Folia Canonica 8. (2005)

STUDIES - Wojciech Kowal: Norms for Preparing the Process for the Dissolution of the Matrimonial Bon din Favour of the Faith

NORMS FOR PREPARING THE PROCESS FOR THE DISSOLUTION

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The present norm on competence in favour of the faith cases simplifies the previous norm which defined the competent authority as “[...] the local ordinary, who is competent according to the Apostolic letter Causas matrimoniales, IV, § 1 ,”78 * Needless to say, the reference to Causas matrimoniales caused some problems in interpretation after the new Code of Canon Law became the ius vigens.19

The privately distributed Notes Regarding the Documentary and Procedural Aspects of Favour of the Faith Cases stress the correct interpretation of the term episcopus according to can. 134, § 3. Namely, in matters concerning executive powers whatever is attributed to the diocesan bishop belongs only to him and to the others equivalent to him according to c. 381, § 2, to the exclusion of the vicar general and episcopal vicar, except by special mandate. Therefore, the Congregation insists on making sure that if the diocesan bishop has indeed given such a special mandate to the vicar general or the episcopal vicar, a copy of the mandate, signed by the bishop, duly dated and notarized in conformity with c. 474, is always included among the acts sent to the Holy See.80

2. Appointment of the officers for the case

There have often been complaints from the officials at the Congregation, that the appointment of the officers was made at the conclusion (!) of the instruction process. Therefore, the Notes point to the need for this appointment being made “[...] after the date of the petition, but before any testimony is received or re78 “[...] loci Ordinarius competens iuxta praescriptum Litt. Ap. Causas matrimoniales, IV, § 1 [...]” {Ut notum est, art. 1, in LE, vol. 5, col. 6703 [English translation in WoESTMAN, Special Marriage Cases, 131]). “IV. § 1. In other cases of nullity of marriage the following are competent: a) the tribunal of the place in which the marriage took place, or; b) the tribunal of the place in which the respondent has a residence which is not transient, which can be proven by some ecclesiastical document, or by another legitimate means, or; c) the tribunal in which are to be gathered many of the depositions or proofs, as long as both the ordinary of the place in which the respondent habitually resides, and the ordinary of the place and presiding officer of the tribunal approached consent” (Paul VI, Motu proprio Causas matrimoniales, 28 March 1971, in AAS, 63 [1971], 443 [English translation in Woestman, Special Marriage Cases, 131]). As Woestman remarks, no. IV, § I, c) is broader than c. 1673, 4° of the 1983 Code. On the other hand, no. IV, § 1 did not provide for the competency of the tribunal in which the petitioner had a domicile (cf. c. 1673, 3°). See Special Marriage Cases, 131.

77 According to Silvestrelli, the competence - since the 1983 Code abrogated Causas matrimoniales - was that of c. 1699, § 1: “The diocesan bishop of the place of domicile or quasi-domicile of the petitioner is competent to accept the petition seeking the dispensation.” See “Scioglimento del matrimonio in favorem fidei,” 189-190, nos. 42-43. Woestman expressed the opinion that one could also argue that the competence was rather set forth in c. 1673. See Special Marriage Cases, 131.

See Notes Regarding the Documentary and Procedural Aspects of Favour of the Faith Cases, no. 1.