Can. 1404 The First See is judged by no one.
Can. 1405 §1 In the cases mentioned in Can. 1401, the Roman Pontiff
alone has the right to judge:
1° Heads of State;
2° Cardinals;
3° Legates of the Apostolic See and, in penal cases, Bishops
4° other cases which he has reserved to himself.
§2 A judge cannot review an act or instrument which the RomanPontiff has
specifically confirmed, except by his prior mandate.
§3 It is reserved to the Roman Rota to judge:
1° Bishops in contentious cases, without prejudice to Can. 1419 §2;
2° the Abbot primate or the Abbot superior of a monastic congregation, and
the supreme Moderator of a religious institute of pontifical right;
3° dioceses and other ecclesiastical persons, physical or juridical, which
have no Superior other than the Roman Pontiff.
Can. 1406 §1 If the provision of Can. 1404 is violated, the acts
and decisions are invalid.
§2 In the cases mentioned in Can. 1405, the non competence of other judges
is absolute.
Can. 1407 §1 No one can be brought to trial in first instance except
before a judge who is competent on the basis of one of the titles determined
in Cann. 1408–1414.
§2 The non competence of a judge who has none of these titles is described
as relative.
§3 The plaintiff follows the forum of the respondent. If the respondent
has more than one forum, the plaintiff may opt for any one of them.
Can. 1408 Anyone can be brought to trial before the tribunal of domicile
or quasi domicile.
Can. 1409 §1 A person who has not even a quasi domicile has a forum
in the place of actual residence.
§2 A person whose domicile, quasi domicile or place of actual residence
is unknown, can be brought to trial in the forum of the plaintiff, provided
no other lawful forum is available.
Can. 1410 Competence by reason of subject matter means that a party can
be brought to trial before the tribunal of the place where the subject matter
of the litigation is located, whenever the action concerns that subject matter
directly, or when it is an action for the recovery of possession.
Can. 1411 §1 Competence by reason of contract means that a party
can be brought to trial before the tribunal of the place in which the contract
was made or must be fulfilled, unless the parties mutually agree to choose another
tribunal.
§2 If the case concerns obligations which arise from some other title,
the party can be brought to trial before the tribunal of the place in which
the obligation arose or in which it is to be fulfilled.
Can. 1412 A person accused in a penal case can, even though absent, be
brought to trial before the tribunal of the place in which the offence was committed.
Can. 1413 A party can be brought to trial:
1° in cases concerning administration, before the tribunal of the place
in which the administration was exercised;
2° in cases concerning inheritances or pious legacies, before the tribunal
of the last domicile or quasi domicile or residence of the person whose inheritance
or pious legacy is at issue, in accordance with the norms of Cann. 1408–1409.
If, however, only the execution of the legacy is involved, the ordinary norms
of competence are to be followed.
Can. 1414 Competence by reason of connection means that cases which are
inter connected can be heard by one and the same tribunal and in the same process,
unless this is prevented by a provision of the law.
Can. 1415 Competence by reason of prior summons means that, if two or
more tribunals are equally competent, the tribunal which has first lawfully
summoned the respondent has the right to hear the case.
Can. 1416 A conflict of competence between tribunals subject to the same
appeal tribunal is to be resolved by the latter tribunal. If they are not subject
to the same appeal tribunal, the conflict is to be settled by the Apostolic
Signatura.
Can. 1417 §1 Because of the primacy of the Roman Pontiff, any of
the faithful may either refer their case to, or introduce it before, the Holy
See, whether the case be contentious or penal. They may do so at any grade of
trial or at any stage of the suit.
§2 Apart from the case of an appeal, a referral to the Apostolic See does
not suspend the exercise of jurisdiction of a judge who has already begun to
hear a case. The judge can, therefore, continue with the trial up to the definitive
judgement, unless the Apostolic See has indicated to him that it has reserved
the case to itself.
Can. 1418 Every tribunal has the right to call on other tribunals for
assistance in instructing a case or in communicating acts.
ARTICLE 1 : THE JUDGE
Can. 1419 §1 In each diocese and for all cases which are not expressly
excepted in law, the judge of first instance is the diocesan Bishop. He can
exercise his judicial power either personally or through others, in accordance
with the following canons.
§2 If the case concerns the rights or temporal goods of a juridical person
represented by the Bishop, the appeal tribunal is to judge in first instance.
Can. 1420 §1 Each diocesan Bishop is obliged to appoint a judicial
Vicar, or ‘Officialis’, with ordinary power to judge. The judicial
Vicar is to be a person distinct from the Vicar general, unless the smallness
of the diocese or the limited number of cases suggests otherwise.
§2 The judicial Vicar constitutes one tribunal with the Bishop, but cannot
judge cases which the Bishop reserves to himself.
§3 The judicial Vicar can be given assistants, who are called associate
judicial Vicars or ‘Vice officiales’.
§4 The judicial Vicar and the associate judicial Vicars must be priests
of good repute, with a doctorate or at least a licentiate in canon law, and
not less than thirty years of age.
§5 When the see is vacant, they do not cease from office, nor can they
be removed by the diocesan Administrator. On the coming of the new Bishop, however,
they need to be confirmed in office.
Can. 1421 §1 In each diocese the Bishop is to appoint diocesan judges,
who are to be clerics.
§2 The Episcopal Conference can permit that lay persons also be appointed
judges. Where necessity suggests, one of these can be chosen in forming a college
of Judges.
§3 Judges are to be of good repute, and possess a doctorate, or at least
a licentiate, in canon law.
Can. 1422 The judicial Vicar, the associate judicial Vicars and the other
judges are appointed for a specified period of time, without prejudice to the
provision of Can. 1420 §5. They cannot be removed from office except for
a lawful and grave reason.
Can. 1423 §1 With the approval of the Apostolic See, several diocesan
Bishops can agree to establish one tribunal of first instance in their dioceses,
in place of the diocesan tribunals mentioned in Cann. 1419-1421. In this case
the group of Bishops, or a Bishop designated by them, has all the powers which
the diocesan Bishop has for his tribunal.
§2 The tribunals mentioned in §1 can be established for all cases,
or for some types of cases only.
Can. 1424 In any trial a sole judge can associate with himself two assessors
as advisers; they may be clerics or lay persons of good repute.
Can. 1425 §1 The following matters are reserved to a collegiate
tribunal of three judges, any contrary custom being reprobated:
1° contentious cases: a) concerning the bond of sacred ordination; b) concerning
the bond of marriage, without prejudice to the provisions of Cann. 1686 and
1688;
2° penal cases: a) for offences which can carry the penalty of dismissal
from the clerical state; b) concerning the imposition or declaration of an excommunication.
§2 The Bishop can entrust the more difficult cases or those of greater
importance to the judgement of three or of five judges.
§3 The judicial Vicar is to assign judges in order by rotation to hear
the individual cases, unless in particular cases the Bishop has decided otherwise.
§4 In a trial at first instance, if it should happen that it is impossible
to constitute a college of judges, the Episcopal Conference can for as long
as the impossibility persists, permit the Bishop to entrust cases to a sole
clerical judge. Where possible, the sole judge is to associate with himself
an assessor and an auditor.
§5 Once judges have been designated, the judicial Vicar is not to replace
them, except for a very grave reason, which must be expressed in a decree.
Can. 1426 §1 A collegiate tribunal must proceed in a collegiate
fashion and give its judgement by majority vote.
§2 As far as possible, the judicial Vicar or an associate judicial Vicar
must preside over the collegiate tribunal.
Can. 1427 §1 If there is a controversy between religious, or houses
of the same clerical religious institute of pontifical right, the judge at first
instance, unless the constitutions provide otherwise, is the provincial Superior
or, if an autonomous monastery is concerned, the local Abbot.
§2 Without prejudice to a different provision in the constitutions, when
a contentious matter arises between two provinces, the supreme Moderator, either
personally or through a delegate, will be the judge at first instance. If the
controversy is between two monasteries, the Abbot superior of the monastic congregation
will be the judge.
§3 Finally, if a controversy arises between physical or juridical persons
of different religious institutes or even of the same clerical institute of
diocesan right or of the same lay institute, or between a religious person and
a secular cleric or a lay person or a non religious juridical person, it is
the diocesan tribunal which judges at first instance.
ARTICLE 2: AUDITORS AND RELATORS
Can. 1428 §1 The judge or, in the case of a collegiate tribunal,
the presiding judge, can designate an auditor to instruct the case. The auditor
may be chosen from the tribunal judges, or from persons approved by the Bishop
for this office.
§2 The Bishop can approve clerics or lay persons for the role of auditor.
They are to be persons conspicuous for their good conduct, prudence and learning.
§3 The task of the auditor is solely to gather the evidence in accordance
with the judge’s commission and, when gathered, to submit it to the judge.
Unless the judge determines otherwise, however, an auditor can in the meantime
decide what evidence is to be collected and the manner of its collection, should
any question arise about these matters while the auditor is carrying out his
role.
Can. 1429 The presiding judge of a collegiate tribunal is to designate
one of the judges of the college as ‘ponens’ or ‘relator’.
This person is to present the case at the meeting of the judges and set out
the judgement in writing. For a just reason the presiding judge can substitute
another person in the place of the ‘ponens’.
ARTICLE 3: THE PROMOTOR OF JUSTICE, THE DEFENDER OF THE BOND AND THE NOTARY
Can. 1430 A promotor of justice is to be appointed in the diocese for
penal cases, and for contentious cases in which the public good may be at stake.
The promotor is bound by office to safeguard the public good.
Can. 1431 §1 In contentious cases it is for the diocesan Bishop
to decide whether the public good is at stake or not, unless the law prescribes
the intervention of the promotor of justice, or this is clearly necessary from
the nature of things.
§2 If the promotor of justice has intervened at an earlier instance of
a trial, this intervention is presumed to be necessary at a subsequent instance.
Can. 1432 A defender of the bond is to be appointed in the diocese for
cases which deal with the nullity of ordination or the nullity or dissolution
of marriage. The defender of the bond is bound by office to present and expound
all that can reasonably be argued against the nullity or dissolution.
Can. 1433 In cases in which the presence of the promotor of justice or
of the defender of the bond is required, the acts are invalid if they were not
summoned. This does not apply if, although not summoned, they were in fact present
or, having studied the acts, able to fulfil their role at least before the judgement.
Can. 1434 Unless otherwise expressly provided:
1° whenever the law directs that the judge is to hear the parties or either
of them, the promotor of justice and the defender of the bond are also to be
heard if they are present;
2° whenever, at the submission of a party, the judge is required to decide
some matter, the submission of the promotor of justice or of the defender of
the bond engaged in the trial has equal weight.
Can. 1435 It is the Bishop’s responsibility to appoint the promotor
of justice and defender of the bond. They are to be clerics or lay persons of
good repute, with a doctorate or a licentiate in canon law, and of proven prudence
and zeal for justice.
Can. 1436 §1 The same person can hold the office of promotor of
justice and defender of the bond, although not in the same case.
§2 The promotor of justice and the defender of the bond can be appointed
for all cases, or for individual cases. They can be removed by the Bishop for
a just reason.
Can. 1437 §1 A notary is to be present at every hearing, so much
so that the acts are null unless signed by the notary.
§2 Acts drawn up by notaries constitute public proof.
Can. 1438 Without prejudice to the provision of Can. 1444 §1, n.
1:
1° an appeal from the tribunal of a suffragan Bishop is to the metropolitan
tribunal, without prejudice to the provisions of Can. 1439.
