Canon Law

Notes from SOS regarding Canon Law

Please see Canon Law references in the Respondent's Guide Page on this website.

(There is a Glossary of terms, put together by Carole and contained also in her Respondent's Guide To Annulments (see Resource Page here) toward the end of this WebPage below)

Unless each Respondent takes a proactive role in defending her/his marriage vows, the Catholic Church hierarchy will continue to assume jurisdiction (over what should be Respondent's canon law rights). [from "Did You Know The Catholic Hierarchy Is Annulling Protestant Marriages?" by Carole Bishop] (see "Ecumenical/ Other Denominations" page)

On the other hand... the following is from a website of Pro Se Publications; a group who sells annulment petition-forms online!: "The prevailing attitude among tribunal members seems to be that almost anyone who is divorced is likely to be judged as having sufficient grounds to successfully petition for an annulment...

Codifying the "lack of due discretion and lack of due competence"... gave the tribunal the basis necessary to grant an annulment of almost any marriage that is dissolved by a civil divorce decree." [http://www.cst.net/paralegal/annulment.html]

If your former spouse is seeking an annulment, you would do well to know the following:

  1. "tribunal competency" You have the right to select a tribunal to hear your case, as long as the tribunal is either a) where you are living now, or b) where you were married, or c) where most of the witnesses live, or d) where your ex-spouse currently lives. This is called ". (Canon #1673)
  2. You have the right to an Advocate to ensure that your rights are protected, and if that advocate does not do well by you, you have the right to expect another assigned to you. (Canon #1738)
  3. You have the right to read the evidence. (Canon #1598)
  4. 4) You have the right to appeal an annulment decision, (Canon #1628). SOS advisors counsel that Respondents appeal directly to the Roman Rota, not to what is called "the regional / second court of appeal" which is usually in the same state as the "first court" which tried to declare the sacrament annulled.

Some of your rights under Canon Law:

  1. You have the right to select a tribunal to hear your case, as long as the tribunal is either a) where you are living now, or b) where you were married, or c) where most of the witnesses live, or d) where your ex-spouse currently lives. This is called "tribunal competency". (Canon #1673)
  2. You have the right to an Advocate to ensure that your rights are protected, and if that advocate does not do well by you, you have the right to expect another assigned to you. (Canon #1738)
  3. You have the right to read the evidence. (Canon #1598)
  4. You have the right to appeal an annulment decision, (Canon #1628). SOS advisors counsel that Respondents appeal directly to the Roman Rota, not to what is called "the regional / second court of appeal" which is usually in the same state as the "first court" which tried to declare the sacrament annulled.

Unless each Respondent takes a proactive role in defending her/his marriage vows, the Catholic Church hierarchy will continue to assume jurisdiction (over what should be Respondent's canon law rights). [from "Did You Know The Catholic Hierarchy Is Annulling Protestant Marriages?" by Carole Bishop] (see "Ecumenical/ Other Denominations" page)

On the other hand... the following is from a website of Pro Se Publications; a group who sells annulment petition-forms online!: "The prevailing attitude among tribunal members seems to be that almost anyone who is divorced is likely to be judged as having sufficient grounds to successfully petition for an annulment..."

Codifying the "lack of due discretion and lack of due competence"... gave the tribunal the basis necessary to grant an annulment of almost any marriage that is dissolved by a civil divorce decree." [http://www.cst.net/paralegal/annulment.html]


The Roman Catholic Code of Canon Law

The Code of Canon Law is available on the web. In the search engine window of your Internet service provider, type "Code of Canon Law" and you will have several options.

One source in America for obtaining an American-English translation is the Canon Law Society of America (CLSA) Publication Distribution Center.
Due to the expense of the Code of Canon Law, we highly recommend that you ask your advocate for access to a copy, so that you can read the exact wording of the Canon Law numbers which Tribunals regularly cite. It is especially important to see this book if your advocate does not happen to be a Canon Lawyer.

