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EFFETTI NELL'ORDINAMENTO CIVILE DELLE SENTENZE CANONICHE DI NULLITA' DEL MATRIMONIO

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)

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GIUDIZIO CANONICO DI APPELLO E GIUDIZIO DI DELIBAZIONE AVANTI ALLA CORTE D'APPELLO

canonical trials APPEAL


Within 15 days of publication of the Judgement of First Instance, the unsuccessful party and / or the defender of the bond may appeal on the same court. The latter, examined the records of the defenders of parties and the defender of the bond, shall decide on the need for a new investigation of the case further. If there is no such need, the appellate court confirmed the decision under appeal by the decree, which sets out briefly the reasons for the confirmation.

Otherwise, there is a new statement of the case, similar to the first instance. Note that it is permissible mutatio pamphlets, and appeals can be treated in an entirely new issue compared to those treated in the previous trial stage.

Once the court of appeals, if by the decree mentioned above, or if the sentence is confirmed for the nullity of marriage, spouses may already be subito contrarre un nuovo matrimonio religioso.Infatti detta pronuncia è immediatamente esecutiva in ambito religioso e il Tribunale provvede a comunicare tale pronuncia all'ordinario del luogo ove i coniugi si sono sposati, affinchè l'annoti nei registri matrimoniali .

Tale pronuncia non passa mai in giudicato e, nel caso di sopravvenienza di nuovi fatti, documenti, prove ecc...chi ha interesse può proporre impugnazione, avanti allo stesso Tribunale, e, entro 30 giorni da tale atto di impugnazione, deve provvedere a produrre i nuovi argomenti o le nuove prove su cui si basa l'impugnazione stessa.



GIUDIZIO AVANTI IL SUPREMO TRIBUNALE DELLA SEGNATURA APOSTOLICA

Come detto, la sentenza or decree issued by the Court of Appeals recognizes full effect to the pronunciation of religion in question.

However, in order to ensure that the effects can be produced also by civil society, the enforcement is necessary, that the enforcement order by the Supreme Tribunal of the Apostolic Signatura. This assessment, which takes place at the Holy See is basically control and this amounted to the procedure being fulfilled by the canonical courts, the proper application of canon law and respect the right of defense on both sides. In particular, in such a place is found 1) the jurisdiction of the court in the previous sets of proceedings, 2) that the quotation is been put into operation in accordance with the canon law, and 3) that the parties had representation, or at least the possibility of being represented (default), under canon law. Put in place the judicial review, the Tribunal of the issues a decree which states that the sentence is lawful.



RESOLUTIONS BEFORE THE COURT OF APPEAL COURT

The double sentence of nullity of marriage concordat in place by the Courts fee is not in itself likely to affect the civil order. To this end, in addition to the above enforcement, it is necessary that the ruling is canonical resolutions by the Court of Appeals jurisdiction.

that other levels of jurisdiction is another control that is put in place the measure on the canon. The Court of Appeals must determine the existence of the following: 

its territorial jurisdiction.

 The fact that it's concordat marriage canon, and then the judge had jurisdiction to hear the case.

 The existence of the investigation, by the Supreme Tribunal of the Apostolic Signatura, the finality of the Judgement of the procedure and ecclesiastical canon.

 Compliance, under the canonical trials, the parties' right to resist and act in a way not dissimilar as stipulated by the state.

 The fulfillment of other conditions required by Italian law so that they can have the effect of foreign judgments (against the so-called "public policy").

This process is said to "exequatur" and, notwithstanding Articles 64 and 65 of Law 218/1995 (so-called "automatic recognition of foreign judgments"), it is still necessary if Article 8 of the Agreements of 1984 (special law ) prevails on the law 218/1995 (General Law). As confirmed by the Supreme Court in 2003 and 27595 10796 of 2006.

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LA NULLITA' DEL MATRIMONIO CONCORDATARIO

CONDITIONS, PROCEDURE AND EFFECTS



INTRODUCTION

Today is the substantial rise in cases in which the spouses rather than to the court calendar, turn to Judge canon in order to get the pronunciation of nullity of marriage celebrated with religious ritual. The ruling in question, the conditions required by law, may also have effects in the civil order.

This process is completely different than the civilian, a path which is longer, is more difficult to succeed in the demonstration in question and is far more expensive. However, once you get the resolutions of the canonical measure of nullity of marriage, the marriage must be considered come nullo, come non celebrato. Il che, differisce completamente dagli effetti del comune divorzio.

Detto ciò, ora è necessario valutare meglio nel dettaglio le caratteristiche ed i presupposti di tale complesso e lungo iter procedimentale.


