1) A regular process
The canonical process for verifying the invalidity of a canonical marriage is very similar to a process of cognition which is celebrated in the Italian civil courts.
may give impetus to this type of proceedings only "spouses" or the so-called "promoter of justice" (the public part of the institutional process), in the latter case only when the nullity of marriage has already been disclosed (cf. 1674 Code of Canon Law - CIC).
Unlike ordinary processes on the civil and criminal courts, the code of canon law leaves the possibility of being the spouse in court without the establishment of its own defense attorney. All this in theory. In practice it is very difficult to find the case of those who, without the help of a technician of the law, not having the necessary skills, you want to delve into a similar procedure before the ecclesiastical tribunal.
A spouse who wishes to challenge his marriage ("actor" of the case), will address, therefore, a canon law expert who will advise on whether to take up the cause and possibly forward to the bench will be represented by a so-called Rota lawyer. "
The other spouse, once sued, will establish itself as a "defendant" opposed to the assumptions of the plaintiff, alleging that in connection with his claim, or be idle in front of the citation received. In the latter case, assume the status of the case of the "absent" and the process will continue without him anyway. Finally, the defendant can make an informal statement with which you will submit to the justice of the court, without affirming or denying the claim of the plaintiff.
2) In the beginning was the "libel".
The application of a canonical process is called libel, and consists of a few pages. This act is summarized briefly the reason or reasons in fact and law, for which the plaintiff intends to annul their marriage.
Once drafted, the petition is filed with the court and the case was entrusted by the "judicial vicar" to a judge, who will examine the jurisdiction of the court to judge on that particular case, and the ability of legitimate sue and be sued actor. It will also examine the existence of a legal basis on which the case is set (so-called prima facie case). The term "prima" is only a perception of probability about the merits of the application based on matters of law and fact, not the fact that it is already evident, nor that it has already demonstrated or proven.
Once the court's finding of all the elements described above, admits the petition submitted by decree and shall, by the same court, to notify the decree of citation to the defendant.
3) Dear spouses disagree ... doubts.
"The hearing of the correlation of the doubt" is required before the examining magistrate in the presence of the parties and their attorneys, which sets and bounded (= arrangement) the head, or head, nothing for which you want to appeal marriage. (It is technically called instead "hearing the joinder of the issue, "if the court that audience, not the presence of the parties, issue the decree which the court sets the terms of the dispute
How can you tell this audience is critical because at this stage of the application process is crystallized (petitum) of the actor throughout the rest of the trial. The final sentence in fact should take into account only and exclusively that of head of invalidity in relation to the request for annulment of marriage contested, by virtue of the principle of coincidence between the "required" (by hand) and "pronounced" (The judge).
To better understand the concept, is made an example of a marriage that is challenged on the basis of a so-called "simulation" of consent to the exclusion of the "bonum sacraments," where the plaintiff asserts that he, in the period prior to marriage, it was in favor of divorce. At the preparatory stage is not proved that fact, but at the same time, the evidence gathered, it appears that the plaintiff was rather favorable to the 'exclusion of the child "(another possible leader for the annulment of the marriage). The formation of the Court, in ruling that the issue will go to completion, will have to declare that the evidence raggiunte, non consta la nullità relativamente al dubbio contestato (esclusione del sacramento), ma allo stesso tempo non potrà neanche dichiarare il matrimonio nullo per “esclusione della prole” (paradossalmente, invece provato dalle testimonianze processuali), perché il dubbio non era stato concordato inizialmente in tal senso.
E’ tuttavia contemplata la (remota) possibilità per il giudice, in corso di giudizio, ma solo per gravi motivi, e dopo avere ascoltato le parti, di mutare i termini della controversia ed istruire la causa per un capitolo non incluso nella formula del dubbio. Presupposti i fini soprattutto pastorali dei procedimenti di nullità matrimoniale, questa normativa viene applicata also not to imprison the ecclesiastical administration of justice in the nets of a useless formality, and especially to match as closely as possible the reality of the case with the substantial reality.
4) The evidence shows
Through the tests show the judge the facts or controversial questions that are relevant in the process. The ultimate test is to be able to ascertain such facts to form in the court the necessary conviction and certainty before pronouncing the sentence. This certainty generated by the physical evidence is not certainty, that rules out the possibility of error, but rather is a "moral certainty", which excludes the possibility error about the truth of the facts alleged in court.