2° in cases heard at first instance in the tribunal of the Metropolitan,
the appeal is to a tribunal which the Metropolitan, with the approval of the
Apostolic See, has designated in a stable fashion;
3° for cases dealt with before a provincial Superior, the tribunal of second
instance is that of the supreme Moderator; for cases heard before the local
Abbot, the second instance court is that of the Abbot superior of the monastic
congregation.
Can. 1439 §1 If a single tribunal of first instance has been constituted
for several dioceses, in accordance with the norm of Can. 1423, the Episcopal
Conference must, with the approval of the Holy See, constitute a tribunal of
second instance, unless the dioceses are all suffragans of the same archdiocese.
§2 Even apart from the cases mentioned in §1, the Episcopal Conference
can, with the approval of the Apostolic See, constitute one or more tribunals
of second instance.
§3 In respect of the second instance tribunals mentioned in §§1
2, the Episcopal Conference, or the Bishop designated by it, has all the powers
that belong to a diocesan Bishop in respect of his own tribunal.
Can. 1440 If competence by reason of the grade of trial, in accordance
with the provisions of Cann. 1438 and 1439, is not observed, then the non competence
of the judge is absolute.
Can. 1441 The tribunal of second instance is to be constituted in the
same way as the tribunal of first instance. However, if a sole judge has given
a judgement in first instance in accordance with Can. 1425 §4, the second
instance tribunal is to act collegially.
Can. 1442 The Roman Pontiff is the supreme judge for the whole catholic
world. He gives judgement either personally, or through the ordinary tribunals
of the Apostolic See, or through judges whom he delegates.
Can. 1443 The ordinary tribunal constituted by the Roman Pontiff to receive
appeals is the Roman Rota.
Can. 1444 The Roman Rota judges:
1° in second instance, cases which have been judged by ordinary tribunals
of first instance and have been referred to the Holy See by a lawful appeal;
2° in third or further instance, cases which have been processed by the
Roman Rota itself or by any other tribunal, unless there is question of an adjudged
matter.
§2 This tribunal also judges in first instance the cases mentioned in Can.
1405 §3, and any others which the Roman Pontiff, either on his own initiative
or at the request of the parties, has reserved to his tribunal and has entrusted
to the Roman Rota. These cases are judged by the Rota also in second or further
instances, unless the rescript entrusting the task provides otherwise.
Can. 1445 §1 The supreme Tribunal of the Apostolic Signatura hears:
1° plaints of nullity, petitions for total reinstatement and other recourses
against rotal judgements;
2° recourses in cases affecting the status of persons, which the Roman Rota
has refused to admit to a new examination;
3° exceptions of suspicion and other cases against Auditors of the Roman
Rota by reason of things done in the exercise of their office;
4° the conflicts of competence mentioned in Can. 1416.
§2 This same Tribunal deals with controversies which arise from an act
of ecclesiastical administrative power, and which are lawfully referred to it.
It also deals with other administrative controversies referred to it by the
Roman Pontiff or by departments of the Roman Curia, and with conflicts of competence
among these departments.
§3 This Supreme Tribunal is also competent:
1° to oversee the proper administration of justice and, should the need
arise, to take notice of advocates and procurators;
2° to extend the competence of tribunals;
3° to promote and approve the establishment of the tribunals mentioned in
Cann. 1423 and 1439.
Can. 1446 §1 All Christ’s faithful, and especially Bishops,
are to strive earnestly, with due regard for justice, to ensure that disputes
among the people of God are as far as possible avoided, and are settled promptly
and without rancour.
§2 In the early stages of litigation, and indeed at any other time as often
as he discerns any hope of a successful outcome, the judge is not to fail to
exhort and assist the parties to seek an equitable solution to their controversy
in discussions with one another. He is to indicate to them suitable means to
this end and avail himself of serious minded persons to mediate.
§3 If the issue is about the private good of the parties, the judge is
to discern whether an agreement or a judgement by an arbitrator, in accordance
with the norms of Cann. 1717–1720[ ], might usefully serve to resolve
the controversy.
Can. 1447 Any person involved in a case as judge, promotor of justice,
defender of the bond, procurator, advocate, witness or expert cannot subsequently,
in another instance, validly determine the same case as a judge or exercise
the role of assessor in it.
Can. 1448 §1 The judge is not to undertake the hearing of a case
in which any personal interest may be involved by reason of consanguinity or
affinity in any degree of the direct line and up to the fourth degree of the
collateral line, or by reason of guardianship or tutelage, or of close acquaintanceship
or marked hostility or possible financial profit or loss.
§2 The promotor of justice, the defender of the bond, the assessor and
the auditor must likewise refrain from exercising their offices in these circumstances.
Can. 1449 §1 In the cases mentioned in Can. 1448, if the judge himself
does not refrain from exercising his office, a party may object to him.
§2 The judicial Vicar is to deal with this objection. If the objection
is directed against the judicial Vicar himself, the Bishop in charge of the
tribunal is to deal with the matter.
§3 If the Bishop is the judge and the objection is directed against him,
he is to refrain from judging.
§4 If the objection is directed against the promotor of justice, the defender
of the bond or any other officer of the tribunal, it is to be dealt
with by the presiding judge of a collegial tribunal, or by the sole judge if
there is only one.
Can. 1450 If the objection is upheld, the persons in question are to
be changed, but not the grade of trial.
Can. 1451 §1 The objection is to be decided with maximum expedition,
after hearing the parties, the promotor of justice or the defender of the bond,
if they are engaged in the trial and the objection is not directed against them.
§2 Acts performed by a judge before being objected to are valid. Acts performed
after the objection has been lodged must be rescinded if a party requests this
within ten days of the admission of the objection.
Can. 1452 §1 In a matter which concerns private persons exclusively,
a judge can proceed only at the request of a party. In penal cases, however,
and in other cases which affect the public good of the Church or the salvation
of souls, once the case has been lawfully introduced, the judge can and must
proceed ex officio.
§2 The judge can also supply for the negligence of the parties in bringing
forward evidence or in opposing exceptions, whenever this is considered necessary
in order to avoid a gravely unjust judgement, without prejudice to the provisions
of Can. 1600.
Can. 1453 Judges and tribunals are to ensure that, within the bounds
of justice, all cases are brought to a conclusion as quickly as possible. They
are to see to it that in the tribunal of first instance cases are not protracted
beyond a year, and in the tribunal of second instance not beyond six months.
Can. 1454 All who constitute a tribunal or assist in it must take an
oath to exercise their office properly and faithfully.
Can. 1455 §1 In a penal trial, the judges and tribunal assistants
are bound to observe always the secret of the office; in a contentious trial,
they are bound to observe it if the revelation of any part of the acts of the
process could be prejudicial to the parties.
§2 They are also obliged to maintain permanent secrecy concerning the discussion
held by the judges before giving their judgement, and concerning the various
votes and opinions expressed there, without prejudice to the provisions of Can.
1609 §4.
§3 Indeed, the judge can oblige witnesses, experts, and the parties and
their advocates or procurators, to swear an oath to observe secrecy. This may
be done if the nature of the case or of the evidence is such that revelation
of the acts or evidence would put at risk the reputation of others, or give
rise to quarrels, or cause scandal or have any similar untoward consequence.
Can. 1456 The judge and all who work in the tribunal are forbidden to
accept any gifts on the occasion of a trial.
Can. 1457 §1 Judges can be punished by the competent authority with
appropriate penalties, not excluding the loss of office, if, though certainly
and manifestly competent, they refuse to give judgement; if, with no legal support,
they declare themselves competent and hear and determine cases; if they breach
the law of secrecy; or if, through deceit or serious negligence, they cause
harm to the litigants.
§2 Tribunal officers and assistants are subject to the same penalties if
they fail in their duty as above. The judge also has the power to punish them.
Can. 1458 Cases are to be heard in the order in which they were received
and entered in the register, unless some case from among them needs to be dealt
with more quickly than others. This is to be stated in a special decree which
gives supporting reasons.
Can. 1459 §1 Defects which can render the judgement invalid can
be proposed as exceptions at any stage or grade of trial; likewise, the judge
can declare such exceptions ex officio.
§2 Apart from the cases mentioned in §1, exceptions seeking a delay
especially those which concern persons and the manner of trial, are to be proposed
before the joinder of the issue, unless they emerge only after it. They are
to be decided as soon as possible.
Can. 1460 §1 If an exception is proposed against the competence
of the judge, the judge himself must deal with the matter.
§2 Where the exception concerns relative non competence and the judge pronounces
himself competent, his decision does not admit of appeal. However, a plaint
of nullity and a total reinstatement are not prohibited.
§3 If the judge declares himself non competent, a party who complains of
being adversely affected can refer the matter within fifteen canonical days
to the appeal tribunal.
Can. 1461 A judge who becomes aware at any stage of the case that he
is absolutely non competent, is bound to declare his non competence.
Can. 1462 §1 Exceptions to the effect that an issue has become an
adjudged matter or has been agreed between the parties, and those other peremptory
exceptions which are said to put an end to the suit, are to be proposed and
examined before the joinder of the issue. Whoever raises them subsequently is
not to be rejected, but will be ordered to pay the costs unless it can be shown
that the objection was not maliciously delayed.
§2 Other peremptory exceptions are to be proposed in the joinder of the
issue and treated at the appropriate time under the rules governing incidental
questions.
Can. 1463 §1 Counter actions can validly be proposed only within
thirty days of the joinder of the issue.
§2 Such counter actions are to be dealt with at the same grade of trial
and simultaneously with the principal action, unless it is necessary to deal
with them separately or the judge considers this procedure more opportune.
Can. 1464 Questions concerning the guarantee of judicial expenses or
the grant of free legal aid which has been requested from the very beginning
of the process, and other similar matters, are normally to be settled before
the joinder of the issue
Can. 1465 §1 The so called canonical time limits are fixed times
beyond which rights cease in law. They cannot be extended, nor can they validly
be shortened except at the request of the parties.
§2 After hearing the parties, or at their request, the judge can, for a
just reason, extend before they expire times fixed by himself or agreed by the
parties. These times can never validly be shortened without the consent of the
parties.
§3 The judge is to ensure that litigation is not unduly prolonged by reason
of postponement.
Can. 1466 Where the law does not establish fixed times for concluding
procedural actions, the judge is to define them, taking into consideration the
nature of each act.
Can. 1467 If the day appointed for a judicial action is a holiday, the
fixed term is considered to be postponed to the first subsequent day which is
not a holiday.
Can. 1468 As far as possible, the place where each tribunal sits is
to be an established office which is open at stated times.
Can. 1469 §1 A judge who is forcibly expelled from his territory
or prevented from exercising jurisdiction there, can exercise his jurisdiction
and deliver judgement outside the territory. The diocesan Bishop is, however,
to be informed of the matter.
§2 Apart from the circumstances mentioned in §1, the judge, for a
just reason and after hearing the parties, can go outside his own territory
to gather evidence. This is to be done with the permission of, and in a place
designated by, the diocesan Bishop of the place to which he goes.
Can. 1470 §1 Unless particular law prescribes otherwise, when cases
are being heard before the tribunal, only those persons are to be present whom
the law or the judge decides are necessary for the hearing of the case.
§2 The judge can with appropriate penalties take to task all who, while
present at a trial, are gravely lacking in the reverence and obedience due to
the tribunal. He can, moreover, suspend advocates and procurators from exercising
their office in ecclesiastical tribunals.
