The Selection, Training andUtilization of Auditors in

Diocesan Tribunals

A Master’s Thesissubmitted in partial fulfillment ofThe requirements for the degree of

Master of Arts in TheologyHoly Apostles College & Seminary

Cromwell, Connecticut

byRichard J. SiegelFall Semester, 2014

Research AdvisorMonsignor James Ramacciotti, JCL

Reader,Rev. Aaron Nord, JCD

© 2014All Rights Reserved

The Selection, Training andUtilization of Auditors in

Diocesan Tribunals

A Master’s Thesissubmitted in partial fulfillment ofThe requirements for the degree of

Master of Arts in TheologyHoly Apostles College & Seminary

Cromwell, Connecticut

byRichard J. SiegelFall Semester, 2014

Approved by:

________________________________________________, Thesis DirectorMonsignor James Ramacciotti, JCL

2

________________________________________________, Thesis ReaderRev. Aaron Nord, JCD

________________________________________________Date

Table of Contents

Table of Contents……………………………………………………………………………..iii

Introduction……………………………………………………………………………………4

I. Historical and Legislative Basis for the Position of Auditor ………………...……….6

II. Training and Qualifications………………………………………………………….12

III. Areas to be Developed Thru Training…………………………………………….…17

IV. The Interview………………………………………………………...………………19

V. Conclusion…………………………………………………………….……………..25

VI. Appendix 1……………………………………………………………...……………26

VII. Appendix 2………………………………………………………………...…………35

3

VIII. Appendix 3………………………………………………………………...…...….…55

IX. Glossary………………………………………………………………………..…….59

X. Bibliography……………………………………………………………………...….64

The Selection, Training and Utilization ofAuditors in

Diocesan Tribunals

Richard Siegel[REVISION 11-05-14]

Introduction

This project seeks to find appropriate and effective methods

of selection, training and utilization of individuals to serve as

4

diocesan tribunal auditors so that the procedural law relative to

a trial may be properly and fully implemented with special

consideration given to the time-sensitive nature of such

judgments. Since the law envisions the judge himself to be the

questioner of both parties and witnesses, the auditor, as the

alter-ego of the judge, can rightly fill this role, allowing the

law to be more faithfully yet efficiently followed.1

While the total number of filed and heard cases has

continued to slow2, there needs to be found a solution to the

present tensions arising from both increasing costs and a

decreasing pool of qualified individuals to serve in the capacity

of auditors in the Diocesan tribunals across the country. The

apparatus established for resolution of marriage cases seems to

1 The issue of the appropriateness of an auditor questioning the partiesto an action was discussed and disposed of at a meeting of the Code Commission, finding that the issue depended on the mandate given by the judge appointing the auditor. Anthony J. Malone, ”The Role and Function of the Auditor: Historical Antecedents and Legislation,” in Festschrift, In the Service of Truth and Justice; in Honor of Prof. Augustine Mendonça, ed. Victor D’Souza, (Bangalore, Centreof Canon Law Studies, St. Peter's Pontifical Institute, 2008) 2008), pp. 275-298 at 292, (Hereafter Malone, Role and Function).

See also the extensive comment on CIC 1428 in Canon Law Society of Great Britain and Ireland, The Canon Law; Letter & Spirit , (hereafter Great Britain Canon Law), (Collegeville, The Liturgical Press, 1995), pp. 828-829.

2 “Five year Analysis of U.S. Tribunal Statistics” in Proceedings of the Seventy-Fifth Annual Convention, (Washington D.C., Canon Law Society of America, 2013, 2014), p. 405.

5

have been caught in a perfect storm; the long term decrease in

vocations, an up-turn in the expenses to the diocese to process

these cases, and the increased educational requirements imposed

by the Holy See to achieve licensure as a canonist.3 Fewer

people are facing longer training to serve under tighter budget

constraints. The utilization of auditors can go a long way toward

resolving some of these logistical problems. Since so much of a

judge’s time is spent in obtaining evidence, the ability to share

this responsibility with non-licensed personnel can ease the

overburdened workloads imposed on judges as well as increasing

the efficiency of the tribunal process, thereby shortening the

processing time of matrimonial cases without trading off

accountability and responsible operation.

The initial development of an Auditor Training Program

within a diocese will require the following preliminary

investigations:

3

? Pope Saint John Paul II, “The Decree of the Congregation for Catholic Education” revising the Order of Studies in the Faculties and Departments of Canon Law, amending the Apostolic Constitution Sapientia Christiana of Pope Saint John Paul II, (1979), September 2, 2002. This Decree requires extra years of study to obtain the Pontifical JCL degree. The decree also struck exemptions and/or limitations from the required studies based upon experience or civil law education. Exceptions may still be had by way of indult from the Apostolic Signatura.

6

A determination of a need for this particular service

ministry.

Whether such a need is presently being adequately serviced?

If not, are the Diocesan Bishop and the Judicial Vicar

willing to consider implementing a program to do so?

If they are, an exploration should be undertaken as to the

availability and appropriateness of 1) existing local educational

assets; 2) distance learning as a substitute for in-classroom

training; and 3) Whether the establishment of an independent

diocesan based training program is a legitimate option.

This document is divided into an introduction, sections

dealing with historical and legislative basis for the position of

Auditor, training & qualifications, areas to be developed thru

training, and an extended section on the interview itself as this

is likely to be the major focus of an auditor’s job. The paper

ends with a conclusion, several appendices containing sample

questions for witnesses, a glossary, and bibliography.

The author wishes to dedicate this work to his beloved wife

and best friend Christine who put up with the many long night

hours refocused on graduate work, and the surrender of her

7

kitchen table. I look forward to re-re-focusing and a tender of

this domestic chattel back into her use and possession.

I. Historical4 and Legislative Basis for the Position of Auditor

There are several explanations for the origin of the term

“auditor” and of the roles played by those holding such titles in

the context of ecclesiastical jurisprudence. One of these was a

functionary of the papal court who served essentially as a filter

to sift out those petitions and other matters which most needed

to be personally handled and decided by the pontiff. Another was

a cleric who acted as advisor to the pope, initially in

theological matters and then, as the Papal States rose in power,

acted as a chancellor with certain civil judicial functions and

authority. Another was the “General Auditor” whose

responsibilities were largely non-ecclesiastical. With the

dissolution of the Papal States, the role and title were

abandoned. Finally there were “Rotal Auditors” who initilly

4 In view of the fact that the focus of the author’s graduate study is in the area of Canon Law, a decision has been made not to revisit patristic, medieval, Tridentine and immediate post Tridentine developments in theology. For similar reasons and in the interest in focusing this study upon current practical applications, early ecclesiastical and canonic practices will be largely bypassed so as to concentrate on the period of 1917 to the present.

8

served as chaplains to the pope. Eventually these auditors became

a court which had original jurisdiction in important matters

brought to the Holy See and whose opinions enjoyed stare decisis.

It also enjoyed the position of The Supreme Court for all civil

matters arising in the Papal States. Interestingly, the judges of

the Sacred Roman Rota are still known as Auditors.5 At the level

of a diocesan tribunal, the role of an auditor was to begin

instruction of a case, examine the merits of a controversy or

execute the decision(s) rendered by a judge or judges.6

The Code of 1917

5

? Anthony Malone, “The Role and Function of the Auditor: Historical Antecedents and Legislation,” (hereafter Malone, Auditor) in In the Service of Truth andJustice : Festschrift in Honor of Prof. Augustine Mendonça, Professor Emeritus, ed. Victor G. D’Souza, Ed., (Bangalore, Centre of Canon Law Studies, St. Peter's Pontifical Institute, 2008), 276-277. See also Stanislaus Woywod and Callistus Smith, A Practical Commentary on the Code of Canon Law, (New York, Joseph F. Wagner, Inc., 1957), p. 234.6

? See Malone, Auditor, p. 277; See also William J. O’Donnell, Auditors in Marriage Tribunals: Guidelines for Canonical Education, (hereafter O’Donnell, Auditors), (J.C.L. Dissertation, Catholic University of America, 1996), pp.3-4.

9

With the enactment and promulgation of the Code of 19177, Canons

1580-1583, authorized the appointment and service of an Auditor.

Auditors were given statutory responsibilities “to cite and hear

witnesses and instruct other judicial acts according to the tenor

of their mandate, but they cannot pass definitive sentence.8

Interestingly, it was expected that an auditor would be assigned

out of a pool of synodal and pro-synodal judges.9

The Instruction Provida Mater Ecclesia

7 “Codex Iuris Canonici Pii X Pontificis Maximi iussu digestus BenedictiPapae XV auctoritate promulgatus “ in Dr. Edward N. Peters, The 1917 Pio-Benedictine Code of Canon Law, In English Translation with Extensive Scholarly Apparatus, San Francisco, Ignatius Press, 2001 (hereafter Peters, Pio-Benedictine).

8 Peters, Pio-Benedictine, pp. 528-9. See also canon 1580-1584 in same.9

? Peters, Pio-Benedictine, canon 1580. See also canon 356 concerning the appointment and tenure of synodal and pro-synodal judges.

