Orzekanie domniemanej śmierci współmałżonka w praktyce sądowej diecezji poznańskiej na początku XIX w.

Abstract

At the beginning of 19th century the Polish territories were the scene of many wars. This resulted in the fact that most matrimonial cases were concerned with stating a presumed death of one of the spouses e g. because of his or her missing . In the period of the Duchy of Warsaw in Poznań diocese over 100 cases of this kind were considered. The legal basis of cases dealing with pronouncing a presumed death of the spouse was supplied on the one hand by the instructions contained in Leo X’s bulla Sacrosanctae Universalis Ecclesiae of 15 August 1515 edited for Poland, Hungary and Bohemia, and on the other hand by the norms of the Council of Trent devoted to the unity and indissolubility of marriage. As a rule the abandoned party postulated the pronouncement of the presumed death of the spouse adducing the fact of his or her long absence. It should be stressed, however, that an aabsence lasting several years was not considered as a sufficient proof of the person's death in the opinion of the Church; positive premises of death were always looked for. An official or a commissioned judge searched for them in the collected evidence. Testimonies of eye-witnesses were highly priced, but also indirect witnesses (ex auditu alieno) were used. In the pronouncement allowing a party to contract a new marriage a statement was included saying that the pronouncement is based on a moral conviction, and in case the missing person was alive, the party receding the permission for a new marriage is obliged to return to him or her.