The Tribunal Vetitum: A Practice in Search of a Theory

I. An Attempt to Disengage a Theory from Practice

People who have been divorced approach Catholic marriage tribunals in the hope that they can be freed to enter new marriages in the Church or to validate existing civil unions. After complying with all the requirements of the tribunal process and receiving affirmative decisions, however, the last communications from the tribunal to these parties often end with brief notations announcing that they are free of the bond of their previous marriages but are nonetheless prohibited from entering new marriages in the Catholic Church until certain conditions, usually left unspecified in the tribunal's letters, are met. For most participants these prohibitions come as complete surprises and are sources of considerable frustration since they constitute yet additional obstacles to the new marriages for the sake of which they submitted themselves to the tender mercies of the Church judicial process.

Although prohibitions on particular marriages by diocesan bishops and other administrative authorities in the Church have had a long and well documented history in canon law,¹ the same cannot be said of prohibitions imposed by tribunal judges at the end of processes for dispensing from or declaring the invalidity of marriages. In fact, such prohibitions are a rather recent development in ecclesiastical jurisprudence. They are hardly mentioned in canonical legislation prior to the twentieth century and were not given any real canonical determination until the 2005 instruction Dignitas connubii. Because of the rather haphazard way in which the tribunal vetitum has emerged in church practice, numerous questions remain about the nature of this canonical institute, who is competent to impose such vetita, on whom and for what reasons they can be imposed, how and by whom such vetita can be removed, and what recourse is available to disappointed parties when the competent authority refuses to remove a vetitum imposed by a tribunal. Since a vetitum impinges on a person's natural right to marry, these unresolved questions need to be addressed to ensure that the authority of tribunals to issue vetita is exercised legitimately and responsibly.

A. Being Clear about the Concept: Vocabulary

1. Related Institutes

a. Vetita and Impediments

The vetitum or prohibition needs to be distinguished carefully f rom other canonical institutes which have a similar purpose and effect. On the one hand, a vetitum differs from an impediment to marriage. Impediments, which can be established or declared only by the supreme authority of the Church, are generic in nature. They disqualify whole classes of people from marriage because of some characteristic of these people themselves (e.g., those who are still bound by the bond of a previous marriage and those who have received sacred orders or have professed a public and perpetual vow of chastity in a religious institute) or declare invalid certain categories of marriages because of one of their salient characteristics (e.g., the parties close relationship by blood or marriage).² Vetita, which can be imposed even by authorities below the level of the supreme authority, are usually concerned to prevent not classes of marriages but individual marriages or particular contractants.³ Unlike impediments which prohibit certain marriages which are viewed as inherently threatening to central ecclesial values in all cases, vetita are imposed on individual persons or specific marriages because their peculiar circumstances pose risks that need to be acknowledged and addressed, especially (but not exclusively) when a particular contractant has demonstrated that he or she is at "high risk" to enter a new marriage invalidly.

Since the marriages barred by impediments are viewed negatively by the church's law, they can be permitted only after a dispensation has been granted. Although a dispensation from an impediment can be granted only after assurances have been provided that the dangers threatened by the sort of marriage proposed have been removed or at least minimized, it is always a favor or a concession granted as a grace. Before a marriage barred by a vetitum can be lawfully celebrated, the competent authority must grant permission. Permissions are required when church authority views an activity generally favorably but...