KEYWORDS: nullity, marriage, comparative, latin, civil, canonian.
ABSTRACT: the study of the canonic law in the field of nulity reveals the common influence of culture and of the Roman Law, especially the born of Latin Systems from the Spanish Civil Law. The main idea of the nullity in these Legal Systems is that the marriage dissolves as if it had not been celebrated, with the same effects as at Spanish Codification.
In the methodology of Civil Law, there are many differences and similarities in the field of so-called "marital crisis". Matrimonial crises are defined by Professor Bercovitz as the "cases in which the legal system admits the ineffectiveness of marriage". It is necessary to qualify that this concept is not codified as such, it is more a doctrinal expression within which it is possible to include diverse hypotheses.
Within the previously exposed marital crises are lodged separation, divorce and nullity. The main difference between them is in the consummation of valid marriage, that is, in separation and divorce the marriage was validly celebrated and produced effects. Of the aforementioned, divorce implies the dissolution of the marriage so that it is extinguished – therefore, it becomes non-existent –, while in the separation the common life of the spouses ceases but they are still married.
The nullity – which is the subject of this investigation – is that the marriage dissolves, as if it had not been celebrated, therefore, the analysis of the same will be made starting from the premises established by Professor Bercovitz, mainly, as well as well as from a jurisprudential and canonical analysis comparing it with different legal systems of Latin America, thus determining the similarities based on the historical context.
NULLITY MARRIAGE HISTORICAL ADVANCES
In relation with the history of the nullity, we have to get back to the Corpus Iuris Canonici in the beginnings of the 20th century. This codex is basically a collection of legislation that borned in patristic texts, conciliar decrees and also some official and specific canonical works – related to the last one we can see the Decree of Gratian, that is, the canonical works Officials and individuals composed between 1140 and 1503 –. Respecting to the legislation of XVI century some of the laws were out of the Corpus, including some of the regulations of the Council of Trent. Although, some of these aspects will be considerated in the Codex Iuris canonici of 1917.
In the Codex of 1917, some of the laws of the old Corpus Christi were made advanced by a meeting that was carried out under the direction of Cardinal Pedro Gasparri and promulgated by Pope Benedict XV through the Constitution Providentissima Mater.
As we said previously, this Code of Canon law is basically a compilation of previous legal laws, including specific provisions of the doctrine related to marriage – specifically related to canons 1012 to 1143 – and also about matrimonial process provides information of the “marriage causes”.
The particular circunstances are included in the Codex Iuris Canonici Fontes of was published since 1923, which makes reference to "divorce", terminology that was used in some documents. Also, the special reference to nullity is introduced in the process of matrimonial causes.
As established by Villegas Rodríguez, the need to renew the Codex of 1917 arises as a result of the renewal of the church because of social development and the growing communication between religions and peoples. See how Pope John XXIII in 1959 emphasized that required renovation, which could not be published until 1983.
In that year, Pope John Paul II promulgated the current Codex Iuris Canonici through the Apostolic Constitution Sacrae Disciplinae Leges. In this codification, the legislation corresponding to marriage is developed in canons 1055 and 1165 and the processes of marriage in canons 1671 to 1707.
As Villegas Rodríguez points out, in the aforementioned Constitution it is determined that the road to a future legal renewal can be undertaken again when it is claimed, although it is established that this Codex aims to close "the step to arbitrary behavior and abuse". Moreover, it contains the following important statements, after a series of quotations from the Bible, “that the New Testament scriptures allow us to take on the burden of the importance of the disciplinary order, and that we can better understand the links that unite it. closely, the salvific nature of the doctrine of the same gospel”.
It should be noted that it affirms that the “Code tends to generate more in ecclesial society an order that, giving primacy to love, to grace and to the charism, facilitates at the same time, its orderly growth in life, both of ecclesial society, as of all who belong to it”, although, logically “must also establish some rules and rules of conduct”.However, it clarifies that “the reason for the complementarity of the Code with respect to the teaching of the Second Vatican Council does not imply a significant change in the canonical marriage doctrine”.
That is why it is provided that the Codex Iuris Canonici has to adapt to the varied conditions required by the Society. That is why we could call it a mentality reform that in turn implies taking the basis of the 1917 restructuring, yes, based on the old studies of the church.
Furthermore, in the words of Villegas Rodríguez, the Codex must “define and protect the rights and duties of each one with respect to others and with respect to the ecclesiastical society, insofar as they refer to the worship of God and salvation of the souls”. All this, in order to avoid a conflict between the jurisdictions of the internal and external forum of the people, pretending that the pastoral care of the souls is promoted, besides the virtue of justice, having to take into account factors such as temperance, charity, moderation, kindness, etc. in favor of equity.
In conclusion, what is sought is to avoid the rigidity of the excessively intransigent norms in order to adapt them to a new social environment, that is, maintaining the foundations of the Catholic Church, being necessary in some cases to discard or abolish these norms.
Between 1917 and 1983, a series of modifications were introduced with respect to marriage that must be stipulated. Villegas Rodríguez emphasizes that the evolution of invalidating and resolutive causes clearly shows the conflict due to problems that are not easily solved as canonical rigidity or that there is a more legal than evangelical theology.
In the first place, canon 1075 establishes that it will be the exclusive competence of the Supreme Pontiff to determine “the invalidating and decisive causes or other impediments to marriage”. It should be noted, that for such appointment is based on the divine right attributed to his person.
Second, the evolution of invalidating and resolutive causes such as age for marriage in canon 1067 (in the Codex of 1917), and canon 1083 (in the 1983 Codex).