The revised Code of Canon Law was published in Latin on January 25, 1983, superseding the 1917 version. Currently, the only source in America for obtaining a hard-copy American-English translation is the Canon Law Society of America (CLSA) Publication Distribution Center, P.O. Box 463, Annapolis Junction, MD 20701-0463. However, you may find the Code of Canon Law on the Internet by typing "code of canon law" in the search engine window of your Internet service provider.

If you wish to "fight fire with fire" in your annulment case, the Code of Canon Law is the best place to start. But it is not easy to read and understand the Code. The language is archaic and full of legalese, as in the following example: "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" (#1424). One can only imagine what an "upright life" means. In the Foreword to the Translation, one of the guiding principles states that only the Latin text is official, and is often consulted. It is possible to obtain a Latin-English edition, which can be helpful especially for those who were fortunate enough to study Latin in school.

In his prefatory "Apostolic Constitution," Pope John Paul II provides the purpose of the Code: "As the Church's principal legislative document founded on the juridical-legislative heritage of revelation and tradition, the Code is to be regarded as an indispensable instrument to ensure order both in individual and social life, and also in the Church's own activity." Hence, the Catholic Church appears to legislate the morality of its members, and civil law cannot stop the Church from doing so.

Overview

The Code of Canon Law is comprised of seven books and a total of 1752 canons.

Book I General Norms (#1 - 203)
Book II The People of God (#204 - 746)
Book III The Teaching Function of the Church (#747 - 833)
Book IV The Sanctifying Function of the Church (#834 - 1253)
Book V The Temporal Goods of the Church (#1254 - 1310)
Book VI Sanctions in the Church (#1311 - 1399)
Book VII Processes (#1400 - 1752)

The Sacrament of Marriage is found in Book IV, Part I (The Sacraments), Title VII (Marriage), which consists of ten chapters. Canons #1055 - 1062 are introductory definitions of what a good, valid marriage is supposed to be.

Chapter I (#1063 - 1072) discusses pastoral care and the prerequisite for premarital counseling. "Before a marriage is celebrated, it must be evident that nothing stands in the way of its valid and licit celebration" (#1066). If this is true, then the parish priest already decided there were no impediments, so how can a tribunal suddenly discover years later that there was an impediment? The Church may tell you that because the marriage ended in civil divorce, there must have been a hidden impediment at the time of the marriage celebration.

Chapter II (#1073-1082) discusses diriment impediments in general. "A diriment impediment renders a person unqualified to contract marriage validly" (#1073)

Chapter III (#1083 - 1085) lists individual impediments, such as impotence, bigamy, consanguinity, and youth (men must be 16, women must be 14).

Chapter IV (#1086 - 1107) discusses additional grounds for declaring marriages invalid. If a lack or defect of consent was present at the time of the wedding ceremony, the marriage could be declared invalid. For example, if a person deceived or tricked another into marriage, consent was lacking (#1098). If a person suffered from a "grave defect of discretion of judgment concerning the essential matrimonial rights…" consent was lacking (#1095). This canon, #1095, is a catch-all or "loose canon" that Tribunal judges use most often when no other impediment is obvious. If a couple by positive act intentionally excluded any essential element of marriage, (such as the practice of birth control indicating a lack of openness to children) then consent was lacking. (#1101)

Chapter V (#1108 - 1123) discusses the form of the celebration of marriage. If a lack or defect of form occurred at the time of the marriage ceremony, it could be declared invalid. For example, if a couple was not married in the presence of a parish priest or an appropriately delegated official, then form was lacking (#1108). If the priest had not satisfied himself of the parties' freedom to marry, form may be lacking (#1114). These canons are often used to declare non-catholic marriages invalid, because obviously, non-catholic marriages are not performed by a catholic priest.

Chapter VI (#1124 - 1129) discusses mixed marriages, those between Catholics and non-Catholics.

Chapter VII (#1130 - 1133) discusses the secret celebration of marriage.

Chapter VIII (#1134 - 1140) discusses the effects of marriage, such as conjugal rights and the legitimacy of offspring.

