Report on the Presentation Given to RCIA Leaders
by the Calgary Marriage Tribunal
This event took place on May 6, 2006 at St. Gerard Church, from 9:30 am until about noon. It was organized by Christine Mader, who is the Director of Liturgical & Adult Formation Ministry, and has oversight of the implementation of the Rite of Christian Initiation of Adults (RCIA) in the Calgary Diocese. She reports directly to the Bishop. The guest speaker was Gloria Regush, who is a lay Judge Auditor of our Calgary Marriage Tribunal. She works for Father (Very Reverend) Brian Hubka, who was recently appointed to be the Judicial Vicar of the Diocese of Calgary.
Overview of Basic Facts
The Marriage Tribunal is a kind of legal trial, for the purpose of determining whether a putative marriage that has failed was in fact a valid marriage, or not. The purpose of this proceeding is in order to ascertain whether the petitioner is free to marry in the Catholic Church. Neither the result of the trial, nor the amount of time it will take, can be known ahead of time. (This is really, really important, especially when discussing this issue with an RCIA Candidate or Catechumen who is involved in a Marriage Tribunal. No lay person in the Church should ever attempt to predict either the end result, or the amount of time that it will take.)
All failed marriages must be assumed to be valid until proven to be otherwise by the Marriage Tribunal when either of the parties is contemplating marriage to someone else in the Catholic Church. (This is so, even if, under other circumstances, that same marriage would have had to have been validated in the Church before the participants could receive the Sacraments).
The outcome of this trial cannot be known ahead of time. It takes a great deal of time and money to obtain all of the evidence necessary to determine whether a failed marriage was valid, or not. Even if the failed marriage is found to have been invalid, there are other factors that may prevent the petitioner from being allowed to be married in the Catholic Church, especially if the factors that caused the first marriage to be invalid are still present.
If the previous marriage was valid, and even if it was not Sacramental, the petitioner is not free to marry in the Catholic Church. (The petitioner can then apply for the Pauline Privilege, in this case. See page 4 of this report.)
A marriage need not be Sacramental in order to be valid. Natural marriages between unbaptized persons are considered valid in the Catholic Church. They can even become Sacramental if the two people become Baptized, without any further ceremony. Baptism of either party causes their valid marriage to become Sacramental, in and of itself.
A marriage need not take place in the Catholic Church to be both sacramental and valid, if neither party is Catholic. For example, marriages between baptized Protestants are both valid and Sacramental, despite the fact that they don't take place in a Catholic Church before a Catholic priest - even if they take place in a civil ceremony before a judge. Also, marriages between a Catholic and a non-Catholic (or between two Catholics) which take place outside the Church, but with the local Bishop's permission, are also both valid and Sacramental.
1. What is Marriage?
Marriage is one of the seven Sacraments of the Catholic Church. It is best understood as both a contract, and a covenant. As a covenant, it is a permanent relationship. As a contract, it is ordered to the good of society as a whole, as well as the good of the two who enter into it. A marriage is Sacramental when it is validly entered into by baptized persons.
2. What is Validity?
Form, matter, and intention are the three elements of validity. The form of marriage is the consent of the spouses. The matter of marriage is one man who is free to marry and able to give free consent, and one woman who is free to marry and able to give free consent. The intention of marriage is to found a family that is open to new life, mutually beneficial, and permanent.
3. What is a Putative Marriage?
A "putative" marriage is a failed marriage where at least one party was faithful to the intent of the marriage.
4. The Causes of Invalidity
· Lack of Canonical Form
This applies only to marriages where there was at least one party who was Catholic at the time of the wedding. Lack of canonical form means that the wedding took place outside the Church, without a priest, and without the Bishop's permission to omit these details. Ordinarily, Catholics must be married in the Church before an ordained Catholic clergyman (deacon, priest, or Bishop) and in the presence of at least two witnesses.
