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Canon law

Recently, we can observe that there are more and more people who want to settle their family affairs.Usually, there is an ecclesiastical divorce, but more and more often ecclesiastical tribunals declare the nullity of marriages.Due to the great interest, expressed especially by Poles living abroad, in the canon law, i.e. the church marriage annulment procedure, the Law Office Pasieka, Derlikowski, Brzozowska & Partners has prepared a mini-guide regarding these issues.

The guide provides answers to questions most frequently asked by our clients.

1. I live abroad.I am divorced and I would like to file a petition to declare the nullity of marriage.To which ecclesiastical tribunal should I file the petition?

In principle, a competent tribunal is the tribunal of the diocese in which you got married.It is also possible to file your petition to the tribunal of the diocese in which most witnesses live.

 2. Do I have to personally file a petition to the ecclesiastical tribunal in Poland? This would result in additional, unplanned visits in Poland.

You don't have to file a petition to the tribunal of first instance (court of bishops) in Poland. In order to prepare an appropriate document, you need to contact, by phone or by e-mail, a specialist who deals with your case.On the basis of the information you provide him with, he will prepare a document, advise on the choice of evidence and send you appropriate documents by e-mail.Such a person may also send the documents to the court on your behalf.You can also send previously signed documents by post to a competent court whose address you will receive from the counsel who deals with your case.

 3. May I appoint an attorney "via the Internet"?

The "Internet power of attorney" does not exist, unless you have the so-called "safe electronic signature" which is equivalent to a written form.Obviously, it is possible to exchange documents via the Internet. It means that after having chosen an attorney/a defence counsel, the latter sends (e.g. by e-mail) a power of attorney which needs to be printed and signed before it is sent by post.A power of attorney may be sent in the form of a scan, but the attorney still needs to receive the original.

 4. I am abroad and I know that I have received a letter from the court of bishops, informing me that my wife has filed a petition to declare the nullity of marriage.What should I do?I am afraid that my wife has presented a version which is contrary to the facts.

You have probably received a copy of the complaint stating the reason for which your wife wants the court to issue a declaration of nullity of your marriage. You should answer the letter - either by accepting the arguments provided therein or by providing your counterarguments.There are usually 14 days for providing a reply.That is why the best solution is to send a scan of the letter to the law office which will deal with your case.After having completed all formalities and having read the letter, a counsel will contact you in order to decide on what information should be included in the letter.Then, he will prepare a letter that will meet all formal requirements and he will send it either directly to the court or to you by e-mail so that you can sign the letter and send it to the court at the address provided by the counsel.

 5. I am in a very difficult situation, I would really like to declare the nullity of my marriage.  I know that it's a very difficult step, but since I decided to get a divorce, I have been thanking God for the courage he gave me to make such a decision. The decision about getting married was precipitate and I was very unhappy in my marriage.  Me and my husband got married four months after we had met. I was precipitated into marriage because my husband's mother was very ill, with little chances to recover, and she wanted to see her son's wedding.  I felt sorry for her and I agreed to get married without much reflection.  My mother-in-law died a few months later.

Unfortunately, after a few calm months following her death, we started quarrelling.  My husband turned to be an alcoholic, he would lose one job after another and we rowed about everything all the time.  I could no longer live like that and I left him after a year.

I obtained a civil divorce a few years ago and I have met the man of my life.  We've known each other for 2 years now.I know he's the one.We're planning to start a family.We don't want to precipitate anything, we want to get to know each other well.

Is it possible for me to obtain the declaration of nullity of my marriage?

I come from a small village where inhabitants know each other very well.I was 18 when I got pregnant.I didn't know what to do.My family tried to persuade me to get married, because it's a shame to be an unmarried woman with a baby.So I decided to get married.

We started quarrelling immediately after getting married.My husband behaved as if he was still a bachelor.Very often he didn't sleep at home.  He was always with his friends, they were playing cards and going to parties.When our baby was born, the situation got worse.My husband didn't want to take care of our son, behaving as if it wasn't his baby.He said it was my fault because I was careless and he did what he had to do and got married.

I couldn't live like that any longer.I left him.I've left my village, I have found a job, I am finally assured and I can bring up my child in normal conditions.

