The defender of the bond ( la, defensor vinculi or ''defensor matrimonii'') is a
Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
official whose duty is to defend the marriage bond in the procedure prescribed for the hearing of matrimonial causes which involve the validity or nullity of a marriage already contracted.
History
Benedict XIV
Pope Benedict XIV ( la, Benedictus XIV; it, Benedetto XIV; 31 March 1675 – 3 May 1758), born Prospero Lorenzo Lambertini, was head of the Catholic Church and ruler of the Papal States from 17 August 1740 to his death in May 1758. Pope Be ...
, by his
bull
A bull is an intact (i.e., not castrated) adult male of the species ''Bos taurus'' (cattle). More muscular and aggressive than the females of the same species (i.e., cows), bulls have long been an important symbol in many religions,
includin ...
''Dei miseratione'' of 3 November 1741, introduced this official into the marriage procedure to guard against abuses occurring from the ordinary procedure. An annulment of a marriage might result from the appearance of only the spouse who desired freedom to enter upon a new marriage, while the other was apathetic and conniving at the annulment, or at times unable or indisposed to incur expense to uphold the marriage, especially if it required an appeal to a higher court. Scandal arose from the frequency of dissolution of marriages with the freedom to enter new contracts.
Qualifications and obligations
The bull requires that in each
diocese
In Ecclesiastical polity, church governance, a diocese or bishopric is the ecclesiastical district under the jurisdiction of a bishop.
History
In the later organization of the Roman Empire, the increasingly subdivided Roman province, pro ...
, the ordinary appoint a defender of marriage, upright in character, and learned in the law, an ecclesiastic if possible, a layman if necessary. The bishop may suspend him or remove him for cause, and, if he is prevented from taking part in the procedure, substitute another with the requisite qualifications.
Proceedings in first instance
He must be summoned to any trial in which there is question, before a competent judge, of the validity or nullity of a marriage, and any proceeding will be null if he is not duly cited. He must have the opportunity to examine the witnesses, and, orally or in writing, to bring forward whatever arguments may favour the validity of the marriage. He must be cited even though the party interested in the defence of the marriage be present, and all the acts of the court are always to be accessible to him, and at any time he has a right to bring forward new documents or witnesses favourable to the marriage. On assuming his office he must take an oath to fulfill his duties and he is expected to renew the oath in each case. If the judge decides in favour of the marriage the defender takes no further action unless its opponent appeals to a higher court. Here a defender undertakes anew the defence of its validity. If the judge of the first instance decides against the validity of the marriage and no one else appeals, the defender of marriage has the right to appeal to the higher court. If he feels it his duty to appeal, a new marriage may not be contracted until his plea is heard.
This canon legislation was extended and enforced in the United States by an Instruction of Propaganda in 1883, published with the ''Acts and Decrees of the
Third Plenary Council of Baltimore
The Plenary Councils of Baltimore were three national meetings of Catholic bishops in the United States in 1852, 1866 and 1884 in Baltimore, Maryland.
During the early history of the Roman Catholic Church in the United States all of the dioces ...
.'' Though the bull does not require it, the practice of the Roman church extends the intervention of the defender to cases of
true marriages not consummated where the Holy See is requested to grant a
dispensation for a new marriage.
Proceedings in second instance
The obligation of the defender to appeal from the decision of first instance adverse to the validity of a marriage has been modified by the
Holy See
The Holy See ( lat, Sancta Sedes, ; it, Santa Sede ), also called the See of Rome, Petrine See or Apostolic See, is the jurisdiction of the Pope in his role as the bishop of Rome. It includes the apostolic episcopal see of the Diocese of Rome ...
in several cases where the invalidity depends upon facts indisputably proven. Where the decree "
Tametsi
''Tametsi'' (Latin, "although") is the legislation of the Catholic Church which was in force from 1563 until Easter 1908 concerning clandestine marriage. It was named, as is customary in Latin Rite ecclesiastical documents, for the first word of ...
" of the Council of Trent was binding, requiring the presence of the parish priest for the validity, if only a civil ceremony was used, the bishop may declare the marriage null without the participation of the defender. In view of new matrimonial law contained in the decree "Ne Temere" of
Pius X
Pope Pius X ( it, Pio X; born Giuseppe Melchiorre Sarto; 2 June 1835 – 20 August 1914) was head of the Catholic Church from 4 August 1903 to his death in August 1914. Pius X is known for vigorously opposing modernist interpretations of C ...
this also holds anywhere if a marriage is attempted only before a civil authority or non-Catholic minister of religion. Yet if an ecclesiastical form had been used, and the nullity from clandestinity was questioned, the presence of the defender is required; but if the
impediment of clandestinity clearly appears he need not appeal. This is true also if, through absence of ecclesiastical dispensation, there is an impediment of
disparity of worship
Disparity of cult, sometimes called disparity of worship (''Disparitas Cultus''), is a diriment impediment in Roman Catholic canon law: a reason why a marriage
Marriage, also called matrimony or wedlock, is a culturally and often l ...
, or of
consanguinity
Consanguinity ("blood relation", from Latin '' consanguinitas'') is the characteristic of having a kinship with another person (being descended from a common ancestor).
Many jurisdictions have laws prohibiting people who are related by blood fr ...
, or of
affinity
Affinity may refer to:
Commerce, finance and law
* Affinity (law), kinship by marriage
* Affinity analysis, a market research and business management technique
* Affinity Credit Union, a Saskatchewan-based credit union
* Affinity Equity Par ...
from lawful intercourse, or of spiritual relationship, or of certain previous legitimate marriage still existing. In these cases the ordinary may, with the participation of the defender, declare the marriage null, and the defender is not required to appeal. This, however, was declared by the
Holy Office
The Dicastery for the Doctrine of the Faith (DDF) is the oldest among the departments of the Roman Curia. Its seat is the Palace of the Holy Office in Rome. It was founded to defend the Catholic Church from heresy and is the body responsible f ...
(27 May 1901) to be understood only of cases in which certainly and clearly the impediment is proven; otherwise the defender must proceed to the higher court. The defender is exhorted to exercise his office gratuitously, but he may be compensated from fees imposed by the court or from other diocesan resources.
Briefs submitted to the tribunal by the defender of the bond are considered part of the "acts" of the case and the parties have a right to view and comment on the acts before the decision is made by the judge(s).
[D.C. Art. 241 & 242 and Art. 229§2]
References
Sources
Dignitas Connubii
* {{Catholic, title=Defender of the Matrimonial Tie, url=http://www.newadvent.org/cathen/04675a.htm
Catholic Church legal terminology
Historical legal occupations
Marriage in the Catholic Church
Tribunals of the Catholic Church