Must a civil divorce certificate initiate the process of a marriage annulment?
Newsdesk (14/02/2025 13:03, Gaudium Press) The Interdiocesan Ecclesiastical Tribunal of Uberaba in Brazil, through its president, the renowned canonist Dom Hugo Cavalcante, OSB, presented a request to the Supreme Tribunal of the Apostolic Signature (STAA) in November 2024 for clarification on the requirement for a divorce certificate to initiate marriage nullity proceedings, a requirement that is unfortunately mandatory in several canonical courts in Brazil. As deputy judge rapporteur of the great Uberabense sodality, I had the honour of signing the request with the eminent judicial vicar.
In our petition to the STAA, we demonstrate the abuse of the divorce certificate requirement. We rely on moral, theological and canonical reasons. We offer judicial suggestions that prevent possible tricks and corroborate the rule of canonical marriage preceded by civil authorization. We wrote: “There are other ways of guarding against [abuse], such as a ‘vetitum‘ in the declaratory judgement of nullity, linking any canonical marriage to prior civil qualification.”
We also explained that this requirement violates the Brazil-Holy See Agreement, as it makes it impossible for the parties to exercise the option prescribed in article 12, paragraph 1. We wrote: ‘There is no doubt that the requirement of divorce for the process to begin simply disregards the faithful’s liquid and certain right to double nullity, both canonical and civil: either divorce or civil nullity of the marriage!’
In December 2024, His Excellency the Reverend Paulo Mendes Peixoto, Archbishop of Uberaba, received the response to our enquiries. The document arrived in our hands in January 2025. In fact, the Supreme Tribunal of the Apostolic Signature (STAA) fully agreed with the arguments we put forward, including in a canonical opinion attached to the reply. It recognizes that the requirement aims to protect the most vulnerable parties, but says that this practice needs to be changed. In fact, the Apostolic Signature believes that the divorce certificate CANNOT be a ‘conditio sine qua non’ for the opening of the nullity process or even on appeal. This restriction would deny justice! The august Roman court states that the natural obligations of the spouses can still be recorded in the baptismal register, by order of the ecclesiastical tribunal.
Finally, the Supreme Tribunal of the Apostolic Signature (STAA) regrets the scarcely used exercise of the right provided for in article 12, paragraph 1 of the Brazil-Holy See Agreement, as alluded to above: canonical declaration of the nullity of marriage ratified by the State, through the Superior Court of Justice (STJ).
It is likely that the Special Canon Law Commission of the 116th Subsection of the OAB-SP, or the Uberaba Ecclesiastical Tribunal itself, will contact the conspicuous National Conference of Bishops of Brazil (CNBB), suggesting that the episcopal body standardise the procedure in ecclesiastical tribunals, urging judicial vicars to comply with the determination of the Supreme Tribunal of the Apostolic Signature (STAA), in the terms of the reply sent to the Archbishop of Uberaba.
By Edson Luiz Sampel
Professor of the Instituto Superior de Direito Canônico de Londrina
The post Why must a Civil Ruling be the Start of a Canonical Proceeding? appeared first on Gaudium Press.
Compiled by Roberta MacEwan
