Msgr. Thomas V. Gallagher

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The Role of the Defender of the Marriage Bond

St. John's University School of Law

The Catholic Lawyer Volume 12 Number 1 Volume 12, Winter 1966, Number 1 Article 9 November 2016 The Role of the Defender of the Marriage Bond Msgr. Thomas V. Gallagher Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl  Part of the Catholic Studies Commons Recommended Citation Msgr. Thomas V. Gallagher (1966) "The Role of the Defender of the Marriage Bond," The Catholic Lawyer: Vol. 12 : No. 1 , Article 9. Available at: https://scholarship.law.stjohns.edu/tcl/vol12/iss1/9 This Symposium Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. THE ROLE OF THE DEFENDEROF THE MARRIAGE BONDMSGR. THOMAS V. GALLAGHER*T HE DEFENDER OF THE MARRIAGE BOND is peculiar to canon lawand is not found in other legal systems. The part and purpose ofthis unique canonical position can best be explained by its historicalorigin in ecclesiastical matrimonial procedures. Pope Benedict XLV,in 1741, insisted that every diocesan tribunal should establish theoffice of the Defender of the Marriage Bond.' He had been shocked todiscover deplorable abuses in the Church's judicial system, wherebymany marriages were being declared invalid by unlearned, careless, andeven malicious judges, and through collusion at the trial by the spouses.Accordingly, the position of the Defender of the Marriage Bond wasinnovated in the eighteenth century to help safeguard the indissolubilityof matrimony and it has, for over two hundred years, been successfulin achieving this laudable goal. The present day Code of Canon Law,2particularly as exposed and implemented in 1936 by the detailedinstruction Provida Mater of the Sacred Congregation of the Sacra-ments,3 has retained and even strengthened the role of the Defenderof the Bond.The intervention of the Defender of the Marriage Bond is nownecessary in all judicial processes, both forma 4 and summary,5 andin the quasi-judicial procedures for non-consummation 6 and Petrine orHelena petitions.7 His intervention, however, is not required in casesof simple lack of forms or in those invoking the Pauline PrivilegeY*Defender of the Bond, Archdiocese of New York.Constitution, Dei Miseratione, Nov. 3, 1741; I CODICIS IURIS CANONICI FONTES695 n.341.2 Canons 1586; 1587; 1967; 1968; 1969.311 BOUSCAREN, CANON LAW DIGEST 471-530.4 Instruction, Provida Mater, art. 15.5 Canon 1990.6 1 BOUSCAREN, op. cit. supra note 3, at 769."It DOHENY, CANONICAL PROCEDURE IN MATRIMONIAL CASES 503 (1938).8 Instruction, Provida Mater, art. 231.9 Canon 1123.THE DEFENDER OF THE BONDThe Defender of the Bond may be per-manently appointed by the Bishop for allthe marriage cases of the diocese, or hemay be specially designated by the Bishopfor an individual case.10 The Defender mustbe a priest, not a layman. The Code ofCanon Law recommends, as it does forjudges and Advocates, that he possess aDoctorate of Canon Law or at least havea profound, skilled knowledge of thatsubject. The Code also significantly addsthat he should be a prudent and justperson.11The Defender's task is to uphold thevalidity of the marriage that is allegedlynull, and to argue for the continuing bind-ing force of the marital bond where a dis-solution is sought. He must endeavor tosee to it that the substantive and pro-cedural law regarding the sacrament andcontract of matrimony is observed andthat false or erroneous evidence is notsubmitted. Nonetheless, his defense shouldnot be at the expense of objective truth.This was stressed by Pope Pius XII in anallocution delivered in 1944 to the SacredRoman Rota.'2 The Holy Father statedon that occasion:The Defender of the Bond must work to-ward the common end inasmuch as heseeks out, exposes and clarifies everythingwhich can weigh in favor of the bond.In order that he . . . may effectivelyperform his duty, the procedural ordergives him particular rights and assigns himdefinite duties. .-. . It would be inconsis-tent with the importance of his office andthe careful and conscientious fulfillment0 Canon 1588; Instruction, Provida Mater,art. 15.1 Canon 1589.12 111 BOUSCAREN, op. cit. supra note 3, at612-16.of his duty were he to content himselfwith a perfunctory review of the recordand a few superficial remarks.On the other hand, it is not to be ex-pected that the Defender of the Bond shallelaborate and make up at all costs, anartificial defense without concern as towhether or not his statements have a seri-ous foundation. Such a requirement wouldbe contrary to sound reasoning; it wouldburden him with a useless and meaninglesstask; it would not clarify but rather, con-fuse the question; it would do harm bydragging out the trial to intolerable lengths.In the interest of truth, itself, and for thedignity of his office, therefore, it should beacknowledged as a maxim for the Defenderof the Bond that, in a proper case, hehas the right to declare that after a care-ful, thorough and conscientious examina-tion of the record, he has found no rea-sonable objections to propose against thepetition of the plaintiff or petitioner.Pope Pius XII of happy