Chapter IX (#1141 - 1155) discusses the separation of spouses. "A marriage which is ratum et consummatum can be dissolved by no human power and by no cause, except death" (#1141). "Spouses have the duty and right to preserve conjugal living unless a legitimate cause excuses them" (#1151).

Chapter X (#1156 - 1165) discusses the validation of marriage. If an impediment was found, and a marriage declared invalid, the marriage can be newly validated if the impediment ceases or is given dispensation. This works for couples who want to stay married to each other.

The canons pertaining to trials are found in Book VII, which is divided in five parts:

Part I Trials in General (#1400-1403)
Title 1 The Competent Forum (#1404-1416)
Title II Different Grades and Kinds of Tribunals (#1417-1445) This section discusses the First, Second and
Third Instance tribunals and their responsibilities. The tribunals of the Rota and Signatura, and the types of
cases they can hear are also mentioned in this section.
Title III The Discipline to be Observed in Tribunals (#1446-1475). This section concerns the duties of the judges.
Title IV The Parties in a Case (#1476-1490). This section concerns the petitioners, respondents, advocates and
procurators.
Title V Actions and Exceptions (#1491-1500)

Part II The Contentious Trial
Section I The Ordinary Contentious Trial (#1501-1655): This is the main section on procedures: the Summons, the Trial , the Proofs, the Witnesses, the Experts, the Publication of the Acts, the Pronouncements of the Judge, the Challenge of the Sentence, the Appeal, the Expenses, and the Execution of the Sentence.

Section II The Oral Contentious Process (#1656-1670)

Part III Certain Special Processes
Title I Marriage Processes
Chapter I Cases to Declare the Nullity of Marriage (#1671-1691) Additional information is given on the
Competent Forum, the Right to Challenge a Marriage, the Duty of the Judges, the Proofs, the Sentence and
the Appeal, the Documentary Process.
Chapter II Cases of Separation of Spouses (#1692-1696)
Chapter III Process for the Dispensation of a Marriage Ratum et non consummatum (#1697-1706)
Chapter IV Process in the Presumed Death of a Spouse (#1707)
Title II Cases for Declaring the Nullity of Sacred Ordination (#1708-1712)
Title III Methods of Avoiding Trials (#1713-1716)

Part IV The Penal Process (#1717-1731)

Part V The Method of Proceeding in Administrative Recourse
Section I Recourse Against Administrative Decrees (#1732 - 1739) This section discusses your rights to request a Third or higher Instance tribunal to re-open a case if you feel "aggrieved by a decree."

Section II The Procedure in the Removal or Transfer of Pastors (#1740-1752)


*** GLOSSARY ***

Acts of the Case
1) The assembled testimony presented to the respondent for the purpose of allowing the respondent the opportunity to submit a rebuttal, per Canon #1598.
2) The "arguments" that the judge writes showing his thought processes that led to his decision about the petition.
3) Sometimes called the Sentence.

Advocate An official appointed to help either the petitioner or the respondent. According to Canon Law #1483, the advocate is to a doctor in canon law or otherwise well qualified.

Affidavit A sworn statement, one that the Tribunal wants the respondent to sign, stating either that 1) he/she has told the truth, or 2) he/she will keep a document or testimony confidential.

Affirmative Decision A finding by a tribunal that the marriage should be invalidated; meaning that the petitioner gets a favorable ruling. See Negative Decision.

Annulment A Declaration of Nullity, which is an official document, whereby the Tribunal concluded that the marriage is no longer binding in the eyes of the Catholic Church. The word "annulment does not appear in the Code of Canon Law.

Apostolic Signatura An old institution at the Vatican dating to the 13th Century, which was originally comprised of a Signatura of Grace and a Signatura of Justice. Pope Pius X combined the two. The Supreme Tribunal of the Apostolic Signatura hears disputes from the Rota or recourse appeals against rotal decisions.

Appeal A request to have a higher court hear the case, before the final Declaration of Nullity is issued. See Recourse Appeal.

Appellate Court A higher level court which hears contested decisions from a lower court.

Arguments See "Acts" of the Case. Could be called the "Sentence."

