Academic literature on the topic 'Annulment (Canon law)'

The article is a legal and theological analysis of Pope Francis “Mitis Iudex Dominus Jesus” document reforming the canons of the Code of Canon Law on marriage annulment cases (September 8, 2015). He shows its advantages and positive effects for a more efficient process of declaring marriage annulment, and draws attention to its theological and ecclesial novelty that raises questions. These questions require answers from the Church, bishops and theologians collaborating with the Pope.

Annulment and nullity of marriage are two institutions that function in two separate and independent legal systems. Despite some similarities, they cannot be used interchangeably. The differences between the annulment and declaring nullityof marriage follow mainly from the fact that the canonical marriage between baptized persons is a sacrament, a lifelong and indissoluble bond. For this reason, once validly contracted, it cannot be annulled or dissolved by divorce, but only bythe death of a spouse or a dispensation from an unconsummated marriage and the privilege of faith. In the case when marriage is contracted, despite the existence of impediments to marriage, the ecclesiastical tribunal, after completing the relevant proceedings, declares its nullity whereby this judgment is of a declarative nature. In the case of annulment of marriage, the legislator provided for some restriction as to the persons authorized to file a claim, and it also listed the situations in which, even though marriage was contracted in breach of law, its annulment is not possible. Therefore, convalidation by force of law is permissible. Such validation and such restrictions have not been provided by the ecclesiastical legislator, although the convalidation of marriage is possible as long as the matrimonial consent continues and some additional conditions have been satisfied. The judgment regarding the annulment of marriage is constitutive, although the effects of annulment have retroactive effects, whereby the legislator stated that for certain relationships, the rules of divorce shall be applicable. Both in the state and canonical orders, there are three groups of reasons that are the basis for annulment and declaration of nullity of marriage. These are impediments to marriage, defects to the declarations of intention of the spousesand defects to the mandate to contract marriage. The individual reasons have been briefly discussed to present the differences in their understanding under canon law and state law.

Historians have offered a variety of explanations for Pope Innocent III's release of King John from the promise that he made to observe the clauses of Magna Carta. None has won general acceptance. This article proposes an alternative by examining the tenets of the canon law as it was understood in 1215. That examination shows that the law of oaths (De iureiurando) played a central role in canonistic thought of the time. It contained the juristic resources that made it possible for Innocent to release John from the oath that he had taken at Runnymeade.

The present article discusses the issue of moral certainty in the canonical process for the annulment of marriage and analyzes the problem of applying the procedural principle testis unus testis nullus. The reason for undertaking the subject was the publication in 2015 of two papal documents of the rank of apostolic letters, which introduced significant changes in the area of the process for the annulment of marriage. One of the aspects that underwent legislative modification was the principle testis unus testis nullus. It was decided that in marriage cases the testimony provided by a single witness may have the value of complete proof, provided that certain conditions are met. Therefore, the current considerations are an attempt to find an answer to the question whether the judge who takes a decision in marriage cases on the grounds of a single-witness testimony is able to achieve inner conviction (certitudo moralis) with regard to the factual state of the matter, and pass a verdict in accordance with the truth. In addition, the article outlines the legal construct of moral certainty, characteristic of canon law, and discusses the principle testis unus testis nullus within the framework of the existing canon law, taking into account a broad historical perspective, including both the biblical-canonical tradition as well as Roman law.

We are currently living in Poland in a liberal society with a certain level of subjectivity of individuals, which translates, for example, into freedom of: speech, conscience and religion, lifestyle. This is reflected in the sphere of family life. We function in marriages, cohabiting relationships or as singles. Marriage, no matter how it is understood, is of considerable importance from the perspective of the individual, his family and society. It is incomparable to the social significance of the above-mentioned so-called alternative forms of family life. This significance is evidenced by the fact that it is reflected in the regulations of secular and canon law. They form an essentially similar, normatively determined cultural pattern for implementation in social reality. In this connection, the essence of marriage in both areas of law is discussed. Both in the Family and Guardianship Code and in canon law, nupturients enter into marriage on the basis of a contract. However, individuals are more and more often, for various reasons, unwilling or not strong-willed enough to fulfil it at all or to meet some of its conditions, as evidenced by the increase in the number of divorces in Poland. This has inspired the author of this publication to make an attempt to undertake a socio-legal analysis of the issue of responsibility for a marriage (or lack of it) in Polish society based on the grounds for divorce and the so-called “breaking obstacles” as legal grounds for marriage annulment, assuming as lack of responsibility the criterion of guilt, i.e. bad will of the partner (sometimes both partners). Furthermore, it should be emphasised that divorce itself or the annulment of a marriage could be considered irresponsible failure to comply with the aforementioned consensus. It is therefore necessary here to cite the age-old Roman law principle ‘contracts must be honoured’.

