DEFENDER OF THE BOND. — The office of the defender of the bond, together with that of the promoter of justice, who intervenes in contentious and penal cases of public interest, may be said to be analogous to that of the public prosecutor in a civil judicial system; nevertheless, these offices or organs cannot be regarded in canon law as emanations of the executive power, since, according to the law of the Church, the principle of a clear separation of powers does not appear to apply.
The defender of the bond is a special organ created for the purpose of providing, as the term itself indicates, for the defense of the bond in cases concerning marriage (nullity or dispensation from a ratified and non-consummated marriage) and Holy Orders.
The intervention of the defender of the bond in proceedings in the aforementioned cases is obligatory and, in his absence, the process is null, insofar as concerns the acts performed without his prior citation (CIC, can. 1587). This nullity may, however, be remedied if the uncited defender of the bond intervenes spontaneously in the proceedings.
It should also be noted that the acts performed in the absence of the defender of the bond who, having been cited, did not appear, must be communicated to him, so that he may submit such arguments and conclusions as he deems appropriate.
Under can. 1588, a single person may perform the functions of defender of the bond and promoter of justice, unless such accumulation is prohibited or cannot practically be carried out, as occurs when the promoter of justice challenges the validity of the marriage. The activity of the defender of the bond (unlike that of the promoter of justice) is a bound activity, since he is always obliged to conclude pro validitate vinculi, with the reservation, naturally, that the promoter of justice may eventually request, for reasons of public interest, that the nullity of the bond itself instead be declared. Conversely, the bishop exercises none of that auctoritas which is proper to him with regard to the promoter of justice over the defender of the bond (cf. can. 1954 § 3 nn. 1, 2 and 3).
Among the duties of the defender of the bond, in addition to the fundamental one of doing whatever is necessary for the defense of the bond, is that of appealing against the first judgment declaring nullity (even if it was preceded by another judgment that had rejected the petition for nullity). He may also appeal from a judgment pro nullitate confirming another judgment of the same nature.
The defender of the bond (like the promoter of justice) is appointed
by the bishop, who selects him from among the priests of the diocese possessing the qualifications prescribed by can. 1589 (unblemished reputation, knowledge of canon law, and qualities of prudence and justice). This appointment may be made generally, for any proceeding in which he is to take part, or may be limited to individual proceedings.
See also, concerning the duties of the defender of the bond in the conduct of the process, the norms contained in cann. 1672, 1743, 1759, 1773, 1830, 1863, 1968, 1969, 1981, 1984 and 1991. They concern both the evidentiary phase (such as, for example, the obligation always to be present during the questioning of the parties and during the examination of witnesses and experts, and that of submitting to the judge the questions to be put to the parties and witnesses) and the hearing (such as, for example, the obligation of the defender of the bond to submit his own deductions or animadversions).
The defender of the bond has the right to be heard last in the discussion of the case, and has the faculty to continue, on his own behalf, when the public interest so requires, proceedings that have lapsed through the contumacy of the plaintiff (can. 1850), and to bring a complaint of forgery against judgments issued without observance of the prescribed forms (can. 1897 § 1).
The defender of the bond, like the promoter of justice, may be removed from office for a just cause by the bishop (can. 1590 § 2), and is moreover subject to the penal sanctions provided by can. 1625 for judges.
In cases involving the dismissal of a member from perpetual vows in an exempt clerical religious institute, functions analogous to those of the defender of the bond are exercised by the defender of religious profession (CIC, cann. 655 § 2 and 1589 § 2).
BIBLI: Wernz-Vidal, VI, p. 96 ff.; B. Fischer, Die Entwicklung des Instituts der Defensoren in der römischen Kirche, in Ephem. liturg., 48 (1934), p. 443 ff.; F. Roberti, Die facultatibus defensoris vinculi quand appellationem, in Apollinaris, 9 (1936), pp. 310-311; F. X. Hecht, De munere defensoris vinculi recte esplendo, in Persod. de re mor. can. liturg., 26 (1937), p. 344 ff.; M. Lega-V. Barnecetti, Commentaria in iudicia ecclesiastica, I, Roma 1938, p. 153 ff.; F. Roberti, De validione vinculi defensione comparanda, in Apollinaris, 13 (1940), p. 30 ff.; F. Roberti, De processibus, I, Roma 1941, p. 311 ff.; F. Della Rocca, Istituzioni di diritto processuale canonico, Torino 1946, p. 102 ff.
Fernando Della Rocca