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NEWSLETTER: No. 136 DECEMBER 2003
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Strasbourg versus the Rota
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Recent Rotal decisions:
coram
Giannecchini (3 March 1988)
coram
Stankiewicz (25 November 1999)
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Law Sections by a Defender of the Bond
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Emotional Immaturity
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Historical Cases:
coram
Quattrocolo (29 July 1926)
coram
Grazioli (11 April 1927)
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Reviews
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Catholic Annulment and Spiritual Healing
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Null and Void
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Article: Not Just a Question of Law
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Indices Ad Corpus Iuris
Canonici
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CLS Conference
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Information about CLS
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Canon Law Society of America: Removal
of H.Q.
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Letter: Sacramentality and Invalidity
of Marriage
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Conference Hopping: The President
DOCUMENT NO.
I: Strasbourg Court versus the Rota.
DOCUMENT
NO.II: Recent Rotal Decision: coram Giannecchini
(3.3.98).
Commentary by Paul Robbins
DOCUMENT NO.
III: Recent total Decision: coram Stankiewicz
(29.11.99).
Commentary by Mgr Gordon Read.
DOCUMENT NO.
IV: Law Section by a Defender. Case of Albus and Senitoba. [
Fr Dominic Byrne]
DOCUMENT
NO.V: Law Section by a Defender. Case of Henricus and
Hilaria.
DOCUMENT
NO.VI: Emotional Immaturity: Canon nn.2 and 3.
Bishop John
Jukes Moderator of Southwark Interdiocesan Tribunal.
DOCUMENT NO.
VII: Historic Rotal Decisions (1) [Vanderbilt-Marlborough].
DOCUMENT NO.
VIII: Historic total Decisions (2) [Marconi-O’Brien].
DOCUMENT NO.
IX: Review: Catholic Annulments and Spiritual Healing [Fr
James Webb].
DOCUMENT NO.
X: Review: Null and Void [Mrs Mary Alicia Sloan]
DOCUMENT NO
XI: Review: Article: Not Just a Question of Law [Fr James
Webb].
DOCUMENT
NO.XII: Indices Ad Corpus Iuris Canonici [Fr Clarence
Gallagher. S.J.]
DOCUMENT NO.
XIII: Sermon preached at CLS Conference May 2003 by Bishop
William Murphy.
DOCUMENT NO.
XIV: Letter: Sacramentality and Invalidity of Marriage [Fr
John Hadley].
DOCUMENT NO.
XV: Presidential Visits: Fr John Conneely.
A case decided by the Court of Human Rights
in Strasbourg implies that the ecclesiastical courts of
Lazio and the Rota acted unfairly in a nullity case. The
basis of the unfairness was that the Respondent in the
ecclesiastical case (who was the Plaintiff in the Strasbourg
case) was not given access to all the evidence and the full
sentence in the Church case, and was not informed in advance
of the subject matter of the interview to which she was
called and of her right to a lawyer. Do practitioners in the
British and Irish Tribunals need to examine their Canonical
or European consciences in this regard?
The Plaintiff in the Strasbourg case, Maria
Grazia Pellegrini, married Signor Gigliozzi in Italy in
1962. In 1987 he applied to the civil court for a judicial
separation and to the ecclesiastical court of Lazio for a
declaration of nullity. The judicial separation was granted
by the Rome District Court in 1990 with an award to the wife
of maintenance of 300,000 lire a month. Meanwhile the
ecclesiastical court of Lazio had tried the nullity case by
the abbreviated documentary process of Canon 1686 and in
December 1987 granted a declaration of nullity on the
grounds of consanguinity. She promptly appealed this to the
Rota, which upheld the Lazio decision and then referred its
decision to the civil court of appeal in Florence to give it
civil enforceability in Italian law. In spite of her
opposition, both Florence and the superior Court of
Cassation upheld the nullity decision. She then appealed to
Strasbourg which found that it could not judge on the
ecclesiastical cases since the Vatican was not a party to
the European Convention on Human Rights, but could and did
judge on the actions of the Italian courts in giving civil
enforceability to the Church declaration of nullity, and
found they had violated Article 6 § 1 of the European
Convention in denying her a fair hearing. The Strasbourg
Court awarded her 10 million lire in damages and 18 million
lire for costs and expenses.
The Strasbourg Court’s verdict was based on
the Italian Court’s failure to honour their Concordat
obligation to verify that the defence rights of the parties
had been recognised in the Church Courts in a manner
compatible with the fundamental principles of Italian law.
The Court said that “the right to adversarial proceedings,
which is one of the elements of a fair hearing within the
meaning of Article 6 § 1, means that each party to a trial,
be it criminal or civil, must in principle have the
opportunity to have knowledge of any comment on all evidence
adduced or observations filed with a view to influencing the
Court’s decision ... and the opportunity to express their
views on every document in the file . The Court also held
that “the ecclesiastical courts should have presumed that
the applicant, who was not assisted by a lawyer, was unaware
of the case law.... And had a duty to inform her that she
could seek the assistance of a lawyer before she attended
for questioning”.
