The party who introduces a cause before an ecclesiastical tribunal does so through a petition stating: (a) who they are, (b) the basis upon which they introduce the claim, (c) before which competent Tribunal (d) upon which specific ground or grounds the party seeks a decision from the Tribunal (e) identifying the address of the respondent and the source of proofs (i.e. witnesses, documents etc).
The Judicial Vicar establishes a court of either one judge or three judges, a Defender of the Bond, notaries and all other necessary officials required to consider the merits of the petition. The Petitioner is advised as to the identity of the officials to which the petitioner may raise reasonable objections (e.g. inform the Tribunal of any personal friendship or connection with any of the officials etc etc ). If the objections are admitted a new Court is constituted.
The Court decides whether the petition is accepted or rejected. If rejected by the Presiding Judge of a three judge panel the petitioner has right of RECOURSE to the College of Judges appointed by the Judicial Vicar. If the petition has been rejected at a meeting of the College of Judges a party has right of RECOURSE to the Tribunal of Second Instance. A decision by either body hearing the recourse is not open to further recourse...i.e. if is it rejected again the decision to reject is final. If it is accepted then the case will proceed to a complete and full investigation and formal decision of the Court.
If the petition is accepted the RESPONDENT and DEFENDER OF THE BOND are cited and they are invited to respond by a particular date (JOINDER OF ISSUES) to the petitioner's claim that the marriage is invalid in canon law. The Respondent is invited to participate in the investigation, to raise objections or introduce counter claims for the Judge(s) to consider at the Joinder of Issues.
The decision about the actual grounds of nullity that the court will address in its final judgement takes place after the parties have been cited and had sufficient but determined time to respond to the grounds of nullity initially proposed by the petitioner in the petition. Sometimes additional grounds or counter grounds will be proposed by e.g the respondent, which the Judge will consider at this procedural step in the process. Once the grounds are fixed by the Judge the parties can raise reasoned objections to the Judge's decision within a fixed timeline of 10 working days. In the event of disagreement the Judge's decision is final and there is no further appeal against that decision.
The Presiding Judge issues a Decree identifying who and how the proofs proposed by the petitioner and other legitimately interested parties are to be gathered. In addition to those proofs offered by the petitioner and/or respondent, the court may seek independent information on its own authority. It may seek the assistance of expert advice or ask a party or parties to agree to an expert assessment unless it would appear to be entirely superfluous in the particular circumsatnces of the case.
Proofs are essential to any nullity investigation. The presumption is that the marriage is valid unless proven otherwise. The onus of proof of the invalidity of the marriage lies principally with the party who introduces the petition. It does not, however, lie exclusively with the petitioner. A respondent may be equally convinced that the marriage is invalid or the grounds introduced by the petitioner or on a ground or grounds which the repsondent has introduced and which the Judge includes in the Joinder of Issues. On the other hand, a respondent may be convinced that the marriage is valid and present contrary proofs. In addition to usual proofs, e.g. statements under oath from knowledgeable witnesses, parties may present documentary evidence, records, medical reports etc etc. The Presiding Judge will rule whether the proofs are admissable. The court may seek other proofs from independent sources and/or expert evidence which may assist the court in coming to an informed and prudent human judgement concerning the alleged invalidity of the marriage.
When all available information and evidence has been gathered the Presiding Judge issues a Decree permitting the main parties and their advocates, if any have been appointed by the parties, to inspect proofs and evidence not already known to them. In practice, the petitioner and respondent are allowed a period of time to read the evidence contained in the nullity file which the court will eventually consider. A certain period of time within which to complete the examination of proofs is usually determined by the Presiding Judge. It is the Judge's role to minimize any delay that might occur either through inadvertence or deliberate intention to unnecessarily prolong the period of inspection of the evidence and thereby frustrate the process.
When the parties have had time to inspect the file the Presiding Judge issues a Decree of Conclusion. This effectively brings the gathering of information, evidence and proofs to an end. If a party has appointed or mandated an advocate the file is then given to him/her and the advocate will present arguments in favour of their client's position in this contentious matter. Thereafter, or if no advocate has been appointed by either party, the file is given to the Defender of the Bond whose specific role it is, regardless of his or her personal opinions, to present reasonable arguments in favour of the bond of marriage. After the pleadings of the Advocates and Observations of the Defender have been received the case is given to the court for a definitive decision at First Instance.
After the intervention of the Defender of the Bond the case goes to the Court (the Single Judge or a panel or College of Three Judges). The court meets to decide the case and renders a written judgement giving the reasons for the decision. A negative decision of the First Instance Tribunal is always open to appeal to the higher Second Instance Tribunal. An affirmative decision is automatically sent to the higher Second Instance Tribunal where the decision may either be ratified (and a Decree of Nullity issued) or overturned. If overturned, i.e. if the affirmative decision given at First Instance is not ratified but becomes a negative decision a party may appeal against the decision to the higher and final Third Instance Tribunal. The Third Instance Tribunal is normally the Apostolic Tribunal of the Roman Rota.
Complaints against the decision at any Instance, e.g. complaints about the procedural integrity of the investigation, can be made to the court who issued the decision or may be appended to an Appeal against the original decision.
