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

III

and non-Christians might by confused or, perhaps, even offended by the Catholic Church’s claim."5

4. Proof of non-baptism

Proof of non-baptism is an essential part of the instruction process, as the absence of baptism of one or the other spouse must be demonstrated with moral certainty."6 In order to achieve such certainty, “witnesses are to be heard with consideration of their quality, such as the parents and relatives of the unbaptized party or those who were present at the time of the infancy and knew his or her whole course of life.”"7 As is the case in other juridical procedures, the quality of witnesses is more important than their number.

The testimony of the witnesses is to address not only the absence of baptism, but also point to the circumstances and indicators that would support the probability that baptism was not conferred."8 The investigation is to include a search of the baptismal registers in the places where the party who is said to be unbaptized lived as an infant, especially in those churches which the individual likely attended and in which the marriage was celebrated.116 117 118 119 In the case of a marriage celebrated with dispensation from the impediment of disparity of worship, the instructor is to obtain a copy of the dispensation and of the prenuptial process and include them in the acts.120

In view of the theological principle that a ratified and consummated marriage is by divine law indissoluble, if at the time when the favour of dissolution is being sought the non-baptized spouse has received baptism, the parties must be questioned about any possible cohabitation after baptism,121 i.e., “[...] whether after separation they have had some contact with each other and of what kind and especially whether they have completed the conjugal act.”122 The witnesses are also to be interrogated in this regard.123

116 See Potestas Ecclesia;, art. 16, § 1, 12.

117 Ibid., art. 16, § 2, 12. Cf. also directives from the Congregation for the Doctrine of the Faith, in Schumacher - Jarrell (eds.), Roman Replies and CLSA Advisory Opinions 1990, 29, no. 4.

118 See Potestas Ecclesiœ, art. 16, § 3, 13.

119 See ibid., art. 16, § 4, 13.

120See ibid., art. 16, § 5, 13.

121 See ibid., art. 17, § 1, 13.

122 “[...] an post separationem aliquam et qualem inter se relationem habuerint, et præsertim an actum coniugalcm perfecerint” (ibid., art. 17, § 2, 13).

123 See ibid., art. 17, § 1, 13.