NEWSLETTER NO. 144 DECEMBER 2005
1. The Marriage Acta of Malta
[Mr Paul Robbins]
2. A Person's Rights in Canon
Law [Mgr David Price]
3. British & Irish Tribunal
Statistics 2004 [Fr Peter Kravos]
4. Global Tribunal Statistics
[Fr Peter Kravos]
5. Rotal Sentence: Cyclothymic
Disorder / Transvestism [coram Boccafola] (14th October,
1999)
6. Rotal Sentence: Mood
Disorder / Depression [coram Pinto] (24th March, 2000)
7. Jurisprudential Approaches
to Equivalent or Substantial Conformity of Sentences in Marriage
Nullity Cases [Professor Augustine Mendonca]
8. President's Visit to North
American Conventions 2005 [Rev John Conneely]
9. New Chair for Study of
Marriage and Spirituality at the Catholic University of Leuven
10. New Journal: Studies in Canon
Law, Bangalore, India.
It comes as a surprise to many people in
these Islands to realise how different the law on marriage was from
1975 onwards (until 1995) in Malta. Prior to 1975, the law of the
Republic of Malta followed very closely the Provisions of Canon Law
with regard to the ability to marry. As will be perceived this will
have created difficulties for those who were not Roman Catholics and
for those who had (perhaps deliberately) lapsed from the faith. If
these persons wanted to marry they had no choice but to contract
(marriage) according to the form prescribed in Canon Law.
However, the civil law changed in 1975. “The 1975 Marriage Act
provided that only the marriages to be recognised in law would be
those contracted according to this act”. This meant that a marriage
initially celebrated in a Church according to Canon Law was not
recognised by the Republic after 1975; and hence no civil effects
followed on from that celebration. It also ceased to give due
recognition to the decisions of Ecclesiastical Tribunals. The civil
courts acquired sole jurisdiction on matters concerning marriage.
But the Act did not allow for the possibility of divorce in Malta.
On the other hand, the 1975 Act recognised the registration of
marriages abroad; and it recognised divorces delivered by a foreign
court if at least one of the parties was domiciled in Malta. Hence,
the outcome of the 1975 Act was that if a person was married in
Malta he was required to seek a Decree of Nullity according to Civil
Law; and thereafter to approach the Ecclesiastical Tribunal.
However, the civil law had been amended in 1995. The effects of this
alteration have been written up by Paul Robbins in Document No. I.
One of a number of points arises
especially in connection with the investigation made when a priest
or other cleric or lay person has been delated to authority for some
act which involves sexual or other abuse of children. Many people
have noted the use of the term “suspension” of (say) a teacher or
the “removal of a cleric” from his post on the occasion of such
allegations.
An essential element in all this is the “right to good name” of the
person accused. However much authority and the community believe in
the concept of justice, of the presumption of innocence, of a
person’s good name, whenever an allegation is made in this area,
there is an automatic loss of good name. Even when the person is
cleared of all possible shreds of guilt, the last thing that can be
repaired (if ever) is the loss of good name.
Without contemplating the actual outbreak of such abuse cases, it is
well to rehearse the actual principles laid out in the law of the
Church concerning a person’s rights.
Monsignor David Price of Auckland, the distinguished Canon Lawyer,
has written a paper on the matter of a person’s rights in Canon Law.
(This is reproduced from the CLSANZ Newsletter No.1 of 2004). He
examines the Canons of the 1983 Code which deal with this matter;
namely, Canons 208-223; as well as the other relevant Canons in the
Code; and a variety of canonical sources on this particular matter
(see Document No.II).
The source of all knowledge of the
Society’s Statistics is Father Peter Kravos. The raw statistics of
2004 were sent to him this year at the usual time. This year he has
prepared some very interesting comparative statistics. He has
compared the figures for Tribunals for the years 1994 and 2004, i.e.
ten years. But first of all, his figures reveal that the number of
cases introduced in 2003 and in 2004 was more or less the same in
England and Scotland; but thirty-five cases less were introduced in
Ireland. All told there were fewer cases pending at the end of 2004
than there were in 2003; perhaps this points towards more efficient
handling (Father Kravos suggests).
It is commonly stated by Tribunals that the number of cases coming
in is dropping. Clearly this is an “impression” rather than being
backed up statistically. Nonetheless the impression remains; and
there are those who feel that consideration should be given to the
future of Tribunals. If case numbers drop dramatically diocesan
Bishops are certainly going to shrink their Tribunal operations.