memory spokeof definite duties and particular rights thatare legally assigned to the Defender ofthe Marriage Bond. First of all, let usmention some of the major obligationsthat the law prescribes that he should per-form, especially in formal cases.13 First,the Defender must be present at the exam-ination of the parties, the witnesses andthe experts; he must give to the judge theclosed and sealed interrogatories that areto be opened by the judge at the time ofthe examination and that are then to beproposed to the parties or witnesses; hemust suggest to the judge new questionsthat may arise during the course of theexamination. Secondly, the Defender mustevaluate the items of testimony proposedby the parties and contradict them ifnecessary; in addition, he must scrutinize13 Canon 1968; Instruction, Provida Mater,art. 70.the documents presented by the parties.Thirdly, the Defender must write andpropose his observations against the nullityof the marriage and his proofs for itsvalidity; he must also adduce whateverhe considers useful for the defense of themarriage bond. Fourthly, the Defendermust request information, if the case de-mands, from the Defender of the MarriageBond in the diocese where the marriageunder attack was contracted and fromother possible sources. 14 Fifthly, the De-fender must appeal within the prescribedtime from the first sentence favoringnullity. 5In order that the Defender of the Mar-riage Bond may be able to fulfill theseobligations, he also has rights.16 Amongthese are included the following: he mayinspect the acts of the process at any timeand at any stage of the trial, even thoughthey have not been published; he mayrequest new extensions of time 'for thedrawing up of the written documents; hemay request that other witnesses be intro-duced or that the same ones be re-examined, even though the 'trial has beencompleted and the process published, andhe may also present new observations oranimadversions; he !may demand that otheracts which he has suggested, be drawnup, unless the tribunal refuses by unanim-ous vote.The imposition of such grave obliga-tions- and, the bestowal of such unusualrights upon-the Defender lead to the con-clusion that he is really acting as a party14 I BOUSCAREN, op. cit. supra note 3, at 797.15 Canon 1986.16 Canon 1969; Instruction, Provida Mater,art. 71..12 CATHOLIC LAWYER, WINTER 1966in the case. 7 The plaintiff, or petitioner,is seeking that his marriage be annulledor that the bond of that marriage be dis-solved. The Defender of the MarriageBond officially contests the declaration ofan annulment or the granting of a disso-lution from the marital bond. Conse-quently, in a marriage case, the presenceand the active participation of the De-fender of the Bond is, as a general rule,always required. Together with the otherparticipants he is to be cited to appear bythe presiding judge,18 although the citationdoes not require all the usual formalities. 19The acts of a session of, a court are invalidif the Defender of the Marriage Bond hasnot' been dited, and if he is not actuallypresent for that session. However, if theDefender happens to be present, eventhough he is not summoned, the acts ofthat session are valid. If he has been dulysummoned but does not appear, the actsof a session are also valid, but these actsafterwards should, nevertheless, be sub-mitted to his scrutiny so that he may setforth any observations or proposals thathe deems necessary or opportune.20One of the important areas necessitatingthe Defender's presence and 'participationconcerns his compositiofh of interroga-tories that are to be proposed to theparties and to the witnesses. Standardizedquestionnaires or forms, with 'little or novariation for individual situations, mayfrequently be used in the summary cases17 111 CAPPELLO, SUMMA TURIS CANONICI 280n.340.is Canon 1587; Instruction, Provida Mater,art. 74.19 I DOHENY, op. cit. supra note 7, at 158 n.5.20 Canon 1587; Instruction, Provida 'Mater,art. 15.THE DEFENDER OF THE BONDof Canon 1990, especially when the basisof the alleged nullity is ligamen or bigamy,and where the evidence is largely docu-mentary. In other cases, the preparationof the questions to be asked requires thatthe Defender make a thorough and consci-entious study of the specific case, becauseeach will have its own distinctive, differen-tiating qualities. The questions should beclear and should pertain to the issue, withspecial emphasis on ascertaining the realtruth about the impediment or the groundsfor nullity that are alleged.2 ' Naturally,the questions are to be brief, uncompli-cated, relevant, and not leading or sugges-tive of the answer. They should, more-over, be adapted to the intelligence andbackground of the person being questioned,and they should be expressed in languageand terms that are easily understood.22The questions are proposed to the par-ties and witnesses not by the Defender,but only by the judge.21 The judge mustnot disregard the Defender's interroga-tories, but, according to his discretion, hemay also propose questions of his, own,ex officio. The questions prepared by theDefender would not necessarily be expect-ed to elicit