Newsletter n.145 March 2006


1.  Address to Rotal Auditors [Pope Benedict XVI] (28th January, 2006)
2.  The Right of the Parties to Inspect the Acts and its Relation to the Validity of a Definitive Sentence in a Marriage Nullity Process [Prof. Augustine Mendonca]
3.  Review: "Elements of Proof in Simulation Cases" by Francis G Morrisey [Paul Robbins]
4.  Address of Episcopal Delegate to 2006 AGM of Interdiocesan Tribunal of Second Instance [Rt Rev John Jukes, OFM Conv.]
5.  Studies in Church Law – a new periodical [Mgr Gordon Read]
6.  Letter concerning the General Instruction to the Roman Missal & "Celebrating the Mass" [Fr John Hadley]
7.  Response to Fr Hadley's Letter [Mgr Gordon Read]
8.  Dubium concerning c. 638; & Reply [Rt Rev John Jukes, OFM Conv.]; & Reply to the reply (22nd January, 2006); & Further comment by Bishop Jukes (25th January, 2006)


  • Pope Benedict XVI: Address to Rotal Auditors

On Saturday 28 January 2006 in the Sala Clementina the Holy Father had his annual meeting 
with the Judges, Officials and their Collaborators of the Roman Rota. It is interesting to compare the press comments on the Pope’s Address with the actual text of the Address. When the Address was first given to the press there were headlines such as “Pope urges speed for nullity cases”; or “Pope shows warmer approach to nullity than predecessor”. This Editor saw and heard a variety of so called questions and comments on the Address. However, it took some time for the official English text to become available. The official translation was in L’Osservatore Romano on 8 February 2006.

It was quaint to read the official text and then to wonder what text the press had been commenting upon. It was also interesting to read that the press comments had played scant, if any, attention at all, to the Instruction Dignitas Connubii. After all it was this document upon which the Holy Father was commenting. He probably did this as an express tribute to his predecessor in whose reign the Instruction was published.

The Address of the Holy Father commented on the fact that the laity involved in such processes were less concerned with niceties of the law than with the reception of Holy Communion. He indicated that time and time again there had been reference to this matter at the General Synod on the Eucharist. He also highlighted what is a completely false (although much mentioned) opposition between the law and the pastoral concern of the Church. 

He points out that love for the truth is the fundamental meeting point between the law and the pastoral ministry. He stresses again that no trial is against the other party. The trial is intended to declare the truth. It is perhaps inescapable that the Holy Father should refer to his Eighteenth Century predecessor and the definition of the role of the Defender of the Bond in 1741! 

He says “It is nonetheless a grave obligation to bring the Church’s institutional action in her Tribunals ever close to the faithful. Beside pastoral sensitivity must be directed towards avoiding nullity of marriage when the couple seeks to marry, and it must strive to help the spouses solve their possible problems by finding a path to reconciliation. That same pastoral sensitivity to the real situations of individuals must nonetheless lead to safeguarding the truth and applying the norms prescribed to protect it during the trial”. (See Document No. I).


  • Right of Parties to Read The Evidence in a Nullity Cases

The CLSN has already dealt, on several occasions, with the background to Canon 1598 of the New Code, as well as with its practical application some twenty years after the promulgation of the Code. The whole of this is directed towards the legitimate right of defence of the parties in a nullity case; and disregard for the provisions of Canon 1598 can result in the nullity of sentence of the case in question.

All those involved in Tribunal work know the situation of the violent and abrasive Respondent. This situation gives rise to problems. There is a need to cite the Respondent in every case; and this can result in hardship, even harm, for a vulnerable Petitioner. This may even be the reason why a Petitioner does not continue with the case. The other problem concerns the ability of both the parties (here, of course, the Respondent) to read all the evidence in a case. However, both these elements (the need to cite the Respondent; and the requirement that the Respondent can read the evidence) are present ad validitatem. The absence of the last element has given rise to cases alleging invalidity of sentence at the Rota. (The existence of the clause in Canon 1598 about a particular act not being shown to the Respondent, or the parties, has not so far been deeply explored; (cf. also Dignitas Connubii article 234).

Of course, into Dignitas Connubii has been woven the particular disposition that in cases of great difficulty and danger, the parties are not shown the acta; and the acta is shown only to the Advocates for the parties; but with the Advocate taking an oath of secrecy (article 234); and the Advocates being bound by a serious obligation not to hand over the acts to the parties. However, these new provisions have not yet been tested by Rotal Decisions. Rotal Decisions so far have decided upon cases where the acta, as such, has not been available to the Respondent.

It should also be said that apart from violence anticipated from (often) a psychopathic Respondent, another concern of Tribunals has been the civil law situation (i.e. where evidence from the witnesses might be used as a basis for suing a party or a witness or even a Tribunal. However, (certainly in this country) it is quite clear that evidence given in good faith in Tribunal procedures cannot cause actions against witnesses, the party or the Tribunal itself. 

Professor Augustine Mendonça has written about some matters relating to nullity of sentence through a denial of the right of defence (usually) to the Respondent. He has analysed two rotal cases (both of them in several instances and hearings). These two cases are the Halifax-Edmundston case of 17 May 1988 and the Camden-Newark case (See Document No.II which reprints the article of Professor Mendonça published in Studia Canonica, vol.33/2 1999. The Editor of CLSN thanks the Editor of Studia Canonica and Professor Mendonça for permission to reproduce the article.

