What was the significance of Rota's conjecture


Thursday January 29, 2004


Dear members of the Court of Justice of the Roman Rota!

1. I am happy about this annual meeting with you on the occasion of the opening of the judicial year. It is a welcome opportunity for me to reaffirm the importance of your ecclesiastical service and the need for your judicial work.

I warmly greet the college of prelate auditors, first and foremost the Reverend Dean Raffaello Funghini, whom I thank for the profound considerations with which he has expressed the meaning and value of your work. I also greet the officials, the lawyers and the other staff of this Apostolic Court, as well as the members of the "Studio Rotale" and all those present.

2. In the meetings of the last few years I have dealt with some fundamental aspects of marriage: its natural character, its indissolubility and its sacramental dignity. At this Court of Justice of the Apostolic See other processes of various kinds take place on the basis of the norms laid down by the Code of Canon Law (cf. cann. 1443–1444) and by the Apostolic Constitution Pastor Bonus were established (cf. artt. 126–130). But it is above all marriage to which the Tribunal should direct its attention. That is why I would like to address the marriage processes entrusted to you again today, also in response to the concerns expressed by the Most Revered Mr. Dean, especially with a legal-pastoral aspect that grows out of them: I am playing on the favor iuris which the marriage enjoys, and the related presumption of validity in case of doubt, which can. 1060 of the Code of Canon Law and of can. 779 of the Code of the Eastern Churches.

Indeed, there are sometimes critical voices in this regard. It seems to some that such principles are tied to past social and cultural situations in which the request for marriage in canonical form usually implied an understanding and acceptance of the true nature of marriage in the bride and groom. In view of the crisis in which this institution unfortunately finds itself in many circles today, it seems to the critics that the validity of the consensus is often to be viewed as compromised due to various forms of inability or the exclusion of essential goods. In view of this situation, the aforementioned critics wonder whether it would not be more fair to presume the invalidity of the closed marriage rather than its validity.

From this point of view, they claim that the favor matrimonii the favor personae or favor veritatis subiecti or favor libertatis Make room.

3. In order to properly appreciate the new positions, it is appropriate to examine first of all the foundation and limits of what is in question favor to determine. In reality it is a principle that is far beyond presumption of validity, since it concerns all canonical norms concerning marriage, both substantive and procedural. The support Marriage must in fact enliven the whole activity of the Church, of Shepherds and of the faithful, of civil society, in a word, of all people of good will. Such an attitude is not based on a more or less debatable choice, but on the appreciation of the objective good that is represented by every conjugal union and every family. It is precisely when the personal and social recognition of such a fundamental good is endangered that its meaning for people and communities can be discovered more deeply.

In the light of these considerations it becomes clear that the duty to defend and promote marriage certainly belongs to the consecrated shepherds in a special way, but that they also have a clear responsibility of all believers, indeed all people and civil authorities, according to their respective competencies, includes.

4. The favor iuriswhich marriage enjoys includes the presumption of its validity, as long as the contrary is not proven (cf. CIC, can. 1060; CCEO, can. 779). In order to grasp the significance of this conjecture, it is appropriate to recall in the first place that it is not an exception to any general rule in the opposite sense. On the contrary, it is a matter of applying to marriage a presumption which is a fundamental principle of every legal system: the human actions which are permissible in and of themselves and which affect legal relations are presumed to be valid, although of course the Proof of its invalidity is admissible (cf. CIC, can. 124 § 2; CCEO, can. 931 § 2).

This presumption should not be taken as a mere protection of pretense or the status quo be interpreted as such because there is reasonable scope for contesting the act. Nevertheless, that which appears to be correctly posited to the outside world, to the extent that it belongs to the realm of permissibility, deserves an initial consideration of the validity and the legal protection that follows, because this external point of reference is the only one over which the order really has it to distinguish the situations that are to be protected. To assume the opposite, that is, the duty to provide positive proof of the validity of the corresponding actions, would mean to make demands on the subjects that are almost impossible to achieve. For the evidence would have to include the various presuppositions and properties of the act, which often have a considerable extent in space and time and include a large number of people and of previous and related acts.

5. So what can be said about the thesis that the failure of married life would lead to the presumption of the invalidity of the marriage? Unfortunately, the power of this erroneous approach is sometimes so great that it turns into a generalized prejudice that leads to grounds for nullity being sought as purely formal justifications for a verdict that is actually based on the empirical fact of marital failure. This unjust formalism of those who favor the traditional favor matrimonii fight can go so far as to forget that, according to sin-marked human experience, a valid marriage can fail because of the wrong use of the freedom of the spouses themselves.

Rather, the determination of the true invalidity should lead to a more serious determination of the requirements necessary for the marriage, especially those relating to the consensus and the real dispositions of the bride and groom, at the time of the marriage. Pastors and their collaborators in this area have a grave duty to follow a purely bureaucratic view of pre-marital inquiries, as set out in can. 1067 not to give in. Their pastoral action must be guided by the awareness that precisely at this moment people are discovering the natural and supernatural good of marriage and can consequently undertake to seek it.

6. In truth, the presumption of validity of marriage fits into a wider context. Often times, the real problem is not so much the assumption in question, but the overall view of the marriage itself, and thus the process that is to determine the validity of its celebration. Such a process is essentially incomprehensible beyond the horizon of truth-finding. This teleological reference to the truth is what unites all those involved in the process, despite the diversity of their roles. In this regard, a more or less open skepticism has been expressed about the human ability to discern the truth about the validity of marriage. In this area, too, a new trust in human reason is necessary, both in relation to the essential aspects of marriage and in relation to the particular circumstances of any relationship.

The tendency to instrumentally expand the invalidity and to forget the horizon of objective truth brings with it a structural distortion of the whole process. From this point of view, the preliminary investigation loses its meaning insofar as the result is predetermined. Even the determination of the truth, to which the judge is heavily obliged ex officio (cf. CIC, can. 1452; CCEO, can. 1110) and for whose finding he uses the assistance of the defender of the marriage bond and the lawyer, would dissolve into a succession of lifeless formalisms. Because the construction of predetermined answers would prevail instead of the investigative and critical ability, the judgment would lose or severely weaken its constitutive pursuit of truth. Key concepts such as moral certainty and free assessment of evidence remained without their necessary point of reference in objective truth (cf. CIC, can. 1608; CCEO, can. 1291); one refrains from looking for them, or one regards them as intangible.

7. The problem basically concerns the concept of marriage, which in turn is inserted into an overall view of reality. The essential dimension of the justice of marriage, which bases its existence on a reality that is essentially legal, is replaced by empirical perspectives of a sociological, psychological nature, etc., as well as by various modalities of legal positivism. Without wishing to diminish the valuable contributions that can come from sociology, psychology or psychiatry, one must not forget that an authentic legal view of marriage requires a metaphysical vision of the human person and conjugal relationship. Without this ontological foundation, the conjugal institution becomes a purely external superstructure, the fruit of the law and of social conditions which restrict the person in his free realization.

On the other hand, it is necessary to rediscover the truth, goodness and beauty of the marital institution. Because it is the work of God through human nature and the free consensus of the married couple, it remains as an indissoluble, personal reality, as a bond of justice and love, connected from eternity to the plan of salvation and raised to the dignity of the Christian sacrament in the fullness of time . This is the reality that the Church and the world must promote! This is the real one favor matrimonii!

In giving you these food for thought, I want to renew my expression of appreciation for your delicate and demanding work in the administration of justice. With these sentiments, I call upon each of you, dear prelates, auditors, officials and advocates of the Roman Rota, the constant assistance of God and I impart my blessing to all of you from the bottom of my heart.