Until 1993, the Church’s legal system excluded any intervention by State bodies in matrimonial cases; its competence to deal with them was exclusive. This exclusion concerned jurisdiction and not competence, inasmuch as jurisdiction marked the external limits of a State’s jurisdictional power with respect to the powers of Ecclesiastical Tribunals, to which the Church had conferred its function in order to express it in those cases for which State Tribunals were deficient.  The Constitutional Court ruling of 1993, however, changed the orientation of the Church’s exclusive jurisdiction followed until then, as Luciano Smaldino, a Rotal Lawyer qualified to practice before the Roman Rota and the Supreme Court of the Apostolic Signatura, explains in this long interview.

by Roberta Imbimbo

Lawyer Smaldino, what did the Constitutional Court ruling of 1993 establish?

The Constitutional Court, in its 1993 judgment, had stated that, since marriage was governed by canon law, to which civil effects were linked, only the ecclesiastical judge could pronounce on validity or invalidity, whereas the civil judge had to pronounce not only on the validity of the transcription, as had been the case until then, but also on the validity or invalidity of the marriage celebrated by concordat rite. This changed the orientation of the exclusive jurisdiction of the Church followed until then, because, from that moment on, the jurisdiction over the marriage act also became a matter for the civil court. And, as the Holy See was and is the holder of legal personality under international law, comparable to that of sovereign States, it followed that it enjoyed jurisdictional immunity and, as such, could continue to iuris-decide on the validity or invalidity of marriages celebrated by its faithful with a concordat rite.

Today, how can the nullity of a marriage be obtained?

Today, the parties to a divorce case may ask the civil court for a declaration of the nullity of the marriage bond, provided that they expressly request it, otherwise, they will not form a judgement on the point. And if they do not do so, it will be the Church court that will give rise to such a judgement: either because the Court of Appeal, in the course of the deliberation proceedings, will have ascertained that the question of the existence or non-existence (i.e. nullity) of the marriage bond had never been raised in the divorce proceedings in progress, or because the ecclesiastical judgement on the nullity issue was concluded before the civil judgement (the so-called criterion of prevention). It is regrettable to observe how even today, 29 years after the reservation of the ecclesiastical jurisdiction to ascertain the nullity of a marriage (i.e. a marriage celebrated with a concordat rite), Italian Catholic citizens, members of the European Union, in order to have the enforceability of the nullity recognised in the civil court, must also submit their case to a different judicial order (the Italian one), with the consequent loss of time and money. When, on the other hand, under the EU Regulation (so-called Brussels 2), judgments in matrimonial matters issued by other States of the Union become automatically enforceable, without the need for other vague judgments by the receiving State, namely the Italian State which is part of the Union. My more than thirty years’ experience as a civil lawyer at the Courts of Bari, Bologna, Naples, Palermo, Milan and at the Roman Rota leads me to affirm that today, psychoanalysis is increasingly present in the matrimonial-canonical process, an important therapeutic tool for the spouses and propaedeutic for the judges themselves in approaching a procedural truth that is as close as possible to that true reality which is the justifying soul of the process.

For further information (https://www.avvocatolucianosmaldino.it)

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