· Ligamen (Prior Bond)
Someone who has been divorced, but has not received either a Declaration of Nullity or a Pauline Privilege for the previous marriage cannot validly enter into a second marriage. This marriage is invalid. (If a declaration of nullity is received after the second wedding, then a validation ceremony must take place before either party can begin to or again receive the Sacraments. This includes Baptism and Confirmation, as well as Holy Communion and Reconciliation.)
· lack of due discretion
This is an imprudent marriage between people who don't know each other well enough to give informed consent (i.e.: a Vegas wedding), or who are too young to be able to freely consent, or who are being forced into the marriage against their will or better judgement.
· intention against children
If either party goes into the marriage with the intention of avoiding having children (either by using birth control or through improper use of NFP), this causes the marriage to be invalid.
· inability due to causes of a psychic nature
Alcoholics, drug addicts, the mentally ill, and the very young may be incapable of contracting a valid marriage, even if they have the best of intentions.
The Life Cycle of a Declaration of Nullity
The petitioner applies at his home parish or (if he is not yet Catholic) at the parish where he is receiving RCIA instruction. The best time to apply for a Declaration of Nullity is as soon as the petitioner suspects that he may be eligible to receive it, or as soon as he wishes to know whether his previous marriage, having failed, was valid, or not. In order to begin the process, he schedules an interview with his parish priest.
In Calgary (but not in most other places) an investigation for a Declaration of Nullity can begin before the divorce takes place, as long as the parties are not currently living together. If no divorce takes place during the period of the investigation, the evidence will not be sent to the Judges for a ruling, though.
Evidence is gathered through a series of interviews and forms. The petitioner fills out forms and calls his or her own witnesses. The ex-spouse (called the "respondent") will also be contacted, and will also be asked to fill out forms and contact witnesses. (If the respondent chooses not to participate, the process will take longer, because the petitioner will be required to call the respondent's witnesses.) Witnesses are then interviewed, and their statements are recorded on audio tape. Once all of the forms have been filled out, and all of the witnesses have been interviewed, the tapes are sent out to be transcribed. This is done by part time and casual workers - often, housewives and others whose regular work is on a flexible schedule.
Once all of the audio tapes have been transcribed, the transcriptions, together with all of the forms, are copied and sent to three Tribunal judges and to the Defender of the Bond. The job of the Defender of the Bond is to try to prove that the marriage was valid. (Typically the evidence package consists of 150 pages of closely typed material.)
Once the judges have reached a conclusion, the evidence package is sent to the Court of Second Appeal, which in our case is in Ottawa. The Court of Second Appeal also has three judges and one Defender of the Bond.
If the Court of Second Appeal reaches the same conclusion as our local Tribunal, then the result is presented to the petitioner and the respondent. If the Court of Second Appeal disagrees with the Calgary Tribunal, then the evidence package is sent to the Marriage Tribunal in Rome. The decision of the Roman Tribunal is then presented to the petitioner and the respondent. Both the petitioner and the respondent have the option to appeal the decision. If no intention to appeal is received within a specified time, the case is presumed to be concluded and the result is recorded in the permanent record. 97% of cases are found in the Affirmative (that is, the Declaration of Nullity is granted) and 3% of cases are found in the Negative (that is, the previous marriage was valid, and the petitioner is not free to marry in the Catholic Church.)
The Pauline Privilege
The Pauline Privilege applies when a valid marriage between two unbaptized persons is dissolved because one of the parties is seeking baptism. The Pauline Privilege is received when the respondent indicates that he or she has no wish to continue a married relationship with the person who is being baptized.
The Petrine Privilege
Judge Regush had only one thing to say about the Petrine Privilege - stay away from it. It is much easier to receive a Declaration of Nullity than it is to receive a Petrine Privilege, especially if the unbaptized party is the one who is seeking to marry in the Church.
The handouts from this seminar are very informative, and would be worth keeping for reference, in my opinion. Copies can be obtained from Christine Mader's office at the Pastoral Centre here in Calgary.
Respectfully Submitted,
Judith McRae
Coordinator, RCIA Inquiry
Sacred Heart Church
May 11, 2006