I want to close this chapter of my life and if I meet a good man in the future I want to be able to get married before people and before God.

Do I have any chances to obtain the declaration of nullity of my marriage?

There are numerous situations which show that people who get married are not well prepared for such a decision.They are either not aware of their marital obligations and obligations resulting from the fact that they start a family or they don't fully understand them.  They get married in a hurry, without thinking it over, often precipitated into marriage by their family or due to social pressure.

On the one hand, the church requires a lot of preparation, numerous documents, pre-marital counselling allowing future spouses to think everything over and make a conscious decision for the rest of their lives, the decision that they will not leave each other till death do them apart.   On the other hand, however, the church is aware of the fact that people make mistakes and even if they get married in good faith, they often face situations which they couldn't predict, such as husband's hidden alcoholism, intended marital infidelity, psychological immaturity to become a husband or a wife, etc. In every diocese, there is an ecclesiastical tribunal dealing with cases concerning the declaration of the nullity of a marriage.

Both situations described above are the basis for formally attempting to obtain the declaration of the nullity of a marriage pronounced by the ecclesiastical tribunal.However, in order to confirm the presented facts, more details and witnesses are needed.

 6. I've heard that in order to obtain the declaration of the nullity of a marriage, one has to address the Pope.  Is that true?

No, it's not true.To obtain the declaration of the nullity of marriage, one should address his diocese.  No permission from the Pope is needed.In every diocese, there is an ecclesiastical tribunal which deals with cases for the declaration of the nullity of a marriage.

A case may be addressed to the Pope if a marriage is valid, but the union has not been consummated or when we deal with the Pauline Privilege.

Another situation when we may address the case to the Pope is when we appeal against the decision of ecclesiastical tribunals of lower instances.

 7. I got married in Poland.Currently, I live in the United States and my wife got married and lives in Ireland.  Who should I address if I want to get a church divorce?

First of all, one should pay attention to the terminology - there are no church divorces.We use such a term in the everyday life, but it is not correct.  If we don't want to be instructed by an ecclesiastical lawyer or by a priest, we should use the term:the declaration of the nullity of a marriage.If a marriage was entered into validly, it is not possible to later declare it null and void - "...and that I will not leave you till death do us apart".

From the point of view of the canon law, the church may declare in the proceedings that a given marriage was entered into invalidly.  It means that when getting married (during a wedding ceremony) some essential element for a valid marriage was lacking.

Nowadays, people's migration is a common and global phenomenon.  The church has provided for such a situation in the canon law, although it has not predicted that migration will reach such proportions.  Despite this fact, under the canon law, we may address the case, asking for the declaration of the nullity of a marriage, to 4 different ecclesiastical tribunals.

According to the Code of Canon Law (Cann.1673), in a given case the following courts (tribunals) are competent:

1⁰ the tribunal of the place in which the marriage was celebrated;

2⁰ the tribunal of the place in which the respondent has a domicile or quasi-domicile;

3⁰ the tribunal of the place in which the petitioner has a domicile, provided that both parties live in the territory of the same conference of bishops and the judicial vicar of the domicile of the respondent gives consent after he has heard the respondent;

4⁰ the tribunal of the place in which in fact most of the proofs must be collected, provided that consent is given by the judicial vicar of the domicile of the respondent, who is first to ask if the respondent has any exception to make.

 8. Who can be an attorney in cases concerning the declaration of the nullity of a marriage?

An attorney in cases concerning the declaration of the nullity of a marriage may only be the person who has completed canon law studies and has passed the B.A. exam.

 9. My husband consults every our decision, even the most trivial one, with his mother.He calls her several times even during our weekend trip.I have petitioned for a civil divorce.May I also petition for a "church divorce"?

In such a case we usually talk about the immaturity to undertake marital rights and obligations.An adult person, making a conscious decision to get married, has to be able to decide for oneself.  Obviously, every case needs to be analysed individually and examples of concrete situations need to be provided.  However, such a behaviour may be the reason to institute proceedings.  The court will probably ask for a psychologist's report.

Answers have been prepared by:

Marek Suchocki, Doctor of Canon Law
Magdalena Wojdała from the Law Office Pasieka, Derlikowski, Brzozowska & Partners

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