 PRESUPPOSTI

I presupposti per ottenere una pronuncia di nullità del matrimonio canonico sono diversi, addirittura alcuni commentatori hanno contato in passato alcune centinaia di ipotesi casistiche ma sono riconducibili a poche e ben delineate “categorie”:

 La mancanza di consenso da parte di uno o di entrambi i coniugi. Rientra in tale categoria la figura della simulazione e della riserva mentale, per esempio.

 The absence, on the part of either spouse, the will to implement some of the essential purposes of Christian marriage. For example, fall into this category, the desire not to procreate, the violation of marital fidelity and the violation of the insolubility of marriage.

 The error on the qualities of the person or spouse.

 Physical violence or fear.

 The possibility that the spouse or the spouse are powerless in sexual intercourse.

 The suggestion, however well known that the marriage was not consummated, that the spouses have not had sex completo.A Following this you can obtain the annulment of the marriage by papal dispensation, which is a process (mainly for administrative and documentary) different from the procedure "ordinary" for a declaration of nullity of marriage.



canonical trials of First Instance

The trial must be established before the competent court, which is the place where the spouses reside or are domiciled. Standing to bring this action are the spouses and the promoter of justice, the latter only in cases where the nullity of marriage is a public right. Instead entitled to participate in the proceedings is the defender of the bond, which will be an asset in the case, if possible, to defend the marriage contract by the two spouses.

From the outset, Judge canon, before agreeing to investigate the case and will seek to implement any initiative to reconcile the spouses, thus avoiding trial.

The application consists of a pamphlet to be handed to the Judge, who, after trying unsuccessfully attempted conciliation service on the defendant or both spouses the decree of citation. After 15 days of notification, if the parties have not objected to the proceedings the court, within the additional period of 10 days, to establish by decree the formula of "doubtful". The challenge to the argument assumes considerable importance because it serves to determine the subject of the case.

Then, after another 10 days from that last notification if the parties opposed to nothing, with a further decree began investigating the matter. At this stage there is the assumption by the Court, the various tests, such as interrogation of the couple, witnesses, the taking of documents, expert opinions etc. .... With the instruction, the judge must seek reaching the conviction, the so-called "moral certainty" about the nullity of marriage or not. In case of doubt, often, the judge summoned as a witness third parties, aware of the facts, which are called "the credibility of witnesses," which are intended to complement the defensive activity initiated by the spouses. Of all this activity, the judge, under penalty of nullity proceedings, shall allow the parties and lawyers to review the documents lodged and to take copies.

Subsequently, the preliminary investigation is terminated when it is considered sufficient by the Court or when the parties declare that they have nothing more to add and you hear an ad hoc decree.

Finally, start the debate stage, where all parties exchange pleadings and, if approved, create a brief oral discussion.

After the last step above, the Judge, who is a collegiate body, meets and makes a positive response regarding whether or not the invalidity of the marriage. Following the conviction of the verbalization of the sentence must be written and published within one month of notification by the parties and notified Publicos tabellarios.

This measure, as well as to warn the parties on reciprocal moral obligations, shall act, if necessary, the civil obligations imposed on them and any duties and obligations related to the offspring.


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Il processo matrimoniale canonico

The process and 'face to a finding of nullity' di un matrimonio canonico o concordatario; e' iniziato da uno o entrambi i coniugi o dal c.d. "Promotore di Giustizia" -parte pubblica del processo- nel caso in cui la nullita' del matrimonio sia nota e non si possa procedere alla sua convalida.



Colui che radica il giudizio "attore" deve farsi assistere da un avvocato ecclesiastico che valutera' la sussistenza o meno dei presupposti richiesti dalla legge canonica. Quindi redigera' l'atto introduttivo della causa, il libello, in cui si forniscono ai giudici tutti gli elementi in fatto e diritto che motivano la domanda di nullità. Il libello viene depositato presso la Cancelleria del Tribunale competente. La causa viene preliminarmente esaminata dal Vicario Giudiziale, il quale dovra' verificare la competenza del Tribunale adito, la legittimazione processuale dell'attore, la sussistenza del fondamento della causa.



L'altro coniuge, convenuto in giudizio, potra' costituirsi:



a) opponendosi alle richieste dell'attore deducendo la sua verita';



b) rimettendosi alla giustizia del Tribunale senza affermare o negare la pretesa dell'attore;



c) rimanendo inattivo e contumace di fronte alla citazione ricevuta.



In quest'ultimo caso assumera' lo status processuale di parte "assente" ed il processo proseguira' comunque anche senza di lui.



Proof.



aim of the trial and 'to be able to ascertain facts or controversial questions that are relevant in the process so as to form in the court the conviction and certainty necessary to make the award. This certainly is not 'physical certainty, that rules out the possibility' error, but rather and 'a "moral certainty", which excludes the possibility' of error about the truth 'of the facts alleged in court. The main evidence provided by the Code of Canon Law, in addition to statements, interviews and confessions of the spouses, witness statements, documentary evidence and expert opinion, the latter essential in cases of nullity 'inability to dependent on "the causes of a psychic nature."



