| Year 2001 Canonical Studies pp. 15-64
(Prof. Augustine Mendonca)
PAGE 1: (Click here)


In normal circumstances, an application for declaration of invalidity of a marriage is intended to ascertain, through a definitive decision of the Church, the canonical marital status of the parties in order to contract another marriage in accordance with the norms of ecclesiastical law. Canon 1684, §1 (CCEO c. 1370, §1) implicitly affirms this expectation of a petitioner whenit states: “After the judgement which first declared the nullity of the marriage has been confirmed on appeal, either by decree or by another judgement, those persons whose marriage has been declared invalid may contract a new marriage as soon as the decree or the second judgement has been notified to them, unless there is a prohibition of this appended to the judgement or decree itself, or imposed by the local ordinary.” 1 The key phrase in this canon is ‘confirmed on appeal.” What does this phrase really mean and when does such a confirmation actually occur?

The phase “confirmed on appeal” is closely linked with another legal phrase: “an adjudged matter” (“res iudicata”). In fact jurisprudence acknowledges that what is implied in “confirmed on appeal” is a particular application of the principle governing “an adjudged matter.” The definitive conclusion of a contentious case processed through an ordinary trial occurs only when two “conforming” sentences (affirmative or negative) are pronounced on the contentious issue brought before the court. When such conformity between two decisions is present, the contention resolved thereby is regarded by law as “an adjudged matter.” But then the question is: what does “conforming” really mean?

Canon 1902 of the 1917 Code declared: “An adjudged matter occurs: 1° When there are two conforming sentences.”2 This norm did not specify the elements necessary for two sentences to constitute the said “conformity.” However, the instruction, Provida mater of 15 August 1936,3 in art. 218, §2 identified these elements in cases of marriage nullity. This article read: “The above disposition is to be understood as applicable if there is question of the same case, that is, the same marriage and the same ground for nullity.” 4

1. Canon 1684, §1: “Postquam sentential, quae matrimonii nullitatem primum declaravit, in gradu appellationis confirmata est vel decreto vel altera sentential, ii, quorum matrimonium declaratum est nullum, possunt novas nuptias contahere statim ac decretum vel altera sentetia ipsis notificata est, nisi vetito ipsi sententiae aut decreto apposite vela b Ordinario loci statuto id prohibeatur.” English Translation as in : The Code of Canon Law,New revised English Translation, Prepared by The Canon law Society of Great Britain and Ireland in association with The Canon Law Society of Australia and New Zealand and The Canadian Canon Law Society, London, HarperCollins Publishers, 1997. This will be the source for the English translation of the canons of CIC/83 used in this study.

2. CIC/17, c. 1902: “Res iudicata habetur: 1° Duplici sentential conformi.”

3. See Acta Apostolicae Sedis (=AAS), 28 (1936), pp. 313-361; English Translation in Canon Law Digest (=CLD), vol. II, pp. 417-530.

4. Praelata disposition ita intellegitur, ut locum habeat si agatur revera de eadem, causa, hoc est, propter idem matrimonium et ob idem nullitatis caput” (AAS, 28 [1936], p. 356). English transltion in CLD, vol. II, p. 524.

PAGE 2: (Click here)
PAGE 3: (Click here)
PAGE 4: (Click here)
PAGE 5: (Click here)
PAGE 6: (Click here)
PAGE 7: (Click here)
PAGE 8: (Click here)
PAGE 9: (Click here)
PAGE 10: (Click here)
PAGE 11: (Click here)
PAGE 12: (Click here)
PAGE 13: (Click here)
PAGE 14: (Click here)
PAGE 15: (Click here)
PAGE 16: (Click here)
PAGE 17: (Click here)
PAGE 18: (Click here)
PAGE 19: (Click here)
PAGE 20: (Click here)
PAGE 21: (Click here)
PAGE 22: (Click here)
PAGE 23: (Click here)
PAGE 24: (Click here)
PAGE 25: (Click here)
PAGE 26: (Click here)
PAGE 27: (Click here)
PAGE 28: (Click here)
PAGE 29: (Click here)
PAGE 30: (Click here)