Introduction

In a previous post, I explained the role of the Defender of the Bond in marriage annulment proceedings. However, the Defender of the Bond is just one role of several others in the Ecclesiastical Tribunal. Another major role is that of the Ecclesiastical Judge. The term ‘judge’ may conjure images of a courtroom, legal arguments, and a decision of right or wrong. While an Ecclesiastical Tribunal does hold judicial authority, marriage nullity cases are somewhat different. Most importantly, the Ecclesiastical Judge does not determine fault for the marriage‘s failure. Instead, the core question is:

Was a valid marriage truly established when the parties exchanged their consent?

The Role of the Ecclesiastical Judge

In the Catholic Church, marriage cases involving the baptised belong by proper right to the Ecclesiastical Judge (cf. c. 1671 §1). In an ordinary marriage nullity process, cases are normally entrusted to a college of three judges, although exceptions exist in the law (cf. c. 1673 §§3–4).

The judge’s major task is to ready and study the acts of each case in its entirety. By ‘acts’ it is understood anything that is gathered throughout the process of the marriage nullity proceeding. Examples of this include: the parties’ testimonies, the witnesses’ testimonies, advocates’ briefs, the defender of the bond’s observations, text messages related, medical records, psychological reports, to name a few. is not simply to read the testimony of the person asking for the declaration of nullity and decide whether that person appears convincing.

Consequently, the judge’s role is to try to understand, as accurately as possible, what was going on and what actually happened at the moment consent was exchanged. With that said, one must not assume that a marriage can be declared null if it broke down years later. Likewise, it cannot be assumed that a marriage that seemed happy and normal is valid. I often get asked why tribunals ask so many questions, starting from childhood. For the judge to do his or her work well, he or she needs to gather as much information as possible, and as one can imagine, this goes beyond simply asking whether the marriage worked in the beginning.

What Does the Judge Have to Decide?

First things first, marriage enjoys the favour of the law. This means that, when there is doubt, a marriage is considered valid until the contrary has been proven (cf. c. 1060). This is something the (one of or both) spouses need to bring forward (they are called ‘the parties’ in the case). The first spouse that files a petition with the competent tribunal becomes the petitioner in the case. The other spouse becomes the respondent.

There are several available grounds which can be used to investigate the validity (or otherwise) of a marriage. These are some of the most common ones:

• Error concerning a quality of a person (c. 1097 §2)
• Deceit or malice (c. 1098)
• Exclusion (or simulation) of marriage itself (full exclusion) or some essential element of marriage, or some essential property of marriage (partial exclusion) (c. 1101 §2)
• Future condition (c. 1102 §1)
• Grave lack of due discretion (c. 1095 2°)
• Inability to assume the essential obligations of marriage (c. 1095 3°)

The parties do not need to be experts in canon law, nor do they need to suggest the grounds themselves. Each spouse can be provided with an advocate (someone who is qualified in canon law), who can guide them throughout the process. The judge, sometimes also with the help of other tribunal personnel, will determine the most suitable ground(s) for each challenged marriage, always keeping the parties in the loop.

The judge’s role is, in fact, not an easy one because marriage concerns the most private aspects of a person’s life. Judges are therefore often asked to examine events that occurred many years previously and to distinguish between difficulties that developed during the marital life and circumstances that demonstrate that the marriage was invalid from the get-go.

Moral Certainty

Perhaps the most important concept for understanding the role of an Ecclesiastical Judge is moral certainty. Before pronouncing a sentence, a judge must have moral certainty concerning the matter being decided (c. 1608). This certitude must come from the acts and proofs of the case. If the required certitude cannot be reached, the judge cannot simply declare the marriage null because nullity appears possible or even probable. On the contrary, if moral certainty cannot be reached, the judge cannot declare a marriage null and void. So the distinction between “this marriage might be invalid” versus “this marriage is invalid” is crucial. The judge must be morally certain, on the basis of the evidence available, that nullity has been established on the ground or grounds being judged.

In a collegiate tribunal, each judge studies the case and reaches his or her own conclusion. The judges then meet to deliberate, and the sentence is reached by majority vote (c. 1426 §1). Normally, the judges also have different roles within a college of three: one is the praeses (presiding judge – normally the judicial vicar of the tribunal and always a priest), one is the ponens (or relator – the one who writes the sentence), and the last one is the associate judge (takes part in the discussions after reviewing the acts). Other than the presiding judge, the other two do not need to be priests. They can even be women, as long as they are licensed in canon law or have obtained special permission after particular study in the sacred science. Different judges can sometimes read the same acts and initially reach different conclusions. This is why judicial work requires the careful evaluation not only of individual statements but of the evidence as a whole, followed by the collegiate meeting.

Conclusion

The Ecclesiastical Tribunal is ultimately searching for the truth about a particular marriage. The petitioner, respondent, advocates, witnesses, experts, Defender of the Bond and judges all contribute to this process in different ways. The judge’s particular responsibility is to listen carefully to all these voices, examine the evidence, apply the law and ultimately answer the juridical question placed before the tribunal. This can sometimes be challenging, particularly because behind every set of tribunal acts are real people, real marriages and, very often, experiences involving considerable pain. For this reason, being an Ecclesiastical Judge is not simply about knowing canon law or reaching a legal conclusion. It carries with it a serious responsibility towards the parties, towards the Church and towards the truth itself. As I wrote when discussing the Defender of the Bond, those who work in an Ecclesiastical Tribunal are not there for personal gain or prestige. Each person contributes, according to his or her particular office, towards piecing together the puzzle of what truly happened.

Ultimately, the goal is the same: to seek the truth with the aim of obtaining justice.