· Survey on the presence of women in ecclesiastical tribunals ·
Pope Francis has been clear. In his discourse to the Rotal Judges [Judges of the Roman Rota] he recalled that a human profile is asked of them so that they may exercise “justice in a way adapted to the exigencies of the concrete situation, and not in a legalistic and abstract way”. “Love”, the Pope went on, “constitutes the soul as well as the function of the ecclesiastical judge”. Moreover this approach is particularly necessary today, when the question of the nullity of the matrimonial bond is at the heart of the problem of families, in their turn at the heart of the Church’s reflection. In fact, Pope Francis has decided to face what is the hottest issue in the relationship between the Church and modernity – and women are also involved in the juridical domain.
For more than 30 years – to be precise, since 1982 – ecclesiastical tribunals [ecclesiastical courts] have been made up of women too, while the first women Rotal lawyers were admitted to plead in 1975. After a preliminary period of settling in, women were permanently integrated into this situation in which the faithful application of the principles of canon law cannot disregard their charitable closeness to those who are suffering from seeing the break-up of their family.
We carried out a survey on the presence of women in the Church tribunals starting with the Vicariate of Rome. This Vicariate, among other things, is the headquarters of tribunals [ecclesiastical courts] of the first instance and tribunals of appeal for causes of matrimonial nullity in the Lazio Region.
To obtain a declaration of the nullity of a marriage celebrated two levels of judicial procedures are required. At the first level the grounds for nullity are introduced and form the basis of the request. Proof is then gathered, both documentary and testimonial, and if necessary the case is evaluated. After this procedure the judges are required to make their decision. Whenever the nullity of the marriage is recognized because of the grounds of nullity introduced, the cause is passed on from the tribunal of the first instance to the appellate tribunal [of appeal]. When on the contrary nullity is not recognized, the appellate tribunal is consulted by a separate petition, should the intention be to pursue the case. In this tribunal the judicial body is called to review the decision made in the first stage, under the profile of both its legitimacy and its merit. When the tribunal approves the action of the judicial body that has given its opinion in the first instance, a decree of ratification is issued that confirms the grounds of nullity that have been recognized by the tribunal of the first instance.
The procedure that investigates the nullity or validity of the matrimonial bond cannot but assess the presuppositions that led to the celebration of the marriage and that concern the common thread that links these presuppositions to the effective failure of the marriage. When the tribunal verifies this direct relationship, even when a certain number of years have passed between the beginning of conjugal life and its conclusion, it cannot but make a decision, accepting this request, although the canon law currently in force assumes the validity of the matrimonial bond.
The reasons for which a marriage may be considered null and void are in the main based on defects of consent. To demonstrate these a thorough investigation must therefore be made of the innermost sphere of the volition of the spouses to be, and the lawyers asked to collaborate in the tribunal work in this context.
The roles of those who work in the tribunal are essentially three: the roles of judge and auditor, of defender of the bond and of notary.
In the context of the first role, women are present in the tribunal of the first instance as auditors. In other words they conduct the preliminary activity in accordance with the mandate of the judge who is president of the college and are approved by the bishop. Women are in a majority here: three out of five auditors are women.
Alessandra D’Arienzo is one such. Married with two children, she earned a doctorate in canon law at the Pontifical Lateran University after obtaining a degree in jurisprudence in Italy. “When I started work with the tribunal”, she says, “my daughter was very small; two women colleagues had been recruited before me. Today I carry out my activity as an auditor with pride and with a deep sense of responsibility, actively collaborating with the ecclesiastical institution and putting at its service my professional qualification and my feminine sensitivity. In the area of preliminary investigation which I conduct every day, I try to welcome the people I meet with respect, tact and professionalism”.
Defenders of the bond must instead painstakingly assess all the reasons why the conjugal bond contested should be considered valid. Their role is not always understood. However it is indispensable so that – in the area of trial dynamics – all the aspects in favour and against the arguments proposed are crystal clear, and that prior to making a decision the judge may have on hand all the necessary elements to decide on the case with justice. Women account for 67 per cent of defenders of the bond.
Chiara Gabellini – married
with two children, a boy of eight and a girl of six, qualified in jurisprudence
Notaries carry out an equally important role for since they are called to attest to the truth of what occurs in the proceedings their presence is indispensable. In fact it is they who guarantee the correctness of the everyday activity of ecclesiastical tribunals. Women account for 75 per cent of those who work in this sector.
Their task is as delicate as it is fundamental. The absolute correctness of the procedure of the trial alone gives rise to the equality of rights for all the parties concerned, necessary to guarantee a just sentence. Stefania Giombini — a wife and the mother of a 16-month-old child and who also holds a degree in jurisprudence and is on the way to earning a doctorate in canon law – has served as a notary for eight years. In her professional experience she emphasizes that “to carry out the role of notary too, training and the seriousness of one’s own activity constitute collaboration in the search for the truth. This is the reason why I decided to complete my legal training in canon law. I am convinced that it is not a job like any other, since every day I am required to welcome people with sensitivity and to contribute with my actions to speeding up the trial, thereby rendering a service to the Church”.
In the context of the tribunal of the first instance of the Vicariate of Rome, 15 per cent of the women present – who account for 45 per cent of the employees – have worked there for more than 15 years and 40 per cent for about 10 years.. Ecclesiastical tribunals competent for cases of matrimonial nullity are found throughout Italy as in the rest of the world and a considerable number of women now work in them.
As we said at the outset, a true and proper women’s revolution has come about also in the role of defence. If one analyses the register of Rotal lawyers the dazzling statistic that meets the eye shows that the presence of women has notably increased in the past 20 years. If, in fact, only three of the 27 advocates enrolled in the register until 1980 were women, in the following decade the number of women increased to 24 out of 100.
Since 2000, the ratio has been inverted: out of the 154 newly enrolled advocates 96 are women. In other words the female presence has reached about 63 per cent of those enrolled. From 2010 to this day there are 13 women lawyers out of 24 recently enrolled. The internal tribunals are based in Vatican City. They deal with civil and penal justice and 82 lawyers are enrolled in them, of whom 35 are women.
We can now be certain. Women will make a fundamental contribution whatever the path the Pope takes in matters of matrimonial legislation.
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