Auditor An individual appointed by the judge to assist; an individual appointed to collect the proofs, in cases heard by a collegiate tribunal (3 judges); some auditors could also be judges.

Canon Law Ecclesiastical laws recognized and approved by the Catholic Church for use in governing various activities, such as marriage and the priesthood.

Canon 1095 Commonly called a "loose cannon." It is the one most often cited as grounds for annulment because its wording seems to be all-encompassing. See Lack of Discretionary Judgment.

Citation See "Summons" in this Glossary.

Competent Court A court that has jurisdiction to render a ruling. See Tribunal Competency.

Consanguinity Literally means "with the same blood." The Catholic Church forbids two people who share the same blood to marry. Per Canon #1091, it means those related by common blood in all degrees of the direct line, whether ascending or descending, legitimate or natural. By this definition, second cousins could not marry in the Catholic faith.

Declaration of Nullity The official term the Marriage Tribunal uses for "annulment." It is an official piece of paper with a tribunal seal issued when the final decision is made to declare the marriage non-binding.

Decree An official document or decision, sometimes in Latin, issued by a Tribunal or the Roman Rota.

Defect of Consent The lack of ability to consent to marriage due to the presence of an impediment.

Defender of the Bond The individual appointed by the judge to present and expound on all the reasons why a marriage should not be dissolved or declared null.

Diocese A parish or a jurisdiction headed by a bishop, covering a specified geographic region, for the governing of the catholic churches in that region. An Archdiocese is headed by an Archbishop.

Eastern Orthodox Churches Those churches belonging to a loose federation centering on the patriarch of Constantinople and adhering to the Byzantine Rite.

Eucharist / Communion; a sacrament that renews Christ's sacrifice of his body and blood; the memorial of Christ's Passover.

Evidence Proof, such as the petitioner's questionnaire, the respondent's questionnaire and witnesses' statements. Also known as testimony.

Execution of Judgment Carrying out the decision of the judge by actually issuing the Declaration of Nullity.

First Instance The Tribunal that receives the petition, hears the case and issues a Notification of Decision. A first instance tribunal is most often located at a local diocese which is headed by a bishop.

Grounds "Impediments" listed in the Code of Canon Law that tribunals cite as reasons for issuing a Declaration of Nullity.

Hierarchy Levels of governing bodies of the Catholic Church: local diocese, regional diocese, Rota, Signatura and the Pope.

Impediment A lack of something or a flaw that renders a person incapable of validly contracting a marriage. Examples: bigamy, impotence, extreme youth.

Judicial Vicar The judge of a diocese who hears petitions or makes other rulings.

Lack of Discretionary Judgment (or Lack of Due Discretion) A portion of Canon Law #1095 which is a ground often used as a basis for a decision that a marriage was not contracted validly because one or both of the parties did not have the ability to make a sound decision to marry. Also known as "lack of due discretion."

Libellus The allegations written by the ex-spouse (petitioner) which become part of the petition. The libellus is supposed to be included with the summons letter.

Latin Rite A ceremony or practice that pertains to the "Roman" Catholic Church as opposed to the "Eastern Orthodox," the "Anglican Church" or other variant of Catholicism.

Marriage A covenant between a man and a woman for the procreation and education of offspring, raised by Christ to the dignity of a sacrament between the baptized.

Marriage Tribunal A court of justice convened in a diocese to hear petitions involving marital covenants.

Natural Law A body of laws or a specific principle held to be derived from nature and binding upon human society in the absence of or in addition to positive law (Webster's 7th Collegiate Dictionary). Natural law is written and engraved in the soul of each and every man, because it is human reason ordaining him to do good and forbidding him to sin. Natural law is nothing other than the light of understanding place in us by God (Catechism of the Catholic Church).

Negative Decision A finding by a tribunal that the marriage should remain valid; meaning that the petitioner does not get a favorable ruling. See Affirmative Decision.

Notification of Decision Usually a one-page document that announces what outcome the judge at First Instance decided about the petition. Also called "Decision of Annulment." It should be accompanied by the "Acts of the Case."