Many legal scholars have examined the question of how to reconcile Gratian’s willingness to use both the Justinianic and the pre-Justinianic Roman law that he found in his sources with his apparent unwillingness or inability to use Justinian’s Roman law books at first hand. This paper focuses on another root of European legal culture, the Judaeo-Christian legal heritage. It addresses the question to what extent Gratian’s concept of marriage, based on a contemporary interpretation of the marriage of Mary and Joseph based on the decision of the Council of Ephesus (431), contributed to the clarification of the system of marriage impediments in 12th century canon law, and to what extent the magister used arguments based on biblical passages to do so. The canon law from the early Middle Ages allowed a husband to divorce his unfaithful wife, while the Western Church of Gratian’s age opposed the dissolution of the marriage bond and only recognised the possibility of separating the spouses from bed and table. Therefore, the significance of the subject lies primarily in the fact that in the case of some impediments to marriage the magister saw the possibility of dissolution of the unconsummated union (a so-called initiated marriage) and, in a few, not common cases of the consummated marriage too. The principle of indissolubility, although annulment and dissolution of marriage are different legal instruments, was not necessarily applied in this period either. However, Gratian’s particular concept of marriage and his legal explanations of the impediments to marriage contributed significantly to the fact that the only ground for divorce mentioned in the Gospels, adultery, could not lead to the dissolution of the bond. In the 16th century, Protestant divorce law was primarily a reaction to this understanding, and also the Catholic teaching on the impediments to marriage continued to evolve, formally still adhering to the principle of indissolubility.

Penelitian ini bertujuan untuk menganalisis pertimbangan hakim pada putusan Mahkamah Konstitusi Nomor 92/PHP.BUP-XIX/2021 dan proses penyelesaian sengketa yang berkesesuaian dengan prinsip keadilan yang ada. Latar belakang dari penelitian tesis ini, berangkat dari realitas pemilihan kepala daerah secara langsung di Kabupaten Barru, dimana dalam proses tahapan pelaksanaan penjaringan pasangan calon Bupati dan Wakil Bupati di duga terjadi pelanggaran administrasi dalam penetapan salah satu pasangan calon oleh KPUD. Dari fakta tersebut kemudian berujung pada sengketa hasil pemilihan di Mahkamah Konstitusi sebagai lembaga kehakiman yang diberi wewenang dalam mengadili sengketa hasil pemilihan kepala daerah di Indonesia. Penelitian ini mempergunakan pendekatan normatif empiris dan bersifat deskriptif, sumber data yang digunakan adalah data sekunder dan primer yang dianalisis secara induktif. Dari hasil analisis disimpulkan bahwa putusan Mahkamah Konstitusi Nomor 92/PHP.BUP-XIX/2021 menolak eksepsi pemohon didasari atas tidak adanya kedudukan hukum pemohon berdasarkan pasal 158 ayat (2) UU No.10/2016 hal tersebut terlihat dari seslisih suara sah yang diperoleh melebihi ketentuan yang ada. Pihak pemohon tidak melakukan proses peradilan sebelum tahapan pemungutan suara, sehingga ruang kepastian hukum dalam pembatalan keputusan KPU terkait penetapan pasangan calon terlewatkan. Dalam putusan Mahkamah Konstitusi terlihat lebih mengedepankan aspek keadilan prosedural dan mengabaikan keadilan subtantif. This research aims to analyze the judges' considerations on the decision of the Constitutional Court Number 92/PHP.BUP-XIX/2021 and the dispute resolution process in accordance with the existing principles of justice. The background of this research starts from the reality of direct regional head elections in Barru Regency, where in the process of implementing the selection of candidate pairs for Regent and Deputy Regent, it is suspected that there has been an administrative violation in the determination of one pair of candidates by KPUD. This fact led to a dispute over the election results at the Constitutional Court as a judicial institution that is authorized to adjudicate disputes over the results of regional head elections in Indonesia. This study uses an empirical normative approach and is descriptive and the data sources used are secondary and primary data which were analyzed inductively. From the results of the analysis, it is concluded that the decision of the Constitutional Court Number 92/PHP.BUP-XIX/2021 rejects the petitioner's exception based on the absence of the applicant's legal position based on article 158 paragraph (2) of Law No.10/2016 which can be seen from the difference in the valid votes obtained exceed the existing provisions. The applicant party did not carry out the judicial process before the voting stage, so that the room for legal certainty in the annulment of the KPU's decision regarding the determination of the candidate pair was missed. In the decision of the Constitutional Court, it seems that it prioritizes aspects of procedural justice and ignores substantive justice.