For example, mixed marriage turns from illegality to invalidity (canon 1060 of 1917 and canon 1124 of 1983) by ecclesiastical right and transforming it into divine right. In this way, it is required that the marriage, as indicated above, can only be dissolved in the name of the deity by the Supreme Pontiff. As a curiosity it could be pointed out that the transgression between canons 1141 and 1142 could suppose the theory of the apotheosis of the human being, since no human power can apply the divine law, but it is a human being who applies it in the name of divinity. Therefore, it resembles that the Supreme Pontiff ascends to divinity. See how both Codex (canon 1038 in 1917 and canon 1075 in 1983) agree that it is the only exclusive authority with the capacity to establish the causes and decisive requirements of marriages, therefore, human apotheosis is denoted.
Third, the Pauline privilege can be added, by which the marriage between two unbaptized persons can be dissolved as long as one of the spouses receives the baptism. See canons 1143 to 1150.
Fourth, and taking into account the interest of this article, the conception of the term "null" of the Corpus Iuiris Canonici of 1917, about the circumstances of the null marriage in canons 1156 to 1160.
There are a number of changes between both Codex in regard to the purposes of marriage. In the Codex of 1917, and particularly in Canon 1013, mutual help and the concupiscence remedy are included. Later it is added in 1983, and in this case in canon 1055, that the ends of the marriage are bonum fidei and proli et coniugii.
Briefly, in the Codex Canonum Ecclesiarum Orientalium, promulgated by John Paul II in 1990, new aspects of the matrimonial procedure are applied in canons 1357 to 1377.
The new legislation consists of two parts: Mitis Iudex Dominus Iesus and Codex Canonum Ecclesiarum Orientalium.
Mitis Iudex Dominus Iesus was promulgated in 2015 by Pope Francis, which focused exclusively on the procedural aspects, without modifying the doctrinal part. This Codification supposes three aspects according to Villegas Rodríguez. In the first place, it establishes the firmness of the principle of the indissolubility of the marriage bond. In the second place, that the Motu proprio does not affect the doctrinal of canons 1055-1165. And third, the relevant modification of canons 1671 to 1707 relating to matrimonial proceedings.
Codex Canonum Ecclesiarum Orientalium affects the legislation of the Eastern Rite Churches. Replaces canons 1357-1377.
The purpose of both documents is to establish provisions with which to favor the speed of the processes to ensure adequate simplification and thus avoid undue delay. Therefore, what is intended is to facilitate the speed in resolutions on marriage annulment.
According to Villegas Rodríguez, there are some aspects that affect the canonical doctrine and that affect to a great extent those marriages subject to the canonical procedural legislation - generally in litigation about the marriage annulment –.
He makes mention of the words of Pope Francis, by which it is shown that the administrative route could be valid for the resolution of questions of nullity, but it is not the ideal one, and not because of the nature of the act itself, but because it is necessary “to protect in the highest degree the truth of the sacred bond: and that is assured precisely with the guarantees of the judicial order”.
However, he adds that, “it is evident that these phrases of Mitis Iudex Dominus Iesus, have to be highlighted without detracting from their literal meaning. They should not be assumed only as words without authentic efficacy, and that, without doubt, should be interpreted exclusively as coherent to a doctrine and practice that closes the connection of many faithful to their incorporation into the Mystical Body of Christ and their right to belong fully in His Church”.
BERCOVITZ RODRIGUEZ-CANO, R.: Manual de Derecho Civil. Derecho de familia, Bercal, s.a., Madrid, 2015, p.73.
VILLEGAS RODRIGUEZ, M.: “Nulidad matrimonial canónica”, Anuario Jurídico y Económico Escurialense nº XLIX, San Lorenzo del Escorial, p. 96.
Cfr.Corpus Iuris Canonici, Pars Prior Decretum Gratiani, edition of E.L. Richter, and advanced by E. Friedberg (1879-1881), also was publicated in new edition in Graz in1959.
Cfr. Cic. 1917, canon 1. AJEE, XLIX (2016) 89-112/ISSN 1133-3677.
Cfr CIC 1983, canon 1.
VILLEGAS RODRIGUEZ, M.: “Nulidad matrimonial canónica”, op.cit., p. 97.
VILLEGAS RODRIGUEZ, M.: “Nulidad matrimonial canónica”, ib idem.
VILLEGAS RODRIGUEZ, M.: “Nulidad matrimonial canónica”, op.cit., p. 98.
VILLEGAS RODRÍGUEZ, M.: “La edad para contraer matrimonio. Historia, legislación, proceso y crítica”, Anuario Jurídico y Económico Escurialense, XXII, San Lorenzo del Escorial, pp. 197-208.
 The same terms appear in Corpus Iuris Canonici of 1917 (canons 1133 and following), but the null term does not seem to coincide exactly with the Latin terms irritum, invalidum, etc., of the Corpus Iuiris Canonici.
 VILLEGAS RODRIGUEZ, M.: “Nulidad matrimonial canónica”, op.cit., p. 98.
 The author states that these are theological foundations that are so to speak, supra-legal and that we make ours for their theological universality: "all this has always been done with the supreme law of the salvation of souls as a guide ... which all their institutions, although always perfectible, must aim at communicating the divine grace and continually favoring, according to the gifts and mission of each one, the good of the faithful, as the essential purpose of the Church. " It does not fail to emphasize that "the concern for the salvation of souls, which - today as yesterday - continues to be the supreme goal of institutions, of laws, of law, which impels the Bishop of Rome to offer Bishops this reform document ". And it is extolled that "charity and mercy demand that the Church as a mother be made accessible to children who consider themselves separated".
 VILLEGAS RODRIGUEZ, M.: “Nulidad matrimonial canónica”, op.cit., p. 99.
 VILLEGAS RODRIGUEZ, M.: “Nulidad matrimonial canónica”, ib ídem.