Caput I

Art 1

Marriage cases of the baptized belong to the ecclesiastical judge by proper right.

Cases involving the merely civil effects of marriage belong to the civil magistrate unless (nisi) particular law determines that these cases can be tried and decided by the ecclesiastical judge when they arise as incidental and accessory.

In cases regarding the nullity of marriage which are not reserved to the Apostolic See the following are competent:

(1) the tribunal of the place in which the marriage was celebrated;

(2) the tribunal of the place in which the respondent has a domicile or quasi-domicile;

(3) the tribunal of the place in which the petitioner has a domicile, provided (dummodo) that both parties live in the territory of the same conference of bishops and the judicial vicar of the domicile of the respondent agrees, after hearing the respondent;

(4) the tribunal of the place in which de facto most of the proofs are to be collected provided (dummodo) that the judicial vicar of the domicile of the respondent gives consent who, before he does so, is to ask if the respondent has any exceptions.

The following are capable of challenging a marriage:

(1) the spouses;

(2) the promoter of justice when the nullity has become public, if the marriage cannot be convalidated or this is not expedient.

§ 1.

A marriage which has not been impugned during the lifetime of both spouses cannot be impugned after the death of either one or both spouses unless (nisi) the question of validity is prejudicial to the resolution of another controversy either in the canonical forum or in the civil forum.

§ 2.

However, if a spouse dies while a case is pending, can. 1518 is to be observed.

Before accepting a case and whenever there seems to be hope of a successful outcome, the judge is to use pastoral means to induce the spouses, if at all possible, to convalidate the marriage and to restore conjugal living.

§ 1.

When the libellus has been accepted, the presiding judge or the ponens is to proceed to the communication of the decree of citation according to the norms of can. 1508.

§ 2.

Unless (nisi) either party has petitioned for a session on the joinder of the issues (contestatio litis), when fifteen days have passed after such a communication, the presiding judge or the ponens is to determine the formulation of the doubt or doubts within ten days by a decree ex officio and notify the parties.

§ 3.

The formulation of the doubt not only is to ask whether there is proof of nullity of marriage in the case, but it also must determine on what ground or grounds the validity of the marriage is to be challenged.

§ 4.

Ten days after the communication of the decree, the presiding judge or the ponens is to arrange for the instruction of the case by a new decree if the parties were not opposed.

§ 1.

The defender of the bond, the advocates of the parties and the promoter of justice, if intervening in the suit, have the right:

(1) to be present at the examination of the parties, the witnesses and the experts, with due regard for the prescription of can. 1559;

(2) to inspect the judicial acts even though not published and to review the documents produced by the parties.

§ 2.

The parties cannot assist at the examination mentioned in § 1, n. 1.

Unless (nisi) full proofs are present from other sources, in evaluating the depositions of the parties in accord with can. 1536, the judge is to use witnesses regarding the credibility of the parties, if possible, as well as other indications and aids.

In cases of impotence or defect of consent due to mental illness, the judge is to use the services of one or more experts unless (nisi) it is obvious from the circumstances that this would be useless; in other cases the prescription of can. 1574 is to be observed.

During the instruction of a case, whenever a very probably doubt emerges that the marriage was not consummated, after suspending the nullity case with the consent of the parties, the tribunal can complete the instruction of the case for a dispensation super rato and then submit the acts to the Apostolic See together with a petition from either one or from both spouses for a dispensation and with the opinion of the tribunal and the bishop.

§ 1.

The sentence which first declared the nullity of the marriage together with the appeals if there are any and the other acts of the trial, are to be sent ex officio to the appellate tribunal within twenty days from the publication of the sentence.

§ 2.

If the sentence rendered in favor of the nullity of marriage was in the first grade of trial, the appellate tribunal by its own decree is to confirm the decision without delay or admit the case to an ordinary examination of a new grade of trial, after considering the observations of the defender of the bond and those of the parties if there are any.

If at the appellate level a new ground of nullity of the marriage is offered, the tribunal can admit it and judge it as if in first instance.

§ 1.

After the sentence which first declared the nullity of marriage has been confirmed at the appellate level either by decree or by another sentence, those persons whose marriage was declared null can contract new marriages immediately after the decree or the second sentence has been made known to them unless (nisi) a prohibition is attached to this sentence or decree, or it is prohibited by a determination of the local ordinary.

§ 2.