Can. 1471 If a person to be interrogated uses a language unknown to the
judge or the parties, an interpreter, appointed by the judge and duly sworn,
can be employed in the case. Declarations are to be committed to writing in
the original language, and a translation is to be added. An interpreter is also
to be used if a deaf and dumb person must be interrogated, unless the judge
prefers that replies to the questions he has asked be given in writing.
Can. 1472 §1 Judicial acts must be in writing, both those which
refer to the merits of the case, that is, the acts of the case, and those which
refer to the procedure, that is, the procedural acts.
§2 Each page of the acts is to be numbered and bear a seal of authenticity.
Can. 1473 Whenever the signature of parties or witnesses is required
in judicial acts, and the party or witness is unable or unwilling to sign, this
is to be noted in the acts. At the same time the judge and the notary are to
certify that the act was read verbatim to the party or witness, and that the
party or witness was either unable or unwilling to sign.
Can. 1474 §1 In the case of an appeal, a copy of the acts is to
be sent to the higher tribunal, with a certification by the notary of its authenticity.
§2 If the acts are in a language unknown to the higher tribunal, they are
to be translated into another language known to it. Suitable precautions are
to be taken to ensure that the translation is accurate.
Can. 1475 §1 When the trial has been completed, documents which
belong to private individuals must be returned to them, though a copy of them
is to be retained.
§2 Without an order from the judge, notaries and the chancellor are forbidden
to hand over to anyone a copy of the judicial acts and documents obtained in
the process.
Can. 1476 Any person, baptised or unbaptised, can plead before a court.
A person lawfully brought to trial must respond.
Can. 1477 Even though the plaintiff or the respondent has appointed a
procurator or advocate, each is always bound to be present in person at the
trial when the law or the judge so prescribes.
Can. 1478 §1 Minors and those who lack the use of reason can stand
before the court only through their parents, guardians or curators, subject
to the provisions of §3.
§2 If the judge considers that the rights of minors are in conflict with
the rights of the parents, guardians or curators, or that these cannot sufficiently
protect the rights of the minors, the minors are to stand before the court through
a guardian or curator assigned by the judge.
§3 However, in cases concerning spiritual matters and matters linked with
the spiritual, if the minors have the use of reason, they can plead and respond
without the consent of parents or guardians; indeed, if they have completed
their fourteenth year, they can stand before the court on their own behalf;
otherwise, they do so through a curator appointed by the judge.
§4 Those barred from the administration of their goods and those of infirm
mind can themselves stand before the court only to respond concerning their
own offences, or by order of the judge. In other matters they must plead and
respond through their curators.
Can. 1479 A guardian or curator appointed by a civil authority can be
admitted by an ecclesiastical judge, after he has consulted, if possible, the
diocesan Bishop of the person to whom the guardian or curator has been given.
If there is no such guardian or curator, or it is not seen fit to admit the
one appointed, the judge is to appoint a guardian or curator for the case.
Can. 1480 §1 Judicial persons stand before the court through their
lawful representatives.
§2 In a case of absence or negligence of the representative, the Ordinary
himself, either personally or through another, can stand before the court in
the name of juridicial persons subject to his authority.
Can. 1481 §1 A party can freely appoint an advocate and procurator
for him or herself. Apart from the cases stated in §§2 and 3, however,
a party can plead and respond personally, unless the judge considers the services
of a procurator or advocate to be necessary.
§2 In a penal trial the accused must always have an advocate, either appointed
personally or allocated by the judge.
§3 In a contentious trial which concerns minors or the public good, the
judge is ex officio to appoint a legal representative for a party who lacks
one; matrimonial cases are excepted.
Can. 1482 §1 A person can appoint only one procurator; the latter
cannot appoint a substitute, unless this faculty has been expressly conceded.
§2 If, however, several procurators have for a just reason been appointed
by the same person, these are to be so designated that there is the right of
prior claim among them.
§3 Several advocates can, however, be appointed together.
Can. 1483 The procurator and advocate must have attained their majority
and be of good repute. The advocate is also to be a catholic unless the diocesan
Bishop permits otherwise, a doctor in canon law or otherwise well qualified,
and approved by the same Bishop.
Can. 1484 §1 Prior to undertaking their office, the procurator and
the advocate must deposit an authentic mandate with the tribunal.
§2 To prevent the extinction of a right, however, the judge can admit a
procurator even though a mandate has not been presented; in an appropriate case,
a suitable guarantee is to be given. However, the act lacks all force if the
procurator does not present a mandate within the peremptory time limit to be
prescribed by the judge.
Can. 1485 Without a special mandate, a procurator cannot validly renounce
a case, an instance or any judicial act; nor can a procurator settle an action,
bargain, promise to abide by an arbitrator’s award, or in general do anything
for which the law requires a special mandate.
Can. 1486 §1 For the dismissal of a procurator or advocate to have
effect, it must be notified to them and, if the joinder of the issue has taken
place, the judge and the other party must be notified of the dismissal.
§2 When a definitive judgement has been given, the right and duty to appeal
lie with the procurator, unless the mandating party refuses.
Can. 1487 For a grave reason, the procurator and the advocate can be
removed from office by a decree of the judge given either ex officio or at the
request of the party.
Can. 1488 §1 Both the procurator and the advocate are forbidden
to influence a suit by bribery, seek immoderate payment, or bargain with the
successful party for a share of the matter in dispute. If they do so, any such
agreement is invalid and they can be fined by the judge. Moreover, the advocate
can be suspended from office and, if this is not a first offence, can be removed
from the register of advocates by the Bishop in charge of the tribunal.
§2 The same sanctions can be imposed on advocates and procurators who fraudulently
exploit the law by withdrawing cases from tribunals which are competent, so
that they may be judged more favourably by other tribunals.
Can. 1489 Advocates and procurators who betray their office because of
gifts or promises, or any other consideration, are to be suspended from the
exercise of their profession, and be fined or punished with other suitable penalties.
Can. 1490 As far as possible, permanent advocates and procurators are
to be appointed in each tribunal and to receive a salary from the tribunal.
They are to exercise their office, especially in matrimonial cases, for parties
who may wish to choose them.
Can. 1491 Every right is reinforced not only by an action, unless otherwise
expressly provided, but also by an exception.
Can. 1492 §1 Every action is extinguished by prescription in accordance
with the law, or in any other lawful way, with the exception of actions bearing
on personal status, which are never extinguished.
§2 Without prejudice to the provision of Can. 1462, an exception is always
possible, and is of its nature perpetual.
Can. 1493 A plaintiff can bring several exceptions simultaneously against
another person, concerning either the same matter or different matters, provided
they are not in conflict with one another, and do not go beyond the competence
of the tribunal that has been approached.
Can. 1494 §1 A respondent can institute a counter action against
a plaintiff before the same judge and in the same trial, either by reason of
the case’s connection with the principal action, or with a view to removing
or mitigating the plaintiff’s plea.
§2 A counter action to a counter action is not admitted.
Can. 1495 The counter action is to be proposed to the judge before whom
the original action was initiated, even though he has been delegated for one
case only, or is otherwise relatively non competent.
Can. 1496 §1 A person who advances arguments, which are at least
probable, to support a right to something held by another, and to indicate an
imminent danger of loss of the object unless it is handed over for safekeeping,
has a right to obtain from the judge the sequestration of the object in question.
§2 In similar circumstances, a person can obtain a restraint on another
person’s exercise of a right.
Can. 1497 §1 The sequestration of an object is also allowed for
the security of a loan, provided there is sufficient evidence of the creditor’s
right.
§2 Sequestration can also extend to the assets of a debtor which, on whatever
title, are in the keeping of others, as well as to the loans of the debtor.
Can. 1498 The sequestration of an object, and restraint on the exercise
of a right, can in no way be decreed if the loss which is feared can be otherwise
repaired, and a suitable guarantee is given that it will be repaired.
Can. 1499 The judge who grants the sequestration of an object, or the
restraint on the exercise of a right, can first impose on the person to whom
the grant is made an undertaking to repay any loss if the right is not proven.
Can. 1500 In matters concerning the nature and effect of an action for
possession, the provisions of the civil law of the place where the thing to
be possessed is situated, are to be observed.
Can. 1501 A judge cannot investigate any case unless a plea, drawn up
in accordance with canon law, is submitted either by a person whose interest
is involved, or by the promotor of justice.
Can. 1502 A person who wishes to sue another must present a petition
to a judge who is lawfully competent. In this petition the matter in dispute
is to be set out and the intervention of the judge requested.
Can. 1503 §1 A judge can admit an oral plea whenever the plaintiff
is impeded from presenting a petition or when the case can be easily investigated
and is of minor significance.
§2 In both cases, however, the judge is to direct a notary to record the
matter in writing. This written record is to be read to, and approved by, the
plaintiff, and it takes the place of a petition written by the plaintiff as
far as all effects of law are concerned.
Can. 1504 The petition by which a suit is introduced must:
1° state the judge before whom the case is being introduced, what is being
sought and from whom it is being sought;
2° indicate on what right the plaintiff bases the case and, at least in
general terms, the facts and evidence to be submitted in support of the allegations
made;
3° be signed by the plaintiff or the plaintiff’s procurator, and bear
the day, the month and the year, as well as the address at which the plaintiff
or the procurator resides, or at which they say they reside for the purpose
of receiving the acts;
4° indicate the domicile or quasi domicile of the respondent.
Can. 1505 §1 Once he has satisfied himself that the matter is within
his competence and the plaintiff has the right to stand before the court, the
sole judge, or the presiding judge of a collegiate tribunal, must as soon as
possible by his decree either admit or reject the petition.
§2 A petition can be rejected only if:
1° the judge or the tribunal is not legally competent;
2° it is established beyond doubt that the plaintiff lacks the right to
stand before the court;
3° the provisions of Can. 1504 nn. 1– 3 have not been observed
4° it is certainly clear from the petition that the plea lacks any foundation,
and that there is no possibility that a foundation will emerge from a process.
§3 If a petition has been rejected by reason of defects which can be corrected,
the plaintiff can draw up a new petition correctly and present it again to the
same judge.
§4 A party is always entitled, within ten canonical days, to have recourse,
based upon stated reasons, against the rejection of a petition. This recourse
is to be made either to the tribunal of appeal or, if the petition was rejected
by the presiding judge, to the collegiate tribunal. A question of rejection
is to be determined with maximum expedition.
Can. 1506 If within a month of the presentation of a petition, the judge
has not issued a decree admitting or rejecting it in accordance with Can. 1505,
the interested party can insist that the judge perform his duty. If, notwithstanding
this, the judge does not respond within ten days of the party’s request,
the petition is to be taken as having been admitted.
Can. 1507 §1 In the decree by which a plaintiff’s petition
is admitted, the judge or the presiding judge must call or summon the other
parties to court to effect the joinder of the issue; he must prescribe whether,
in order to agree the point at issue, they are to reply in writing or to appear
before him. If, from their written replies, he perceives the need to convene
the parties, he can determine this by a new decree.
§2 If a petition is deemed admitted in accordance with the provisions of
Can. 1506, the decree of summons to the trial must be issued within twenty days
of the request of which that canon speaks.
§3 If the litigants in fact present themselves before the judge to pursue
the case, there is no need for a summons; the notary, however, is to record
in the acts that the parties were present at the trial.
Can. 1508 §1 The decree of summons to the trial must be notified
at once to the respondent, and at the same time to any others who are obliged
to appear.
