The causes of canonical invalidity and their relationship with the civil law. The case of Italy.

On this issue the current ideas are quite confused. The canonical final ruling declaring the nullity of marriage has no value in itself for the state. It is a ruling issued by a legal system different from the Italian one, but can not be considered simply a foreign judgment (then governed by law 218 of 1995) because the courts of the Church and those of the Italian state coexist in the same territory. In addition there are substantial regulatory differences that result from the particular legal relations between the Catholic Church and the Italian State (see Law 25 March 1985 n.121). So the sentence of canonical nullity must have no relevance to the state before they pass through a procedure, called resolution, intended to give effect to the decision of canonical invalidity for the state. In brief, this is a check that the Italian state does on the canonical ruling to determine whether those are compliant with the fundamental legal principles of the state. Precisely for this reason not all the sentences of nullity may be resolved (see Cass.Sezioni Unite 6 December 1985 n.6128). Where a declaration is possible, the ruling of the Court of Appeals makes the nullity executive by authority even for the Italian state, with the result that for the Italian marriage never existed. This can in no way affect the rights of children born in the wedding, those who are economically weaker and those who have innocently ignored the  invalidity have protection in the provisions of the Civil Code (cfr.art.129 and 129-bis cod.civ .).

Taking a step back, we said that the grounds for revocation in canonical cases  have no value for the state if not when they are given a resolution valid for the state (see Civil Code Cassazione, sez. I, September 19 2001, No. 11751). Similarly, cases of separation or termination of the civil effects of marriage (divorce) are not relevant for the Church. This leads to some important consequences.

A cause of canonical invalidity infact may be taken at any time, even before the cause of separation or divorce, so each one follows its path. Only when the sentence of the ecclesiastical Courts has become final, has been enforced, and therefore has been resolved with res judicata it becomes relevant to the State. However – and this is what matters most here – the economic agreements arisen between the parties and contained in the divorce decree taken before the final decision resolution remain valid . This is according to the jurisprudence of Cassazione  (see Cassazione Sez.I, Sent.16 January-23 March 2001 n.4202; Cassazione Civile, sez. I, 04 March 2005, n. 4795). Needless to say that part of the doctrine does not agree (cfr.ex pluribus A. Finocchiaro). In the absence of a ruling on the validity of the prerequisite for granting the benefit fall (Guide to the Law Il Sole24ore 22 [2001] 53 — 54).

Finally, another different situation is when  the civil  ruling has decided on the validity of marriage. This is however an issue of great complexity and lack of interest.