10

The instruction Provida Mater Ecclesia10 of 1936, prepared by the

Congregation for the Discipline of the Sacraments, was a highly

useful clarification of the Matrimonial canons of the 1917 Code.

Its intended purpose was to assist in streamlining and securing

marriage cases. By most standards it was considered highly

successful.11 This Instruction changed authority for the

appointment of Auditors, allowing the Diocesan Bishop (as opposed

to the “Ordinary” as described in the 1917 code12) to appoint one

or more auditors either for a specific case or to serve

generally. The Officialis was empowered to appoint auditors only

for specific cases.13 Auditors were still required to be

priests.14

The American Procedural Norms 10 Sacra Congregatio de Disciplina Sacramentorum , instructio, Provida

Mater, (August 15, 1936): Acta Apostolicae Sedis (Hereafter AAS) 28 (1936): 313-361; (Hereafter Provida Mater.)

11 See Klaus Lüdicke, Ronny E. Jenkins, Dignitas Connubii: Norms and Commentary, (Washington, D. C., Canon Law Society of America, 2006), (hereafterLüdicke, Dignitas Connubii); See also Provida Mater, at AAS 28 (1936) 314.

12 Peters, Pio-Benedictine, Canon 1580 §1, 13

?A change from Canon 1580 §2 of the 1917 Code. See also O’Donnell, Auditors, pp. 10-1114

? Provida Mater, section 23, §2, citing canon 1581 of the 1917 code.

11

The American Procedural Norms15 issued April 28, 1970 were an

effort to assist tribunals in the United States in the expediting

of annulment cases. While there are no amendments pertaining to

auditors per se, the streamlining of tribunal procedures allowed

therein effectively increased the work loads of the American

Tribunals. It also allowed the appointment a “competent delegate”

to take evidence if the judge was unable to do so,16 a provision

which, because of the lack of any limiting language, was widely

interpreted as allowing for the use of members of the laity to

serve in such a capacity.17

The Motu Proprio Causas Matrimoniales

The Motu Proprio Causas Matrimoniales18 of Paul VI instituted a

number of universally authoritative changes which became

15

? Conciliui pro Publicus Ecclesiae Negotiis, Rescriptum et Normae, Normae concessae Conferentiae Episcopali Statuum Foederatiorum Americae Septentionalis. (April 28, 1970); (hereafter American Procedural Norms).

16 American Procedural Norms, p. 1317

? See O’Donnell, Auditors, p.1318

? Paul VI, Motu proprio Causas Matrimoniales, (hereafter Paul VI Causas), (March 28, 1971), AAS 63 (1971) pp. 441-446 at p. 442. Translation from Canon Law Digest 7: 969-974. An English translation is also available on line at http://www.vatican.va/holy_father/paul_vi/motu_proprio/documents/hf_p-vi_motu-proprio_19710328_causas-matrimoniales_en.html

12

effective in 1971 and continued in force until their integration

into the 1983 Code. Pope Paul VI expressly set forth his desire

that matrimonial cases should not be unduly extended “making the

spiritual situation of her children worse.”19 To this end, the

pope gave the appropriate Episcopal Conference the faculty to

permit the establishment of Collegiate Tribunals utilizing two

clerics and a layman as the third member of a panel.20 The pope

also allowed the use of a single judge in place of a three-judge

Collegiate Tribunal for serious reasons and without objections of

a party.21

The Code of 1983

The Code of 198322 contains a number of canons addressing the qualifications,

appointment, and use of Auditors in tribunal cases. These include the following:

Canon 1425 §4 -Appointment to assist a sole clerical judge;

19

? Paul VI Causas, Introduction

20 Paul VI Causas, V § 121

? Paul VI Causas, V § 2. It is also recommended that the cleric associate with himself an auditor and an assessor for the case. 22

? Codex Iuris Canonici, Auctoritate Ioannis Pauli PP.II Promulgatus. (Hereafter CIC), (Vatican City, Typis Polyglotytis Vaticanis, 1983)

13

Canon 1428- Appointing an Auditor to instruct the case;

Canon 1448 §2- Refraining from exercising their offices where

personal interest may be present by way of consangunity,

affinity, guardianship, tutelage, close acquaintanceship,

marked hostility, or financial profit or loss;

Canon 1550 §2.1- being prohibited from testifying at trial in the

same case in which they participated;

Canon 1454- Required to take oath to exercise their office

properly and faithfully;

Canon 1455- Being bound to observe the secret of the office;

Canon 1456- Prohibiting the acceptance of any gifts “on the

occasion of a trial;”

Canon 1561 – Examination of a witness;

Canon 1590 §2- A matter to be decided by decree being entrusted

to an auditor;

Canon 1717- an individual conducting a preliminary investigation

of a potential offense to enjoy the same powers and incurs

the same obligations as an auditor.

The 2005 Instruction Dignitas Connubii

14

The 2005 Instruction by the Pontifical Council for

Legislative Texts Dignitas Connubii 23 was issued “with the intention

that it be a help to judges and other ministers of the Tribunal

of the Church, to whom the sacred ministry of hearing the causes

of nullity of marriage has been entrusted. This Instruction sets

out the correspondences between itself and the 1983 Code. Those

sections pertinent to Auditors are as follows:

Article 50 essentially repeats the provisions of canon

1428.

Article 51 corresponds to Canon 1561.

Articles 30 and 48 correspond to Canon 1425.

Article 50 corresponds to Canon 1428.

Article 128 corresponds to Canon 1511.

Articles 224 and 225 correspond to Canon1590.

23 Pontifical Council for Legislative Texts, Instruction Dignitas Connubii, (January 25, 2005), (Vaticana: Liberia Editrice, 2005).

15

As an Instruction, Dignitas Connubii cannot and does not change

or derogate from existing laws. Its function is limited to

clarification, elaboration and determination of methods to be

used in carrying out existing laws.24

Practical needs

The position of Auditor, at its most basic, is largely

derivative of many of the duties and responsibilities of the

judge. These deal in particular with the personal interview of

parties and witnesses. It has long been the intention of the Code

(honored largely in its breach) to prefer face to face

interviews, questioning, and interrogation of parties and

witnesses.25 As will be expanded upon below, only a qualified

person, in the actual presence of the witness, can properly

follow-up on unexpected answers or on responses which may lead to

information supportive of other possible grounds

24 See Malone, Role and Function, PP. 295-298.

25 CIS Canon 1566. “Particularly prohibited is the known practice of some local tribunals whereby a written questionnaire is sent by post to a witness who is asked simply to write his or her replies and then to return thedocument.” Great Britain, Canon Law, P.888

16

Historically there has been debate about the value of an

auditor as it places a barrier between the judge and the witness

resulting “in the principal judge losing that immediate contact

with the parties and witnesses that is so important in deciding a

case.”26 If forced to make a choice between having virtually no

face-to-face interviews and the use of an auditor, it would

appear that the direct and indirect benefits of personal contact

while obtaining evidence would seem to militate strongly in favor

of the use of the auditor.27

II. TRAINING & QUALIFICATIONS

Basic Canonical Requirements

Canon 1428 only requires the potential auditor to be living

an upright life, to be prudent and to be learned.28 There is no

26 Beal, New Commentary, p. 1627 setting forth the objections of CardinalRoberti, a prestigious commentator on the 1917 code.27

? An interesting study in the form of a D.Minn. project was recently written which does significant statistical analysis on the effects of the use of auditors on Judges and tribunals and the impact on timeliness as required by canon law. See Elaine Therese Shawhan, The Tribunal Auditor: Assisting in the Promotion of Justice, D.Minn. Project at St. Mary Seminary and Graduate School in Cleveland,Ohio, 2009. In particular see pp. 75 to 85.

28 There is an argument to be made that there is an implied requirement for an Auditor to have at least “basic training” in Theology and Canon Law procedure. The term doctrina used in §2 should be broadly read as including

17

longer any requirement that the Auditor be a cleric or a male.29

By application of Canon 149, there is an additional requirement

that the auditor be a Catholic in good standing30 In view of the

nature of the function of the Auditor, this position would be

defined as an Ecclesiastical Office31. This likely implies a duty on the

part of the Judicial Vicar to verify that a candidate is in fact

a practicing Catholic and would hold and defend the Church’s

position on marriage. At an early stage of involvement the

candidate should be required to present a letter of

recommendation from his or her pastor asserting the candidate’s

known fidelity to the Magisterium.

Recommended Academic Qualifications

not only “Christian Doctrine, but knowledge of those matters that are requiredto carry out the task one is assigned (legal doctrine and practice.)” See Klaus Lüdicke and Msgr. Ronny E. Jenkins eds., Dignitas Connubii: Norms and Commentary, (hereafter Lüdicke, Dignitas,) Washington, D. C., Canon Law Society of America, 2006, pp. 100-101.

29 Previously required by Pope Paul VI, Motu Proprio Causas Matrimoniales Art. VI; CLD 7: 972.

30 Canon 149 requires persons holding ecclesiastical offices to be “in the communion of the Church as well as suitable. …”.

31 Canon 145 defines an Ecclesiastical Office as “any function constituted in a stable manner by divine or ecclesiastical ordinance to be exercised for a spiritual purpose.”