The conclusion of the case.



Once the investigation, the ruling is issued. If the decision is 'so the case will be' sent to the court of second instance for ratification. If you have two decisions that the wedding will be 'declared void by any legal effect.



If the decision is 'negative, the unsuccessful party will be able to' appeal.



E 'can finally apply for recognition of civil effects of the court ruling eccelsiastico (cd exequatur). Any favorable ruling determines the declaration of invalidity Civil bond with the possible effects of an economic also.



The costs of ecclesiastical justice (rooting charge of the case and attorneys' fees) shall be established by the Episcopal Conference. Those who try to be in a state of poverty and do not have the economic means to obtain a "Patron of trust" may apply to the competent ecclesiastical tribunal to apply for legal aid.


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Consenso matrimoniale

to natural law, consent must be free, internal and external signs comply with, and not conditional, that is not subject to the creation of future events. Consent it requires the acceptance of a marriage outright, without the addition of clauses that oblige the other spouse to take a particular course of conduct in the future [1]. For example: "I'll marry you as long as you give up your future activities at work" or "I'll marry you if you move to a different location." The addition of clauses results in a reduction of consent which is not allowed by canon law. The consent must be without physical pressure from wherever it comes from. The pressures can also be psychological. The case that occurs frequently is the awe. In this case, the pressures arising from their parents or even one of them. When we talk pressure should not be thinking about beating or threatening cries: those pressures which are considered sufficient practice with speeches firm and insistent, emphatic way to weaken the stamina. For example, the child who is forced / to accept the marriage with a person who does not love her anymore. The / spouse only to awe for fear of provoking a serious outrage in parents. It happens often when the engagement takes many years and everyone thinks is to end the marriage, or when the rethinking of the child, especially in small towns, creates difficulties for parents, the idea of \u200b\u200bhaving to face criticism, gossip and malicious people's reactions . It is the cause of nullity of marriage the fear caused by threats of suicide sector. Consider the case of a girl who deeply loves her boyfriend and that these are left. The threat of suicide "forces" the guy at the wedding celebration but with a forced consensus, no longer the result of free choice. The consent could be considered invalid due to lack of capacity (c. 1095). A person is deemed incapable of contracting marriage only when it lacks the use of reason, but even when it lacks discretion to trial. In practice, the subject is not available in adequate measure of critical thinking, awareness, inner freedom, all the necessary requirements. This can happen due to an insufficient degree of maturity or abnormality of psychological or neurological or because it is unable to assume the burdens and responsibilities expressed in the time of the marriage.

can also happen that a person with sufficient capacity for discernment, however, in married life may prove unable to cope with the duties and responsibilities assumed at the time of the wedding. This happens with the presence of abnormal personality or character. Can not be invoked to annul the marriage, the incompatibility of character, as the incompatibility, while making it difficult to married life, does not involve an inability to assume the essential obligations of marriage.



Indissolubilità ed unità del vincolo

Sono due proprietà strettamente connesse tra loro che nel matrimonio cristiano conseguono una peculiare stabilità in ragione del sacramento (can. 1056). Il matrimonio per disegno divino deve essere monogamico. L'uomo può sposare una sola donna, contrariamente a quanto permette il Corano con l'ammissione della poligamia. E di riflesso il matrimonio è indissolubile, senza divorzio, perché è volere di Dio che il vincolo matrimoniale duri fino alla morte di uno dei due coniugi. Talvolta una persona si accosta al matrimonio non completamente convinta del passo che sta per compiere. Ha incertezza e teme che in futuro possano sorgere difficoltà tali da compromettere l'armonia of torque. There he married a precise mental reservation: regain their freedom asking for divorce, if the union would be unhappy. A marriage contract is invalid in this context because it excludes the indissoluble bond. Different is the attitude of those who come to marriage with the idea of \u200b\u200bmarrying for life but without prejudging the future, unable to foresee the consequences. In this case the marriage is valid as long as there is the constant effort to overcome difficulties, and as Christians, trusting in the Lord and in the sacramental bond. Excludes those who are married then the marriage "to test" with the intent to dissolve the bond under certain circumstances, regaining full freedom.



