if:
Canon 1623 A complaint of nullity in the cases mentioned in can. 1622 can be proposed within three months from the notice of the publication of the sentence.
Canon 1624 The judge who rendered the sentence deals with the complaint of nullity. If the party fears that the judge who rendered the sentence challenged by the complaint of nullity is prejudiced and therefore considers the judge suspect, the party can demand that another judge be substituted according to the norm of can. 1450.
Canon 1625 A complaint of nullity can be proposed together with an appeal within the time established for an appeal.
Canon 1627 Cases concerning a complaint of nullity can be treated according to the norms for the oral contentious process.
Canon 1628 A party who considers himself or herself aggrieved by any sentence as well as the promoter of justice and the defender of the bond in cases which require their presence have the right to appeal the sentence to a higher judge, without prejudice to the prescript of can. 1629.
Canon 1629 There is no appeal:
Canon 1631 If a question arises about the right to appeal, the appellate tribunal deals with it as promptly as possible (expeditissime) according to the norms of the oral contentious process.
Canon 1633 An appeal must be pursued before the appellate judge within a month from its introduction unless the judge from whom appeal is made has established a longer period for a party to pursue it.
Canon 1635 Once the deadline for appeal has passed without action either before the judge from whom the appeal is made or before the appellate judge, the appeal is considered abandoned.
Canon 1638 An appeal suspends the execution of the sentence.
Canon 1640 The appellate grade must proceed in the same manner as first instance with appropriate adjustments; immediately after the issue has been joined according to the norm of can. 1513, §1 and can. 1639, §1 and unless the proofs possibly must be completed, the discussion of the case is to take place and the sentence rendered.
(1641 - 1648)
Canon 1641 Situations. Without prejudice to the prescript of can. 1643, a res iudicata occurs: 1º if a second concordant sentence is rendered between the same parties over the same issue and on the same cause for petitioning; 2º if time for appeal lapses; 3º if appeal fails; 4º if there is no appeal, see canon. 1629.
Canon 1642 Stability of Law.
Canon 1643 Status of persons. Cases concerning the status of persons, including marriage nullity, never become res iudicata. Exception is interpreted strictly. Includes ordination and profession. Some say penal actions are concern status of persons.
Canon 1644 New Case
English Latin Conplete Reinstatement
1º the sentence is based on proofs which afterwards are discovered to be false in such a way that without those proofs the dispositive part of the sentence is not sustained; 2º documents have been revealed afterwards which undoubtedly prove new facts and demand a contrary decision; 3º the sentence was rendered due to the malice of one party resulting in harm to the other party;
Canon 1648 If restitutio in integrum is granted, the judge must pronounce on the merits of the case.
Canon 1651 Execution cannot occur prior to the executory decree of the judge which declares that the sentence must be executed. This decree is to be included in the text of the sentence or issued separately according to the particular nature of the cases.
Canon 1652 If the execution of a sentence requires a prior rendering of accounts, it is an incidental question which the same judge who rendered the sentence ordering the execution must decide.
Section II. The Oral Contentious Process (1656 - 1670) English Latin
Canon 1657 The oral contentious process takes place in the first grade before a single judge according to the norm of can. 1424.
Canon 1660 If the exceptions of the respondent demand it, the judge is to establish a time limit for the petitioner to respond, in such a way that from the points brought forth by both of the parties the judge clarifies the object of the controversy.
Canon 1662 At the hearing the questions mentioned in cann. 1459–1464 are treated first.
Canon 1664 The notary must put into writing the responses of the parties, the witnesses, and the experts and the petitions and exceptions of the advocates, but in a summary fashion and only in those matters pertaining to the substance of the dispute; the deponents must sign these acts.
Canon 1665 The judge can admit proofs which are not brought forth or sought in the petition or response only according to the norm of can. 1452. After even one witness has been heard, however, the judge can only decide about new proofs according to the norm of can. 1600.
Canon 1666 If all the proofs were not able to be collected during the hearing, a second hearing is to be scheduled.
Canon 1667 When the proofs have been collected, the oral discussion takes place at the same hearing.
Canon 1669 If the appellate tribunal discovers that the oral contentious process was used at a lower grade of a trial in cases excluded by law, it is to declare the nullity of the sentence and remit the case to the tribunal which rendered the sentence.
