Dr. Edward Peters 

To work for the proper implementation of canon law is to play an extraordinarily

constructive role in continuing the redemptive mission of Christ. Pope John Paul II







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10 oct 2014

The Roman Rota: a Sample Case (coram Filipiak, 1956)


A brief but interesting marriage case was decided some 50 years ago by the Catholic Church's highest judicial court, the Roman Rota. The Rota held that what we might today call "the divorce mentality" could, under certain circumstances, impact the attitude of a Catholic and render his or her consent to marriage null, the nullity being rooted in an implicit intention against permanence, or, as it is technically known, an "intention against the good of the sacrament".


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Note that, in addition to the usual professional precautions against trying to apply the results of one case to any other, canon law expressly states that judicial sentences are generally applicable only to the parties before the tribunal (1983 CIC 16, olim 1917 CIC 17) and do not constitute precedent in the way that we of the Anglo-American tradition understand it.


The original Latin case (with some testimony cited in Italian) can be found at: coram Filipiak, 23 mar 1956, SRRD 48 (1956) 255-258. A slightly longer version of this sentence appeared in Monitor Ecclesiasticus 81 (1956) 438-442. An English translation of most of the "law section" of this case can also be found in Canon Law Digest IV: 332-334. For information on the judge Bolesław Filipiak, click here (Wiki) or here (Salvador Miranda's Cardinals' website)






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Coram Filipiak


From the Apostolic Vicariate for Alexandria in Egypt

concerning the nullity of marriage




1. Overview of the facts. — 2. Principles of law on exclusion of the good of the sacrament. — 3. Respondent-wife, marked by levity of character, before the wedding, on the occasion of litigation, and in front of others, expressed her willingness to divorce if cause arose. — 4. Respondent-wife, when it suited her, acted on what she had said, meanly at that. — 5. Sentence for nullity of the marriage.


Decision of 23 March 1956


1. Victor, an Italian man, and Yvonne, a French woman, wed on 18 November 1933. Conjugal life, though resulting in two children (both of whom died), was full of turmoil. With the outbreak of war, Victor was incarcerated from 1940-1945 in what was commonly called a [256] “concentration camp”. Yvonne became increasingly alienated from Victor and in 1942 she turned to a lay tribunal for separation from her husband. Upon his return, at her request, that tribunal handed down a sentence [of divorce].


Victor, having taken counsel with a certain priest, proposed the nullity of his marriage before the tribunal of the Apostolic Vicariate for Alexandria in Egypt on 21 November 1947, on the grounds that respondent-wife had excluded the good of the sacrament [ie., permanence]. He obtained a favorable sentence on 1 June 1953. The appellate tribunal in Cairo, however, found on 10 March 1954, that nullity was not proven. Petitioner-husband appealed to Our Holy Tribunal, and today we respond to the question: Whether the nullity of marriage has been proven in this case.


 2. In Law. The principles of law set forth in 1917 CIC 1086 § 2 for the declaration of matrimonial nullity in a case of exclusion of the perpetuity of the bond or, as it is called, the good of the sacrament, are well known. In the present case, it helps to remember that marriage is rendered null not only by the absolute exclusion of indissolubility, but also by its hypothetical exclusion, that is, in case of the verification of a determined hypothesis, for example, the unhappy outcome of the marriage or the infidelity of the other party, even if one who contracts thusly neither knows nor foresees that the conjugal bond will later really be broken. For by the very fact that a party determines to break the bond under certain circumstances, this will, by its very nature, prevails over the will to contract a true marriage.


In other words, in order to declare the exclusion of the good of the sacrament, there is required a positive act of the will, influencing [a party], actually or at least virtually, in the very celebration of the wedding. An explicit will is not required because an implicit will suffices according to common doctrine and the jurisprudence of the Rota. Certainly one must be said to exclude indissolubility who, although he says that he wishes to contract a true and proper Catholic marriage, at the same time, by a positive act of the will (whether absolute or hypothetical makes no difference) determines to have resort to civil divorce. For one who does this is ready to separate from the other party so as to become entirely free and maintains for himself the opportunity of passing, if he wants, to another marriage. Error or ignorance in which one might find himself as to the means which are available to him to break the bond, does not result in the nullity of the marriage. There is also required a positive act of the will, at least an implicit one. Thus, “simple error regarding the indissolubility of marriage, even though it is the cause of the contract, does not vitiate matrimonial consent” (1917 CIC 1084). It is also true that a will contrary to this essential property (namely, indissolubility) is not incompatible with an error [about it], which [contrary will] alone has the effect of rendering null the marriage bond. And, such a will, at least implicit, exists in a person who is so persuaded — notwithstanding what Catholic doctrine teaches — of his right to divorce such that, from this persuasion, which has become as it were a second nature to him, he cannot entirely leave it off, nor is there any reason why he should depart from it in the celebration of the marriage.


