What does it mean to ask for marriage nullity and why in some cases it can be very important to get it? Is the path really so difficult to have it? The rotary lawyer and president of the College of Lawyers of the Piedmontese ecclesiastical forum Elena GavriLakos explains why there are still many wrong convictions on the subject.
Gavrilakos lawyer, it is often said “cancellation” of marriage. But the correct term is nullity, right?
«In common language we always speak of” cancellation “, but in reality we are talking about nullity of marriage. The wedding consent is assessed which in reality has never arisen, for various reasons that are then the reasons for nullity. It is ascertained that by virtue of these reasons when the wedding was celebrated, the consent has not been trained validly. So that marriage never existed ».
Is it true that getting nullity is difficult and very expensive?
«In the past, we are talking about a long time ago, it could be a privilege for a few, also because there were few rotary lawyers and the procedure was more complex. Today this belief has become a prejudice: few know that with the reform wanted by Pope Francis in 2015, the marriage nullity process has been profoundly modified “.
How?
“First obtained a ruling of nullity had to be confirmed by the competent appeal court: the so -called” double conforms “. For example, if the nullity was obtained in Turin, the confirmation of the competent appeal court – in this case, Milan – which made a check over the whole cause. It could also happen that people were affected. This stretched the times, increased costs and discourages people. The reform has eliminated this step: today the sentence is executive after 30 days and is immediately recorded on the parish register, unless it is challenged by the counterparty. But it happens very rarely ».
What if it is challenged? How many degrees of judgment are there?
«If it is appealed, there is a second degree at the ecclesiastical appeal court. If nullity is confirmed there too, the question is closed. If it is rejected, the Roman Rota comes into play, which is the third degree, the Supreme Court ».
In how many cases do you get to Rome?
«By now very few. Over 80 percent of the causes end in the first grade ecclesiastical courts, which are based in every Italian region ».
Is it true that the cause of nullity can only be started one of the two spouses?
«Yes, it is sufficient that one part only ask for nullity. The other’s consent is not needed. Even if the counterparty remains indifferent or does not participate, the procedure goes on.
How are the times?
“Maximum twelve months, sometimes even less, depends on the reason for nullity that is advanced”.
What reasons of nullity can be invoked?
«The most common are divided into two large categories. The first concerns the area of ​​consent simulation or rather the mental reserve. This is the case in which one of the two spouses, even just one, excludes one of the elements of Christian marriage for example, those who get married excluding indissolubility or I think it will not be forever or the desire and will to have children. This thoughts must not necessarily be expressed and known on the other side. It is sufficient for one of the two partners to marry this thought. Even if you find out later, if it is approached to the sacrament with this mental reserves, the marriage is null. In this case, testimonial evidence is enough ».
The second large area?
«The leaders of nullity concerning psychological or psychiatric reasons. In the psychological field, the most frequent are currently the emotional immaturity. We approached marriage without the necessary awareness of its value, the obligations and duty that derive from it. We do not suffer from a pathology but in any case this attitude makes it unable to give full consensus. The other area is the psychiatric one of diagnosed but perhaps hidden or latent pathologies and which explode after a later time. In this case there is the intervention of the technical consultants of the courts: the experts. Paid by the court make talks with people who started the case to attest to these situations ».
If a part strongly opposes the request for nullity?
«You can make an attempt to convene the most reticent part to listen to it, but as I said before the procedure goes on even for the request of one of the two parties. The spouse who begins the cause has a 100 % presumption of reliability. For the court, those who come to ask to investigate the nullity of their marriage says the truth, unless a sensational denial intervenes. The opposition does not create a block because the investigation continues the same ».
How important is it that the couple got divorce?
«Double nullity can start even if a separation or divorce is still pending. It is not necessary to wait for the final sentence of a civil court, family section, because they are two parallel tracks and ours is a foreign jurisdiction in all respects. Those who have the cause of separation in progress can in the meantime start nullity. It is preferable, however, that the appeal is at least filed ».
How much does the duration of the marriage weighs on the request for nullity?
«Often weddings drag for years for various reasons: the time span is not an impediment. Of course, reconstruct that when it was contracted there was a reason for nullity. It can be more complex, reconstruct the tests, find the witnesses who 30 years earlier were at the wedding. But if there are still friends, cousins, relatives, colleagues who can speak, then there is no problem. After all, the last question of the judge is always: “Why did you start this cause?”. It is a pastoral question, that 6 months or 30 years have passed what guides you: suffering? Even after many years you can find the strength and courage to clarify ».
And is the presence of children an obstacle?
«Children are not impediment to the pronunciation of nullity. The point is always: has that consent really formed? There are no consequences of any kind for children, in case of nullity. Given that the Church does not distinguish, it has never done it, between legitimate children or children born out of marriage. The Church welcomes, baptizes children of cohabiting couples. However, legally even if nullity was pronounced, for children there is no type of risk: they remain children, they remain in the hereditary axis, it cannot even be used to the civil in any way. I had a cause of a couple who had four children, for which nullity was pronounced. An important psychiatric pathology of this man emerged. There was a very serious disorder that has manifested itself over the years “
Are the judges ecclesiastical?
«In the court of the Roman Rota they are Monsignors. In the first instance courts they have always been historically priests and they are still most of them, but recently lay people have recently been introduced. For the nullity, the Court appoints a college of three judges. Of these three, one is the investigating judge, the one who asks the questions, which. It will be the one who will call the parts and witnesses in the hearing. It is a real interview that becomes individually and closed. There is no contradictory from us: husband and wife, even if I agree, never appear simultaneously before the judge. The witnesses are also all called at different times. And the documents are very armored, under close investigation secret ».
Are witnesses always needed?
«It is necessary to have witnesses, not many, but three or four people who confirm history and experience. The peculiarity is that, in these causes, family members, for example father, mom, sister, brother, have a greater presumption of reliability. They are not seen with suspicion. Being the people closest to the spouse may have caught the nuances of his mood ».
How many cases of nullity are there per year?
“In 2023 there were about 2600 throughout Italy”
And the costs?
«In the presence of economic difficulties, you can ask for free partial or total patronage. In other cases there is a fee of 525 euros to the ecclesiastical court, then the honorary of the lawyer: the case can cost a maximum of 3000 euros. On average for the simplest causes we are around 2500 ».
Why do you think this possibility is important?
«Because it is not just a matter of obtaining a permit to remarry. Often people come to me with a huge sense of guilt, even when the relationship has been over for years. The process is also a human path, which allows you to give a name to things, look honestly to what happened and get out of it free. And then often when a new union has been reconstructed, perhaps with children, nullity is important to experience the new reality more serenely. We must not be ashamed, nor stay in a limbo phase. Indeed, times have changed and the feeling has evolved, and the new reality of life is seen as a further reason in favor of nullity ».
Source: Vanity Fair
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