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2011-01-20 - Court of cassation, n. 1343

Family · Italy · Canon Law · Marriage

A long period of cohabitation after marriage should prevent the civil enforcement of the ecclesiastical ruling of nullity of marriage

Key facts of the case – A man and a woman celebrated a canon marriage with civil effects (“matrimonio concordatario”) in 1972. After the separation occurred in 1992, their marriage has been declared invalid by the ecclesiastical court, because of the woman’s refusal to bear children. The exclusion, at the time of celebration of marriage, of the possibility to have children (i.e. the bonum prolis), even if unilateral and unknown to the other part, determines the invalidity of the canon marriage.
The ecclesiastical judgments of nullity of marriage are declared effective under civil law, at the request of the parties or either of them, by a ruling of the Court of Appeal, once established the presence of the conditions required by Italian legislation for the effectiveness of foreign rulings (art. 8 Law 121/1985). Ecclesiastical judgments, in short, may obtain full civil recognition only when they respect all the fundamental principles of Italian law.
Accordingly, the woman contested the civil enforceability of the ecclesiastical invalidity of her marriage, arguing that it would have produced effects adverse to public order, violating Articles 123 of the Civil Code and 29 of the Constitution, since the parties had lived together as husband and wife for far more than a year (in this case for two decades) before the separation was approved in 1992.

Main reasoning of the case – The ruling n. 19809/2008 of 18 July 2008 of the Court of cassation had clarified that Italian law shows a clear favour to the validity of marriage as the source of family relationship, with the result that the reasons for which it is contracted, while being relevant to the canon law as they pertain to the conscience, are usually irrelevant for civil nullity.
Here, the prolonged cohabitation subsequent to the marriage is considered as the expression of the willingness to accept the relationship and is incompatible with the subsequent exercise of the right to challenge it. Therefore, a particularly long period of cohabitation after marriage should prevent the civil enforcement of the ecclesiastical ruling of nullity of marriage pronounced because of the refusal of procreation omitted from one spouse to another.

Comment – Article 29 of the Italian Constitution [Marriage] provides that:
“(1) The family is recognized by the republic as a natural association founded on marriage.
(2) Marriage entails moral and legal equality of the spouses within legally defined limits to protect the unity of the family.”

See the decision (in Italian): 2011-01-20 – Court of cassation, n. 1343.