[257] As to what pertains to proving simulation, certainly evidence of the exclusion of the indissolubility is easier [to find] if it is located in the contract or if it worked within the simple act of the will of a contractant. In either case, nevertheless, as it concerns an internal matter, great deference should be paid the confession of one who asserts indissolubility to have been excluded, especially if this was done extrajudicially and at a non-suspect time. [Such] evidence is further corroborated by the testimony of witnesses worthy of belief, by the character of the one simulating, and by considering that complex of circumstances that led up to the celebration of the wedding and that followed it, from which there can arise that moral certainty required for the declaration of matrimonial nullity.


3. In fact. It is asserted by the petitioner-husband that the will of the respondent-wife was set against the good of the sacrament; this, the sentence in first instance found to be proven, but the appellate sentence rejected.


The Reverend Fathers [of the Rota], having examined everything equally, say that simple error about the indissolubility of marriage is difficult to see in the depositions of the respondent-wife, as the appellate sentence holds; but when it comes treating of an act of the will contrary to the good of the sacrament, they confirm the sentence of first instance that ruled against the [marriage].


First, anyone who reads through the acts of this case must ask himself the question: why the respondent-wife, who prepared herself for marriage in the required manner, must have intended only a dissoluble bond. For simulation of consent is thoroughly unusual, and therefore requires some rationale (at least in the judgment of simulator) about a cause from which such fictitious consent flows. To this objection, brought forward by the Defender of the Bond, it may be responded that it is evident from the acts that the petitioner-husband was shown to be sufficiently stable and marked by the right ideas, but the woman was flighty, vain, and not moved by substantial love as she approached the wedding.


Petitioner-husband readily concedes that respondent-wife spoke of divorce before the wedding. Her words cannot be considered as being mere banter or thoughtless joking, for they were rooted in discords arising from the different nationalities of the contractants.


Respondent-wife states: “…my feelings and ideas never accorded with his”. This is thoroughly confirmed by several witnesses; combined with the levity and volubility of the respondent-wife, which is noted throughout the acts, the cause of the simulation is to be found here.


But the respondent-wife judicially confessed this positive act of the will: “My thinking before, during, and after the marriage, was that, given that I was French, I could, if at any time things did not work out, divorce [him], as is the practice in my country.” Respondent-wife lists as a witness one Angela, the wife of her deceased uncle. Angela testified about the ideas of Yvonne concerning divorce: “I know that her mother frequently complained to my husband, her brother, saying that she did not want this marriage, given that he was a jealous young man, and that the ideas of the two fiancées were different…I know that Yvonne, being French, believed that, in case things did not go well, [258] she would be able to divorce. I know this was the thinking of Yvonne’s mother, for she frequently told my husband this….” This witness Angela, whose deposition fully confirms the contention of the petitioner-husband, is described by her pastor as one upright and worthy of belief. From this deposition it can be easily understood why the respondent-wife would have asked that his mother, opposed as it seems to the wedding, not be called at trial. Moreover, the Defender of the Bond did not insist on the interrogation of the mother of the respondent-wife.


Now if such ideas and cogitations are manifested at the time of the trial, [and] appeared and set to work before the wedding, it can in no way be conceded that that they did not impact on the will.


Other witnesses are put forward by the petitioner-husband, among them, Richard, who testified concerning the notable lack of seriousness on the part of the respondent-wife (discussed also by the above-mentioned witness Angela), about the legal actions, the motives behind those actions, about the bad influence of the mother of the respondent-wife (as we know, she was always opposed to the petitioner-husband), and about the openness toward divorce shown by the respondent-wife before the wedding. Richard, like the other witness, is commended by his pastor, in other respects his deposition seems true; what he knew from his friend before the wedding he has faithfully conveyed without exaggeration or distraction.


The other witnesses are in accord. Vincent has it: “As for her, she spoke many times about France, divorce, and often conveyed her willingness to break the marriage if things did not go well…and until the day of the wedding she was always talking about divorce”. The witness Marinus repeats the assertion of the respondent-wife that she made several times before the wedding in his presence. Joseph and Anna confirm the intention of the wife contrary to the good of the sacrament.


4. For the rest, the respondent wife, as it suited her, acted according to what she had set forth. Specifically, with her husband still prisoner in a concentration camp, she filed for a separation; she behaved in a manner unworthy of a wife until, when her husband returned home wanting to reestablish a life together, she scorned him and filed for formal separation and divorce. This woman *shows neither shame for her licentious behavior nor tires of her bad reputation*; she has since taken a non-Christian husband according to his religious rites.

 *Filipiak's phrasing here was Ciceronian (Oratio in Verram): Sunt homines quos libidinis infamiaeque suae neque pudeat neque taedeat.


5. The law and the facts having been considered, We the undersigned Auditors of the turnus decide that: the nullity of marriage has been proven in this case: respondent wife is prohibited from going on to another wedding until, in the presence of the Ordinary of the place or his delegate, she promises under oath to give matrimonial consent according to the norm of law.


 From Rome, in the Offices of the Tribunal of Holy Roman Rota, on 23 March 1956.


 Boleslaus Filipiak, Ponens

 Guillelmus Doheny

 Petrus Mattioli

 Sentence was executed.