18

A background of some college-level theology classes is

recommended for initial consideration. Additional courses in

relevant areas should be considered if the candidate’s

professional background and experience are noticeably deficient.

Optimally, an M.A. in Theology with some exposure to Canon Law,32

a graduate certificate33 a J.C.B.34 or equivalent in other

training and experience would be preferred. If the diocese makes

the determination to conduct its own training program or to be

creative in evaluating individual candidates and requiring

classes to fill any lacunae, great flexibility can be achieved.35

This might well be an area where the cooperation of several

dioceses would prove fruitful and more cost effective,

particularly if the classes and training session were made

available via internet or on CD-rom and/or DVD-rom.

32 The M.A. in Theology with an emphasis in Canon Law is currently offered by Holy Apostles College and Seminary in Cromwell, CT.

33 Offered at Saint Paul University in Ottawa,Canada. This degree was previously offered at St Mary’s University in Winona, MN but is not presently matriculating new students. See http://www.smumn.edu/graduate-home/areas-of-study/graduate-school-of-health-human-services/graduate-certificate-in-canon-law.

34 Offered at Saint Paul University in Ottawa, Canada.

35 Catholic University of America Department of Canon Law offers an annual Summer program dealing with issues of the Marriage Tribunal which couldbe a part of any curriculum.

19

Whatever delivery route is chosen, the following combination

of experience and class work are suggested prior to appointment

as an Auditor:

Sacramental Theology with a focus on Marriage:

Canon law knowledge: Three classes or their equivalents

covering;

1) General Norms (cc. 1-203;)

2) Marriage (cc. 1055-1165;)

3) Processes (cc.1400-1707;) and Dignitas Connubii and

post 1983 interpretations and changes in Canon Law.

A class or life/work experience evidencing skill in

interviewing techniques.

A class or life/work experience evidencing inter-personal

skills.

While an Auditor will likely not be involved in either the

initial proceedings of a marriage case or the final outcome, his

function as significant gatherer of evidence and in many cases

the individual who chooses what avenues are to be explored and

which witnesses interviewed will require of him substantial

20

knowledge as to the substantive aspects of the law regards

Marriage and Marriage cases. The ability to recognize significant

facts and patterns of behavior as they develop during testimony

is of high importance if the interview process is to be anything

more than a rote proceeding.36 The prospective auditor will

therefore have, at a minimum, a useful familiarity with those

canons dealing with Marriage (1055-1165) and a general background

in the sacramental aspects of Marriage. Other helpful experience

would be legal and/or paralegal training, particularly in

marriage law, general litigation, investigation and depositions

Recommended background experience

If the diocese determines that an Auditor panel should

largely consist of part time personnel, the ranks of recently

retired professionals could serve as a fertile hunting ground for

recruiting. Special consideration should be given to individuals

having careers in the following areas;

36 See also Canon Law Society of Great Britain and Ireland, The Canon Law Letter and Spirit, (hereafter,.Brit & Ire, Canon Law), (Collegeville, The Liturgical Press, 1993), p 829

21

1)Human services and related areas where abilities in

developing interpersonal relationships are of high importance.

Educational and/or industrial counselors, nurses, social workers,

teachers and similar should ordinarily have the requisite “people

skills” to engage witnesses and obtain necessary information

while keeping both a professional and non-threatening atmosphere.

2) Legal and paralegal services where a familiarity with

litigation should even-out the learning curve in acquiring a

juridical mindset to readily sort out the relevant facts and

develop those areas of inquiry which seem fruitful. “If the

Auditor is not attentive he or she may leave out data that is

relevant to the issue; if the Auditor is not selective, he or she

may overload the record with superfluous material.”37 One must

never forget Si non est in Acta, non est in mundo. Also a caution is

advised here in that tribunal practice differs from civil

practice in that 1) While it is contentious,38 it may not be

37 Örsy, Ladislas “Legal Judgment and Legal Education: Philosophical Reflections and Practical Suggestions.” The Jurist 38 (1978) 1-47, cited in O’Donnell, Auditors, p. 49.

38 Canon 1060 holds that there is a presumption of validity to any givenmarriage, and, “in a case of doubt, the validity of a marriage must be upheld until the contrary is proven,”

22

adversarial as between the named parties39; and 2) the search

is- both in theory and in practice- one for the truth rather than

primarily for information which may be useful from a tactical or

strategic perspective. It is always to be remembered that the

Supreme law of the Church is the salvation of souls.

3) Members of Religious life, nuns, priests and brothers who

should automatically have the necessary theological background

and could study the necessary canonical aspects even in

preparation for retirement.

4) Members or prospective members of the Deaconate could

qualify as either full or part time practitioners. Many men look

to deaconate training programs as they anticipate retirement with

an idea towards part-time activity after they leave their full

time employment. A large percentage of American Deacons spend

virtually all their religious time commitment on weekends

performing baptisms, preaching and assisting at Masses. The

devotion of several weekday evenings would not seem to impinge on

their parish duties or restrict pat time work for the tribunal so

as to raise the issue of a practical conflict.40 Such

39 It may well be that both parties seek a declaration of nullity.40. See CIC 152.

23

clerics/prospective clerics could well serve the diocese in this

particular position in addition to the typical parish

responsibilities. The Diaconate training program could be

particularly appropriate for the inclusion of scholastic and

practical schooling in the matrimonial area. Canon 1063 calls for

the preparatory and post matrimonial support of marriages by the

clergy. As it presently exists, many deacons find a particular

munus in the assistance of persons finding themselves facing a

tribunal experience. Typically they assist petitioners or

respondents in the completion of preliminary paperwork required

by the tribunal.41 While those in the deaconate are technically

no more canonically qualified to serve as an auditor, their

position as a cleric would serve to bring suitable gravitas to the

actions involved in fully executing the responsibilities and

activities of an auditor. This is particularly important in the

area of unity of thought and purpose which must exist between the

auditor and the judge. The fact that a deacon-auditor shares the

41 It should be noted that such “paperwork,” despite its doubtful legality, is often required in place of the more preferable live testimony of the parties and important witnesses which is often substituted by tribunals for logistical or other reasons. See Canon 1566 and above note 25.

24

status of a possessor of orders with the judge should go far in

maintaining this unity of purpose and fraternity of direction.42

III. Areas to be developed through Training

Interviewing technique

The interviews with the litigants and witnesses are probably

the single most important source of information available to the

Tribunal for the formation of a resolution of the questions posed

and the ultimate determination of the case. Appropriate and

prepared oral questioning and the responses thereto are

singularly more time effective and should lead to more probative,

material and relevant evidence than questions delivered and

answers given in written form. There is no way to follow up an

unexpected response to a written question. Subsequent

interrogatories sent back to the witness to cover such ground

begs a lack of cooperation at worst and at best a loss of

consistent train of thought enjoyed by the witness at the time of

the deposition.

42 This would seem to reinforce the Rota’s position that the Ponens of atribunal must be in Orders. See University of Navarre, Exegetical Commentary on the Code of Canon Law, Volume IV, (hereafter Navarre Commentary), Ed. Ángel Marzoa et al.,(Chicago, Midwest Theological Forum, 2004), p. 734.

25

Equally as important as asking the proper questions is the

ability to carefully listen to responses and develop and/or

modify prepared questions to take into account surprising

disclosures. The Auditor should take precautions not to allow

questioning to become routine in “shotgun” fashion. This bad

habit virtually guarantees that items which need follow-up will

be missed.

Substantive knowledge concerning relevant questions

The appropriate preparation of an auditor for duties in a

given case will require acquisition of both general knowledge of

substantive marriage law and a full familiarity with the libellus

and other background information contained in the case file.

A study of the relevant canons directed towards Marriage in

general is presumed. A review of any canons which may be specific

to the grounds of the particular case is also recommended. Check-

lists, if not already a part of the tribunals list of procedures,

should be prepared and utilized.

Following the Auditor’s designation (CIC 1983, 1428-§1) an

at-length conversation with or/or extensive written instructions

26

from the Judge as to the background, theory of the case and

particular areas of inquiry needs to be done. This will provide

the basic framework upon which at least the initial questioning

should be based. Being thoroughly familiar with the grounds upon

which declaration is sought and any extant documents pertaining

to the case including prior written or transcribed verbal

statements, as well as the background and relationship between

and among the witnesses and the parties is also vital research.

The well prepared auditor will also be aware of other

related grounds upon which information should/could be reasonably

sought, especially if the interview discloses facts which could

be pertinent to such other grounds. While the libellus will be

limited to narrow grounds for which evidentiary support will be

sought, many potential grounds for nullity are closely related

and often have the same aspects of evidence needed to support

their substantiation. If the Auditor is sensitive to these other

potential grounds, he or she should be capable of subtly

redirecting the line of inquiry to cover these potential grounds

if such seems indicated and potentially fruitful.

27

IV. The Interview

Pastoral considerations

It is most appropriate to begin an interview by briefly

explaining the purposes of the interview and of the annulment

proceeding in general. The witness should be carefully advised

that this is not a search for fault on the part of either of the

parties, and that extraneous material which might be thought

useful for the sole reason of so implicating one party or the

other is usually irrelevant and a waste of all parties’ time and

resources.