§2 The petition introducing the suit is to be attached to the summons,
unless for grave reasons the judge considers that the petition is not to be
communicated to the other party before he or she gives evidence.
§3 If a suit is brought against a person who does not have the free exercise
of personal rights, or the free administration of the matters in dispute, the
summons is to be notified to, as the case may be, the guardian, the curator,
the special procurator, or the one who according to law is obliged to undertake
legal proceedings in the name of such a person.
Can. 1509 §1 With due regard to the norms laid down by particular
law, the notification of summonses, decrees, judgements and other judicial acts
is to be done by means of the public postal service, or by some other particularly
secure means.
§2 The fact and the manner of notification must be shown in the acts.
Can. 1510 A respondent who refuses to accept a document of summons, or
who circumvents the delivery of a summons, is to be regarded as lawfully summoned.
Can. 1511 Without prejudice to the provision of Can. 1507 §3, if
a summons has not been lawfully communicated, the acts of the process are null.
Can. 1512 Once a summons has been lawfully communicated, or the parties
have presented themselves before a judge to pursue the case:
1° the matter ceases to be a neutral one;
2° the case becomes that of the judge or of the tribunal, in other respects
lawfully competent, before whom the action was brought;
3° the jurisdiction of a delegated judge is established in such a way that
it does not lapse on the expiry of the authority of the person who delegated;
4° prescription is interrupted, unless otherwise provided;
5° the suit begins to be a pending one, and therefore the principle immediately
applies ‘while a suit is pending, no new element is to be introduced’.
Can. 1513 §1 The joinder of the issue occurs when the terms of
the controversy, as derived from the pleas and the replies of the parties, are
determined by a decree of the judge.
§2 The pleas and the replies of the parties may be expressed not only in
the petition introducing the suit, but also either in the response to the summons,
or in statements made orally before the judge. In more difficult cases, however,
the parties are to be convened by the judge, so as to agree the question or
questions to which the judgement must respond.
§3 The decree of the judge is to be notified to the parties. Unless they
have already agreed on the terms, they may within ten days have recourse to
the same judge to request that the decree be altered. This question, however,
is to be decided with maximum expedition by a decree of the judge.
Can. 1514 Once determined, the terms of the controversy cannot validly
be altered except by a new decree, issued for a grave reason, at the request
of the party, and after the other parties have been consulted and their observations
considered.
Can. 1515 Once the joinder of the issue has occurred, the possessor of
another’s property ceases to be in good faith. If, therefore, the judgement
is that he or she return the property, the possessor must return also any profits
accruing from the date of the joinder, and must compensate for damages.
Can. 1516 Once the joinder of the issue has occurred, the judge is to
prescribe an appropriate time within which the parties are to present and to
complete the evidence.
Can. 1517 The trial of the issue is initiated by the summons. It is
concluded not only by the pronouncement of the definitive judgement, but also
by other means determined by law.
Can. 1518 If a litigant dies, or undergoes a change in status, or ceases
from the office in virtue of which he or she was acting:
1° if the case has not yet been concluded, the trial is suspended until
the heir of the deceased, or the successor, or a person whose interest is involved,
resumes the suit
2° if the case has been concluded, the judge must proceed to theremaining
steps of the case, having first summoned the procurator, if there is one, or
else the heir or the successor of the deceased.
Can. 1519 §1 If the guardian or the curator or the procurator required
in accordance with Can. 1481 §§1 and 3, ceases from office, the trial
is suspended for the time being.
§2 However, the judge is to appoint another guardian or curator as soon
as possible. He can appoint a procurator ad litem if the party has neglected
to do so within the brief time prescribed by the judge himself.
Can. 1520 If over a period of six months, no procedural act is performed
by the parties, and they have not been impeded from doing so, the trial is abated.
Particular law may prescribe other time limits for abatement.
Can. 1521 Abatement takes effect by virtue of the law itself, and it
is effective against everyone, even minors and those equivalent to minors; moreover,
it must be declared even ex officio. This, however, is without prejudice to
the right to claim compensation against those guardians, curators, administrators
and procurators who have not proved that they were without fault.
Can. 1522 Abatement extinguishes the acts of the process, but not the
acts of the case. The acts of the case may indeed be employed in another instance,
provided the case is between the same persons and about the same matter. As
far as those outside the case are concerned, however these acts have no standing
other than as documents.
Can. 1523 When a trial has been abated, the litigants are to bear the
expenses which each has incurred.
Can. 1524 §1 The plaintiff may renounce a trial at any stage or
at any grade. Likewise, both the plaintiff and the respondent may renounce the
acts of the process either in whole or only in part.
§2 To renounce the trial of an issue, guardians and administrators of juridical
persons must have the advice or the consent of those whose agreement is required
to conduct negotiations which exceed the limits of ordinary administration.
§3 To be valid, a renunciation must be in writing, and must be signed either
by the party, or by a procurator who has been given a special mandate for this
purpose; it must be communicated to the other party, who must accept or at least
not oppose it; and it must be admitted by the judge.
Can. 1525 Once a renunciation has been admitted by the judge, it has
the same effects for the acts which have been renounced as has an abatement
of the trial. Likewise, it obliges the person renouncing to pay the expenses
of those acts which have been renounced.
Can. 1526 §1 The onus of proof rests upon the person who makes
an allegation.
§2 The following matters do not require proof:
1° matters which are presumed by the law itself;
2° facts alleged by one of the litigants and admitted by the other, unless
their proof is nevertheless required either by law or by the judge.
Can. 1527 §1 Any type of proof which seems useful for the investigation
of the case and is lawful, may be admitted.
§2 If a party submits that proof, which has been rejected by the judge,
should be admitted, the judge is to determine the matter with maximum expedition.
Can. 1528 If a party or a witness refuses to testify before the judge,
that person may lawfully be heard by another, even a lay person, appointed by
the judge, or asked to make a declaration either before a public notary or in
any other lawful manner.
Can. 1529 Unless there is a grave reason, the judge is not to proceed
to collect the proofs before the joinder of the issue.
Can. 1530 The judge may always question the parties the more closely
to elicit the truth. He must do so if requested by one of the parties, or in
order to prove a fact which the public interest requires to be placed beyond
doubt.
Can. 1531 §1 A party who is lawfully questioned is obliged to respond
and to tell the whole truth.
§2 If a party has refused to reply, it is for the judge to evaluate what,
as far as the proof of the facts is concerned, can be deduced therefrom.
Can. 1532 Unless a grave reason suggests otherwise, in cases in which
the public good is at stake the judge is to administer to the parties an oath
that they will tell the truth, or at least that what they have said is the truth.
In other cases, it is left to the prudent discretion of the judge to determine
whether an oath is to be administered.
Can. 1533 The parties, the promotor of justice and the defender of the
bond may submit to the judge propositions upon which a party is to be questioned.
Can. 1534 The provisions of Cann. 15482, n. 1, 1552 and 1558–1565
concerning witnesses are to be observed, with the appropriate qualifications,
in the questioning of the parties.
Can. 1535 A judicial confession is an assertion of fact against oneself,
concerning a matter relevant to the trial, which is made by a party before a
judge who is legally competent; this is so whether the assertion is made in
writing or orally, whether spontaneously or in response to the judge’s
questioning.
Can. 1536 §1 In a private matter and where the public good is not
at stake, a judicial confession of one party relieves the other parties of the
onus of proof.
§2 In cases which concern the public good, however, a judicial confession,
and declarations by the parties which are not confessions, can have a probative
value that is to be weighed by the judge in association with the other circumstances
of the case, but the force of full proof cannot be attributed to them unless
there are other elements which wholly corroborate them.
Can. 1537 It is for the judge, having considered all the circumstances,
to evaluate the weight to be given to an extra judicial confession which is
introduced into the trial.
Can. 1538 A confession, or any other declaration of a party, is devoid
of all force if clearly shown to be based on an error of fact or to have been
extracted by force or grave fear.
Can. 1539 In every type of trial documentary proof is admitted, whether the documents be public or private.
ARTICLE 1: THE NATURE AND RELIABILITY OF DOCUMENTS
Can. 1540 §1 Public ecclesiastical documents are those which an
official person draws up in the exercise of his or her function in the Church
and in which the formalities required by law have been observed.
§2 Public civil documents are those which are legally regarded as such
in accordance with the laws of each place.
§3 All other documents are private.
Can. 1541 Unless it is otherwise established by contrary and clear arguments,
public documents constitute acceptable evidence of those matters which are directly
and principally affirmed in them.
Can. 1542 A private document, whether acknowledged by a party or admitted
by a judge, has the same probative force as an extra judicial confession, against
its author or the person who has signed it and against persons whose case rests
on that of the author or signatory. Against others it has the same force as
have declarations by the parties which are not confessions, in accordance with
Can. 1536 §2.
Can. 1543 If documents are shown to have been erased, amended, falsified
or otherwise tampered with, it is for the judge to evaluate to what extent,
if any, they are to be given credence.
ARTICLE 2: THE PRODUCTION OF DOCUMENTS
Can. 1544 Documents do not have probative force at a trial unless they
are submitted in original form or in authentic copy and are lodged in the office
of the tribunal, so that they may be inspected by the judge and by the opposing
party.
Can. 1545 The judge can direct that a document common to each of the
parties is to be submitted in the process.
Can. 1546 §1 No one is obliged to exhibit documents, even if they
are common, which cannot be communicated without danger of the harm mentioned
in Can. 1548 §2, n. 2, or without the danger of violating a secret which
is to be observed.
§2 If, however, at least an extract from a document can be transcribed
and submitted in copy without the disadvantages mentioned, the judge can direct
that it be produced in that form.
Can. 1547 Proof by means of witnesses is admitted in all cases, under
the direction of the judge.
Can. 1548 §1 Witnesses must tell the truth to a judge who lawfully
questions them.
§2 Without prejudice to the provisions of Can. 1550 §2, n. 2 the following
are exempted from the obligation of replying to questions:
1° clerics, in those matters revealed to them by reason of their sacred
ministry; civil officials, doctors, midwives, advocates, notaries and others
who are bound by the secret of their office, even on the ground of having offered
advice, in respect of matters subject to this secret;
2° those who fear that, as a result of giving evidence, a loss of reputation,
dangerous harassment or some other grave evil will arise for themselves, their
spouses, or those related to them by consanguinity or affinity.
ARTICLE 1: THOSE WHO CAN BE WITNESSES
Can. 1549 Everyone can be a witness, unless expressly excluded, whether
wholly or in part, by the law.
Can. 1550 §1 Minors under the age of fourteen years and those who
are of feeble mind are not admitted to give evidence. They can, however, be
heard if the judge declares by a decree that it would be appropriate to do so.
§2 The following are deemed incapable of being witnesses:
1° the parties in the case or those who appear at the trial in the name
of the parties; the judge and his assistant; the advocate and those others who
in the same case assist or have assisted the parties;
2° priests, in respect of everything which has become known to them in sacramental
confession, even if the penitent has asked that these things be made known.
Moreover, anything that may in any way have been heard by anyone on the occasion
of confession, cannot be accepted even as an indication of the truth.
ARTICLE 2: THE INTRODUCTION AND THE EXCLUSION OF WITNESSES
Can. 1551 A party who has introduced a witness may forego the examination
of that witness, but the opposing party may ask that the witness nevertheless
be examined.
Can. 1552 §1 When proof by means of witnesses is sought, the names
and addresses of the witnesses are to be communicated to the tribunal.