The first evidence that the Code of Canon Law establishes, consists of:
a) pleadings of the parties.
are to be understood that all statements made in the course of denials that are issued by private parties in the petition that the hearing is the correlation of the doubt. Not all statements assume strictly evidential value, even though some of them, should be compared with the other results of the investigation, will be a valuable element in helping to form the conviction of the judge on the merits of the dispute.
b) Questioning the parties.
The parties' statements used as evidence, the answers are all issued by the spouses during their interrogation. This well-defined phase of the procedure tends to clarify the facts doubts emerged in the dispute.
c) Confession of the parties.
is defined as any confession statement of the spouse tends to admit a fact if unfavorable and favorable to the party. The code of canon law considers as valid only the judicial confession, that is what happens in the courts.
d) The oath.
E 'a statement made by the party and made only before the judge, to strengthen and guarantee the truth di altre proprie dichiarazioni. Il giuramento nella pratica processuale può rivestire diverse forme a seconda del suo contenuto o scopo.
e) La prova documentale
E’ quella prova che viene raggiunta tramite la produzione in giudizio di documenti scritti cartacei. Per l’efficacia della prova il tribunale predilige sempre l’originale o copia autentica del documento.
f) La prova testimoniale.
Questo tipo di prova è indubbiamente quello maggiormente utilizzato nei processi di nullità matrimoniale, e consiste in una dichiarazione di conoscenza su di un fatto passato anteriore alla causa, esposto al giudice da persona estranea alla causa detta testimone. In most cases, the evidence of witnesses is one of the special means to clarify doubts or disputed the facts and provide the court with certainty as to the nullity of marriage or not. Witnesses are usually cited, ranging from the closest relatives of the spouses (parents, brothers and sisters) to their friends or colleagues. They are particularly taken into account the testimonies from priests or religious.
g) The expert evidence.
The report is an evaluation of a fact, made with scientific support from people professionally competent. In proceedings for nullity of marriage, inability to "causes of a psychic nature" or "lack of discretion review" the skill is essential. Very applicants are made by psychiatric specialists on one or both spouses, which are designed to establish the existence of psychopathology that may be due to defects of consent and therefore crucial to establish its invalidity. For the subject we will return to its depth in this section.
5) The conclusion of the case
After the preparatory stage, when the parties declare that they have nothing to report or showing, or has passed the deadline set by the court for the production of further evidence, the judge or has collected all the evidence and believes that the case be ripe for decision, the Court will hear the "decree of the conclusion of the case." From this point on is not permitted the production of further evidence, unless there are "serious reasons to avoid a fraud for sure."
At this point the advocates of the parties may lodge at the Registry of the Court their written submissions containing a summary of the proceedings, together with all the reasons in fact and law that support what they contend in court. These final written defense is called "restrictus iuris et facto.
The "defender of the bond (the public part and institutional figure of the court tends to show that, contrary to their spouses, all items that shed light on the validity of marriage), subsequent to the filing of the defenses of the parties, will process the memories, or observations (called "animadversiones") to favor of the marriage.
The code also provides for the further replication of the defenders of the parties subsequent to the filing of observations of the defender of the bond. In practice, however, it is rare to find replicas of the place that is "restrictus" that "animadversiones" are usually very structured and contain all that was possible to exhibit by a lawyer in favore del proprio assistito, ovvero dal difensore del vincolo in favore del matrimonio.
Sulla base pertanto di tutti gli atti processuali, delle difese delle parti e delle osservazioni del difensore del vincolo, il collegio, formato di solito da tre giudici, procederà ad emettere la sentenza dopo una discussione a porte chiuse. Il dispositivo circa la risposta affermativa o negativa al dubbio concordato (e cioè se consti o meno la nullità del matrimonio per un determinato capo previsto dal codice) viene votato dai giudici a maggioranza assoluta.
Mentre il dispositivo verrà comunicato alle parti subito dopo la decisione, le motivazioni della sentenza, scritte da uno dei tre giudici chiamato “ponente”, are published in a period following the notification of the device. The time taken to write the whole sentence is related to the workload of the court west
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