This could be done (in some cases) by cutting the budget for
Tribunals. In other ways it could be done by not assigning premises
or personnel to Tribunals. It is possible to envisage ( as the worst
case scenario) a situation where the diocese has a shrinking number
of Canon Lawyers and other skilled Tribunal workers (as well as
auditors). Eventually it might be foreseen that the last able
Canonist or Tribunal operative retires (even dies). All the long
acquired practical knowledge that has been acquired over the years
is gradually shrunk by the loss of cases. How to face this possible
scenario is obviously a matter for consideration by the Society.
(See Document No. III for the CLS Statistics for 2004).
These statistics are again prepared by
Father Peter Kravos from the Annuarium Statisticum for 2003.
These statistics come from those which were compiled by the
Secretariat of State Statistical Office at the beginning of 2004.
They are garnered from the returns sent in by every diocese
throughout the world. These figures are then poured into the number
crunching facilities at the Vatican; and from these raw figures
emerges the handsome volume of Annuarium Statisticum for the
whole Church. The accuracy of these figures turns on the precision
with which the numbers were put together by the diocese submitting
their returns every year.
The overall comment on these figures is that they reveal “ a slow
but steady decrease in the number of cases introduced worldwide.
“There were 2688 fewer cases in 2003 than in 2002; and 8889 fewer
cases than in 1999”. The details for all the countries of the world
(represented by all the Catholic dioceses) are assembled here. There
are nine specific areas which are examined by the Statistical
Office. These nine areas are covered by the figures for Africa,
North America, Central America-Mainland, Central America-Antilles,
South America, Middle East, Asia, Europe, Oceania. These are
analysed and broken down into specific territories. Overall, there
is a decline in cases that these Tribunals have accepted.
An interesting study from the overall figures in the Annuarium
Statisticum has been made by Father Kravos comparing marriages
and declarations of nullity. Of course, in any one year the number
of Decrees of Nullity have no reference whatsoever to the marriages
of that year. The nullity cases of that year will all relate to
marriages which took place several years beforehand. But setting
these two figures alongside each other does provide some sort of
comparison between places. So, for example, in England, Scotland and
Wales the number of Catholic marriages in 2003 was 30,373; the
number of declarations of nullity for the same year was 668. That
is, the ratio of one in twenty. In Ireland, on the other hand, the
figure was one in fifty-seven, in the Middle East it was one in
fifty-nine. But in North America the ratio was one in seven. (See
Document No IV).
Two Sentences from the Rota are
presented here; both are III Instance decisions from cases emanating
from the National Appeal Court in Ireland. In both cases the first
Instance Decision had been in the negative. This was reversed by
NATI; and accordingly the Defender of the Bond at NATI appealed the
affirmative decisions to the Roman Rota. The decisions were given
coram Boccafola and coram Pinto. These two Sentences were
translated into English by Professor Augustine Mendonça and Sister
Rachel Harrington, SND; and they were published in Studia Canonica
1938 (2004). The Sentence coram Boccafola deals with a case
of cyclothymic disorder and transvestism. In this case the grounds
were situated in Canon 1095 nn 2 & 3.
The second Sentence coram Pinto concerns mood disorder and
depression. The decision coram Boccafola is at Document V;
and the decision coram Pinto is at Document VI.
When editing MDGBI, it is noted there
are numbers of cases where the first Instance grounds are not
clearly specified. For example, in some cases the grounds introduced
are “simulation”; and there is no specification as to whether this
is introduced as total or partial simulation; or maybe both.
Occasionally there are Sentences which produce clear grounds for
nullity (e.g. on material relating to an intention contra bonum
sacramenti but there is no affirmation of the attribution of the
ground to one or of the other of the parties. When that has been the
situation in the first Instance, there is temptation to omit the
case altogether from MDGBI; although sometimes such a case (because
of its specifics) needs to be aired. In which case one wonders how
the Appeal Court fares!
With a view to speeding up justice, the Rota (following the old and
new Codes) has a device which helps this situation. This device is
the application of the principle of equivalent or substantial
conformity of sentence. It is a clear principle of law that a Decree
of Nullity can only be granted when there have been two conforming
Sentences (Canon 1641 n.1.) The question is what are “conforming
Sentences”?