The case turns on Canon 1686 — namely the
documentary process. Here the ground was the undispensed
element of consanguinity in the second degree. The First
Instance Court had clearly followed the letter of the law of
Canon 1686. It certainly summoned the parties (specifically
the Respondent) but from the Law Report apparently it did
not supply the Respondent with an outline of the grounds
alleged, nor with a copy of the Petition; nor did it provide
for the possibility of the Respondent having an Advocate.
However, it is clear here that it was not the indelicacy of
the unobserved procedure that was vitally at stake, but a
considerable amount of maintenance costs! The decision of
the Court is important in pointing out that so far as
European Law is concerned, the right of defence is as
important in a documentary process as it is in any ordinary
nullity process. There was also alleged that the Respondent
had been deprived of the right to see all the evidence and
to see the First Instance Sentence. What is quite clear is
that it was assumed by the First Instance and subsequent
Courts that all of these elements were merely niceties, when
it was quite evident that there was an undispensed
impediment clearly established.
An interesting Decision coram Giannecchini
appeared in Monitor Ecc!esiasticus (Vol. CXXIV, October-
December 1999, ppXi7l-69l). The grounds were total
simulation on the part of the Petitioner. A Comment on the
Sentence has been prepared by Mr Paul Robbins. The
commentator draws attention to the vast numbers of
contradictions in this case; as well as the fact of the
lifestyles of the Petitioner being allegedly in total
opposition to and incompatible with the Petitioner’s
baptismal promises. Another feature which had to be worked
through by the Ponens was the considerable conflict amongst
the witnesses concerning the interpretation of the facts.
One of the helpful things here (for other Tribunals) is the
way in which the behaviour rather than the stated intentions
of the Petitioner allowed the Judges to conclude to
simulation in the Petitioner. (See Document No. !I).
The Monitor Ecclesiasticus has been producing
an English section for a little while now. An interesting
Decision appeared in M.E. which was marked on the cover as
January-March 2002 (Vol.CXXVI). But the front inside page
was a different determination, namely, July-December 2001
(3-4, Vol. CXXVII)! However, it is thought that to maintain
sequence this should be called Volume CXXVII, nn.3-4 for
2001. The Ponens is Antonio Stankiewicz, an outstanding
Rotal Judge. One of the grounds is inability (under Canon
1095, n.3). Stankiewicz usefully points out that the
essential obligations of marriage “as mentioned in the Canon
are indeed essential and not simply desirable”. He
enumerates the following as some of these essential
obligations:
(a) the obligation of accepting the
conception of a child through acts appropriate for the
generation of new life, and the birth and education of
children;
(b) the obligation of observing both conjugal
fidelity or exclusivity for the spouses in the single bond
founded upon exclusivity, and a human manner of realising
the acts of conjugal love;
(c) the obligation of preserving
indissolubility or perpetuity for the conjugal consorts, as
long as the covenant contracted freely between the spouses
involves an obligation put to them to conserve the unity and
everlasting bondedness (Canon 1056);
(d) arising from these the obligation
referring to the good of spouses, namely to restore and
sustain communion between the persons and their conjugal
love through the mutual integration of the spouses,
psychosexually and interpersonally, as a result of which
they are no longer two, but one flesh”.
A Comment has been prepared by Monsignor
Gordon Read (see Document No.III)
Not every Tribunal has the advantage of
highly trained and much experienced Judges. In many cases
Tribunals bring on board those Judges who are not
canonically trained but have a lot of background and have
the permission of the Signatura. Many of these became
Associate Judges a long time ago; and the bulk of them are
now very experienced. This applies even more to those
Tribunals which hear appeals. A whole raft of devices is
usually deployed to help Associate Judges become more at
home with the Church’s jurisprudence. Many Tribunals invite
potential Judges to a judgement session to observe what goes
on (of course, having taken the necessary oath of secrecy).
Another way will be to have expert Defenders of the Bond to
write In fare Sections for appeal cases. Fr Dominic Byrne
has been kind enough to do this in two cases in which the
Petition has been reproduced together with his short In
Jure Sections as from a Defender of the Bond. (See
Documents Nos. IV and V).
Bishop John Jukes, presently retired from his
Episcopal role in the Archdiocese of Southwark, is still the
Moderator of the lnterdiocesan Tribunal of Second Instance
of Southwark. This body has an annual general meeting; and
it is frequently addressed by the Bishop. He gave a paper
entitled Emotional Immaturity and Marriage Nullity Cases
Under Canon 1095, NN2 & 3 on 20 February 2003. His paper
is reproduced at Document No.VI.
coram
Quatttocolo (29.7.1926)
Browsing through Canon Law Digest Volume No.
