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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A) The declarations of the parties

Both spouses are to be heard in the instruction.90 The requirement to hear the spouse of the petitioner has changed place and is now found in the section on procedure (previously no. II, § 4). In any event, the need for the interpellation is not as rigorous as in the case of the Pauline privilege. In this regard it suffices to say that Ut notum est had a qualification attached to the requirement of hearing the spouse of the petitioner: “[...] if this is possible, and is not reasonably opposed.”91 The Congregation pointed to the right of the other party in the marriage to be heard and the necessity of “[...] every honest effort [...] to present both sides of the case.”92 Unfortunately, sometimes no indication was given that a real effort was made to contact the other party in the marriage. The Congregation will ask for this evidence of contact and delay the case if it is not found in the original submission of the acts. Accordingly, the absence of the other party from the process must be declared according to the norm of law (ad normam iuris, cf. cc. 1592-1593). This declaration is to be made clear in the acts.93 The Notes insist that the instructor is to contact the other party in a manner that will invite cooperation in obtaining testimony. Ultimately, the instructor should be certain that some form of notification has in fact reached the other party (cf. c. 1592). Sometimes, when the party does not wish to cooperate, at least a signed statement saying that the person wants nothing further to do with the case can be obtained.94 If the other party has neither appeared nor given a reason for being absent, the instructor should note this fact and explain the situation in the acts.95

In line with c. 1536, § 2, “the force of full proof cannot be attributed to the declarations of the parties, unless there are present other elements which corroborate them and from which moral certitude can be established.”96

Moreover, the Congregation requires that the third party (the prospective spouse in the future marriage) always be heard as he or she can testify about any

911 See Potestas Ecetes ice, art. 12, § 2, 11.

91 “[...] si potis sit, neque rationabiliter sese opponat” (Ut notum est, no. II, § 4, in LE, vol. 5, col. 6702 [English translation in Woestman, Special Marriage Cases, 130]). Obviously, the goal of this norm was to protect the rights of the spouse of the petitioner. See Labelle, “La dissolution du lien conjugal en faveur de la foi,” 52.

92 Directives from the Congregation for the Doctrine of the Faith, in Schumacher and Jarrell (eds.), Roman Replies and CLSA Advisory Opinions 1990, 29, no. 3.

93 Sec Potestas Ecclesiœ, art. 15, § 2, 12.

94 See WOESTMAN, Special Marriage Cases, 66.

95 See Notes Regarding the Documentary and Procedural Aspects of Favour of the Faith Cases, no. 6.

96“Partium declarationibus vis plenæ probationis tribui nequit, nisi accedant alia elementa quæ eas corroborent et ex quibus certitudo moralis efformari possit” (Potestas Ecclesiœ, art. 12, § 3, 11).