complete and exhaustive in-formation about all the phases of the casebecause the Defender is primarily in-terested in upholding the validity of mar-riage. Thus, the examining judge has thedistinct obligation of preparing sets ofquestions that are designed to supplementthose of the Defender in seeking out allthe arguments to establish validity or21 Instruction, Provida Mater, arts. 70, 99.22 Canon 1775; Instruction, Provida Mater,art. 102.23 Canon 1742; Instruction, Provida Mater,art. 101.invalidity."4The composition of the interrogatoriesis but one of the serious duties incumbentupon the Defender of the Marriage Bond.Another major obligation is his presenta-tion to the court of his written observa-tions or animadversions in defense of themarriage's validity and in opposition toits alleged nullity."5  This presentationoccurs during the discussion of the case,after all available proof has been offeredand after the Advocate has submitted hisbrief in behalf of the petitioner's claim ofinvalidity. The parties or the Advocatehave the right to reply to the observationsof the Defender, 26 but the Defender mayrejoin if he wishes,27 especially since thelaw always gives him the right to be heardlast . 2Neither the Code of Canon Law29 northe Instruction Provida Mater"° specifiesthe form or content of the Defender'sanimadversions beyond rather general sug-gestions. For clarity and order mostDefenders of the Marriage Bond emulatethe outline followed in the sentences ofthe Sacred Roman Rota.' Accordingly,there are three main sections or divisionsfollowed by a conclusion. The first sectionsketches the facts, circumstances and his-tory surrounding the marriage in questionand its adjudication; the second sectionexpounds clearly and succinctly the prin-ciples of law involved in the case; thethird section demonstrates the relationshipbetween the facts and the law that leads24 1 DOHENY, op. cit. supra note 7, at 150.2. Instruction, Provida Mater, art. 180.26 Ibid.27 Ibid.28 Id. art. 183.2, Canon 1968.30 Instruction, Provida Mater, art. 20.to the Defender's conclusion and to hisrecommendation that the court shouldreject the decision or sentence that thenullity of the marriage has been certainlyproved.Even after the Defender has submittedhis final observations in defense of thevalidity and the court has rendered itsdecision, his duties are not necessarilycompleted. The Defender, within the timeprescribed by law, is always bound toappeal to a higher tribunal from the firstsentence of a formal process declaring theinvalidity of a marriage. This obligationto appeal is so binding and urgent thatshould the Defender neglect to lodge theappeal, he must be compelled to do so bythe presiding judge.3 1 Should the appellatecourt affirm the nullity of the marriage inits decision, the Defender in Second In-stance must decide according to his ownconscience whether or not to appeal fur-ther. If there have been two sentencesupholding invalidity, and if there is nofurther appeal to a third tribunal by theDefender in Second Instance, the partieshave the right to contract marriage tendays after the declaration of the secondsentence.32This discussion of the role and inter-vention of the Defender of the MarriageBond may help us see the differencesbetween a civil and a Church court, both31 Canon 1879; Canon 1986; Instruction, Pro-vida Mater, art. 212.32 Canon 1987; Instruction, Provida Mater,art. 220.12 CATHOLIC LAWYER, WINTER 1966in procedure and in purpose. In a matri-monial case that is adjudicated before anecclesiastical tribunal, the validity of asacrament and the welfare of souls areinvolved. In conclusion, therefore, weshould call attention to the forceful andpertinent words of Pope Pius XII at thetime of his address to the Sacred RomanRota:The nuptial contract is by its very nature,and in the case of two baptized personsby its elevation to the dignity of a Sacra-ment, ordained and determined, not by thewill of man, but of God. It is enough torecall the words of Christ: 'What Godhath joined together, let no man putasunder' (Matt., 19:6), and the teachingof Saint Paul: 'This is a great sacrament;but I speak in Christ and in the Church'(Eph., 5:32). The profound gravity ofthis obligation in the service of truth inmatrimonial trials, springing as it doesfrom the supreme and imperishable sourceof the law of God, must always be stronglyasserted and inculcated. In matrimonialcases before ecclesiastical tribunals thereis never room for trickery, perjury, subor-nation, or fraud of any kind! Hence allpersons who have any part in these trialsmust keep an alert conscience, and at needmust awaken and revive their conscienceto remember that basically these trials areconducted not before the tribunal of menbut before that of the omniscient God,and that consequently the judgments ren-dered, if they are falsified by any fraudaffecting the substance of the case, arewithout value before God and in the realmof conscience.""'IIIl BOUSCAREN, op. cit. supra note 3, at613-14.

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The Role of the Defender of the Marriage Bond

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