§2 The propositions on which the interrogation of the witnesses is requested,
are to be submitted within the time limit determined by the judge; otherwise,
the request is to be deemed abandoned.
Can. 1553 It is for the judge to curb an excessive number of witnesses.
Can. 1554 Before witnesses are examined, their names are to be communicated
to the parties. If, in the prudent opinion of the judge, this cannot be done
without great difficulty, it is to be done at least before the publication of
the evidence.
Can. 1555 Without prejudice to the provisions of Can. 1550, a party may
request that a witness be excluded, provided a just reason for exclusion is
established before the witness is examined.
Can. 1556 The summons of a witness is effected by a decree of the judge
lawfully notified to the witness.
Can. 1557 A properly summoned witness is to appear, or to make known
to the judge the reason for being absent.
ARTICLE 3: THE EXAMINATION OF WITNESSES
Can. 1558 §1 Witnesses are to be examined at the office of the tribunal
unless the judge deems otherwise.
§2 Cardinals, Patriarchs, Bishops, and those who in their own civil law
enjoy a similar favour, are to be heard at the place selected by themselves.
§3 Without prejudice to the provisions of Can. 1418 and 1469 §2, the
judge is to decide where witnesses are to be heard for whom, by reason of distance,
illness or other impediment, it is impossible or difficult to come to the office
of the tribunal.
Can. 1559 The parties cannot be present at the examination of the witnesses
unless, especially when there is question of a private interest, the judge has
determined that they are to be admitted. Their advocates or procurators, however,
may attend, unless by reason of the circumstances of matter and persons, the
judge has determined that the proceedings are to be in secret.
Can. 1560 §1 The witnesses are to be examined individually and separately.
§2 If in a grave matter the witnesses disagree either among themselves
or with one of the parties, the judge may arrange for those who differ to meet
or to confront one another, but must, in so far as possible, eliminate discord
and scandal.
Can. 1561 The examination of a witness is conducted by the judge, or
by his delegate or an auditor, who is to be attended by a notary. Accordingly,
unless particular law provides otherwise, if the parties or the promotor of
justice or the defender of the bond or the advocates who are present at the
hearing have additional questions to put to the witness, they are to propose
these not to the witness, but to the judge, or to the one who is taking the
judge’s place, so that he or she may put them.
Can. 1562 §1 The judge is to remind the witness of the grave obligation
to tell the whole truth and nothing but the truth.
§2 The judge is to administer an oath to the witness in accordance with
Can. 1532. If, however, a witness refuses to take an oath, he or she is to be
heard unsworn.
Can. 1563 The judge is first of all to establish the identity of the
witness. The relationship which the witness has with the parties is to be probed,
and when specific questions concerning the case are asked of the witness enquiry
is to be made into the sources of his or her knowledge and the precise time
the witness came to know the matters which are asserted.
Can. 1564 The questions are to be brief, and appropriate to the understanding
of the person being examined. They are not to encompass a number of matters
at the same time, nor be captious or deceptive. They are not to be leading questions,
nor give any form of offence. They are to be relevant to the case in question.
Can. 1565 §1 The questions are not to be made known in advance to
the witnesses.
§2 If, however, the matters about which evidence is to be given are so
remote in memory that they cannot be affirmed with certainty unless they are
recalled beforehand, the judge may, if he thinks this can safely be done, advise
the witness in advance about certain aspects of the matter.
Can. 1566 The witnesses are to give evidence orally. They are not to
read from a script, except where there is a question of calculations or accounts;
in this case, they may consult notes which they have brought with them.
Can. 1567 §1 The replies are to be written down at once by the notary.
The record must show the very words of the evidence given, at least in what
concerns those things which bear directly on the matter of the trial.
§2 The use of a tape recorder is allowed, provided the replies are subsequently
committed to writing and, if possible, signed by the deponents.
Can. 1568 The notary is to mention in the acts whether the oath was taken
or excused or refused; who were present, parties and others; the questions added
ex officio; and in general, everything worthy of record which may have occurred
while the witnesses were being examined.
Can. 1569 §1 At the conclusion of the examination, the record of
the evidence, either as written down by the notary or as played back from the
tape recording, must be communicated to the witness, who is to be given the
opportunity of adding to, omitting from, correcting or varying it.
§2 Finally, the witness, the judge and the notary must sign the record.
Can. 1570 Before the acts or the testimony are published, witnesses,
even though already examined, may be called for re examination, either at the
request of a party or ex officio. This may be done if the judge considers it
either necessary or useful, provided there is no danger whatever of collusion
or of inducement.
Can. 1571 Witnesses must be refunded both the expenses they incurred
and the losses they sustained by reason of their giving evidence, in accordance
with the equitable assessment of the judge.
ARTICLE 4: THE CREDIBILITY OF EVIDENCE
Can. 1572 In weighing evidence the judge may, if it is necessary, seek
testimonial letters, and is to take into account:
1° the condition and uprightness of the witness
2° whether the knowledge was acquired at first hand, particularly ifit was
something seen or heard personally, or whether it was opinion, rumour or hearsay;
3° whether the witness is constant and consistent, or varies, is uncertain
or vacillating;
4° whether there is corroboration of the testimony, and whether it is confirmed
or not by other items of evidence.
Can. 1573 The deposition of one witness cannot amount to full proof,
unless the witness is a qualified one who gives evidence on matters carried
out in an official capacity, or unless the circumstances of persons and things
persuade otherwise.
Can. 1574 The services of experts are to be used whenever, by a provision
of the law or of the judge, their study and opinion, based upon their art or
science, are required to establish some fact or to ascertain the true nature
of some matter.
Can. 1575 It is for the judge, after hearing the opinions or suggestions
of the parties, to appoint the experts or, if such is the case, to accept reports
already made by other experts.
Can. 1576 Experts can be excluded or objected to for the same reasons
as witnesses.
Can. 1577 §1 The judge in his decree must define the specific terms
of reference to be considered in the expert’s task, taking into account
whatever may have been gathered from the litigants.
§2 The expert is to be given the acts of the case, and any documents and
other material needed for the proper and faithful discharge of his or her duty.
§3 The judge, after discussion with the expert, is to determine a time
for the completion of the examination and the submission of the report.
Can. 1578 §1 Each expert is to complete a report distinct from that
of the others, unless the judge orders that one report be drawn up and signed
by all of them. In this case, differences of opinion, if there are such, are
to be faithfully noted.
§2 Experts must clearly indicate the documents or other appropriate means
by which they have verified the identity of persons, places or things. They
are also to state the manner and method followed in fulfilling the task assigned
to them, and the principal arguments upon which their conclusions are based.
§3 If necessary, the expert may be summoned by the judge to supply further
explanations.
Can. 1579 §1 The judge is to weigh carefully not only the expert’s
conclusions, even when they agree, but also all the other circumstances of the
case.
§2 When he is giving the reasons for his decision, the judge must state
on what grounds he accepts or rejects the conclusions of the experts.
Can. 1580 Experts are to be paid their expenses and honorariums. These
are to be determined by the judge in a proper and equitable manner, with due
observance of particular law.
Can. 1581 §1 Parties can designate their own experts, to be approved
by the judge.
§2 If the judge admits them, these experts can inspect the acts of the
case, in so far as required for the discharge of their duty, and can be present
when the appointed experts fulfil their role. They can always submit their reports.
Can. 1582 If, in order to decide the case, the judge considers it opportune
to visit some place, or inspect some thing, he is to set this out in a decree.
After he has heard the parties, the decree is to give a brief description of
what is to be made available for this access.
Can. 1583 After the inspection has been carried out, a document concerning
it is to be drawn up.
Can. 1584 A presumption is a probable conjecture about something which
is uncertain. Presumptions of law are those stated in the law; human presumptions
are those made by a judge.
Can. 1585 A person with a presumption of law in his or her favour is
freed from the onus of proof, which then falls on the other party.
Can. 1586 The judge is not to make presumptions which are not stated
in the law, other than on the basis of a certain and determinate fact directly
connected to the matter in dispute.
Can. 1587 An incidental matter arises when, after the case has begun
by the summons, a question is proposed which, even though not expressly raised
in the petition which introduced the case, is yet so relevant to the case that
it needs to be settled before the principal question.
Can. 1588 An incidental matter is proposed before the judge who is competent
to decide the principal case. It is raised in writing or orally, indicating
the connection between it and the principal case.
Can. 1589 §1 When the judge has received the petition and heard
the parties, he is to decide with maximum expedition whether the proposed incidental
matter has a foundation in, and a connection with, the principal matter, or
whether it is to be rejected from the outset. If he admits it he must decide
whether it is of such gravity that it needs to be determined by an interlocutory
judgement or by a decree.
§2 If, however, he concludes that the incidental matter is not to be decided
before the definitive judgement, he is to determine that account be taken of
it when the principal matter is decided.
Can. 1590 §1 If the incidental matter is to be decided by judgement,
the norms for a contentious oral process are to be observed unless, because
of the gravity of the issue, the judge deems otherwise.
§2 If it is to be decided by decree, the tribunal can entrust the matter
to an auditor or to the presiding judge.
Can. 1591 Before the principal matter is concluded, the judge or the
tribunal may for a just reason revoke or alter an interlocutory judgement or
decree. This can be done either at the request of a party or ex officio by the
judge after he has heard the parties.
Can. 1592 §1 If a respondent is summoned but does not appear, and
either does not offer an adequate excuse for absence or has not replied in accordance
with Can. 1507 §1, the judge is to declare the person absent from the process,
and decree that the case is to proceed to the definitive judgement and to its
execution, with due observance of the proper norms.
§2 Before issuing the decree mentioned in §1, the judge must make
sure, if necessary by means of another summons, that a lawful summons did reach
the respondent within the canonical time.
Can. 1593 §1 If the respondent thereafter appears before the judge,
or replies before the trial is concluded, he or she can bring forward conclusions
and proofs, without prejudice to the provisions of Can. 1600; the judge is to
take care, however, that the process is not deliberately prolonged by lengthy
and unnecessary delays.
§2 Even if the respondent has neither appeared nor given a reply before
the case is decided, he or she can challenge the judgement; if the person can
show that there was a just reason for being absent, and that there was no fault
involved in not intimating this earlier, a plaint of nullity can be lodged.
Can. 1594 If the plaintiff does not appear on the day and at the hour
arranged for the joinder of the issue, and does not offer a suitable excuse:
1° the judge is to summon the plaintiff again;
2° if the plaintiff does not obey the new summons, it is presumed that the
case has been abandoned in accordance with Cann. 1524–1525;
3° if the plaintiff should want to intervene at a subsequent stage in the
process, the provisions of Can. 1593 are to be observed.
Can. 1595 §1 A party, whether plaintiff or respondent, who is absent
from the trial, and who does not establish the existence of a just impediment,
is bound to pay the expenses which have been incurred in the case because of
this absence, and also, if need be, to indemnify the other party.
§2 If both the plaintiff and the respondent were absent from the trial,
they are jointly bound to pay the expenses of the case.
Can. 1598 §1 When the evidence has been assembled, the judge must,
under pain of nullity, by a decree permit the parties and their advocates to
inspect at the tribunal office those acts which are not yet known to them. Indeed,
if the advocates so request, a copy of the acts can be given to them. In cases
which concern the public good, however, the judge can decide that, in order
to avoid very serious dangers, some part or parts of the acts are not to be
shown to anyone; he must take care, however, that the right of defence always
remains intact.