Naturally, the line of questioning taken must reflect in

tone the underlying purpose to create order in the church

society, giving priority to love, grace and charism, both in

society and well as individuals.43 Also, one should be mindful of

the spirit of Canon 1446 which exhorts all the Christian Faithful

to seek peaceful resolutions to contested issues.

As mentioned above, the tribunal process is a search for the

truth, NOT an opportunity to gain strategic or tactical advantage

43 Pope John Paul II, Apostolic Constitution Sacrae Disciplinae Leges, (January 25, 1983) promulgating the 1983 Code of Canon Law.

28

over an opponent. Questioning should therefore be straight

forward, not giving the witness cause to be concerned how her

answer might be twisted out of context. A pleasant tone is highly

beneficial and conducive to freer and less guarded responses.44

Legal Considerations

Whether an interview is conducted by a judge or auditor, the

Code requires that a notary be present and make a written and

signed record of the interview taking place. Every page of the

record is to be numbered and authenticated.45 Without this

substantiation the interview is void.46

Witnesses come in a variety of “flavors.” They may be simple

(observers of facts) or qualified (observers of facts seen while

conducting official acts; judicial (individuals who have

testified before a judge) or extra-judicial (those who have

testified outside of a judicial environment) ; experts (specially

qualified individuals who testify by virtues of their expertise

44 See CIC canon 1564

45 CIC 1472, §§ 1&2 and 1567 §1.

46 CIC, 1437 and 1561.

29

which is above and beyond that knowledge possessed by the general

public) summoned (those appearing to testify by way of a

summons): or spontaneous (those who testify of their own

accord).47

The testimony of a witness further characterizes him

confirmative (testifying consistant with other witnesses);

singular (when their testimony is at odds with other witnesses

and is either obstructive if the testimony regarding a given fact

is different from other witnesses or diversative when the

testimony is given as to different facts which while not contrary

are not complementary. They may also be cumulative when their

testimonies can be harmonized. 48 Finally, the testimony itself

can vary depending on its source, whether it befrom personal

experience, hearsay, rumor, lay opinion, or of opinion of a

party.49

47 See Peter O. Akpoghiran,, The Role and Evaluation of Witness Testimony in Marriage Nullity Trials According to the 1983 Code of Canon Law and the 2005 Instruction Dignitas Connubii, (hereafter Akpoghiran, Witness), (Washington D.C. Catholic University of America, Doctoral Dissertation presented for JCD, 2007). pp. 47-48.

48 Akpoghiran, Witness, p. 49

49 Akpoghiran, Witness, p. 50.

30

At the beginning of the interview, every witness must be

cautioned about their duty to tell the truth and only the truth,

whether or not the witness actually agrees to take an oath.50 If

the witness refuses to be sworn, their testimony should still be

taken.51

The interview should initially establish the identity of the

witness, the relationship if any the witness enjoys with any

party or witness, and the factual basis for any assertions

transmitted to the court.52 The questions should be short in form

and clear in content, relevant to the case in question, and, to

avoid potentially confusing the witness, seek answers to single

questions. Similar to cases proceeding in civil court, the

questions are not to be “leading” nor are they to be offensive,

“captius or deceptive.”53 The testimony given should be based

upon what the witness has personally seen, read or heard. Hearsay

50 CIC 1531, 1532 and 1562.

51 CIC 1562 §2

52 CIC 1563

53 CIC 1546

31

testimony, non professional opinion, or testimony based on rumor

carry little value

Unlike cases proceeding in civil courts, Parties to the case

do not have the absolute right to be present for interviews of

other parties or witnesses except upon petition to and agreement

by the presiding judge.54 Neither do they enjoy a right to

directly question a witness or party. No one, including the

advocates, the Defender of the Bond, or the Promoter of Justice

may directly question a witness or party but they may request

that the judge put certain questions of the witness.55 Parties to

an action along with their advocates and other court personnel

may not testify in the same cause. 56 Neither do parties enjoy

the right to cross examine witnesses. 57

While the determination as to the weight and/or value of a

particular witness’s testimony is not within the scope of the

Auditor’s duties, for purposes of planning and conducting the

54 CIC 1559, 1678 §2 and 1470 §155

? CIC 1561

56 CIC 1559. See also Akpoghiran, Witness, pp. 107-10857

? CIC 1772.

32

interviews of the parties it should be noted that, unlike civil

law, an admission by a party in a matrimonial case is not

conclusive. For such statements to have such a definitive effect,

they need to be both consistent with other evidence and fully

corroborated by other probative and admissible evidence.58

There are certain individuals who are exempt from

testifying. These include clerics who have received information

as part of their sacred ministry59, Civil officials, doctors,

midwives, advocates, notaries and others bound by the secret of

their office.60 Individuals who fear a loss of reputation,

dangerous harassment, or some other grave evil on account of

their testifying are also exempted from testifying.61 Minors

under the age of 14 and those of “feeble mind” are generally not

58 See CIC canon 1536, §2. This is necessarily so because of the independent interest of the Church in protecting the integrity of the Marriagebond. See CIC canon 1432 and commentary on same in Navarre Commentary, Vol. IV, pp.771-777. See also CIC 1526, §2

59 Note that this is not pursuant to the similar but distinct absolute seal of silence surrounding the confessional mandated under CIC §§ 983-984.

60 CIC 1548, §2.61

? CIC 1548, §2, °2.

33

allowed to testify unless the judge “declares by decree” that it

would be appropriate to do so.62

While interviews have traditionally been conducted at the

tribunal facility, Canon 1528, a provision which is new to the

1983 code, allows a witness or party to give testimony away from

the tribunal, before a person who is not a Judge or an Auditor if

the witness refuses to testify in the normal manner and venue.

63A person appointed to perform such an interview would be known

as a “Delegated Auditor.” This person is often a parish priest

but could also be a civil judge, attorney, prosecutor, or other

investigator such as a social worker.64 Such a position is not

considered as an ecclesiastical office appointment, as would be

the appointment of a tribunal auditor so there is no issue raised

as to term of office65. A delegated auditor must comply with all

instructions given him by the person who assigned him to the

position. Unlike a “regular” Auditor, the Delegated Auditor has

62 CIC 1510, §1.

63 CIC 1983, 1528; DC 161 §1.

64 Lüdicke, Dignitas, pp.102-103.

65 Lüdicke, Dignitas, pp.102-103.

34

no discretion concerning questions to be asked, methods used in

collection of evidence, or the waiver of testimony from what

might appear to be a superfluous or duplicative witness.66

One of the key benefits of a face-to-face interview is that

when the questioner is properly prepared and alert to the flow of

the testimony, he or she may quickly change directions to tie up

a loose end or to seek to further explore a related avenue of

questioning which could turn out to be a fruitful area of

investigation, possibly leading to the development of a new or

related ground. While the mandate from the Judge generally

determines the proofs to be collected, unless the mandate

provides to the contrary, the auditor may choose what proofs are

to be collected and how this is to be done.67

The Report to the Judge

Following the conclusion of the interview, while the

information is still fresh in his mind, the auditor should

prepare a comprehensive “play-by-play’ of the testimony as it

66 Lüdicke, Dignitas, p. 103. 67

? CIC 1983, 1428 §3, DC, Art.50 §3

35

unfolded. In addition to relaying background information and

facts relating to those matters of which the witness has

competent knowledge, the Auditor should be careful to note his

impressions as to the credibility of the witness and note with

particularity the manner and demeanor of the witness as he or she

delivers their testimony. This is important information for the

judge to have and consider as he determines the value of and

weight to be given to a particular witnesses’s testimony. As will

be expanded on below, the Auditor is the eyes and ears of the

judge for this witness. What is not relayed to the judge cannot

be considered. “Non est in Acta, non est in mundo.” The Judge

must be able to rely on the Auditor’s report to reach “moral

certitude” in making his determinations

Ancillary Considerations

One of the most important and sensitive matters concerning

the role of Auditor is the need of the Judge and Auditor to

achieve an interpersonal or at least intellectual relationship

wherein, during interviews of witnesses, the Auditor can truly

become the alter-ego of the Judge. The lack of this meld has been

36

argued as a reason to exclude the position of Auditor from the

Tribunal process since it could separate the Judge from the

intimate involvement of the factual testimony of the case.68

Methods need to be proposed, discussed, considered and

implemented wherein practical approaches can be established to

allow Auditor and the judge to effectively forge a closer bond,

so that, rather than being a mere assistant, the Auditor can

truly become an effective intellectual counterpart of the judge,

able to understand and react to testimony, to an extent that the

opinions related by the judge in his decision can honestly

reflect an interplay between the mind of the witness and the mind

of the judge.69 This will involve, initially, a full

understanding on the part of the Auditor as to the judge’s legal

and procedural thought processes, both generally and as

specifically applied to the particular case. To this end it would

be worthwhile for the potential auditor so sit in several

interviews conducted by judge and similarly have the judge sit in

on several interviews conducted by the auditor to verify adequate

68 See above at note 9.

69 Comment of Msgr. James Ramacciotti in correspondence of January Ninth, 2014.

37

compliance with the judge’s requested technique, and to protect

against any first-time-out novice errors.

