He is called ‘Defender’ of the Bond for a reason

In his remarks on the 10^th anniversary of Dignitas connubii, the 2005 Roman instruction for processing petitions regarding declaration for matrimonial nullity (annulments), Pope Francis comments on, among other things, the role of the Defender of the Bond, asserting that the “presence [of the DOB] and the faithful fulfillment of his task does not condition the judge, but rather allows and promotes the impartiality of his judgment by setting before him the arguments for and against annulment”.

Arguments for and against annulment?

Canon 1432 of the Johanno-Pauline Code states “A defender of the bond is to be appointed in a diocese for cases concerning the nullity of sacred ordination or the nullity or dissolution of a marriage; the defender of the bond is bound by office to propose and explain everything which reasonably can be brought forth against nullity or dissolution.” There is no warrant here–or anywhere else in the 1983 Code–for DOBs to make arguments for nullity.

Dignitas connubii  56 § 3 itself states “In every grade of trial, the defender is bound by the obligation to propose any kind of proofs, responses and exceptions that, without prejudice to the truth of the matter, contribute to the protection of the bond (cf. can. 1432)” and § 5 thereof drives home that “The defender can never act in favor of the nullity of marriage; if in a special case he has nothing that can be reasonably proposed or argued in favor of the bond, the defender can remit himself to the justice of the court.” Again, plainly, there is no canonical authorization for DOBs to make arguments for nullity, and indeed, there is an express prohibition against such conduct.

On occasion there are, as noted in Dignitas, matrimonial cases in which no significant arguments in favor of the marriage can be asserted. This unusual possibility was recognized at least as far back as Pope Pius XII who, in his classic allocution to the Roma Rota in 1944 (CLD VI: 612-622), acknowledged that, out of respect for the truth of a given case, a DOB need not concoct ‘defenses’ of the bond that strain credulity. In such cases, said Pius (a degreed canonist and protégée of the great Gasparri), the DOB is not to argue in favor of nullity, but rather, once satisfied that procedural requirements have been met, he may observe that he has no arguments in favor of the bond to offer. Even so, as the CLSA Tribunal Handbook notes at p. 27, “This should be a rare occurrence.”

Francis is not a specialist in canon law, of course, and, as far as I know, has no significant experience in tribunal work, so, I imagine, someone is helping him draft speeches for canonical audiences. But, whatever their provenance, papal remarks that assume Defender of the Bond duties are equally divided between defending and impugning marriage will tend, I fear, to cause confusion among tribunal personnel who are trying to abide by the law and can blur the Church’s witness to the permanence of marriage.

Update: The Italian original of the sentence reads: “La sua presenza e il compimento fedele del suo compito non condiziona il giudice, bensì consente e favorisce l’imparzialità del suo giudizio, essendogli posti dinanzi gli argomenti a favore e contrari alla dichiarazione di nullità del matrimonio.” We now have a discussion about how to translate this phrase going on Facebook, “Canon Law”.