The governance of the church is divided into three branches: the legislative, the executive, and the judicial. The legislative role is assumed generally by the pope and by those to whom this function has been entrusted. The executive branch of church governance encompasses the offices of the Roman Curia and the bishops in their dioceses. The judicial branch concerns the administration of justice in the church. Usually, this is exercised through tribunals set up at various levels within the church.
At the diocesan level, each diocese is to have its own functioning tribunal, unless, in certain circumstances, arrangements have been made for a group of dioceses to operate under one tribunal. Such is the case in Canada, where we use the system of regional or inter-diocesan tribunals. Thus, the tribunal in Regina handles cases from the Latin Church arising in Saskatchewan and Manitoba.
Diocesan tribunals have an appeal tribunal (usually known as the second instance court). In most instances, cases from a diocesan tribunal are appealed to the tribunal of the archdiocese (the metropolitan tribunal), and cases from an archdiocese are appealed to another archdiocese.
However, again in Canada, the Holy See has approved special arrangements whereby there is one appeal tribunal for the entire country, handling cases from the Latin church and from a number of the Oriental churches. The Ukrainian eparchies in Canada were authorized to set up a special tribunal for their cases.
At the universal level, there are four tribunals: the Apostolic Signatura (which acts in the name of the pope), the Roman Rota (which handles contentious and criminal cases), the Apostolic Penitentiary (dealing with matters relating to the sacrament of penance), and the tribunal of the Congregation for the Doctrine of the Faith (which handles special cases dealing with faith and morals).
Each tribunal has a chief judge, who is either the bishop himself or a priest known as the “judicial vicar.” He is assisted by other judges, by a promoter of justice, a defender of the bond, notaries and advocates. The code lists the qualifications required for appointment to each of these offices.
Book VII of the Code of Canon Law spells out in detail the procedure to be observed in the tribunals. The procedure varies somewhat for marriage nullity cases and for penal cases, where a person is accused of having committed a canonical delict or crime. The specific procedures for marriage nullity cases were revised somewhat on Jan. 25, 2005, with the instruction Dignitas connubii. The specific procedures to be applied in penal cases are presently under revision.
As distinct from many of the secular courts, whose object is to apply justice, the church courts have as their focus to determine the truth. For this reason, procedures differ somewhat from those used in the secular courts, and certain elements of proof are allowed which would not be accepted in the civil or criminal courts of Canada. Much of the procedure is written, and there is no formal cross-examination of witnesses by lawyers.
Almost all of the cases heard by the Canadian tribunals concern marriage nullity, determining whether a previous union of one or both parties to a potential marriage was indeed a sacramental marriage, or whether there was some obstacle — known or unknown — which prevented one or both parties from giving full consent. (We will examine this in detail in our next column.)
Because we are dealing with matters which are most significant for a couple, it should not be surprising to learn that all efforts must be made to hear both parties to the union in question. Oftentimes there are two sides to the coin, and it is important to get to the truth of the matter. The statements of the parties are corroborated by witnesses (usually at least three), sometimes by psychological evaluations, and by other sources of proof, depending on the issue being studied by the court.
Once the proofs have been gathered, they are examined by the defender of the bond who, if appropriate, raises objections against an eventual declaration of nullity. These arguments are counter-balanced by the plea of the advocate representing the parties. The matter then goes to the judge; there can be either one judge or three. In exceptional cases, even five judges can be designated.
If the court finds in favour of the nullity, the case is forwarded automatically to the appeal tribunal. If this tribunal upholds the first instance decision, the case usually ends there (unless one of the parties wishes to contest this new decision). If the first instance court found against the nullity, the parties are always free to appeal to the second instance court. If, however, the two courts disagree, then the case goes to the supreme court in Rome (the Roman Rota) for a final decision.
The procedure is meticulous and can sometimes take time because of the unavailability of one of the parties, or of witnesses, or of other proofs. The church takes this ministry most seriously, having sacrificed much through the centuries to protect the indissolubility of marriage, and does not give its decision lightly.
Morrisey is a professor emeritus of canon law at Saint Paul University, Ottawa, and has been very active over the years in the field of canon law, especially as it applies to dioceses and religious institutes. This is his 21st article in a series.