Petitioner The respondent's ex-spouse. He or she asks the marriage tribunal to declare the marriage sacrament invalid.

Procedural Error A breach of canon law, which may be used to strengthen arguments in appeal. A preponderance of procedural errors may carry enough weight to get a decision overturned.

Procurator A manager (or agent) of the tribunal's affairs, who is not necessarily on the respondent's side. The individual appointed to represent any respondent who cannot respond or who chooses not to respond. (Not the same as an Advocate.)

Questionnaire The common format used by the tribunal to obtain testimony and evidence from the petitioner, respondent and witnesses. A completed questionnaire amounts to a person's testimony. Some tribunals insist on a personal interview instead of having the individual complete a questionnaire.

Rebuttal Informal term for "Additional proofs" which the respondent may submit after reading the petitioner's testimony.

Recourse Appeal An appeal to a Third Instance Tribunal to reopen the case, after a Declaration of Nullity was issued. Respondents should petition the judge to revoke the Declaration of Nullity and reopen the case; this action would suspend the execution of the judgment.

Regional Diocese An ecclesiastical province consisting of several dioceses, presided over by an archbishop, sometimes known as a Metropolitan. Sometimes called an Archdiocese. The tribunal of a regional diocese often serves as an appellate court.

Res Judicata A Latin phrase translated as "the thing has been judged," meaning the decision is final. However, annulment cases are status of persons cases, and such cases never become final - there is always recourse to appeal a status of persons case to the next higher court.

Respondent The person against whom a petition for annulment has been issued. Person in the annulment proceedings who has the opportunity to defend the sacramental validity of the marriage.

Rota A tribunal established by the Roman Pontiff (Pope) to receive appeals. It is located at the Vatican in Rome, Italy. Spelled with the letter "L" when used as an adjective in the phrase "Rotal Court."

Sacraments Signs or means which express and strengthen the faith, render worship to God and effect the sanctification of humanity. The seven sacraments are: Baptism, Confirmation, Penance, Marriage, Eucharist, Ordination (holy orders), and Extreme Unction (anointing the sick and last rites).

Second Instance The next tribunal in the hierarchy that receives the Notification of Decision from the First Instance Tribunal. The Second Instance is tasked to confirm (or deny) the decision of the First Instance. A second instance court is often found at a regional diocese.

Sentence A lengthy history of the annulment case, with all arguments and findings. It is written by the Second Instance Tribunal and sent back to the First Instance Tribunal, for imparting to the petitioner and respondent, along with the Declaration of Nullity, if an annulment was granted. May also be called the "Judgment" (or Acts or Arguments).

Signatura See Apostolic Signatura.

Substantive Argument "New and grave proofs" which are normally needed to strengthen an application for a recourse appeal at Third Instance.

Substantive Error Major mistakes that may occur in the arguments, in the evidence or Acts of the Case. When reviewing the testimony (or Acts) take note of any substantive errors, so you can adequately prepare a rebuttal. Compare with procedural errors which are breaches of canon law.

Summons A written notification (known as a citation) to "appear" in court; an announcement or letter asking if the respondent wishes to give testimony in the petitioner's request for an annulment.

Testimony The answers to the questionnaire; the respondent's "story;" the evidence for a case from all parties, including the petitioner, respondent and witnesses.

Third Instance The next to last level in the Tribunal hierarchy to which recourse appeals are lodged. The Rota and the Supreme Tribunal of the Apostolic Signatura are the two primary courts of Third Instance. See Recourse Appeals.

Tribunal A court of justice convened to hear a case; the seat of a judge.

Tribunal Competency Similar to jurisdiction. A tribunal exercising competency to hear cases has permission to do so under Canon Law. There are 4 choices: a) the tribunal of the diocese where your former spouse, the petitioner, lives; b) the tribunal where you (the respondent) live; c) the tribunal where the marriage took place; or d) the tribunal where the majority of the evidence is located or where most of the witnesses live (#1673).

There is a Glossary of terms, put together by Carole and contained also in her Respondent's Guide To Annulments (see Resources Page on this SOS website).