§2 To complete the evidence, the parties can propose other items of proof
to the judge. When these have been assembled the judge can, if he deems it appropriate,
again issue a decree as in §1.
Can. 1599 §1 When everything concerned with the production of evidence
has been completed, the conclusion of the case is reached.
§2 This conclusion occurs when the parties declare that they have nothing
further to add, or when the canonical time allotted by the judge for the production
of evidence has elapsed, or when the judge declares that he considers the case
to be sufficiently instructed.
§3 By whichever way the case has come to its conclusion, the judge is to
issue a decree declaring that it is concluded.
Can. 1600 Only in the following situations can the judge, after the conclusion
of the case, still recall earlier witnesses or call new ones, or make provision
for other evidence not previously requested:
1° in cases in which only the private good of the parties is involved if
all the parties agree;
2° in other cases, provided that the parties have been consulted, that a
grave reason exists, and that all danger of fraud or subornation is removed;
3° in all cases, whenever it is probable that, unless new evidence is admitted,
the judgement will be unjust for any of the reasons mentioned in Can. 1645 §2,
nn. 1–3.
§2 The judge can, however, command or permit the presentation of a document
which, even without fault of the interested party, could not be presented earlier.
§3 New evidence is to be published according to Can. 1598 §1.
Can. 1601 When the case has been concluded, the judge is to determine
a suitable period of time for the presentation of pleadings and observations.
Can. 1602 §1 Pleadings and observations are to be in writing unless
the judge, with the consent of the parties, considers it sufficient to have
a discussion before the tribunal in session.
§2 If the pleadings and the principal documents are to be printed, the
prior permission of the judge is required, and the obligation of secrecy, where
it exists, is still to be observed.
§3 The directions of the tribunal are to be observed in questions concerning
the length of the pleadings, the number of copies and other similar matters.
Can. 1603 §1 When the pleadings and observations have been exchanged,
each party can make reply within a brief period of time determined by the judge.
§2 This right is given to the parties once only, unless for a grave reason
the judge considers that the right to a second reply is to be given; if this
right is given to one party, it is to be considered as given to the other as
well.
§3 The promotor of justice and the defender of the bond have the right
to respond to every reply of the parties.
Can. 1604 §1 It is absolutely forbidden that any information given
to the judge by the parties or the advocates, or by any other persons, be excluded
from the acts of the case.
§2 If the pleadings in the case are made in writing, the judge may, in
order to clarify any outstanding issues, order that a moderate oral discussion
be held before the tribunal in session.
Can. 1605 The notary is to be present at the oral discussion mentioned
in Cann. 1602 §1 and 1604 §2, so that, if the judge so orders, or
the parties so request and the judge consents, the notary can immediately make
a written report of what has been discussed and concluded.
Can. 1606 If the parties neglect to prepare their pleadings within the
time allotted to them, or if they entrust themselves to the knowledge and conscience
of the judge, and if at the same time the judge perceives the matter quite clearly
from the acts and the proofs, he can pronounce judgement at once. He must, however,
seek the observations of the promotor of justice and the defender of the bond
if they were engaged in the trial.
Can. 1607 A principal case which has been dealt with in judicial fashion
is decided by the judge by a definitive judgement. An incidental matter is decided
by an interlocutory judgement, without prejudice to Can. 1589
Can. 1608 §1 To give any judgement, the judge must have in his mind
moral certainty about the matter to be decided in the judgement.
§2 The judge must derive this certainty from the acts of the case and from
the proofs.
§3 The judge must conscientiously weigh the evidence, with due regard for
the provisions of law about the efficacy of certain evidence.
§4 A judge who cannot arrive at such certainty is to pronounce that the
right of the plaintiff is not established and is to find for the respondent
except in a case which enjoys the favour of law, when he is to pronounce in
its favour.
Can. 1609 §1 The presiding judge of a collegiate tribunal decides
the day and time when it is to meet for discussion. Unless a special reason
requires otherwise, the meeting is to be at the tribunal office.
§2 On the day appointed for the meeting, the individual judges are to bring
their written conclusions on the merits of the case, with the reasons in law
and in fact for reaching their conclusions. These conclusions are to be added
to the acts of the case and to be kept in secrecy.
§3 Having invoked the divine Name, they are to offer their conclusions
in order, beginning always with the ‘ponens’ or ‘relator’
in the case, and then in order of precedence. Under the chairmanship of the
presiding judge, they are to hold their discussion principally with a view to
establishing what is to be stated in the dispositive part of the judgement.
§4 In the discussion, each one is permitted to depart from an original
conclusion. A judge who does not wish to accede to the decision of the others
can demand that, if there is an appeal, his or her conclusions be forwarded
to the higher tribunal.
§5 If the judges do not wish, or are unable, to reach a decision in the
first discussion, they can defer their decision to another meeting, but not
beyond one week, unless the instruction of the case has to be completed in accordance
with Can. 1600.
Can. 1610 §1 If there is a sole judge, he will draw up the judgement.
§2 In a collegiate tribunal, the ‘ponens’ or ‘relator’
is to draw up the judgement, using as reasons those tendered by the individual
judges in their discussion, unless the reasons to be preferred have been defined
by a majority of the judges. The judgement must then be submitted to the individual
judges for their approval.
§3 The judgement is to be issued not later than one month from the day
on which the case was decided, unless in a collegiate tribunal the judges have
for grave reasons stipulated a longer time.
Can. 1611 The judgement must:
1° define the controversy raised before the tribunal, giving appropriate
answers to the individual questions;
2° determine the obligations of the parties arising from the trial and the
manner in which these are to be fulfilled
3° set out the reasons or motives, both in law and in fact, upon which the
dispositive part of the judgement is based;
4° apportion the expenses of the suit.
Can. 1612 §1 The judgement, after the invocation of the divine Name
must state in order the judge or tribunal, and the plaintiff, respondent and
procurator, with names and domiciles duly indicated. It is also to name the
promotor of justice and the defender of the bond if they were engaged in the
trial.
§2 It must then briefly set out the alleged facts, with the conclusions
of the parties and the formulation of the doubt.
§3 Then follows the dispositive part of the judgement, prefaced by the
reasons which support it.
§4 It ends with the date and the place in which it was given, and with
the signature of the judge or, in the case of a collegiate tribunal, of all
the judges, and of the notary.
Can. 1613 The rules set out above for a definitive judgement are to be
adapted also to interlocutory judgements.
Can. 1614 A judgement is to be published as soon as possible, with an
indication of the ways in which it can be challenged. Before publication it
has no effect, even if the dispositive part may, with the permission of the
judge, have been notified to the parties.
Can. 1615 The publication or notification of the judgement can be effected
by giving a copy of the judgement to the parties or to their procurators, or
by sending them a copy of it in accordance with Can. 1509.
Can. 1616 §1 A judgement must be corrected or completed by the tribunal
which gave it if, in the text of a judgement, there is an error in calculations,
or a material error in the transcription of either the dispositive part or the
presentation of the facts or the pleadings of the parties, or if any of the
items required by Can. 1612, §4 are omitted. This is to be done either
at the request of the parties or ex officio, but always after having consulted
the parties and by a decree appended to the foot of the judgement.
§2 If one party is opposed, an incidental question is to be decided by
a decree.
Can. 1617 Other pronouncements of a judge apart from the judgement, are
decrees. If they are more than mere directions about procedure, they have no
effect unless they give at least a summary of their reasons or refer to motives
expressed in another act.
Can. 1618 An interlocutory judgement or a decree has the force of a definitive
judgement if, in respect of at least one of the parties, it prevents the trial,
or brings to an end the trial itself or any instance of it.
Can. 1619 Without prejudice to Cann. 1622 and 1623, whenever a case
concerns the good of private individuals, acts which are null with a nullity
established by positive law are validated by the judgement itself, if the nullity
was known to the party making the plaint and was not raised with the judge before
the judgement.
Can. 1620 A judgement is null with a nullity which cannot be remedied,
1° it was given by a judge who was absolutely non competent;
2° it was given by a person who has no power to judge in the tribunal in
which the case was decided;
3° the judge was compelled by force or grave fear to deliver judgement;
4° the trial took place without the judicial plea mentioned in Can. 1501,
or was not brought against some party as respondent;
5° it was given between parties of whom at least one has no right to stand
before the court;
6° someone acted in another’s name without a lawful mandate;
7° the right of defence was denied to one or other party;
8° the controversy has not been even partially decided.
Can. 1621 In respect of the nullity mentioned in Can. 1620, a plaint
of nullity can be made in perpetuity by means of an exception, or within ten
years of the date of publication of the judgement by means of an action before
the judge who delivered the judgement.
Can. 1622 A judgement is null with a nullity which is simply remediable,
if:
1° contrary to the requirements of Can. 1425, §1, it was not given
by the lawful number of judges;
2° it does not contain the motives or reasons for the decision;
3° it lacks the signatures prescribed by the law;
4° it does not contain an indication of the year, month, day and place it
was given;
5° it is founded on a judicial act which is null and whose nullity has not
been remedied in accordance with Can. 1619;
6° it was given against a party who, in accordance with Can. 1593, §2,
was lawfully absent.
Can. 1623 In the cases mentioned in Can. 1622, a plaint of nullity can
be proposed within three months of notification of the publication of the judgement.
Can. 1624 The judge who gave the judgement is to consider the plaint
of its nullity. If the party fears that the judge who gave the judgement is
biased, and consequently considers him suspect, he or she can demand that another
judge take his place in accordance with Can. 1450.
Can. 1625 Within the time limit established for appeal, a plaint of nullity
can be proposed together with the appeal.
Can. 1626 §1 A plaint of nullity can be made not only by parties
who regard themselves as injured, but also by the promotor of justice and the
defender of the bond, whenever they have a right to intervene.
§2 Within the time limit established in Can. 1623, the judge himself can
retract or correct an invalid judgement he has given, unless in the meantime
an appeal joined to a plaint of nullity has been lodged, or the nullity has
been remedied by the expiry of the time limit mentioned in Can. 1623.
Can. 1627 Cases concerning a plaint of nullity can be dealt with in accordance
with the norms for an oral contentious process.
Can. 1628 Without prejudice to the provisions of Can. 1629, a party
who considers him or herself to be injured by a judgement has a right to appeal
from the judgement to a higher judge; in cases in which their presence is required,
the promotor of justice and the defender of the bond have likewise the right
to appeal.
Can. 1629 No appeal is possible against:
1° a judgement of the Supreme Pontiff himself, or a judgement of the Apostolic
Signatura;
2° a judgement which is null, unless the appeal is lodged together with
a plaint of nullity, in accordance with Can. 1625;
3° a judgement which has become an adjudged matter
4° a decree of the judge or an interlocutory judgement, which doesnot have
the force of a definitive judgement, unless the appeal is lodged together with
an appeal against the definitive judgement;
5° a judgement or a decree in a case in which the law requires that the
matter be settled with maximum expedition.
Can. 1630 §1 The appeal must be lodged with the judge who delivered
the judgement, within a peremptory time limit of fifteen canonical days from
notification of the publication of the judgement.
§2 If it is made orally, the notary is to draw up the appeal in writing
in the presence of the appellant.
Can. 1631 If a question arises about the right of appeal, the appeal
tribunal is to determine it with maximum expedition, in accordance with the
norms for an oral contentious process.
Can. 1632 §1 If there is no indication of the tribunal to which
the appeal is directed, it is presumed to be made of the tribunal mentioned
in Cann. 1438 and 1439.