Canon 1670 In other matters pertaining to the manner of proceeding, the prescripts of the canons for the ordinary contentious trial are to be observed. In order to expedite matters without prejudice to justice, however, the tribunal, by a decree expressing the reasons for its decision, can derogate from procedural norms which have not been established for validity.
(1671 - 1707)
In Mitis Iudex Dominus Iesus, (2015) Pope Francis reformed the marriage annulment process. A summary of the new canons is listed here, and below is a similar summary of the canons from the 1983 Code.
Criteria of the reform:
Can. 1671 Right to Judge § 1. Marriage cases of the baptized belong to the ecclesiastical judge by proper right. § 2. Civil effects of marriage determined by civil magistrate, unless ceded in civil law to an ecclesiastical judge.
Can. 1672. Tribunal Cases not reserved to the Apostolic See, the competencies are the tribunal of: 1° place of marriage; 2° where either party has a domicile or a quasi-domicile; 3° place where most proffs are.
Can. 1673 Judges § 1. Bishop is the first judge. § 2. Bishop to establish tribunal or approach another tribuanl or interdiocesan tribunal. § 3. College of three judges presided by a cleric. § 4. Can have sole clerical judge who, where possible with two assessors. § 5. The tribunal of second instance must always be collegiate for validity. § 6. The tribunal of first instance appeals to the metropolitan tribunal of second instance without prejudice to the prescripts of cann. 1438-1439 and 1444.
Can. 1674 Challenger § 1. The following are qualified to challenge a marriage: 1° the spouses; 2° the promoter of justice. § 2. A marriage which was not accused while both spouses were living cannot be accused after the death of either spouse, unless other reasons exist. § 3. If a spouse dies while the case is pending see can. 1518.
Can. 1675. Failure Irreparably failed marriage, before accepting case = civil divorce.
Can. 1676 Introduction§ 1. Libellus transmitted to both parties and defender of the bond with 15 days to comment. § 2. The judicial vicar formulates doubt and determines ordinary or briefer process. Communicates to parties and defender. § 3. For ordinary process, the same decree constitutes a college of judges or of a single judge with two assessors according to can. 1673, § 4. § 4. For briefer process is decided upon, see can. 1685. § 5. The formula of doubt determines ground or grounds of challenge.
Can. 1677 Rights§ 1. The defender of the bond, parties' reps, and the promoter of justice have the following rights: 1. to be present at the examination of the parties, witnesses, and the experts; 2. to inspect the acts and review the documents. § 2. The parties cannot be present at the examination mentioned in §1.1.
Can. 1678 Proofs § 1. In cases of the nullity of marriage, a judicial confession and the declarations of the parties (and witnesses to their credibility) can have the force of full proof, to be evaluated by the judge. § 2. Single can produce full proof in some cases. § 3. The judge is to use the services of one or more experts for medical or psychic proofs unless clearly useless. § 4. If the marriage was not consumated - use that process.
Can. 1679. One sentence The sentence of nullity becomes executive.
Can. 1680 Appeal § 1. The aggrieved party, the promoter and defender can introduce an appeal. § 2. A college of judges is established, the defender is designated, and the parties are admonished to put forth their observations within the prescribed time limit; after this time period has passed, if the appeal clearly appears merely dilatory, the collegiate tribunal confirms the sentence of the prior instance by decree. § 3. If an appeal is admitted, the tribunal must proceed. § 4. If a new ground of nullity of the marriage is alleged at the appellate level, the tribunal can admit it and judge it as if in first instance.
Can. 1681. New proofs Case can go to third instance for new proposition if there are new and grave proofs within 30 days.
Can. 1682 Free to marry § 1. After nullity, parties can contract a new marriage, unless prohibited by sentence. § 2. Nullity and possible prohibitions noted in the marriage and baptismal registers.
Can. 1683. Nullity manifest Bishop uses the briefer process whenever: 1. the petition is proposed by both spouses or by one, with the consent of the other; 2. circumstance do not demand a more accurate inquiry or investigation, and render the nullity manifest.
Can. 1684. Libellus The libellus introducing the briefer process contains can. 1504, and: 1. brief, full, and clear facts on which the petition is based; 2. the proofs; 3° documents.