The prescriptions of can. 1644 must be observed, even if the sentence which declared the nullity of marriage was not confirmed by another sentence but by a decree.

Immediately after the sentence has been executed, the judicial vicar must notify the ordinary of the place in which the marriage was celebrated about this. He must take care that notation be made quickly in the matrimonial and baptismal registers concerning the nullity of the marriage and any prohibitions which may have been determined.

When a petition has been received in accord with can. 1677, the judicial vicar or a judge designated by him, omitting the formalities of the ordinary process but having cited the parties and with the intervention of the defender of the bond, can declare the nullity of a marriage by a sentence, if from a document which is subject to no contradiction or exception there is certain proof of the existence of a diriment impediment or a defect of legitimate form, provided that it is clear with equal certitude that a dispensation was not granted; this can also be done if there is certain proof of the defect of a valid mandate of proxy.

§ 1.

If the defender of the bond prudently thinks that either the flaws mentioned in can. 1686 or the lack of a dispensation are not certain, the defender of the bond must appeal against this declaration to the judge of second instance, to whom the acts must be sent and who must be advised in writing that it is a question of a documentary process.

§ 2.

The party who feels aggrieved retains the right to appeal.

The judge in second instance with the intervention of the defender of the bond, having heard the parties, shall decree in the same way as in can. 1686 whether the sentence is to be confirmed or whether the case must rather be handled according to the ordinary process of law; and in that case the judge remands it to the tribunal of first instance.

In the sentence the parties are to be advised of the moral and even civil obligations which they may have to each other and to their children as regards the support and education of the latter.

Cases declaring the nullity of marriage cannot be treated in an oral contentious process.

In other procedural matters, the canons on trials in general and on the ordinary contentious trial are to be applied unless (nisi) the nature of the matter precludes it; however, the special norms on cases involving the status of persons and affecting the public good are to be observed.

§ 1.

Personal separation of baptized spouses, unless (nisi) otherwise legally provided for in particular places, can be decided by a decree of a diocesan bishop, or by a sentence of a judge in accord with the following canons.

§ 2.

Where an ecclesiastical decision has no civil effects, or it if is foreseen that a civil sentence is not contrary to divine law, the bishop of the diocese of residence of the spouses can give them permission to approach the civil forum, having considered the particular circumstances.

§ 3.

Also, if a case is concerned only with the merely civil effects of marriage, the judge can determine it is sufficient that the case be deferred to the civil forum from the start, with due regard for the prescription of § 2.

§ 1.

Unless (nisi) one party or the promoter of justice seeks an ordinary contentious process, an oral contentious process is to be used.

§ 2.

If the ordinary contentious process has been used and an appeal is proposed, the appellate tribunal is to proceed in accord with the norm of can. 1782, § 2 while observing everything that is to be observed.

The prescriptions of can. 1673 are to be observed in regard to the competence of the tribunal.

Before accepting the case and whenever it is perceived that there is hope of a successful outcome, the judge is to use pastoral means to reconcile the spouses and induce them to restore conjugal living.

Cases involving the separation of spouses also pertain to the public good therefore, the promoter of justice must always intervene at them in accord with the norm of can. 1433.

Only the spouses or either one, even if the other is not willing, have the right to petition for the favor of a dispensation from a ratified and not consummated marriage.

§ 1.

The Apostolic See alone adjudicates the fact of the non- consummation of marriage and of the existence of a just cause for granting the dispensation.

§ 2.

The dispensation, however, is granted by the Roman Pontiff alone.

§ 1.

The person competent to accept the libellus seeking a dispensation is the diocesan bishop of the domicile or quasi-domicile of the petitioner, who must arrange for the instruction of the process if he is sure of the basis of the pleas.

§ 2.

But if the proposed case has special difficulties of the juridical or moral order the diocesan bishop is to consult the Apostolic See.

§ 3.

Recourse is open to the Apostolic See against a decree by which a bishop rejects a libellus.

§ 1.

With due regard for the prescription of can. 1681, the bishop is to commit the instruction of these processes, either permanently or in individual cases, to his own tribunal, the tribunal of another diocese, or a suitable priest.

§ 2.

But if a judicial petition has been introduced to declare the nullity of this same marriage the instruction is to be committed to the same tribunal.

§ 1.

The defender of the bond must always intervene in these procedures.

§ 2.

