Folia Theologica et Canonica 4. 26/18 (2015)

IUS CANONICUM - Szabolcs Anzelm Szuromi, O.Praem., The effect of Pope Benedict XIV’ s canonical works on the ecclesiastical process law

THE EFFECT OF POPE BENEDICT XI V'S CANONICAL WORKS...

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As we already underlined, that the most influential documents, composed by Pope Benedict XIV is the constitution Dei miseratione, promulgated on November 3,d 1741.40 The text - which is dedicated to the matrimonial process law — is divided into fifteen paragraphs. In the very first one the pope expresses the divine law basis of marriage about the dissolubility of matrimonial bound (Quod Deus coniuxit, homo non separet)4' and ads to that those relevant internal and external circumstances, conditions and intention which could make effect on the existence of a valid marriage. Based on this theoretical introduction § 2 turns toward the nullity of marriage and its declaration by ecclesiastical tribunals, expressively indicating those problems within the community which can be caused by second, third and fourth wedding of the same person.42 The § 3 already describes the goal of the first instance of the nullity process which happens at the court of the local ordinary. Here the pope arguing on those many aspects which can make uncertain the sentence of the first instance. From his assertions we can get a crystal clear picture about Benedict XIV’s profound practical experience on the matrimonial cases. It presented perfectly by his analysis of that particular situation - very common appearance in his time - when nobody appeals against the sentence of nullity, declared by the first instance. Here becomes also clear that this usual appearance is not only a practical but a theoretical question: the obligation to prove the truth.4' This is the reason why the pope in § 4 holds indispensable to introduce the obligatory second instance after the first sentence of the nullity cases of matrimony. The document precisely describes the necessary tribunal officers and their required qualities in § 5. The fundamental principle for those who exercise their office at the tribunal regarding matrimonial cases lays on the “favor matrimonii” (favor of marriage’s validity), therefore the judges and the defender of bond indeed must do everything to defend the marriage, which is emphasized in § 6. Naturally, the legislator - keeping in mind the afore-mentioned principle - speaks in an independent paragraph about the importance and service of the defender of bond (defensor vincali)44, which new office was introduced at the ecclesiastical tribunals into the processes by this present document of the pope.45 The rest of paragraphs demonstrate the strong commitment of Pope Benedict XIV to give all of canonical instruments and legal possibilities into the hand of the ecclesiastical tribunals in order to reach the moral certainty concerning every single case

40 Gasparri, P. - Serédi, I. (ed.), Codicis iuris canonici]

41 Gasparri, P. - Serédi, I. (ed.), Codicis iuris canonici]

42 Gasparri, P. - Serédi, I. (ed.), Codicis iuris canonicij

43 Gasparri, P. - Serédi, I. (ed.), Codicis iuris canonici]

44 Gasparri, P. - Serédi, I. (ed.), Codicis iuris canonici]

45 Wolf, L., Defensor del vinculo, in Haering, S. - Schmitz, H. (ed.), Diccionario enciclopedico de derecho canònico (ed. espanola de Heredia, I. P. - Llaquet, V.J.L), Barcelona 2008. 276.

:i fontes, 1. 695-701. i fontes, I. 695.

:i fontes, I. 696.

:i fonles, I. 696.

:ifontes, I. 697-698.