Can. 1685. Citation JV determines doubt, instructor, assessor, cites all for session within 30 days (can. 1686).
Can. 1686. Instruction The instructor collects the proofs in a single session and allows 15 days for observations in favor of the bond and the defense briefs of the parties, if any.
Can. 1687 Decision§ 1. The diocesan bishop, consults the instructor and the assessor, and considers the observations of the defender of the bond and the defense briefs of the parties, then issues the sentence if he reaches moral certitude or refers the case to the ordinary method. § 2. He gives the full text of the sentence with the reasons to the parties as swiftly as possible. § 3. An appeal can be made to the metropolitan or to the Roman Rota, etc. § 4. Dilatory appeals are rejected at the outset.
Can. 1688. On petition, the bishop, JV or judge can declare nullity if no dispensation was given.
Can. 1689 § 1. if 1688 is not certain, a documentary process initiates. § 2. The aggrieved party retains the right of appeal.
Can. 1690. Appeal Second instance judge reviews 1688 case.
Can. 1691 § 1. Civil obligations, and obligations to children notwithstanding. § 2. Oral contentious process mentioned in cann. 1656-1670 not allowed. § 3. Other norms on trials and on rights of persons to be observed.
Canons 1671-1691 are replaced by new canons from Mitis Iudex Dominus Iesus 2015.
English Latin Canon 1671 Marriage cases of the baptized belong to the ecclesiastical judge by proper right.
Canon 1672 Cases concerning the merely civil effects of marriage belong to the civil magistrate unless particular law establishes that an ecclesiastical judge can investigate and decide these cases if they are done in an incidental or accessory manner.
Canon 1673 In cases concerning the nullity of marriage which are not reserved to the Apostolic See, the following are competent:
Canon 1674 The following are qualified to challenge a marriage:
Canon 1676 Before accepting a case and whenever there is hope of a favorable outcome, a judge is to use pastoral means to induce the spouses if possible to convalidate the marriage and restore conjugal living.
Canon 1679 Unless there are full proofs from elsewhere, in order to evaluate the depositions of the parties according to the norm of can. 1536, the judge, if possible, is to use witnesses to the credibility of those parties in addition to other indications and supporting factors.
Canon 1680 In cases of impotence or defect of consent because of mental illness, the judge is to use the services of one or more experts unless it is clear from the circumstances that it would be useless to do so; in other cases the prescript of can. 1574 is to be observed.
Canon 1681 Whenever, during the instruction of a case, a very probable doubt emerges that consummation of the marriage did not occur, after suspending the case of nullity with the consent of the parties, the tribunal can complete the instruction for a dispensation super rato and then transmit the acts to the Apostolic See together with a petition for a dispensation from either one or both of the spouses and the votum of the tribunal and the bishop.
Canon 1683 If a new ground of nullity of the marriage is alleged at the appellate grade, the tribunal can admit it and judge it as if in first instance.
Canon 1685 As soon as the sentence is executed, the JV must notify the local ordinary of the place in which the marriage was celebrated. The local ordinary must take care that the declaration of the nullity of the marriage and any possible prohibitions are noted as soon as possible in the marriage and baptismal registers.
Canon 1686 After receiving a petition proposed according to the norm of can. 1677, the JV or a judge designated by him can declare the nullity of a marriage by sentence if a document subject to no contradiction or exception clearly establishes the existence of a diriment impediment or a defect of legitimate form, provided that it is equally certain that no dispensation was given, or establishes the lack of a valid mandate of a proxy. In these cases, the formalities of the ordinary process are omitted except for the citation of the parties and the intervention of the defender of the bond.
Canon 1688 The judge of second instance, with the intervention of the defender of the bond and after having heard the parties, will decide in the same manner as that mentioned in can. 1686 whether the sentence must be confirmed or whether the case must rather proceed according to the ordinary method of law; in the latter event the judge remands the case to the tribunal of first instance.
Canon 1689 In the sentence the parties are to be reminded of the moral and even civil obligations which may bind them both toward one another and toward their children to furnish support and education.
Canon 1690 Cases for the declaration of the nullity of a marriage cannot be treated in an oral contentious process.