§2 If the other party has resorted to some other appeal tribunal, the tribunal
which is of the higher grade is to determine the case, without prejudice to
Can. 1415.
Can. 1633 The appeal is to be pursued before the appeal judge within
one month of its being forwarded, unless the originating judge allows the party
a longer time to pursue it.
Can. 1634 §1 To pursue the appeal, it is required and is sufficient
that the party request the assistance of the higher judge to amend the judgement
which is challenged, enclosing a copy of the judgement and indicating the reasons
for the appeal.
§2 If the party is unable to obtain a copy of the appealed judgement from
the originating tribunal within the canonical time limit, this timelimit is
in the meantime suspended. The problem is to be made known to the appeal judge,
who is to oblige the originating judge by precept to fulfil his duty as soon
as possible.
§3 In the meantime, the originating judge must forward the acts to the
appeal court in accordance with Can. 1474.
Can. 1635 The appeal is considered to be abandoned if the time limits
for an appeal before either the originating judge or the appeal judge have expired
without action being taken.
Can. 1636 §1 The appellant can renounce the appeal, with the effects
mentioned in Can. 1525.
§2 Unless the law provides otherwise, an appeal made by the defender of
the bond or the promotor of justice, can be renounced by the defender of the
bond or the promotor of justice of the appeal tribunal.
Can. 1637 §1 An appeal made by the plaintiff benefits the respondent,
and vice versa.
§2 If there are several respondents or plaintiffs, and the judgement is
challenged by only one of them, or is made against only one of them, the challenge
is considered to be made by all and against all whenever the thing requested
is an individual one or the obligation is a joint one.
§3 If one party challenges a judgement in regard to one ground, the other
party can appeal incidentally on the other grounds, even if the canonical time
limit for the appeal has expired. This incidental case is to be appealed within
a peremptory time limit of fifteen days from the day of notification of the
principal appeal.
§4 Unless the contrary is clear, an appeal is presumed to be against all
the grounds of the judgement.
Can. 1638 An appeal suspends the execution of the judgement.
Can. 1639 §1 Without prejudice to the provision of Can. 1683, a
new ground cannot be introduced at the appeal grade, not even by way of the
useful accumulation of grounds. So the joinder of the issue can concern itself
only with the confirmation or the reform of the first judgement, either in part
or in whole.
§2 New evidence is admitted only in accordance with Can. 1600.
Can. 1640 With the appropriate adjustments, the procedure at the appeal
grade is to be the same as in first instance. Unless the evidence is to be supplemented,
however, once the issue has been joined in accordance with Can. 1513 §1
and Can. 1639 §1, the judges are to proceed immediately to the discussion
of the case and the judgement.
Can. 1641 Without prejudice to Can. 1643, an adjudged matter occurs
when:
1° there are two conforming judgements between the same parties about the
same matter and on the same grounds;
2° no appeal was made against the judgement within the canonical time limit;
3° the trial has been abated or renounced in the appeal grade;
4° a definitive judgement has been given from which, in accordance with
Can. 1629, there is no appeal.
Can. 1642 §1 An adjudged matter has the force of law and cannot
be challenged directly, except in accordance with Can. 1645 §1.
§2 It has the effect of law between the parties; it gives the right to
an action arising from the judgement and to an exception of an adjudged matter;
to prevent a new introduction of the same case, the judge can even declare such
an exception ex officio.
Can. 1643 Cases concerning the status of persons never become an adjudged
matter, not excepting cases which concern the separation of spouses.
Can. 1644 §1 If two conforming sentences have been given in cases
concerning the status of persons, recourse to a tribunal of appeal can be made
at any time, to be supported by new and serious evidence or arguments which
are to be submitted within a peremptory time limit of thirty days from the time
the challenge was made. Within one month of receiving the new evidence and arguments,
the appeal tribunal must declare by a decree whether or not a new presentation
of the case is to be admitted.
§2 Recourse to a higher tribunal to obtain a new presentation of the case
does not suspend the execution of the judgement, unless the law provides otherwise
or the appeal tribunal orders a suspension in accordance with Can. 1650 §3.
Can. 1645 §1 Against a judgement which has become an adjudged matter
there can be a total reinstatement, provided it is clearly established that
the judgement was unjust.
§2 Injustice is not, however, considered clearly established unless:
1° the judgement is so based on evidence which is subsequently shown to
be false, that without this evidence the dispositive part of the judgement could
not be sustained;
2° documents are subsequently discovered by which new facts demanding a
contrary decision are undoubtedly proven;
3° the judgement was given through the deceit of one party to the harm of
the other;
4° a provision of a law which was not merely procedural was evidently neglected;
5° the judgement runs counter to a preceding decision which has become an
adjudged matter.
Can. 1646 §1 Total reinstatement based on the reasons mentioned
in Can. 1645 §2, nn. 1–3, is to be requested from the judge who delivered
the judgement within three months from the day on which these reasons became
known.
§2 Total reinstatement based on the reasons mentioned in Can. 1645 §2,
nn. 4 and 5, is to be requested from the appeal tribunal within three months
of notification of the publication of the judgement. In the case mentioned in
Can. 1645 §2, n. 5, if the preceding decision is not known until later,
the time limit begins at the time the knowledge was obtained.
§3 The time limits mentioned above do not apply for as long as the aggrieved
party is a minor.
Can. 1647 §1 A plea for total reinstatement suspends the execution
of a judgements which has not yet begun.
§2 If there are probable indications leading the judge to suspect that
the plea was made to cause delays in execution, he may decide that the judgement
be executed. The person seeking total reinstatement is, however, to be given
suitable guarantees that, if it is granted, he or she will be indemnified.
Can. 1648 Where total reinstatement is granted, the judge must pronounce
judgement of the merits of the case.
Can. 1649 §1 The Bishop who is responsible for governing the tribunal
is to establish norms concerning:
1° declarations that parties are liable for the payment or reimbursement
of judicial expenses;
2° the honorariums for advocates, experts and interpreters, and the expenses
of witnesses;
3° the granting of free legal aid and the reduction of expenses;
4° the payment of damages owed by a person who not merely lost the case,
but was rash in having recourse to litigation;
5° the money to be deposited, or the guarantee to be given, for the payment
of expenses and the compensation of damages.
§2 No distinct appeal exists from a pronouncement concerning expenses,
honorariums and damages. The parties can, however, have recourse within ten
days to the same judge, who can change the sum involved.
Can. 1650 §1 A judgement which becomes adjudged matter can be executed,
without prejudice to the provision of Can. 1647.
§2 The judge who delivered the judgement and, if there has been an appeal,
the appeal judge, can either ex officio or at the request of a party order the
provisional execution of a judgement which has not yet become an adjudged matter,
adding if need be appropriate guarantees when it is a matter of provisions or
payments concerning necessary support. They can also do so for some other just
and urgent reason.
§3 If the judgement mentioned in §2 is challenged, the judge who must
deal with the challenge can suspend the execution or subject it to a guarantee,
if he sees that the challenge is probably well founded and that irreparable
harm could result from execution.
Can. 1651 Execution cannot take place before there is issued the judge’s
executing decree directing that the judgement be executed. Depending on the
nature of the case, this decree is to be either included in the judgement itself
or issued separately.
Can. 1652 If the execution of the judgement requires a prior statement
of reasons, this is to be treated as an incidental question, to be decided by
the judge who gave the judgement which is to be executed.
Can. 1653 §1 Unless particular law provides otherwise, the Bishop
of the diocese in which the first instance judgement was given must, either
personally or through another, execute the judgement.
§2 If he refuses or neglects to do so, the execution of the judgement,
at the request of an interested party or ex officio, belongs to the authority
to which the appeal tribunal is subject in accordance with Can. 1439 §3.
§3 Between religious, the execution of the judgement is the responsibility
of the Superior who gave the judgement which is to be executed, or who delegated
the judge.
Can. 1654 §1 The executor must execute the judgement according to
the obvious sense of the words, unless in the judgement itself something is
left to his discretion.
§2 He can deal with exceptions concerning the manner and the force of the
execution, but not with the merits of the case. If he has ascertained from some
other source that the judgement is null or manifestly unjust according to Cann.
1620, 1622 and 1645, he is to refrain from executing the judgement, and is instead
to refer the matter to the tribunal which delivered the judgement and to notify
the parties.
Can. 1655 §1 In real actions, whenever it is decided that a thing
belongs to the plaintiff, it is to be handed over to the plaintiff as soon as
the matter has become an adjudged matter.
§2 In personal actions, when a guilty person is condemned to hand over
a movable possession or to pay money, or to give or do something, the judge
in the judgement itself, or the executor according to his discretion and prudence,
is to assign a time limit for the fulfilment of the obligation. This time limit
is to be not less than fifteen days nor more than six months.
Can. 1656 §1 The oral contentious process dealt with in this section
can be used in all cases which are not excluded by law, unless a party requests
an ordinary contentious process.
§2 If the oral process is used in cases other than those permitted by the
law, the judicial acts are null.
Can. 1657 An oral contentious process in first instance is made before
a sole judge, in accordance with Can. 1424.
Can. 1658 §1 In addition to the matters enumerated in Can. 1504,
the petition which introduces the suit must:
1° set forth briefly, fully and clearly the facts on which the plaintiff’s
pleas are based;
2° indicate the evidence by which the plaintiff intends to demonstrate the
facts and which cannot be brought forward with the petition; this is to be done
in such a way that the evidence can immediately be gathered by the judge.
§2 Documents which support the plea must be added to the petition, at least
in authentic copy.
Can. 1659 §1 If an attempt at mediation in accordance with Can.
1446 §2 has proven fruitless, the judge, if he deems that the petition
has some foundation, is within three days to add a decree at the foot of the
petition. In this decree he is to order that a copy of the plea be notified
to the respondent, with the right to send a written reply to the tribunal office
within fifteen days.
§2 This notification has the effects of a judicial summons that are as
mentioned in Can. 1512.
Can. 1660 If the exceptions raised by the respondent so require, the
judge is to assign the plaintiff a time limit for a reply, so that from the
material advanced by each he can clearly discern the object of the controversy.
Can. 1661 §1 When the time limits mentioned in Cann. 1659 and 1660
have expired, the judge, after examining the acts, is to determine the point
at issue. He is then to summon all who must be present to a hearing, which is
to be held within thirty days; for the parties, he is to add the formulation
of the point at issue.
§2 In the summons the parties are to be informed that, to support their
assertions, they can submit a short written statement to the tribunal at least
three days before the hearing.
Can. 1662 In the hearing, the questions mentioned in Cann. 1459–1464
are considered first.
Can. 1663 §1 The evidence is assembled during the hearing, without
prejudice to the provision of Can. 1418.
§2 A party and his or her advocate can assist at the examination of the
other parties, of the witnesses and of the experts.
Can. 1664 The replies of the parties, witnesses and experts, and the
pleas and exceptions of the advocates, are to be written down by the notary
in summary fashion, restricting the record to those things which bear on the
substance of the controversy. This record is to be signed by the persons testifying.
Can. 1665 The judge can admit evidence which is not alleged or sought
in the plea or the reply, but only in accordance with Can. 1452. After the hearing
of even one witness, however, the judge can admit new evidence only in accordance
with Can. 1600.
Can. 1666 If all the evidence cannot be collected during the hearing,
a further hearing is to be set.
Can. 1667 When the evidence has been collected, an oral discussion is
to take place at the same hearing.