AbstractCancellation of marriage is something that often happens in our society, this can be due to a violation of customary law or because of other problems such as not getting permission from parents, even though a marriage can be canceled when there is a problem that causes prohibitions such as a lineage or deception which caused the marriage to be canceled. The problem is, how is the construction of marriage annulment in normative and positive legal studies in Indonesia, while this objective is to examine more deeply the concept of normative and positive law on the cancellation of marriage in Indonesia.This research is a type of library research research with a socio-philosophical approach to the prohibition patterns that exist in society and then also reviews the laws and regulations in Indonesia. Marriage cancellation can be done if it does not meet the requirements and harmony, this can be proposed by either the prospective husband or the prospective wife, this is also in line with law number 1 of 1974 concerning marriage in article 72. Which is the legas regulation applied in Indonesia. AbstrakPembatalan perkawinan menjadi sesuatu yang kerap terjadi di masyarakat kita, hal ini bisa disebabkan karena adanya pelanggaran hukum adat atau karena adanya problem lain seperti tidak mendapatkan ijin dari orang tua, bahwan suatu perkawinan dapat dibatalkan manakala ada problem yang menyebabkan keharaman seperti adanya nasab atau adanya pembohongan yang menyebabkan perkawinan tersebut dibatalkan. Yang menjadi masalah adalah bagaimana konstruksi pembatalan perkawinan dalam kajian hukum normatif dan positif di Indonesia, adapun tujuan ini adalah menela’ah lebih mendalam terhadap konsep hukum normatif dan positif terhadap pembatalan perkawinan di Indonesia.Penelitian ini merupakan jenis penelitian library reseach dengan pendekatan sosial filosofis terhadap corak larangan yang ada di masyarakat lalu kemudian dikaji tinjau pula dengan peraturan perundang-undangan di Indonesia. Pembatalan perkawinan dapat dilakukan apabila tidak memenuhi syarat dan rukunnya, hal ini dapat diajukan baik oleh calon suami atau calon istri, hal ini juga seirama dengan undang undang nomor 1 tahun 1974 tentang perkawinan pada pasal 72. Yang merupakan peraturan legas yang diterapkan di Indonesia.