Whatever may be the situation for MDGBI, a close look at some Rotal
Sentences demonstrates that cases arrive at the Rota with all kinds
of flaws or at least problems. An example must be the First Instance
Court that gives a negative decision on the grounds of total
simulation and the exclusion of permanence by the Respondent. The
Appeal Court decides in the affirmative on the grounds of “simulated
consent” (which could, of course, cover both grounds mentioned).
Another example: the First Instance had the dubium before it
of total simulation or exclusion of indissolubility and of children.
(This is in both parties). The First Instance Court decided
“omitting the exclusion of children as not proven, there is proof of
invalidity of marriage due to total simulation and therefore also to
the exclusion of indissolubility”. But there is no clear statement
as to which of the grounds had been found.
In both examples there is an affirmative and a negative decision;
hence the third Instance is before the Rota. It is the Rota which
has to sort out those other alternatives; and this sorting out is
done with very great skill. An analysis has been prepared by Father
Augustine Mendonça. He (with enormous labour) took eight such cases
which were before the Rota; and two before the Signatura. Probably
the involvement of the Signatura is the most interesting of all this
material. The article by Professor Mendonça appears at Document No.
VII. It is reproduced here with his permission and with the
permission of the Editor of Studia Canonica.
The President, Father John Conneely,
represented the CLS at two Conventions in North America this year.
He went to the Canadian Canon Law Society Convention at Saskatoon in
Sascatchewan. After an interesting Convention he was then able to
attend the annual Red Mass organised by the St Thomas More Guild of
Lawyers. He then went on to Tampa in Florida. At the American
Convention Father Paul Golden, a former President of CLSA and
visitor to CLS Conferences was presented with the CLSA Role of Law
Award (see Document No.VIII).
The aim of the Chair is to carry out
academic research and teaching in the context of a modern and open
university. Doctor Thomas Knieps- Port Le Roi has been appointed to
the Chair, He has been a research staff member at the International
Academy for Marital Spirituality (See Document No.IX).
St Paul’s Pontifical Institute,
Bangalore, India has announced the launching of its new Journal
Studies in Church Law. “The new journal will contain studies and
articles by eminent Canonists and Professors from different
continents”. The details of this new periodical will be found at
Document X.
In January 2006 the invoices will be
sent out for the Membership subscription (£100 sterling) and for
MDGBI. The invoice will explain the manner of payment (i.e. cheque
or credit card). So far as delivery times are concerned the
following note may be of help:
The guidance given by the Post Office for delivery times for
surface mail is as follows:
Western Europe – 2 weeks following the day of posting, Eastern
Europe – 4 weeks; outside Europe – 8 weeks.
By comparison, the relevant times for air-mail postage (Printed
Papers rate) are:
Western Europe – 3 days; Eastern Europe – 4 days; Outside Europe – 5
days.
Obviously, local conditions may extend these estimates.
If members wish to use the Airmail Printed Papers Rate, they are
asked to indicate this on the invoice that they will be receiving
and include it in the payment of the invoice.
The relevant total for Members (covering both issues of Canon Law
Abstracts and the four issues of the Newsletter) would be: Europe
£105.00/E160.00; outside Europe Euro’s 107.50/US$215.00. If you pay
by credit card, the charge would be: Europe £110.00 and outside
Europe £115.00.
Some members also subscribe to ‘Matrimonial Decisions for Great
Britain and Ireland’ and in order to avoid the preparation of a
second invoice, the charge for this will appear on the subscription
invoice.
The cost of MDGBI is £23.00 or US$46.00 or E35.00 or by Credit card
£24.50, including surface mail postage. For airmail postage: Europe
£24.00/E37.00, outside Europe: £25.00/US$50.00, and by credit card:
Europe £25.00, outside Europe £26.00.
Bishop Joseph A Galante of Camden, New
Jersey said Archbishop Gabriel Montalvo, (the Papal Nuncio to the
United States), “requested a priest who was an outstanding Canonist
and who knows and proclaims the teaching of the Church”. Monsignor
Joseph W. Pokusa, a 60-year old priest of the Diocese of Camden, NJ,
has been appointed to the staff of Apostolic Nunciature in
Washington. Msgr. Pokusa, who had been Chancellor of the Camden
Diocese and pastor of Christ the King Church in Haddonfield, NJ,
began his work at the Nunciature this last spring.