Canon 1691 In other procedural matters, the canons on trials in general and on the ordinary contentious trial must be applied unless the nature of the matter precludes it; the special norms for cases concerning the status of persons and cases pertaining to the public good are to be observed.
Canon 1694 The prescripts of can. 1673 are to be observed in what pertains to the competence of the tribunal.
Canon 1695 Before accepting the case and whenever there is hope of a favorable outcome, the judge is to use pastoral means to reconcile the spouses and persuade them to restore conjugal living.
Canon 1696 Cases concerning the separation of spouses also pertain to the public good; therefore the promoter of justice must always take part in them according to the norm of can. 1433.
English Latin Canon 1697 Only the spouses, or one of them even if the other is unwilling, have the right to petition for the favor of a dispensation from a marriage ratum et non consummatum.
Canon 1702 In the instruction each spouse is to be heard, and the canons on the collection of proofs in the ordinary contentious trial and in cases of the nullity of marriage are to be observed insofar as possible, provided that they can be reconciled with the character of these processes.
Canon 1706 The Apostolic See transmits the rescript of the dispensation to the bishop who will notify the parties about the rescript and also as soon as possible will order the pastor both of the place where the marriage was contracted and of the place of baptism to note the granting of the dispensation in the marriage and baptismal registers.
Canon 1708 The cleric himself, the ordinary to whom the cleric is subject, or the ordinary in whose diocese the cleric was ordained has the right to challenge the validity of sacred ordination.
Canon 1710 If the congregation refers the case to a tribunal, the Canons on trials in general and on the ordinary contentious trial are to be observed unless the nature of the matter precludes it and without prejudice to the prescripts of this title.
Canon 1711 Defender of the Bond
Canon 1712 Two Conforming Sentences. Loss of all rights proper to the clerical state and is freed from all obligations.
Canon 1713 In order to avoid judicial contentions an agreement or reconciliation is employed usefully, or the controversy can be committed to the judgment of one or more arbitrators.
Canon 1714 For an agreement, a compromise, and an arbitrated judgment, the norms selected by the parties or, if the parties have selected none, the law laid down by the conference of bishops, if there is such a law, or the civil law in force in the place where the agreement is entered into is to be observed.
(1717 - 1731)
Canon 1719 The acts of the investigation, the decrees of the ordinary which initiated and concluded the investigation, and everything which preceded the investigation are to be kept in the secret archive of the curia if they are not necessary for the penal process.
Canon 1720 If the ordinary thinks that the matter must proceed by way of extrajudicial decree:
Canon 1722 To prevent scandals, to protect the freedom of witnesses, and to guard the course of justice, the ordinary, after having heard the promoter of justice and cited the accused, at any stage of the process can exclude the accused from the sacred ministry or from some office and ecclesiastical function, can impose or forbid residence in some place or territory, or even can prohibit public participation in the Most Holy Eucharist. Once the cause ceases, all these measures must be revoked; they also end by the law itself when the penal process ceases.
Canon 1725 In the discussion of the case, whether done in written or oral form, the accused, either personally or through the advocate or procurator, always has the right to write or speak last.
Canon 1726 If at any grade and stage of the penal trial it is evidently established that the accused did not commit the delict, the judge must declare this in a sentence and absolve the accused even if it is also established that criminal action has been extinguished.
Canon 1731 Even if the sentence rendered in a penal trial has become a res iudicata, it in no way establishes the right of the injured party unless this party has intervened according to the norm of can. 1729.
Canon 1732 These provisions must be applied to all singular administrative acts which are given in the external forum outside a trial excepting those which have been issued by the Roman Pontiff or an ecumenical council. No administrative tribunals @ level of Ep. Conf. dropped in JPII final revision: they are practical, but theologically a problem with critiquing authorities with so called divine authority.
Canon 1733 FIRST STEP: §1. Whenever a person considers himself or herself aggrieved by a decree, it is particularly desirable that the person and the author of the decree avoid any contention and take care to seek an equitable solution by common counsel, possibly using the mediation and effort of wise persons to avoid or settle the controversy in a suitable way. §2. Ep. Conf. can mandate all diocese to have a mediatory council, or bishop can do it on his own. Ep. Conf can't prohibit it. §3. The office or council to assist before time for recourse is elapsed. The superior dealing with recourse should also encourage parties to agree. Don't have to do it: c. 18 have to strictly interpret limiting laws.