V. Conclusion

This thesis has tried to present a structure for the

implementation of an Auditors program in a diocesan tribunal

setting. Following an introductory section dealing with the

canonical and historical background of such positions, a

discussion was made of the determinations facing the diocesan

bishop and/or the officialis as to whether the work load and

financial base of the diocese warrants such an enterprise. If

this decision is decided in the affirmative, this paper offered

suggestions as to training and use of the prospective auditors. A

deeper discussion was made into the interview process which is so

critical to the fact finding mission of the judge of the tribunal

who will direct the activities of the auditor and rely on the

auditor’s abilities to act as the judge’s alter ego. Interview

techniques to be developed are suggested. Also included was a

selection of sample form questionnaires to be considered for use

in the interrogatory process. This project concluded with a brief

38

glossary of terms of art commonly used in the matrimonial

judicial process, and a listing of sources relied upon in the

compilation and construction of this thesis.

Appendix I70

(Forms to be completed and returned at or before theinterview.)

A.General Matrimonial Fact SheetB.Potential Witness Location Information

70 The forms attached hereto are based on the documents utilized by the JolietDiocesan Tribunal, Bishop J. Daniel Conlon,, D.D, JCD, Ph..D., Very Reverend Father Joseph Tapella, JCL, Judicial Vicar, to whom the author wishes to extend his sincerest gratitude.

39

C.Appointment of Advocate

Appendix I-A

General Matrimonial Fact Sheet

I. CONCERNING PARTY WITNESS;

1. Your present full legal name: _

2. Your full maiden name (if applicable): _

3. Your current street address:. _

4. City & state: Zip:____________

5. County: _________

6. Telephone number: Home: ( ) ________________________________

Cell ( )_________________________ Work: ( )__________________

7. Your social security number _

40

8. Your date of birth: _

9. Have consulted a pastoral minister in preparation for this interview? _

10. If so, a. the Name of the pastoral minister:

b. His/Her work location___________________________________

c. Do you wish him/her to be kept up to date regarding your case? _

11. Were you baptized, christened, or sprinkled in any religion? _

12. If you were, when (month/year) were you? _

13. Where (name of church/city/state)? _

14. In what denomination? _

15. If you were not baptized, how do you know that? _

16. What is your present religious affiliation? _

17. What church do you currently attend? _

LIST OF ALL MARRIAGES. INCLUDING PRESENT ONE;Spouse’s Name Place of Marriage (city & state) Marriage Date Term date/how

41

A - ______________________________________________________________________________

B______________________________________________________________________________

C______________________________________________________________________________

(Advise that separate applications are necessary for each marriage to be investigated.)This application refers to Marriage- (Circle one) A B C

II CONCERNING FORMER SPOUSE

18. His/her PRESENT full legal name? _

19. If ex-wife, maiden name? _

20. His/her CURRENT street address? _City & state:. Zip:__________ County:

_

His/her phone number? ( )________________

21. His/her social security number? _

22. What is his/her date of birth'? _

23. Former spouse baptized, christened, or sprinkled in any religion? _

24. If not, how do you know'? _

42

25. If so, when (month/year)? _

26. Where (name of church/city/state)? _____________________________________

27. In what denomination? _

28. What is his/her present religious affiliation'? _

29. Was former spouse ever married before marrying you? _

30. Name of his/her previous spouse? _

31. When and where did this marriage take place'? _

32. Did that marriage end in death? _

33. Did that marriage end in a Church declaration of nullity? _

III- CONCERNING THE MARRIAGE TO BE INVESTIGATED

34. Date (month/year) you met your former spouse:. _

35. Were you and your former spouse related in any way before your marriage? _

If so, how?______________________________________________________

36. When (month/year) did you begin dating exclusively? _

37. When (month/year) did you make the decision to marry each other? _

38. Was pregnancy involved in your decision to marry! _

43

39. Date (month/day/year) of your marriage: _

40. Where married (city/state) _

41. Was the ceremony Catholic'? Other religion? Civil? _

42. If a religious ceremony, name of the church: _

43. As far as you know, did both parties intend tobind themselves to each other until death? _

44. As far as you know, did both parties intend to be faithful to each other until death? _

45. Give date of birth of each child born of this marriage:

46. Please give approximate dates of any miscarriages:

47. If no conception occurred, why was this so? _

48. What is the date (month/year) of your final separation'? _

49. What is the date (month/year) of your final divorce? _

50. Where (city/county/state) was the divorce decree issued? _

PLEASE NOTE THAT NO APPLICATION FOR A DECREE OF NULLITY CANBE FILED UNLESS A DIVORCE HAS BEEN FINALIZED.

44

51. In your own words, what is the reason why you suspect that

the marriage being contested was NEVER binding'?

_______________________________________________________

_______________________________________________________

_______________________________________________________

________________________________

IV. PRESENT MARITAL STATUS

52. Are you presently married to anyone? _

53. Are you planning to enter into marriage with anyone'! _

54. If the answer to either question 54 or 55 was yes , what is this person's

name -_____________________________________________________

55. (If #54 and #55 apply to your present wife or fiancée, please give her

56. maiden name.)______________________________________________

57. What is this person's mailing address? _

58. What is this person's religious affiliation? _

45

59. Was he/she ever previously married?___________________________________

60. In what type of ceremony (civil/religious) was this person previously married? _________

61. If your present or intended spouse, even if non-Catholic, was previously married andhis/her previous spouse(s) is(are) still alive, to what Church Tribunal has he/shesubmitted a petition for a declaration of nullity?________________________________________ _

62. Have you ever brought your marriage problems to the attention of the Diocesan Tribunal, or any other Church Tribunal, Chancery Office, or Separation Court? _

63. If so, where (city/diocese)? _

64. If so, when month/year)?____________________________________________

These proceedings are purely religious in nature. They are an internal, religious matter of the Roman Catholic Church. In no manner is the intentionto affect the civil rights of any person, such as property rights or custody. The legitimacy of children born into the marriage is not affected by a declaration of nullity. Canon law holds that children born of a supposedly valid marriage are legitimate children. If the marriage is later shown to havebeen invalid, the status of the children remains unchanged: they were and are considered to be legitimate. It is understood that any information given or received will not be used in any civil or criminal proceedings of any kind by any person.

____________________________________________________________________________

Do not write below this line at this time.

46

____________________________________________________________________________

Attestation Form

My signature below attests to the fact that I have been given theopportunity to review my testimony and have done so. I further attest that the information given by me in this interview is trueand correct to the best of my knowledge, so help me God.

Witness date

Notary dateAppendix I-B

(NOTE- send this form in advance of the interview, be completedand returned to the Tribunal at or before the interview.)

Names, Addresses, and Phone Numbers of Persons Who Could Serve as Witnesses:

Your Father __________________________________________________________________

____________________________________________________________________________

Your Mother _____________________________________________________________________________

_____________________________________________________________________________

47

Brothers and Sisters________________________________________________________________________

______________________________________________________________________________ -______________________________________________________________________________ ______________________________________________________________________________

Close friends before and at the time of the marriage :___________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

Any psychiatrists, psychologists, counselors, etc., with whom youmay have consulted: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________

48

Your former spouse's Father: ________________________________________________

Mother: _________________________________________________________________

Brothers and Sisters _______________________________________________________

_________________________________________________________________

_______

Close friends before and at the time of the marriage:

49

Appendix I-C

Appointment Form

I hereby appoint

__________________________ to function as

my Procurator/Advocate in the above cited

case, including those actions requiring a

special mandate.

I UNDERSTAND THAT ANY MATERIALS WHICH I SUBMIT MAY BE READ BY THE OTHER PARTY OF THIS MARRIAGE.

50

Signatureof the party

Street Address, Apt. #, P.O.Box #

City, State, Zip Code

Date

51

Appendix II

(Interview templates)

A.Preliminary Statement and OathB.Family and Academic Background

C.Personal CharacteristicsD.Information about Former Spouse

E.Marriage History

52

Appendix II-A

Preliminary Statement and Oath

STATEMENT OF POLICY OF THE DIOCESAN TRIBUNAL(To be read to the witness)

The proceedings of the Diocesan Tribunal are exclusively religious in nature. The purpose of this investigation is to determine the marital status of the parties in accord with the Canon Law of the Roman Catholic Church. It is the policy of the Tribunal to disclose this information only to those persons duly authorized by Roman Catholic Church law.

OATHDo you solemnly swear (or affirm) that the testimony you will give here today is the truth, the whole truth and nothing but the truth, so help you God?

53

Appendix II –B

Family & Academic Background

1. What nationality or nationalities were your parents or the family that reared you?

2. How would you describe your mother?

3. How would you describe your father?

4. How did your parents get along with each other?

5. How did you get along with your parents when you were growing up?

6. Explain any problems in your relationship with them.

54

7. If your parents separated and/or divorced, when did this occur?

8. If either of your parents remarried: ____________________a. When did they remarry?

Mother_________________Father_________________

b. How did you relate with your step-parent (s)? ___________________________

____________________________________________________________________

9. If you had brothers and sisters:a. What are their age differences from you?

b. How did you get along with them?

