Understanding Marriage Annulment: A Guide to Canonical Proceedings
Tema 12: The Canonical Matrimonial Proceedings
1. Introduction to the General Concepts of Separation and Divorce
Separation
Separation is only possible through civil proceedings. It occurs when two people wish to live apart. Previously, a reason was required for separation, but today it is not necessary. Separation ceases the effects of marriage, primarily marital cohabitation.
There are two kinds of separation:
- De Facto Separation: This is a separation in fact, without any legal action or decision. Reconciliation is always possible, even if there is a final decision from the judge.
- Separation by Court Order: This occurs when a judge orders separation under a sentence, with a regulatory agreement and ratification before the judge. It may be by mutual agreement or litigation.
Divorce
A civil marriage can be dissolved by divorce, death of a spouse, or legal absence. There can be no reconciliation after a divorce is finalized. If there is no decision of a judge or ratification in the regulatory agreement, reconciliation is possible. If there has been a final decision, the two people would have to remarry.
A Brief History
During the Franco dictatorship in Spain, divorce was not permitted, except for a brief period during the Second Republic. The canonical concept of indissoluble marriage prevailed. The Spanish Constitution of 1978 addressed separation and divorce, and the Law 7/1981 on Separation and Divorce was established. This law has undergone several amendments over the years, reflecting societal changes and evolving perspectives on marriage.
2. Void Marriage: Civil Nullity and Canonical Annulment
Marriage annulment seeks to declare that a marriage never legally existed. This means that at the time of consent, there was a flaw or defect. A marriage may be considered null and void for several reasons:
- Vice: When consent is affected by violence (forced by fear), error, or condition.
- Consent Defect: The absence of consent due to total simulation (e.g., to obtain citizenship) or disability. The characteristics of marriage are understanding and will. If consent is missing or defective, the marriage is fundamentally flawed.
The Void Marriage
A void marriage is not canonically recognized but the link remains civil. A civil marriage is entered in court. The causes of invalidity for this type of marriage are those reflected in the Civil Code Article 73.1.
The canonical nullity of marriage has no civil effects. To dissolve a religious marriage, there must be a cause of nullity (similar to civil law). It aims to declare that the marriage never existed. For a marriage to be valid, there must be consent to marry. If consent is vitiated, the marriage does not exist.
3. Standard General Scheme of the Canonical Process of Nullity
People seeking marriage annulment often do so for two reasons:
- Religious Reasons: Their situation is irregular, and they need to remarry in the Church.
- Non-Religious Reasons: They want to break the canonical link with the other person.
The nullity procedures are available to all people, regardless of their economic situation. The process is handled by the Ecclesiastical Court, not the regular courts. The annulment process consists of the following parts:
- Process Introduction: Starts with the filing of the application and ends with the litigation and defense of the evidence.
- Probationary Period: All evidence is presented, including direct evidence (e.g., testimony, expert opinions) and indirect evidence.
- Process Discussorio: Discussions between lawyers and the defender of the bond.
- Decision-Making: The end of the process, resulting in the canonical decree of nullity. There is a principle of double line in these judgments, as they need to be confirmed by a higher ecclesiastical court.
Principle of Conformity: The first sentence of nullity is a final decision. However, a second judgment is needed to confirm the first in the canonical process to create legal certainty. In exceptional circumstances, a revision may be requested.