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Marriage is known as a symbolic ritual and a psychological necessity that has existed for thousands of years and has been accompanying the development of humanity since then. The Catholic understanding regarding marriage marked the Western culture, and even though it was extremely demanding, it was for many centuries the only one considered socially acceptable. With the advent of postmodern society, where effective bonds have become more fragile, the Catholic proposal of indissoluble marriage presents itself as an exception, in addition of being less understood and accepted. At the same time, cases of marital separation are multiplied, followed by new relationships. The impact of divorce is felt in a peculiar way by the Catholic Church because of its historically stricter stance in the understanding of marriage. Divorces and new relationships place the Catholic faithful in an irregular position within the institution with a consequent feeling of exclusion and marginalization. The problem has been faced by the Catholic Church with the development of a peculiar practice that seeks to analyze the validity of marriages celebrated by its faithful and the possible declaration of Nullity: those are the Canonical Marriage processes carried out in the Ecclesiastical Courts. The objective of this research was to verify how the Catholic Church has responded to the reality of the numerous marriages that failed and to address the main psychological and religious questions manifested by the individuals involved in the processes of declaration of Nullity of Marriage. The methodological approach used started from a descriptive research in the records of the cases of Marriage Annulment carried by the Interdiocesan Marriage Tribunal of Aparecida (TEIA) where I work as an expert psychologist. Thirty five cases were selected from the city of São José dos Campos – SP. It was chosen cases entered the Court in 2014, and marriage duration up to five years. We work with the hypothesis that those cases, by their own dynamics, also have a therapeutic character, because it inevitably puts the person in contact with his/her history. Those processes are therefore an excellent opportunity that can favor self-knowledge. We also verified the most frequent psychological causes of failure of marriages among the cases
O matrimônio entendido como ritual simbólico e necessidade psicológica existe há milhares de anos e acompanha o próprio desenvolvimento da humanidade. A compreensão Católica do matrimônio marcou a cultura ocidental e, mesmo sendo extremamente exigente, foi, por muitos séculos, a única considerada socialmente aceitável. Com advento da sociedade pós-moderna, onde os vínculos afetivos se tornaram mais frágeis, a proposta Católica de matrimônio indissolúvel se apresenta como uma exceção, além de ser cada vez menos compreendida e aceita. Paralelamente, multiplicam-se casos de separação conjugal, seguidos de novos relacionamentos. O impacto das separações conjugais é sentido de um modo peculiar pela Igreja Católica em razão de sua postura, em geral, historicamente mais rígida frente a compreensão do matrimônio. A separação conjugal e uma nova união coloca o fiel católico em uma situação institucional irregular, com consequente sensação de exclusão e marginalização. Frente a tal problemática, a Igreja Católica desenvolveu ao longo dos séculos uma prática peculiar que visa analisar a validade dos matrimônios celebrados por seus fiéis e a possível Declaração da Nulidade dos mesmos: são os processos Jurídicos Canônicos realizados nos Tribunais Eclesiásticos. O objetivo deste trabalho foi verificar como a Igreja Católica tem respondido à realidade dos inúmeros matrimônios fracassados e abordar as principais questões de ordem psicológica e religiosas manifestadas pelos indivíduos envolvidos nos processos de Declaração de Nulidade Matrimonial. O enfoque metodológico utilizado para compor esse estudo partiu de pesquisa descritiva nos autos dos processos de Declaração de Nulidade Matrimonial TEIA, onde atuo como psicóloga perita. Foram selecionados trinta cinco processos oriundos da cidade de São José dos Campos – SP que ingressaram no Tribunal ano de 2014, cuja a duração dos casamentos foi até cinco anos. Trabalhamos com a hipótese de que estes processos, pela dinâmica que lhe é própria, possuem também um caráter terapêutico, pois inevitavelmente coloca a pessoa em contato com sua história. Uma excelente oportunidade para tomar consciência de si, o que pode favorecer o autoconhecimento. Verificamos ainda quais são as causas psicológicas mais frequentes dos fracassos das uniões conjugais presentes nos respectivos processos

Abstract Canon law affords the opportunity to appeal a tribunal’s ruling to a higher Church court when “a party ... considers him or herself to be injured by a judgement. “ The wording of the canon, it might be noted, gives no support to the view that in an annulment proceeding only the marriage is on trial. Marriages are metaphysically incapable of considering themselves injured parties. Marriages are subject to injury sacramentally, canonically, and in terms of spousal interaction, but only petitioners, respondents, and those who might be scandalized can rightly perceive themselves as aggrieved. However that may be, let us examine the mechanics of appeal within the American tribunal system. It will be seen that appeals can take some fascinating twists and turns.

Abstract a marriage not consummated, according to canon law, was not valid. Sexual impotence that prevented consummation was legitimate grounds for dissolving the union, and was thus an important component of some annulment cases.1 In the Venetian ecclesiastical investigations the term “impotence” was applied to women as well as men. It signified the incapability to have the sexual relations necessary for reproduction, in a woman’s case because her vaginal opening was too narrow to accommodate the insertion of a penis. Impotent men reputedly suffered from erectile dysfunction and premature ejaculation. Because it offered hope of breaking marriage ties, provided the presiding adjudicators could be persuaded by a credible story, impotence, like the discourse on forced unions, was another trope in the ecclesiastical investigations conducted in the Patriarchal Court.