10. How was affection displayed in your family?

11. How was anger expressed?

12. What was the nature of discipline in your family?

13. What was rewarded?

14. How?

55

15. What was punished?

16. How?

17. When you were growing up, was your family poor, middle class, or wealthy?

18. What was the religion of your parents, or of the family that reared you?

19. How active were they in the practice of their religion?

20. Describe your religious beliefs and practices before, during, and after your marriage.

21. Describe any significant problems which either you or your family experienced during your childhood, adolescence, orearly adulthood, such as: sickness, alcoholism, drug abuse, sexual abuse, physical abuse, verbal abuse, mental illness, gambling, etc.

22. Indicate when the problems occurred.

23. Are your parents alive?

24. If not, when did they die?

25. Was there anything unusual about their death (s) or anything that was especially traumatic for you?

25. If so, explain.

56

EDUCATION

26. List the schools you attended and graduation date (s).

27. How did you do academically in school?

28. Involved in extra-curricular activities

29. Describe your relationship with your teachers and fellow students.

30. Did you have any disciplinary problems?

WORK

31. List the jobs you have had:

approximate dates of each employment reasons for job changes

32. If you were fired from any job, explain why.

33. If you were a member of the armed forces:

a. Give the dates you were in the service.

57

b. Give the dates and place (s} of any overseas duty.

c. Were you in combat?

d. Were you wounded?

Appendix II-C

Party Personal Characteristics

58

1. Describe your predominant emotional characteristics prior to the marriage.

2. What kinds of situations have made you feel your emotions were beyond control?

3. What kind of judgment did you tend to exercise in problem situations?

4. Can you think of situations in which you believe that you used poor judgment or acted irresponsibly?

5. Did you often repeat the same mistakes.

6. Did others think of you as selfish?

7. Describe circumstances in which you might lie or cheat.

8. Have you ever been in trouble with the law?

9. If so, please explain.

10. Describe your past and current use of alcohol, including an estimate of the amount and type of beverage.

11. If you ever have had a problem with drinking:

a. Were you ever intoxicated before the marriage?

b. If so, when was the first time you were intoxicated?

c. How frequently were you intoxicated during the year prior to the wedding?

d. Were you ever intoxicated after the wedding?

59

e. How soon after the wedding did your use of alcohol become a problem in the marriage?

f. Did you ever use drugs, even prescription drugs, on a regular basis? If so:

g. What drugs did you use?

h. How frequently did you use drugs during the courtship and engagement?

i. How frequently did you use drugs during the marriage?

j. How soon after the wedding did you begin using drugs?

k. How did the use of drugs affect you?

12. Describe your past ability to handle money.

13. Explain any problems you have had with creditors

PERSONAL CONCERNS

14. What recurring fears, if any, bothered you?

15. Did you ever contemplate, threaten, or attempt suicide? Please elaborate.

16. If you attempted suicide, did you require medical

60

attention or hospitalization? 17. If so, give the name and address of the doctor and/or

hospital and the approximate date of treatment.

18, Have you ever had any counseling or been hospitalized fora nervous breakdown or emotional disorder?

19. If so, please explain.

20. What were the results of the counseling and/or hospitalization?

21. Give the names and current addresses of all counselors, psychiatrists, psychologists, and hospitals, including the approximate dates of consultation or hospitalization .

Appendix II-D

About Former Spouse

1. What nationality or nationalities were his/her parents or the family that reared him/her?

2. How would describe his mother?

3. How would you describe his father?

4. How did his parents get along with each other?

61

5. How did he get along with his parents when he was growing up? Explain any problems in his relationshipwith them.

6. If his parents separated and/or divorced, when did this occur?

7. If either of his/her parents remarried:a. When did they remarry?

b. How did he relate with his/her stepparent (s)?

8. If he/she had brothers and sisters:a. What are their age

differences from him?

b. How did he/she getalong with them?

9. How was affection displayed in his/her family?

10. How was anger expressed?

11. What was the nature of discipline in his family?

12. What was rewarded?

62

13. What was punished?

14. How?

15. When he was growing up, was his family poor, middle class, or wealthy?

16. What was the religion of his parents, or of the familythat reared him?

17. How active were they in the practice of their religion?

18. Describe his religious beliefs and practices before, during, and after his marriage?

19. Describe any significant problems which either he or his family experienced during his childhood, adolescence, or early adulthood, such as:

20. sickness, alcoholism, drug abuse, sexual abuse, physical abuse, verbal abuse, mental illness, gambling, etc.

21. Indicate when the problems occurred.

22. Are his parents alive?

22 If not, when did they die?

23 Was there anything unusual about their death (s) or anything that was especially traumatic for him?

24. Please explain.

EDUCATION

63

25. List the schools he attended and graduation date (s).

26. How did he do academically in school?

27. Was he involved in any extracurricular activities?

28. Describe his relationship with his teachers and fellow students. Did he have any disciplinary problems?

WORK HISTORY

1. List the jobs he has had and the approximate dates of each employment.

2. Give reasons for job changes.

3. If he was fired from any job, explain why.

4. If he was a member of the armed forces:

a. Give the dates he was in the service.

b. Give the dates and place(s} of any overseas duty.

c. Was he in combat? Was he wounded?

PERSONAL CHARACTERISTICS

5. Describe his predominant emotional characteristics prior to the marriage.

64

6. What kinds of situations have made you feel his emotions were beyond control?

7. What kind of judgment did he tend to exercise in problem situations?

8. Can you think of situations in which you believe that he usedpoor judgment or acted irresponsibly?

9. Did he often repeat the same mistakes?

10. In your opinion, did he have any selfish tendencies?

11. Did others think of him as selfish?

12. Describe the circumstances in which he might lie or cheat.

13. Has he ever been in trouble with the law?

14. If so, please explain.

15. Describe his past and current use of alcohol, including an estimate of the amount and type of beverage.

16. If he ever has had a problem with drinking:a. Was he ever intoxicated before the marriage?

b. If so, when was the first time he was intoxicated?

c. How frequently was he intoxicated during the year prior to the wedding?

65

d. Was he ever intoxicated after the wedding?

e. If so, how frequently was he intoxicated? f. How soon after the wedding did his use of alcohol become a

problem in the marriage?

g. Did he ever use drugs, even prescription drugs, on a regularbasis?

If so:h. What drugs did he use?

i. How frequently did he use drugs during the courtship and engagement?

j. How frequently did he use drugs during the marriage?

k. How soon after the wedding did he begin using drugs?

l. How did the use of drugs affect him?

29. Describe his past ability to handle money.

30. Explain any problems he has had with creditors.

31. What recurring fears, if any, bothered him?

32. Did he ever contemplate, threaten, or attempt

66

suicide? Please elaborate.

33. If he attempted suicide, did he require medical attention or hospitalization?

34. If so, give the name and address of the doctor and/orhospital and the approximate date of treatment .

35. Has he ever had any counseling or been hospitalized for a nervous breakdown or emotional disorder?

36. If so, please explain.

37. What were the results of the counseling and/or hospitalization.

38. Give the names and current addresses of all counselors, psychiatrists, psychologists, and hospitals. Include the approximate dates of consultation or hospitalization.

Appendix II-EMarriage History

PRE-COURTSHIP1.Prior to this marriage, were either you or your former spouse married?

2.If so, give a brief description of the circumstances surrounding the marriage (s) and the reasons for the breakdown of the marriage (s).

3.Describe your dating history prior to dating your former spouse.

4. How frequently did you date?

67

a.Was any of these a serious relationship?b. If so, please explain.c. If there was an engagement, when did it begin and end?

d. Why did it end?

5. Describe the dating history of your former spouse prior to dating you.

6. How frequently did he/she date?

7. Was any of these a serious relationship? If so, please explain.

8. If there was an engagement, when did it begin and end?

9. Why did it end?

COURTSHIP

10. Describe the circumstances under which you met your former spouse.

How did your relationship develop?

How long and how often did you date?

How did you feel about each other?

How did you treat each other?

11. Were there any characteristics about your former

68

spouse that struck you as unusual or troublesome?

12. If so, what were these characteristics ? (Give specific examples.)

13. Did either of you ever discontinue your relationship for awhile?

14. If so, why and for how long did you break up?

15. For what reason (s) did you resume the relationship ?

16. What did your parents and your former spouse's parents think about your relationship?

17. What did your friends think about your relationship?

18. What objections, if any, did they have?

ENGAGEMENT

69

1.When and why did you both decide to marry?

2. If premarital sex was a part of your relationship, to whatextent, if any, did it affect the decision to marry?

3. If a pregnancy was involved:a. What was the reaction of each of you to the pregnancy?

b. How did it affect the decision to marry?

c. Were any other alternatives to marriage discussed?

d. If so, with whom?

4.What were the reactions of your parents and your former spouse 's parents to

the decision to marry?

5. What were the reactions of your friends to the decision tomarry?

6. Did anyone try to convince either of you to marry, or, on the other hand, to dissuade either of you from marrying?

7. If so, why?

8 a.Looking back now, how ready and mature were you for marriage at that time?