An advocate is not admitted but, because of the difficulties of a case, the bishop can permit that the petitioner or the respondent have the aid of a legal expert.

Insofar as it is possible, each spouse is to be heard during the instruction of the case; and the canons on the collection of proofs in ordinary contentious trials and in cases of marital nullity are to be observed provided (dummodo) they can be reconciled with the distinctive character of these processes.

§ 1.

There is no publication of the acts; however, when the judge sees that from the proofs introduced a grave obstacle has arisen to the petition of the plaintiff or an exception of the respondent, he is to reveal this prudently to the interested party.

§ 2.

The judge can show to the interested party seeking it a document introduced or testimony received and set a time within which to offer observations.

§ 1.

Having finished the instruction, the judge is to hand over all the acts with an appropriate report to the bishop, who is to prepare his opinion on the truth of the matter both concerning the fact of non-consummation, and the just cause for a dispensation and the opportuneness of the favor.

§ 2.

If the instruction of the process has been committed to another tribunal in accord with can. 1700, the observations in favor of the bond are to be made in the same forum, but the opinion mentioned in § 1 pertains to the bishop committing it, to whom the instructor is to forward the acts with an appropriate report.

§ 1.

The bishop is to send to the Apostolic See all the acts with his opinion and the observations of the defender of the bond.

§ 2.

If, in the judgment of the Apostolic See, a supplement to the instruction is required, the bishop will be informed about the points on which the instruction must be completed.

§ 3.

But, if the Apostolic See responds that non-consummation has not been established from the proofs, then the legal expert mentioned in can. 1701, § 2 can review the acts of the process but not the opinion of the bishop, at the tribunal, to see whether any serious reasons warrant resubmitting the petition.

The rescript of dispensation is sent to the bishop by the Apostolic See; he shall notify the parties about the rescript and also as soon as possible order the pastor (parochus) of the place where the marriage was contracted and the pastor (parochus) of the place of baptism to note the granted dispensation in the registers of marriage and of baptism.

§ 1.

Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document, the other spouse is not considered free from the bond of marriage until after a declaration of presumed death is made by the diocesan bishop.

§ 2.

The diocesan bishop can make the declaration mentioned in § 1 only after appropriate investigations have enabled him to attain moral certitude of the death of a spouse from the depositions of witnesses, from rumor, or from indications. The mere absence of a spouse, even for a long time, is insufficient.

§ 3.

The bishop is to consult the Apostolic See about uncertain and complex cases.

The cleric himself, the ordinary to whom he is subject, or the ordinary in whose diocese he was ordained have the right to impugn the validity of sacred ordination.

§ 1.

The libellus must be sent to the competent congregation, which shall decide whether the case is to be handled by the congregation of the Roman Curia or by a tribunal designated by it.

§ 2.

Once the libellus is sent, the cleric is forbidden to exercise orders by the law itself.

If the congregation remands the case to a tribunal, the canons on trials in general and on the ordinary contentious trial are to be observed unless (nisi) the nature of the matter precludes this, with due regard for the prescriptions of this title.

In these cases the defender of the bond enjoys the same rights and is bound by the same duties as the defender of the marriage bond.

After the second sentence which has confirmed the nullity of sacred ordination the cleric loses all rights proper to the clerical state and is free of all obligations.

To avoid judicial contentions a settlement or reconciliation is usefully employed or the controversy can be entrusted to the judgment of one or more arbiters.

The norms chosen by the parties are to be observed in a settlement, a compromise or a trial by arbiters; or, if the parties choose no norms, the law enacted by the conference of bishops is to be observed if there is such, or the civil law in force in the place wherein the agreement is entered.

§ 1.

A settlement or compromise cannot be made validly concerning matters which pertain to the public good and other matters about which the parties cannot freely dispose.

§ 2.

If it is a question of temporal ecclesiastical goods, whenever the matter requires this, the formalities specified by law for the alienation of ecclesiastical goods are to be observed.

§ 1.

If the civil law does not recognize the force of a sentence by arbiters unless (nisi) it is confirmed by a judge, a sentence by arbiters in an ecclesiastical controversy needs confirmation by an ecclesiastical judge of the place where the sentence was rendered in order to have force in the canonical forum.

§ 2.

However, if the civil law admits the challenging of a sentence by arbiters before a civil judge, the same challenge can be proposed before the ecclesiastical judge who is competent to judge the controversy in the first instance.