1) General
An alternative to the civil divorce is now the canonical transcription of the sentence of nullity of marriage. Theoretically, the couple could also avoid the phase separation of church and go directly to the judge asking for a declaration of nullity of marriage. The court ruling canon, like a sentence of a foreign state, provided with all the requirements of Italian law, it is likely to be transcribed and produce the effects an Italian ruling of invalidity. In practice, however, it is customary to first adjust property relationships (marital home, movable and immovable) and family (children may be born during the marriage, custody and visits to the non-custodial parent) by separating civil, and only then refer it to the ecclesiastical court. This opportunity
transcription Canon, began with the agreement of February 18, 1984 took place between the Holy See and the Italian state, then consecrated in the Law 121, 1985 and supplemented by legislation relating to private international law about ten years later. In fact, the relationship between the Italian and the Holy See is neither more or less as it pertains two foreign countries.
E 'to be specified, however, that the relationship between the Italian State and the Church, unlike that between the Italian and other foreign countries, reciprocity is unique. Indeed, the State recognizes the ecclesiastical sentences of nullity of marriage transcript, but the Church does not recognize the judgments of invalidity of the store that were ordered by the judge of the state.
In this respect, in the canonical force a principle dating back to the Council of Trent in the sixteenth century. According to which, given the sacramental nature of marriage between the baptized, the invalidity of such lien is pronounceable only by the ecclesiastical judge.
the Lateran Treaty of 1929 had accepted the principle, recognized as "the sole jurisdiction of the courts and departments of the church" cases concerning the nullity of the marriage canon. With
agreements Villa Madama in 1984 takes place definitively overcome the principle of exclusive jurisdiction over ecclesiastical canonical marriages transcribed in the records of the Office of the State civil. However in the seventies had already been a revolution in divorce law (known as "termination of the civil effects of marriage") and the reform of family law and therefore, in light of these new laws, were reviewed relations between the state and Church in matrimonial matters now regulated by rules dating back more than half a century earlier.
2) The proceedings by the enforcement
Following these agreements, the procedure was therefore agreed that the ruling recognized ecclesiastical nullity of marriage in the Italian state that was called "by the enforcement proceedings." This procedure takes place (today) before the appeals court of jurisdiction. (The territory is one of the town from which it was transcribed marriage canon. The appeals court is competent to head the district that includes the above policy).
the proceedings by the enforcement viene dato impulso dalle parti private, tant’è che senza la volontà di queste è impossibile che il procedimento abbia inizio.
Presupposto della domanda di delibazione è l’esecutività della sentenza ecclesiastica. Nel caso che ci interessa, l’esecutività di una sentenza di nullità è data dalla conferma in appello di altra sentenza canonica (c.d. doppia sentenza conforme). Il decreto di esecutività è emanato dal Supremo Tribunale della segnatura Apostolica.
Secondo la legge del 121/1985, che richiamava poi degli articoli (oggi abrogati) del codice di procedura civile, nel procedimento di delibazione, la Corte d’Appello doveva:
- To assess both the existence and authenticity of ecclesiastical measures about the nullity of marriage and the decree of the Apostolic Signatura;
- ensuring that the marriage was annulled a marriage that is, a concordat canonical marriage registers transcribed in marital status.
. The ecclesiastical courts had jurisdiction to be the cause.
- In the court also was afforded the parties the right to appear and to be defended, in terms guaranteed by the Constitution of the Italian Republic. This rule was introduced by the Constitutional Court No 18/1982 and confirmed by the Agreement. The right of defense was met when the defendant was duly summoned to appear and had a reasonable time to defend himself, so that its possible absence was the result of free choice and not derived from procedural obstacles interposed by the Ecclesiastical Court .
3) New rules on recognition of foreign judgments
Following the enactment of Law No. 218/1995, the object of the ratio of private international law, were repealed Articles. from 796 to 805 of the Code of Civil Procedure, relating to, inter alia, the recognition of foreign judgments, with effect from 31 December 1996. It 'should therefore be incorporated the regulations of Law 121/1985, as we have seen that gave effect to the agreements of the Villa Madama, with regard to enforcement of foreign judgments with the L. 218/1995.
a rule to the law 218/1995, the foreign decision is recognized in Italy without having to resort to special procedures, but it can happen that the possession by the Canon, the requirements set out in Article analytically. 64 of the Act is challenged, or that in any event, the sentence is not observed, resulting in the need to carry out enforcement. In both cases, you can ask the Court of Appeals with territorial jurisdiction to establish the conditions for approval (c.d. procedimento di delibazione)
Affinché la sentenza straniera possa essere direttamente riconosciuta in Italia e produrre i suoi effetti di cosa giudicata sono necessarie una serie di condizioni indicate nell’art. 64 della legge.
La sentenza straniera è riconosciuta in Italia senza che sia necessario il ricorso ad alcun procedimento quando:
a) il giudice che l’ha pronunciata poteva conoscere della causa secondo i principi sulla competenza giurisdizionale propri dell’ordinamento italiano;
b) l’atto introduttivo del giudizio è stato portato a conoscenza del convenuto in conformità a quanto previsto dalla legge del luogo dove was held on trial and not infringed basic rights of defense, the contradictory must therefore be intact;
c) the parties must have lodged in court under the law of the
d) the place where conduct of the trial or the default has been declared in compliance with this law;
e) the award shall be res judicata in accordance with the law of the place which has been delivered;
f) the sentence should not be contrary to any other sentence uttered by an Italian court of res judicata;
g) is not pending trial before a judge Italian for the same object and between the same parties, which had begun before the foreign process;
h) the provisions of the Judgement does not produce effects contrary to public policy.
In conclusion, the new system introduced by Law 218/1995 does not change almost at all the conditions laid down under the former Article. 797 cpc for exequatur elle foreign judgments. However, the "automatic recognition" does not include the indiscriminate acceptance of any foreign order, including the canonical judgments of invalidity, but that the control requirements occurs at a later time and in any case where, if conditions warrant.
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