70

b. How ready and mature was your former spouse for marriage at that time?

c. Explain why you believe this.

9. How deep was your communication with each other?

10. Did you have any serious discussions relating to important issues in marriage:

a. Religion

b. finances

c. other mutual expectations of the marriage?

11. If so, what was the outcome of the discussions on each of these issues?

12. If you argued frequently, what did you usually argue about?

13. What problems, if any, worsened during the engagement?

14. Did either of you break off your engagement at any time? 15. If so, when and why?

71

16. Did either of you have any misgivings about entering into this marriage?17. If so, please explain.

18. Did either of you intend to delay having children? If so, for how long?

19. Did either of you marry with any reservations about the permanence of the marriage contract, or with the idea that youcould divorce if the marriage did not work out?

20. If so, please explain.

MARRIAGE

1. At the time you married, did each of you intend to be faithful to the other? If not, please explain.

2. If infidelity occurred:a.On whose part?

b. Was it evident before the marriage?

c. How soon after the wedding did it occur?

72

d. How frequently?e. With one or more persons?f. How do you know?

3. Were there any problems at the wedding or on the honeymoon? 4. If so, please explain.

5. When was the first time problems arose in the marriage?

6. What was the nature of these problems?

7. To what extent were you and your former spouse able to communicate honestly with each other, to share and express your feelings and thoughts with one another?

8. Explain any communication problems and when they began.

9. What were the major areas of disagreement between you?

10. What did each of you do in these conflict situations?

73

11. Has either of you ever been verbally abusive and/or physically violent?

12. If so, please explain:` a. The type of abuse.

b. as it evident before the marriage ?

c.How frequently?

d. How soon after the wedding did it occur?

e. How frequently?

13. Was hospitalization or medical treatment ever required?

14. For whom?

15. Approximate date (s)?

16. Give name and complete address of doctor or medical facility.

17. To what extent were you and your former spouse able toexpress and receive affection?

18. Were there any problems in your sexual relationship? If so, what were the problems? When did they begin?

19. Did either of you find any responsibilities extremely difficult to accept and fulfill?

20. If so, please explain.

21. If there were children, how did each of you fulfill yourresponsibilities as mother/father?

22. If there were problems, please explain.

74

23. If no children were conceived in the marriage, did either of you request a child?

24. When was this request made?25. What was the response?

26. How did each of you get along with friends and acquaintances?

27. Were there any separations prior to the final separation?

28. If so:

a. Give the approximate date, reason (s), and length of time of each separation.

b. Explain why you reconciled.

29. Describe the circumstances leading to the final separation and divorce.

30. What has happened to each of you since the divorce?

31. If there were children, who received custody?

32. Has either of you remarried, or are you planning to remarry?

33. Was your present or intended spouse married before?

75

Please explain.

Appendix III.

(Questions on Specific Grounds)

A-Intent against ChildrenB-Capacity

76

Appendix III-A

Concerning intent against children

1. Prior to your marriage did you and your former spouse have discussions concerning the matter of delaying and/or excluding children from your marriage? If so, what were the reasons for any delay or exclusion of children?

2. Would you have married your former spouse on the date that you did if your former spouse had demanded that a family be started immediately in the marriage?

3. Similarly, would your former spouse have married

77

you on that same date if you had demanded that a family be started immediately in the marriage?

4. Did you and/or your former spouse ever make a request for children during the marriage. If so,what was the response to any such request?

5. Was contraception used throughout the entire time that you and your former spouse lived together as husband and wife?

6. Was there any time at all throughout the entire time that you and your former spouse lived togetheras husband and wife that you had sexual relations together in such a way that a child could be conceived?

7. Did you and/or your former spouse ever consult adoctor or any other professional agency in thematter of delaying or avoiding children in yourmarriage? If so, what was the complete name andaddress of such a doctor, and when was he/sheconsulted?

8. Please give the names and addresses of peoplewho are well informed about your marriage, especially in regard to the intention againstchildren.

78

Appendix III-BCapacity

1. Looking at the problems which arose later in your marriage, were any of these problems present in any form prior to the marriage?

2. If so, what were they?

3. At the time of your marriage, in your opinion, were both of you really able to understand and will the rights and obligations of married life?

4. At the time of your marriage, in your opinion, were both of you really able to fulfill the obligations of married life?

5. Please give your own personal assessment as to the readinessof each of you to make a permanent and personal commitment to marriage at that time in your lives.

(Husband)

(Wife)

6. Looking back on your marriage now, do you feel it was a gooddecision on both your parts to get married when you did?

7. If not, why not?

8. How early in the marriage did problems arise, and what was the nature of these problems?

9. Please indicate approximately when each problem arose.

10. Why, in your estimation, did this marriage break-up?

79

11. What has happened to each of you since your divorce and giveyour opinion regarding the present ability of each of you to sustain the responsibilities of married life. Addany other information which you might think helpful to this Tribunal.

12. Names and addresses of people who are well informed about your marriage.

13. To the best of your knowledge and recollection, describe any personal problems in the background of either oryou which might have interfered with your abilities to assumeand successfully fulfill the obligations of married life.

Husband

Wife

14. Were there any problems evident in your relationship before you were married?

15. If so, what were they?

16. The grounds for this petition are: (read)

(GROUNDS)

17. You entered into this marriage with a/an________________________________

. _____________________________________________Do you agree ordisagree?

18. The other party entered into this marriage with a/an ________________________

80

______________________________________________Do you agree or disagree?

19. Do you have any further evidence to supply to this Tribunal concerning this?

IX. Glossary

Apostolic Signatura- known officially as the Supreme Tribunal of the

Apostolic Signatura. The Apostolic Signatura is the Supreme Court of the

Catholic Church and oversees the tribunals of the entire world.

81

It also hears appeals from the Sacred Roman Rota (in matters

concerning annulments, episcopal adjudications and trials and

discipline of religious.)

It also hears cases from the Apostolic Penitentiary (the supreme

tribunal for the “internal forum” which are matters of

conscience. The subject matterof this tribunal concern matters

having to do with spiritual direction, forgiveness of sin and

proper form in the Sacrament of Penance.)71

AAS- (ACTA APOSTOLICA SEDIS)- The official record of actions

taken and decisions reached by the Roman Congregations. It also

includes papal decrees, encyclical letters and appointments. It

was established in 1908 by Pope Pius X and began publication in

January 1909. Any laws published in it are considered

“promulgated” on the date published. Such laws become effective

three months later, unless the specific law requires a different

period of time. It is printed by Typis Polyglottis Vaticanis, the

official publishers for the Holy See.71 See John Paul II, Apostolic Constitution Pastor Bonus , June 28, 1988, AAS 80 (1988) 891-892, Articles 121-125.

82

Abrogation- The complete repeal of an existing law by the

implementation of a new law. Such abrogation may be express (the

new law either specifically states a specific old law presently

in effect is abolished, or indicates that any law to the contrary

of the new law is abolished) or implied (where the new law is

totally incompatible with the old law.)72 If a law ceases to be

reasonable, “internal abrogation” would operate to vacate such a

law.

Canon Law Society of America- An organization formed in 1939,

composed of canon lawyers, religious, and lay persons and other

tribunal and chancery staff who deal with and/or have an interest

in Canon Law. The organization presently has more than 1200

members primarily from the United States but including members

from 31 countries throughout the world. It has published two

English translations73 of the 1982 code and has sponsored two 72 See CIC 20. See also commentary following CIC 20 in John P.

Beal, James A. Coriden, Thomas J. Green, Eds., New Commentary on the Code of Canon Law, (hereafter Beal New Commentary), (New York, Paulist Press, 2000’) pp. 80-83.

73 Code of Canon Law, Latin-English Edition, (Washington, D.C., Canon Law Society of America, 1983); and Code of Canon Law, Latin-English Edition,

83

annotated versions74 of the same. It also publishes CLSA Proceedings,

Canon Law Digest, Roman Replies and CLSA Advisory Opinions and other books,

monographs and pamphlets dealing with canon law, especially

matrimonial related documents.

Code of Canon Law- The compilation of the general laws governing

the operation of the Latin Rite of the Roman Catholic Church. The

latest edition of this collection of laws dates to 1983 when it

was approved and promulgated by Pope Saint John Paul II. Those

Catholic Churches not belonging to the Roman Rite, follow the

Code of Canons of the Eastern Churches which was promulgated in

1990.

Derogation- The partial repeal of an existing law through the

implementation of a new law, contrasted with abrogation which

completely repeals an existing law.75

(Washington, D.C., Canon Law Society of America, 1999).

74 James A.Coriden, Thomas Green and Donald Heintschel, (eds.) The Code of Canon Law: A Text and Commentary (hereafter Coriden, Commentary), Mahwah, Paulist Press, 1985;and Beal, New Commentary .

75

? See CIC 20. See also commentary following CIC 20 in Coriden, Commentary, pp. 80-83.

84

Jurist, The – A prestigious journal dealing with Canon Law, both

in the academic as well as professional settings. It is published

by the School of Canon Law of the Catholic University of America

in Washington, D.C. It began publication in 1941 and is presently

published twice yearly.