  • Elements of Proof in Simulation Cases

Father Frank Morrisey, OMI, gave a paper on the above topic in May 2005 in North Dakota; and this was then reprinted in the Newsletter of the Canon Law Society of Australia and New Zealand. It will be recalled that Paul Robbins of the Liverpool Tribunal gave a paper to the Northern Province some years back on the matter of Total Simulation. Consequently, it seemed appropriate to ask him to comment on the Morrisey paper (although the latter goes into the matter of Partial Simulation as well. 

Father Morrisey does not extend his review to include the vista which was drawn by Paul Robbins. However, an area which is of considerable interest in the Morrisey paper concerns the intentioncontra bonum fidei. Prior to the wedding day the partners are not married and are not “bound to fidelity in the same way as they are after the exchange of consent”. Since consent is an act of the will “surely the consent includes the requirement of a will to be faithful?” The question is then asked: If the act of the will on the wedding day does not positively include those elements essential for marriage, including the will to be faithful, how can there be a valid consent? (See Document No. III).


  • Interdiocesan Tribunal of Second Instance of Southwark

There is only one interdiocesan Tribunal in the country, and it acts as the Second Instance 
Court for the Province of Southwark (comprising the Dioceses of Southwark, Portsmouth, Arundel & Brighton and Plymouth). Besides having a President it also has an Episcopal Delegate. The Episcopal Delegate is Bishop John Jukes, OFM. Conv. There is an Annual General Meeting of the Interdiocesan Tribunal which is addressed by the Episcopal Delegate. The paper given by Bishop Jukes at the AGM is at Document No. IV.


  • New Periodical: Studies in Church Law (Bangalore)

Perseverance and hard grind, as well as a full measure of optimism, must have been assembled in floods and centred around the editorial board of the new periodical from Bangalore: Studies in Church Law. But, of course, the greatest admiration must be paid to the Editor, Father Victor D’Souza. The periodical had its birth at the Centre of Canon Law Studies at St Peter’s Pontifical Institute in Bangalore, which was erected in 1988. Studies in Church Law represents a milestone in the growth and development of St Peter’s Institute. The Editorial Board positively glitters with names from the canonical firmament; and the array of titles of articles and authors in this first issue is guaranteed to catch even the meanest eye. The Editor, his Assistants and the Board are warmly to be congratulated on this remarkable product. Monsignor Gordon Read has given an overview; and takes a closer look at some of the contents. (See Document No. V).


  • General Instruction of the Roman Missal (GIRM) & "Celebrating the Mass" (CTM) – Catholic Bishops' Conference of England & Wales:

The September 2005 (No.143) issue of the Canon Law Society Newsletter had a comment and analysis on the above documents by Monsignor Read. Encouragingly, this drew a comment from Father John Hadley, the parish priest of Narborough in Leicestershire. These comments were put to Monsignor Read; and both items have now been included as Document No. VI (a) and (b)

Interpretation of An interesting exchange took place over the Canon 638 §§3 & 4 interpretation of Canon 638 §§ 3 &4. This has been brought to the attention of the CLSN by Bishop John Jukes who was originally approached by a Canonist involved in this matter of interpretation; particularly to do with the Constitutions of an Institute of Diocesan Right. Following the dubium to Bishop Jukes (2 January 2006), he replied on 11 January 2006. However, this did not seem to satisfy his interlocutor and hence the Bishop was approached again on 22 January 2006; and the Bishop made a further response on 25 January 2006. (See Document No. VII).


  • Definition of Marriage

The President of the US Bishops’ Conference is asking Diocesan Bishops to become involved in supporting a Federal Constitutional amendment concerning marriage. The amendment is to define marriage as “consisting only of a union between a man and a woman”. The Protection of Marriage Amendment will be introduced in the US Senate in June 2006. (Source: Zenit 4 April 2006: ZEO6040423).


  • Canon Law Conferences

The 41st Canon Law Society of Great Britain and Ireland Annual Conference will take place in the Sligo Park Hotel, Sligo, between 15 and 19 May 2006. Amongst the papers at the Conference there will be one given by Father John Kennedy of the Congregation for the Doctrine of the Faith on Priviledge of the Faith Cases; and by Father Augustine Mendonça on Dignitas Connubii.


  • Canon Law Society of Canon Law Society of Australia & New Zealand

The 40th Annual Conference of the Society of Australia and New Zealand will take 
place between 18 and 21 September 2006 in Canberra ACB.


  • Canadian Canon Law Society:

The 41st CCLS Convention will take place in Montreal, Quebec between 2 and 5 October 2006.


  • Canon Law Society of America

The Convention of the CLSA for 2006 will take place between 9 and 12 October in the Renaissance Worthington Hotel, Fort Worth Texas. This hotel was where President John F Kennedy spent his last night before his assassination in 1963.


  • Bishop Charles Henderson RIP

In January, Bishop Charles Henderson was diagnosed with Cancer; and eventually he had to be moved to St Thomas’ Hospital. Despite his worsening condition, a friend drove him the short distance from the hospital to the Consecration of the newly appointed Auxiliary Bishops, Patrick Lynch and Paul Hendricks. The hospital brought forward his radiotherapy treatment to enable him to be present. Eventually, as his conditioned worsened, he returned to his beloved Blackheath and died there on 10 April 2006 at Park House, four days short of his 82nd birthday. Bishop Charles, apart from having had a very distinguished life in his own Diocese of Southwark, was a well known Canon Lawyer. The news of his death came just as this number of the CLSN was being completed. A formal obituary will appear in the June number of CLSN.


  • Monsignor Gordon Read:

Hearty congratulations to Monsignor Gordon Read who was appointed a Domestic Prelate in July 2005.

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