Loyalty

Even this property is essential in Christian marriage. It should be emphasized that it is adultery or infidelity as a fact in itself to determine the nullity of marriage. And 'the marriage void only if the infidelity is premeditated, that is if one spouse at the time of the wedding had the idea to betray the other or the other. A classic example is that of a person who lives a sentimental experience without having completely severed contact with the person to whom it was previously bound. Eventually he married one of the two but does not give up the intention to review after the other. The party betrayed may rely on the declaration of invalidity.



responsible procreation

It comes to the invalidity is ruled out when the offspring. The exclusion can be:



absolute, if one or both spouses decide not to have children for fear of transmitting to their offspring inherited diseases or for economic reasons.

temporarily, when one or both spouses agree to an indefinite postponement of procreation pending the completion of an event. Not realized, for example, procreation, which the couple does not feel fully mature to assume responsibility for children, or is hesitant on the stability of interpersonal relationship. Because the constraint is valid should be that the offspring is accepted unconditionally and without mental reservations.

's sacramental bond

"The matrimonial covenant, by which a man and a woman establish between themselves a partnership of all life, by its nature ordered toward the good of the spouses and the procreation and education of children, between the baptized was raised by Christ the Lord to the dignity of a sacrament "(c. 1055). So the marriage between two baptized persons is a sacrament automatically (ex opere operato). It is also true baptism of the faithful of the Orthodox Church, Anglican, Waldensian, Methodist, Lutheran, Baptist. It is generally valid baptism of all those who receive it on behalf of Trinity SS.ma. Not valid as of the Mormons or Jehovah's Witnesses.

When it becomes invalid sacrament?

The sacrament is invalid when the person refuses to explicitly and formally what the Church intends to do when celebrating the marriage of the baptized (FC 68).

Only in these cases, there is the sacramental bond as the consensus expressed during the religious ceremony is a formal expression blank. The case also presents for the baptized believers, the cross and torment of the operators of family ministry. John Paul II in the Apostolic Exhortation "Familiaris Consortio" of 22 November 1988 gave the about a specific directive, the result of parental understanding and balanced carefully.

When young people show that they not be fully prepared to celebrate the sacrament with faith, or because they declare themselves indifferent, or because they explicitly say not to believe, or because they are in a state notorious for abandoning the faith itself, only then can reaching the decision not to admit the marriage. This decision must be made with a true spirit of discernment after consulting the ordinary in doubtful cases (Dir. family ministry, n. 87). But the demands of marriage of baptized believers can not be a providential occasion for the parish of evangelization and catechesis. L 'art. 43, Decree-General calls on the priest "to help those engaged parties to reflect on the meaning of their choice and to ensure that they are sincerely ready to accept the nature, purpose and essential properties of Christian marriage" remembering that "wanting to establish additional criteria for admission to the celebration Church of the marriage that should concern the degree of faith of the engaged, moreover, involves serious risks "(FC. 68). In cases of marriage of baptized persons who believe you can not skip the celebration of Holy Mass celebrating the rite of marriage only.



Error

Another ground of nullity is the factual error (c. 1097), which can relate to a double object:



the person;

its quality.

In the first case the error renders a marriage invalid because it is a substantive error concerning the identity of the partner. And what happened to Jacob in the Old Testament, when the celebration of her marriage to the daughter of Laban, Leah was replaced by Rachel (Genesis 29, 16-25). In the second case the error does not render the marriage void in itself except that the quality has been directly and principally intended becoming a sine qua non (c. 126). As an example we can cite the case of a person who marries the idea that he / she is to the future / a spouse is holds a position of economic and professional dignity, qualities that he / she is particularly close to heart and considers it essential for the wedding. After the wedding is this quality that does not exist, in which case the consent shall not be considered valid. As in the case of a young man who marries a girl of her virginity safe when in fact not a virgin. In this case the error giving rise to the marriage contract, since the young man, if he had known it before, do not marry the girl. The marriage is valid in itself, except that the young man, before marrying, with the explicit desire to have understood "directe et principaliter" to marry a virgin girl making a conditio sine qua non.



Dolo or deception

The Question 10 Position Double (model 1) provides: He concealed something that would seriously jeopardize the married life? Before this application, the pastor must verify



that intent is a genuine mistake or deception of contracting subject;

that the intent is put in place deliberately with the specific intention to steal the matrimonial consent of a person;

that the fraud has as its object not a fact but any physical or moral quality of a person who intends to marry, not others. For example make the marriage void contractors who hide the existence of hereditary diseases, or psychic nature, or of being infected with AIDS, or have homosexual tendencies.

Impotence (c. 1084)

Contrary to popular belief, the discussion of this case represents a small fraction of the Ecclesiastical Courts. Nullifies the antecedent and perpetual impotence marriage by both man and woman, both absolute and relative terms. When in doubt, the marriage must not be prevented.

Infertility does not make the marriage void, unless the person has been deceived with intent to steal the consent order (c. 1098).





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Notes [Note 1] "The Matrimonial consent is an act of will by which man and woman by an irrevocable covenant mutually give and accept themselves to constitute a marriage" (can.1057, 2).

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