J.C.D. (Doctorate in Canon Law)- The highest academic degree

dealing with Catholic Canon law which may awarded by any

University. The awarding institution must have received

permission from the Holy See before legitimately awarding such a

degree. Such a degree normally requires at least two years of

post-licenciate study and completion of a significant

dissertation.

J.C.L. (Licenciate in Canon Law)- Normally the first academic

degree awarded in Canon Law. This degree licenses the holder to

practice Canon Law as a Judge or Defender of the Bond or serve as

a Judicial Vicar (Officialis.)

85

Motu Proprio- A document written by the Pope at his own

discretion which speaks to an issue of personal importance to

him.

Pio-Benedictine Code – The Code of Canon Law which was initially

requested by Pope Saint Pius X and promulgated in 1917 by Pope

Benedict XV. This is also known as the Code of 1917.76

Pontifical Council for Legislative Texts- The Curia Council which

is charged with the interpretation of church laws. 77 It serves

Roman dicasteries and “those interested” to verify that intended

laws and decrees are in conformity with currently applicable law

and composed in correct form. They are also charged with

examining decrees of the various conferences of bishops to verify

that the same comply from a judicial perspective.

76 The current scholarly edition in English is Edward N. Peters, The 1917 Pio-Benedictine Code of Canon Law, In English Translation with Extensive Scholarly Apparatus, (San Francisco, Ignatius Press, 2001.)

77 See John Paul II, Apostolic Constitution Pastor Bonus , June 28, 1988, AAS 80 (1988) 901-902, articles 154-158.

86

Promulgation- A law is established when it is promulgated.

Promulgation of Universal ecclesiastical laws occurs by

publication in Acta Apostolicae Sedis, unless another manner of

promulgation has been prescribed in particular cases. They take

force after three months have elapsed from publication in AAS

unless by nature of the law they bind immediately or the law

calls for a different period of time. Particular laws are

promulgated as determined by the legislator and are effective one

month after the date of promulgation unless the particular law

sets a different effective date.78

Roman Rota- The Roman Rota is the tribunal established by the

Roman Pontiff to receive appeals, either from a court of first

instance (a trial court) or a court of second instance (an

appeals court.) In rare cases their decisions may be reviewed by

the Supreme Apostolic Signatura.79 Approximately 20 judges (known

78

? See CIC 7-979

? See CIC 1443 and 1444. See also Edward Peters, Canonlaw.info /personal_rotademo.htm.. See also John Paul II, Apostolic Constitution Pastor Bonus , June 28, 1988; AAS 80 (1988) 892, Articles 126-130.

87

as Auditors) from throughout the world serve on this court and

hear cases in panels of three. In limited situations, the Rota

may serve as a court of first instance in those cases mentioned

in Canon 1403 §3 and cases specially assigned to the court by the

Roman Pontiff.80

 

 

80

? See Canons 1404 §3 and 1444 §2.

88

X. Bibliography

Primary Sources

Codex iuris canonici, 1917. The Code of Canon law in effect from 1917 to 1983.

Code of Canon Law, Latin-English Edition, (Washington, D.C., Canon Law Society of America 1999)

International Theological Commission, Propositions on the Doctrine of Christian Marriage (1977),(Document approved by the Commission “in forma specifica;) http://www.vatican.va/roman_curia/congregations/cfaith/cti_documents/rc_cti_1977_sacramento-matrimonio_en.html

International Theological Commission, Christological Theses on the Sacrament of Marriage (1977), (document approved by the Commission “in forma generica”. http://www.vatican.va/roman_curia/congregations/cfaith/cti_documents/rc_cti_1977_sacramento-matrimonio_en.html

Pontifical Council for Legislative Texts, Dignitas Connubii, 2005 Prepared with the assistance of the Congregations for the Doctrine of the Faith, for Divine Worship and discipline of the Sacraments, the Apostolic Signatura and the Tribunal of the Roman Rota

Pope John Paul II, Apostolic Constitution Sacrae Disciplinae Leges, January 25,1983, promulgating the 1983 Code of Canon Law.

Pope John Paul II, Apostolic Constitution, Pastor Bonus, June 28, 1988, AAS 80 (1988) 841, concerning the Roman Curia, translated by

89

Francis Kelly, James Provost and Michel Theriault, 1993, 1997, Canadian Conference of Catholic Bishops.

Pope Paul VI, Motu Proprio Causas Matrimoniales, March 28, 1971.

Second Vatican Council, Pastoral Constitution Gaudium et Spes (December 7,1965,) in The Documents of Vatican II, ed. Walter Abbott, S.J. (London, Geoffrey Chapman, 1966)

Sacred Congregation of Sacraments, August 15, 1936, Instruction- Provida Mater, 1936 (AAS 28[1936] 313-361;CLD 2: 471-530)

Secondary Sources

Akpoghiran, Peter O., The Role and Evaluation of Witness Testimony in MarriageNullity Trials According to the 1983 Code of Canon Law and the 2005 Instruction Dignitas Connubii, Washington D.C. Doctoral Dissertation presented for JCD, 2007.

Beal, John P., James A. Coriden, Thomas J. Green, Eds., New Commentary on the Code of Canon Law, New York, Paulist Press, 2000.

Canon Law Society of Great Britain and Ireland, The Canon Law Letter and Spirit, Collegeville, Michael Glazier Books, The Liturgical Press, 1993, p 829.

Doogan, Hugh F., (Ed), Catholic Tribunals Marriage Annulment and Dissolution, Marrickville, Australia, Southwood Press, 1990 (reprint).

Cicognani, Amleto Giovanni, Canon Law, 2nd English Edition, Westminister, The Newman Bookshop, 1934.

90

Coriden, James A., Canon Law as Ministry, Freedom and Good Order for the Church,(New York, Paulist Press, 2000.

McKenna, Kevin E., Canonical Ministry in Service to the Church, pp. 175-187 found inEaston, Frederick C., (Ed.), The Art of the Good and the Equitable; A Festschrift in Honor of Lawrence G. Wrenn, Washington, D.S.., Canon Law Society of America, 1999

Gordon, Ignatius, Novus processus mullitatis matrimonii, iter cum adnotaionibus,Rome, Pontifical Gregorian University, 1983.

Lagges, Patrick R., The Pastoral Work of Judges According to Paul VI, the Code of Canon Law and “Dignitatis Connubii”pp. 323-346, found in In the Service of Truth and Justice : Festschrift in Honour of Prof. Augustine Mendonça, Professor Emeritus, Victor G. D’Souza, Ed., (Bangalore, India : Centre of Canon Law Studies, St. Peter's Pontifical Institute, 2008,)

Lüdicke, Klaus, Ronny E. Jenkins, Dignitas Connubii: Norms and Commentary, Washington, D. C., Canon Law Society of America, 2006.

McAreavey, John, The Canon Law of Marriage and the Family, Dublin, Four Courts Press, 1997

McGrath, Aidan ,O.F.M. From Proofs to Judgement: the Arduous Task of the Judge, pp. 147-174 found in Frederick C. Easton, Ed., The Art of the Good and the Equitable; A Festschrift in Honor of Lawrence G. Wrenn, Washington, D.S.., Canon Law Society of America, 1999.

Malone, Malone, The Role and Function of the Auditor: Historical Antecedents and Legislation pp,275-298 found in In the Service of Truth and Justice : Festschrift in Honour of Prof. Augustine Mendonça, Professor Emeritus, VictorG. D’Souza, Ed., (Bangalore, India : Centre of Canon Law Studies, St. Peter's Pontifical Institute, 2008,)

91

Marzoa Ángel, Jorge Miras, Rafael Rodriguez-Ocaña, Exegetical Commentary on the Code of Canon Law, Montreal, Wilson & Lafleur, 2004.

O’Donnell, William J., Auditors in Marriage Tribunals: Guidelines for Canonical Education, Washington D. C., Catholic University of America, Thesis for JCL, 1996

Peters, Edward N., The 1917 Pio-Benedictine Code of Canon Law, In English Translation with Extensive Scholarly Apparatus, San Francisco, IgnatiusPress, 2001.

Price , Lawrence G., Daniel A. Smilanic, Victoria Vondernberger Editors, The Tribunal Handbook, Procedures for Formal Matrimonial Cases, Washington, D. C., Canon Law Society of America, 2005

Shawhan , Elaine Therese, The Tribunal Auditor: Assisting in the Promotion of Justice, Ann Arbor, UMI-ProQuest, Project for D.Minn. program at St. Mary Seminary and Graduate School of Theology, 2009.

Smith, Rosemary, SC, Lay Persons in the Diocesan Curia: Legal Structures and Practical Issues, CLSA Proceedings of the Forty-Ninth Annual Conventions, 1987, Canon Law Society of America, 1998, Washington D.C. pp.67-76.

Woywod, O.F.M., Stanislaus and Callistus Smith O.F.M., A Practical Commentary on the Code of Canon Law, New York, Joseph F. Wagner, Inc.1957

Wrenn, Lawrence, Annulments, 6th edition, Washington D,.C., Canon Law Society of America, 1996.

Richard Siegel[REVISION November 5, 2014]

92