Can. 1668 §1 At the conclusion of the hearing, the judge can decide
the case forthwith, unless it emerges from the discussion that something needs
to be added to the instruction of the case, or that there is something which
prevents a judgement being correctly delivered. The dispositive part of the
judgement is to be read immediately in the presence of the parties.
§2 Because of the difficulty of the matter, or for some other just reason
the decision of the tribunal can be deferred for up to five canonical days.
§3 The full text of the judgement, including the reasons for it, is to
be notified to the parties as soon as possible, normally within fifteen days.
Can. 1669 If the appeal tribunal discerns that a lower tribunal has used
the oral contentious procedure in cases which are excluded by law, it is to
declare the judgement invalid and refer the case back to the tribunal which
delivered the judgement.
Can. 1670 In all other matters concerning procedure, the provisions of
the canons on ordinary contentious trials are to be followed. In order to expedite
matters, however, while safeguarding justice, the tribunal can, by a decree
and for stated reasons, derogate from procedural norms which are not prescribed
for validity.
ARTICLE 1: THE COMPETENT FORUM
Can. 1671 Matrimonial cases of the baptised belong by their own right
to the ecclesiastical judge.
Can. 1672 Cases concerning the merely civil effects of marriage pertain
to the civil courts, unless particular law lays down that, if such cases are
raised as incidental and accessory matters, they may be heard and decided by
an ecclesiastical judge.
Can. 1673 The following tribunals are competent in cases concerning the
nullity of marriage which are not reserved to the Apostolic See:
1° the tribunal of the place where the marriage was celebrated;
2° the tribunal of the place where the respondent has a domicile or quasi
domicile;
3° the tribunal of the place where the plaintiff has a domicile, provided
that both parties live within the territory of the same Episcopal Conference,
and that the judicial Vicar of the domicile of the respondent, after consultation
with the respondent, gives consent;
4° the tribunal of the place in which in fact most of the evidence is to
be collected, provided that consent is given by the judicial Vicar of the domicile
of the respondent, who must first ask the respondent whether he or she has any
objection to raise.
ARTICLE 2: THE RIGHT TO CHALLENGE THE VALIDITY OF MARRIAGE
Can. 1674 The following are able to challenge the validity of a marriage:
1° the spouses themselves;
2° the promotor of justice, when the nullity of the marriage has already
been made public, and the marriage cannot be validated or it is not expedient
to do so.
Can. 1675 §1 A marriage which was not challenged while both parties
were alive, cannot be challenged after the death of either or both, unless the
question of validity is a necessary preliminary to the resolution of another
controversy in either the canonical or the civil forum.
§2 If a spouse should die during the course of a case, Can. 1518 is to
be observed.
ARTICLE 3: THE DUTIES OF THE JUDGES
Can. 1676 Before he accepts a case and whenever there appears to be hope
of success, the judge is to use pastoral means to persuade the spouses that,
if it is possible, they should perhaps validate their marriage and resume their
conjugal life.
Can. 1677 §1 When the petition has been accepted, the presiding
judge or the ‘ponens’ is to proceed to the notification of the decree
of summons, in accordance with Can. 1508.
§2 If, within fifteen days of the notification, neither party has requested
a session to contest the suit, then within the following ten days the presiding
judge or ‘ponens’ is, by a decree, to decide ex officio the formulation
of the doubt or doubts and to notify the parties accordingly.
§3 The formulation of the doubt is not only to ask whether the nullity
of the particular marriage is proven, but also to determine the ground or grounds
upon which the validity of the marriage is being challenged.
§4 If the parties have not objected to this decree within ten days of being
notified, the presiding judge or ‘ponens’ is, by a new decree, to
arrange for the hearing of the case.
ARTICLE 4: PROOFS
Can. 1678 §1 The defender of the bond, the advocates of the parties
and, if engaged in the process, the promotor of justice, have the right:
1° to be present at the examination of the parties, the witnesses and the
experts, without prejudice to Can. 1559;
2° to see the judicial acts, even if they are not yet published, and to
inspect documents produced by the parties.
§2 The parties themselves cannot be present at the sessions mentioned in
§1, n. 1.
Can. 1679 Unless the evidence brought forward is otherwise complete,
in order to weigh the depositions of the parties in accordance with Can. 1536,
the judge is, if possible, to hear witnesses to the credibility of the parties,
as well as to gather other indications and supportive elements.
Can. 1680 In cases concerning impotence or defect of consent by reason
of mental illness, the judge is to use the services of one or more experts,
unless from the circumstances this would obviously serve no purpose. In other
cases, the provision of Can. 1574 is to be observed.
ARTICLE 5: THE JUDGEMENT AND THE APPEAL
Can. 1681 Whenever in the course of the hearing of a case a doubt of
a high degree of probability arises that the marriage has not been consummated,
the tribunal can, with the consent of the parties, suspend the nullity case
and complete the instruction of a case for a dispensation from a non consummated
marriage; eventually it can forward the acts to the Apostolic See, together
with a petition, from either or both of the parties for a dispensation, and
with the Opinions of the tribunal and of the Bishop.
Can. 1682 §1 The judgement which has first declared the nullity
of a marriage, together with the appeals, if there are any, and the judicial
acts, are to be sent ex officio to the appeal tribunal within twenty days of
the publication of the judgement.
§2 If the judgement given in first instance was in favour of the nullity
of the marriage, the appeal tribunal, after weighing the observations of the
defender of the bond and, if there are any, of the parties, is by its decree
either to ratify the decision at once, or to admit the case to ordinary examination
in the new instance.
Can. 1683 If a new ground of nullity of marriage is advanced in the appeal
grade, the tribunal can admit it and give judgement on it as at first instance.
Can. 1684 §1 After the judgement which first declared the nullity
of the marriage has been confirmed on appeal either by decree or by another
judgement, those whose marriage has been declared invalid may contract a new
marriage as soon as the decree or the second judgement has been notified to
them, unless there is a prohibition appended to the judgement or decree itself,
or imposed by the local Ordinary.
§2 The provisions of Can. 1644 are to be observed even if the judgement
which declared the nullity of the marriage is confirmed not by a second judgement,
but by a decree.
Can. 1685 As soon as the sentence is executed, the judicial Vicar must
notify the Ordinary of the place where the marriage was celebrated. This Ordinary
must ensure that a record of the decree of nullity of the marriage, and of any
prohibition imposed, is as soon as possible entered in the registers of marriage
and baptism.
ARTICLE 6: THE DOCUMENTARY PROCESS
Can. 1686 A marriage can be declared invalid on the basis of a document
which proves with certainty the existence of a diriment impediment a defect
of lawful form or the lack of a valid proxy mandate; the document must not be
open to any contradiction or exception. It must be equally certain that no dispensation
has been given. When a petition in accordance with Can. 1677 has been received
alleging such invalidity, the judicial Vicar, or a judge designated by him,
can omit the formalities of the ordinary procedure and, having summoned the
parties, and with the intervention of the defender of the bond, declare the
nullity of the marriage by a judgement.
Can. 1687 §1 If the defender of the bond prudently judges that the
defects mentioned in Can. 1686, or the lack of dispensation, are not certain,
he must appeal to the judge of second instance. The acts must be sent to the
appeal judge and he is to be informed in writing that it is a documentary process.
§2 A party who considers him or herself injured retains the right of appeal.
Can. 1688 The judge of second instance, with the intervention of the
defender of the bond and after consulting the parties, is to decide in the same
way as in Can. 1686 whether the judgement is to be ratified, or whether the
case should rather proceed according to the ordinary course of law, in which
event he is to send the case back to the tribunal of first instance.
ARTICLE 7: GENERAL NORMS
Can. 1689 In the judgement the parties are to be reminded of the moral,
and also the civil, obligations by which they may be bound, both towards one
another and in regard to the support and upbringing of their children.
Can. 1690 Cases for the declaration of nullity of marriage cannot be
dealt with by the oral contentious process.
Can. 1691 In other matters concerning the conduct of the process, the
canons concerning judicial powers in general and concerning the ordinary contentious
process are to be applied, unless the nature of the case demands otherwise;
the special norms concerning cases dealing with the status of persons and cases
pertaining to the public good are also to be observed.
Can. 1692 §1 Unless lawfully provided otherwise in particular places,
the personal separation of baptised spouses can be decided by a decree of the
diocesan Bishop, or by the judgement of a judge in accordance with the following
canons.
§2 Where the ecclesiastical decision does not produce civil effects, or
if it is foreseen that there will be a civil judgement not contrary to the divine
law, the Bishop of the diocese in which the spouses are living can, in the light
of their particular circumstances, give them permission to approach the civil
courts.
§3 If the case is also concerned with the merely civil effects of marriage,
the judge is to endeavour, without prejudice to the provision of §2, to
have the case brought before the civil court from the very beginning.
Can. 1693 §1 The oral contentious process is to be used, unless
either party or the promotor of justice requests the ordinary contentious process.
§2 If the ordinary contentious process is used and there is an appeal,
the tribunal of second instance is to proceed in accordance with Can. 1682 §2,
observing what has to be observed.
Can. 1694 In matters concerning the competence of the tribunal, the provisions
of Can. 1673 are to be observed.
Can. 1695 Before he accepts the case, and whenever there appears to be
hope of success, the judge is to use pastoral means to induce the parties to
be reconciled and to resume their conjugal life.
Can. 1696 Cases of separation of spouses also concern the public good;
the promotor of justice must, therefore, always intervene, in accordance with
Can. 1433.
Can. 1697 The parties alone, or indeed one of them even if the other
is unwilling, have the right to seek the favour of a dispensation from a ratified
and non consummated marriage.
Can. 1698 §1 Only the Apostolic See gives judgement on the fact
of the non consummation of a marriage and on the existence of a just reason
for granting the dispensation.
§2 The dispensation, however, is given by the Roman Pontiff alone.
Can. 1699 §1 The diocesan Bishop of the place of domicile or quasidomicile
of the petitioner is competent to accept the petition seeking the dispensation.
If the request is well founded, he must arrange for the instruction of the process.
§2 If, however, the proposed case has special difficulties of a juridical
or moral order, the diocesan Bishop is to consult the Apostolic See.
§3 Recourse to the Apostolic See is available against the decree of a Bishop
who rejects the petition.
Can. 1700 §1 Without prejudice to the provisions of Can. 1681, the
Bishop is to assign the instruction of these processes, in a stable manner or
case by case, to his own tribunal or to that of another diocese, or to a suitable
priest.
§2 If, however, a judicial plea has been introduced to declare the nullity
of the same marriage, the instruction of the process is to be assigned to the
same tribunal.
Can. 1701 §1 In these processes the defender of the bond must always
intervene.
§2 An advocate is not admitted, but the Bishop can, because of the difficulty
of a case, allow the petitioner or respondent to have the assistance of an expert
in the law.
Can. 1702 In the instruction of the process both parties are to be heard.
As far as possible, and provided they can be reconciled with the nature of these
processes, the canons concerning the collection of evidence in the ordinary
contentious process and in cases of nullity of marriage are to be followed.
Can. 1703 §1 There is no publication of the acts, but if the judge
sees that, because of the evidence tendered, a serious obstacle stands in the
way of the plea of the petitioner or the exception of the respondent, he can
prudently make it known to the party concerned.
§2 To the party requesting it the judge can show a document which has been
presented or evidence which has been received, and he can set a time for the
production of arguments.
Can. 1704 §1 When the instructio