1 (1917-1933), one comes across a number of extremely
interesting historic cases. What is absorbing is the
expression of the law in the 1920s in the Roman Rota. One
such case is referred to in CLD, Volume 1, pp. (from AAS
18-501; SRR 29/7/1926, coram Quattroeolo). This was
the celebrated Vanderbilt-Marlborough case. Seventeen year
old Consuela Vanderbilt was in love with a man referred to
as MR. Her mother wanted the girl to marry into a
distinguished and, if possible, titled English family. The
mother’s gaze fell upon the young Charles, Duke of
Marlborough. By a series of twists and turns the mother
compelled the daughter into marriage with the Duke which
took place in 1885. The couple separated a mensa et tora
in 1905; and following a civil divorce a decree of
nullity was eventually granted by the Rota in 1926. Mgr
Enrico Quattrocolo was the ponens; and the associate
Judges were Francesco Mora and Arthur Wynen. (See Document
No. VII).
The Petitioner here was an Italian Senator,
Gulielmo Marconi. (See CLD, Vol. No 1, 1917-1933, pp.5 He
married Beatrice O’Brien, an English girl, an Anglican in
1905. They separated in 1918 and a decree of nullity was
granted following an affirmative Decision by the Rota (AAS
19-217; SRR 11.4.1927, carom Grazioli). The grounds alleged
were an intention contra bonum sacramenti in both the
parties. It was alleged and proved that the intention had
been made by both the parties. (For the whole Sentence, see
Document No. VIII).
This is a booklet written by Dennis and Kay
Flowers in USA. This couple married, each other after both
had obtained annulments. Father Jimmy Webb found the book
engaging but uneven. He doubts the publisher’s blurb: “Bound
to be a classic”. (See Document No. IX).
The Reviewer, Mrs Mary Alicia Sloane, finds
this book by Catherine Berry, like a modem Irish novel of
the Maeve Binchy type. The Reviewer says: “What this novel
does, uniquely to my limited knowledge, is to supply the
annulment process as a story telling device. If it does
anything, this book is a useful tool to help people gain a
better insight into themselves and so begin a process of
rebuilding their lives”, (See Document No. X).
This is an article from Priests and People
for June 2003, Vol 17, n.6., pp.241-244). Fr Jimmy Webb was
asked to review the article. The thesis by the author seems
to be that Canon Law does not get to grips with the problems
of divorce and remarriage and that the Church authorities
need to widen their world view “if there is to be any
progress”. Fr Webb certainly comes to grips with this
article. (See Document No. X).
This is a very large book, something like 18
inches wide by 2 foot long. It is a revision of the previous
edition published by Fr Germovnik in 1980. That edition was
in four volumes; the present one is one (large) volume
produced by Michael Theriault who has recently died. Fr
Clarence Gallagher has given a lot of time to reading
through this volume and reviewing it. (See Document No.
XII).
* Conference
Hopping: The President.
*
Information concerning the CLS website will appear in the
CLSN shortly.
* The next
Lyndwood Lecture will be given by Bishop John McAreavey in
the Throne Room, Archbishop’s House, Westminster, in
November 2004.
* The CLS
Conference in 2004 will be held in the Moat House Hotel in
Cardiff between 10 — 14 May 2004. Speakers will include
Sister Marjorie Gallagher, Fr Becket Soule, OP., Professor
Norman Doe, Fr James Coriden and Mgr Ralph Brown. The next
AGM of the CLS will be held on 13 May 2004.
* Part I of
the CLS Jurisprudential Course will be held between 11
January and 7 February 2004. This first part is now fully
booked up with twelve participants. The second part will be
January/February 2005, which is also booked up.
* The sermon
preached at the special CLS Mass at the Conference in
Killarney this year was by Bishop William Murphy of Keny.
(See Document No.XIII).
Due to new arrangements to be made at the
Catholic University of America in Washington, the CLSA is
having to vacate the premises occupied on the University
campus and find a new home. The search for the new home
continues; but a new address will be provided in the early
part of next year. The CLS wishes the CLSA “happy landings”.
In CLSN No.132 for December 2002 (pp.43-65)
there appeared an article by Fr Lawrence Wrenn called The
Sacramentality and Invalidity of Marriage. This Article
has been closely studied by Fr John Hadley of the Nottingham
Tribunal. Fr Hadley has written to say that the Wrenn
article does not go as far as it might have done in treating
the question of the intention of the parties in contracting
Christian marriage. His letter is below at Document No. XIV.
The President of the CLS was able to visit
three Conferences during 2003: The Conference of the CLSANZ
in Sydney; and the Conferences of CLSA in Portland, Oregon;
and of the CCLS in London, Ontario. Perhaps it was only a
happy coincidence that the tour of the City of London,
Ontario took place on a double decker bus; but it would been
nice to think the Canadian hospitality imported it specially
in thanks to our President’s Address to the Canadian
Convention in French. Apparently English was used at the
other two Conventions! (See Document No. XV). |