Canon 1734 SECOND STEP: §1. Before proposing recourse a person must seek the revocation or emendation of the decree in writing from its author. Recourse suspends the effect. §2. Within 10 days. §3. The norms of §§1 and 2 are not valid: 1º for recourse proposed to a bishop against decrees issued by authorities subject to him; 2º for recourse proposed against a decree which decides a hierarchical recourse unless the bishop gave the decision; 3º for recourse proposed according to the norm of cann. 57 and 1735.
Canon 1735 If the author issues a new decree in 30 days the time limit for recourse runs from the new decree, otherwise from the 30 days.
Canon 1736 Suspension
Canon 1738 Right to an advocate or procurator, but without useless delays, or a representative can be appointed.
Canon 1739 The superior receiving recourse can confirm, invalidate, emend, replace, or modify it.
88THIRD STEP: Beyond this it goes to Signatura, see c. 1454.2 which judges correctness of procedure or legality of act. Daneels: In this case, the author might just go back and do the case again with the correct procedure. However, sometimes the hierarchical recourse person acts defacto as a tribunal, not an administative review. Signatura might not know well the circumstances. There is no norm on the language of the recourse, but they accept what they can understand, but this causes inequality, clarity and cost. Practice outside the law in process: if the dossier lacks serious legal foundation, they reject in liminae - is the compatible with justice? Extension of time limits would have more of a sense of justice. Dicasteries can accept time barred cases, but that can be appealed as well. 10 days, 15 days, 30 days, is too short. The right of an advocate: both to have one, and to choose them yourself. Language can limit this as well. Suspension isn't always possible. Is signatura accusatorial (only dealing with what is presented) or inquisitorial (dealing with issues sua sponte)? Daneels says accusatorial regarding process, inquisitive for substance. Hard for Signatura to assess damages if required. Most common cases: 1. Transfer or removal of Pastor, Members of Religious Institutes, Closure of parishes and churches. These are all decrees.
(1740 - 1752)
Canon 1740 When the ministry of any pastor becomes harmful or at least ineffective for any cause, even through no grave personal negligence, the diocesan bishop can remove him from the parish.
Canon 1741 Causes Causes for removal of a pastor are especially: 1º actions bringing grave detriment or disturbance to ecclesiastical communion; 2º ineptitude or a permanent infirmity of mind or body which incapacitate; 3º loss of a good reputation among upright and responsible parishioners; 4º grave neglect or violation of parochial duties which persists after a warning; 5º poor administration of temporal affairs with grave damage. (c.18 limiting laws interpreted strictly. List here is exemplary, not exhaustive.)
Canon 1742 §1. If one of the causes mentioned in can. 1740 is established, the bishop is to discuss the matter with two pastors as established. He should persuade priest to resign in 15 days, after explaining cause of removal. - See can. 682, §2 for religious priests.
Canon 1743 A pastor can submit a resignation also conditionally, provided that the bishop can and does accept it.
Canon 1745 If the pastor opposes the cause given and its reasons and alleges reasons which seem insufficient to the bishop, the bishop, in order to act validly, is:
Canon 1746 After the pastor has been removed, the bishop is to make provision either for an assignment to some other office, if he is suitable for this, or for a pension as the case warrants and circumstances permit.
Canon 1748 If the good of souls or the necessity or advantage of the Church demands that a pastor be transferred from a parish which he is governing usefully to another parish or another office, the bishop is to propose the transfer to him in writing and persuade him to consent to it out of love of God and souls.
Canon 1749 If the pastor does not intend to submit to the counsel and persuasions of the bishop, he is to explain the reasons in writing.
Canon 1750 Notwithstanding the reasons alleged, if the bishop decides not to withdraw from his proposal, he is to consider the reasons which favor or oppose the transfer with two pastors selected according to the norm of can. 1742, §1. If he then decides to implement the transfer, however, he is to repeat the paternal exhortations to the pastor.
Canon 1752 In cases of transfer the prescripts of can. 1747 are to be applied, canonical equity is to be observed, and the salvation of souls, which must always be the supreme law in the Church, is to be kept before one’s eyes.