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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himself was also obliged to present his opinion concerning credence to be given to the document.105

The Congregation for the Doctrine of the Faith explained, however, how the provision that the testimony may be ultimately obtained in “[...] any other legitimate manner” (vel quovis alio legitimo modo)106 should be understood. Notes Regarding the Documentary and Procedural Aspects of Favour of the Faith Cases, in no. 7 point to the fact that the general law “[...] does not mention interrogation by letter or telephone, even when a party or witness refuses to appear (cf. c. 1534).”107 The Congregation points to the obvious difficulty that testimonies acquired by telephone or letters in collecting depositions and testimonies have a very uncertain probative value for “[...] there is no guarantee of the identity of the person who composes written responses or of the person who answers a telephone. Responses given by letter are often vague or imprecise. They provide no opportunity to ask for clarifications or support for a particular answer and the danger is always present that they may have been dictated by another person. If some exceptional circumstance seems to justify this type of interrogation, statements of this kind should at least be taken to a notary or legitimated in some way to ensure their genuineness and authenticity and to ensure that such witnesses take seriously the evidence they have given.”108

One cannot fail to notice, however, that certain special procedures foresee providing evidence specifically by letter. The procedure for the dissolution of ratified and non-consummated marriages makes room for giving evidence by letter: “If a party or a witness refuses to testify before the judge, it is permitted [...] for them to make a declaration [...] in any other lawful manner, e.g., by letter, provided that it is clear that these declarations are genuine and authentic.”109 Similarly, c. 1145, § 1 speaks about a period of time granted to the unbaptized party for reply to the interpellation in the Pauline privilege cases. This provision is understood as allowing for the interpellation to be made, in particular cases, by letter: “If no other forms of proof can be obtained, letters may be resorted to; but the greatest care should be taken to avert all danger of forgery or dishonesty.”110

105 See ibid., art. 5, § 3, in LE, vol. 5, col. 6704 (English translation in Woestman, Special Marriage Cases, 132).

106Potestas Ecclesiœ, art. 15, § 1, 12.

107 See Notes Regarding the Docamentary and Procedural Aspects of Favour of the Faith Cases, no. 7.

108 Ibid.

109 “Quatenus pars vel testis se sistere ad respondendum coram iudice renuat, licet [...] requirere eomm declarationem [...] quovis alio legitimo modo, ut puta per epistulam, dummodo huiusmodi acta secum ferarit fidem genuinitatis et authenticitatis” (Congregation for the Sacraments, Circular Letter “De processu super matrimonio rato et non consummato,” 20 December 1986, no. 9, in Monitor ecclesiasticus, 112 [ 1987], 425).

W.J. DOHENY, CanonicaI Procedure in Matrimonial Cases, Volume II: Informal procedure, Milwaukee, WI, The Bruce Publishing Company, 1944, 529-530, no. 11.