Congregation for the Doctrine of the Faith, Correspondence Concerning the Right of Parties to Inspect the Acts in Privilege of the Faith Cases, 1998. Private.
The right of parties to know the witnesses and to inspect the acts is clear in the case of ordinary contentious trials. Do parties in privilege of the faith cases have the same right? The Congregation for the Doctrine of the Faith responds to this question. (Both the inquiry and response are English originals.)
Most Rev. Tarcisio Bertone, S.D.B.
Congregation for the Doctrine of the Faith
Palazzo del S. Uffizio
00120 Vatican City Europe
I am writing with a question about procedure in causes for the dissolution of marriage in favorem fidei, which has arisen in the course of completing the instruction of the above-referenced case.
In this case there has been conflicting testimony by the parties to the marriage concerning the cause of the marital breakdown. On *, Your Excellency requested that further inquiry should be made with regard to this issue. The petitioner, upon learning of the developments in the case, has asked to know the names of the witnesses produced by the respondent and to be able to inspect and, if necessary, to respond to their depositions. The right of the parties to know the identity of witnesses and to inspect the acts is clear in the case of ordinary contentious trials, but the decree Ut notum est does not state whether the parties in causes involving the dissolution of marriage in favorem fidei enjoy the same rights.
Would you kindly advise me as to how I should respond to the petitioner’s request?
With gratitude for assistance in this matter, and with every good wish for your important ministry on behalf of the Church, I am
Sincerely yours in Christ,
CONGREGATION FOR THE DOCTRINE OF THE FAITHYour Excellency,
In a letter of the fourth of last month, the judge instructor in the case cited above indicated that the petitioner has asked to know the names and inspect the testimony of witnesses produced by the respondent in response to our letter for further testimony dated *.
This request has given rise to the general question whether the parties in a favour of the faith case enjoy the same rights regarding the inspection of the acts which the law accords them in a formal nullity case. As the judicial vicar accurately noted, the 1973 document Ut notum est instructing a process leading to the dissolution of the bond in favour of the faith is silent on this matter.
The procedure connected with a petition for the dissolution of the marriage bond is essentially administrative in nature even though the instruction of the case at the diocesan level is partially judicial in that it is conducted by the local ordinary or a delegated judge with the intervention of the defender of the bond with involvement of a notary. As in the case of dispensations from non-consummated unions, it may also be said that the canons on the collection of proofs in ordinary contentious cases and marriage nullity cases are to be followed as far as possible, provided they can be reconciled with the nature of these processes.
Since it is not a contentions process, however, the acts in cases of this kind are not published and there is likewise no place for the parties to inspect them either during this process or at its conclusion. An advocate is not admitted in an inquiry of this nature even though the bishop could, in certain complex cases, allow either party to have the assistance of an expert in the law.
In this process, the ordinary or his delegate is free to conduct the inquiry in the way he sees fit in order to arrive at a better understanding of the matter as the Procedural Norms indicate (Art. 4 §3). The judge instructor should provide any assistance to the petitioner or respondent that may be required.
If there is something in the evidence which will present an obstacle to the petition, the judge instructor should prudently make it known to the party concerned. While respecting confidentiality of witnesses, the contradictory evidence may also be made available to an expert as mentioned above but only if the judge instructor considers this necessary.
In the hope that this information will be of assistance to you and with every good wish, I remain,
Yours devotedly in the Lord,
Tarcisio Bertone, S.D.B.
RRAO (1998): 29-30.