The effect of Canon of nullity of marriage, decisions by the Court of Appeals jurisdiction, retroactive ex tunc, ie from the time of the marriage. In fact, in civil and religious marriage is void, and that is, as it had never been any valid marriage celebrated. Marriage, therefore, remains as a simple fact and continue to produce those effects in which the law ricollega.Il divorce, however, stop the effects of a marriage valid and effective, and therefore has no effect ex nunc.
If a ruling is enforced ecclesiastical declaration of invalidity, applies the facts of the putative marriage for civil purposes. So, until the Canon of invalidity, the Civil marriage produces effects in the head or spouse in good faith, and in any case in regard to children.
a) If, as often happens in everyday life, the spouses have obtained the separation art. 150 cc, following a ruling of invalidity canonical separation itself would fail for lack of cause and purpose and there would be no need to divorce.
b) However, if the divorce is obtained prior to the decisions of the Canon, the civilian sphere will only and exclusively the divorce because of incompatibility with the logic Canon itself. The religious ruling, therefore, may not have any effect outside of church.
c) Finally, it is possible to reopen the case of the canonical process of nullity of marriage, even after obtaining exequatur of its pronunciation. If the ruling of invalidity following a new decision of the ecclesiastical tribunal assessing the validity of the marriage canon concordat is already restored the validity of the marriage declared null and relive the old civil effects of marriage. Consequently, any second marriage contracted by one spouse must be considered void under Article 117, paragraph I, cc (Court of Appeal Judgement of Naples 04/05/1995)
SPECIFICATIONS JUDGMENTS CASES. CASES
Below are mentioned, in my opinion, the most significant recent rulings on the specific case at hand. These judgments are of great importance because the maximum in question contribute to and implement clearly specify the area where you set up "in practice" the figure in question.
1) The nullity of a marriage concordat for exclusion of children when their intention is accepted by both spouses, is not obstacle, in terms of public policy, in the fact that state law does not include the duties of procreation arising from the marriage. In addition, the laws of the Italian not only not provide any essential principle of procreation, but constitute marriage as the foundation of the family, that is aimed at the formation of that society also includes natural children, as normal, although not essential, the development of the conjugal union (Cass. civ., Sec . I, 15/01/2009, No. 814);
2) The declaration of enforceability of the ecclesiastical court ruling that has rendered the marriage null concordat by exclusion, by a spouse, indissolubility of the bond requires that this difference has been expressed that these or the other spouse has actually known or that has not known for its own negligence, since, if not met any of these situations, the exequatur was prevented by the opposition with the Italian public policy, under which it falls to the fundamental principle of the protection of good faith and entrusting innocent. For the purposes of this investigation may be relevant, if supported by objective and subjective circumstances likely to give them credibility, the testimony "hearsay ex parte actoris" taken during the proceedings before the ecclesiastical courts, given that the statements are part of the the only means by which the subjective state of the same, not otherwise known, is externalized and can be known by third parties. (Cass. civ., Sec. I, 14/02/2008, No 3709);
3) On the subject of a declaration of enforceability of the ecclesiastical court ruling that has rendered the marriage null concordat by exclusion, by a spouse of one of the "bona marriages" (ie, consent to the entry of ' indissolubility) requires that this difference has been expressed that the other person was actually known or knowable by this with the utmost care, since, if the above conditions are not met, the exequatur was prevented by the opposition with the Italian public policy, within which it falls to the fundamental principle of the protection of good faith and entrusting innocent. It follows that the Italian court is required to establish the knowledge or ability to know the objective of this exclusion from the other spouse with full autonomy, since the profile outsider, as irrelevant to the canonical process, but not limited to the lawfulness of the pronunciation of ecclesiastical nullity of its investigation must be conducted only with respect to the delivery of decisions and acts of the process that may be acquired, since there is no place being taken by the enforcement of integration to any preliminary activity (Cass. civ., Sec. I, 19/10/2007, No 22011);
4) The Execution Of Judgement ecclesiastical declaration of nullity of marriage has no obstacle in the concordat that have not been measures adopted with regard to the putative property relationships between spouses, since the rules of the economic consequence of the declaration of invalidity is not mentioned among the conditions for the deliberations and that it makes applicable Articles. 129 and 129 bis cod. Civ. (Cass. civ., Sec. I, 28/12/2006, No. 27594);
5) On the issue by the enforcement of the sentence of an ecclesiastical court declaring the nullity of a marriage concordat, to "take on the incapacitas marriage, "the invalidity stems from a severe ineptitude of the subject to understand the duties of marriage in relation to the time of the manifestation of consent and does not differ substantially from the assumptions of disability contemplate dagli artt. 120 e 122 cod. civ.; deve pertanto escludersi che il riconoscimento dell'efficacia di tale sentenza trovi ostacolo nei principi fondamentali dell'ordinamento italiano, non rilevando in contrario le differenze della disciplina codicistica in punto di legittimazione attiva e rilevanza ostativa della coabitazione alla proponibilità dell'azione, in quanto non investono principi di ordine pubblico dell'ordinamento italiano (Cass. civ., Sez. I, 10/05/2006, n.10796);
6)Nel giudizio di delibazione della sentenza del Tribunale Ecclesiastico dichiarativa della nullità del matrimonio concordatario, l'indagine del giudice della delibazione deve essere condotta con esclusivo riferimento alla delibanda pronuncia ed agli acts of the canonical process, to the exclusion of the possibility of integration, it is not permissible at this stage a statement of evidence (in this case, the SC upheld the ruling on the merits that had rejected the request directly to the assumption of the psychic conditions of ctu one spouse) (Cass. civ., Sec. I, 20/10/2005, No. 20281)
Firm Clementoni
Alba Adriatica Teramo
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