Nowe ujęcie nieznajomości istoty małżeństwa w doktrynie i w jurysprudencji

Abstract

The present article concerns the problem of a new broader interpretation of Canon 1082 of the Code of Canon Law. A changed outlook of the contemporary man upon marriage, often shaped by the lay ethics can influence the validity of marriage performed in the Catholic Church. Ewoluding the cases of simulation or common [ordinary] error in the matters of oneness and indissolubility of marriage, the author sets the question whether the validity of marriage contracted by amoral or areligious persons ought not to be considered under Canon 1082 § 1. The article is divided to two parts. Part 1 deals first with the relation of Canon 1082 § 1 to Canon 1081 § 2. The former defines the minimum of subjective knowledge necessary to give the true and sufficient consent to the marriage, while the latter specifies the objective substance of the declaration of will. In respect of legal consequences there is no difference between ignorance and error as both he who errs regarding the essence of marriage and he who is ignorant of the nature of the union cannot validy contract it Next, the author discusses the relation of Canon 1082 § 1 to Canon 1084. Ignorance or error mentioned in Canon 1082 § 1 belong to substantial errors they concern the nature of marriage itself and therefore result in its invalidity. Error mentioned in Canon 1084 does not induce the same legal consequences for the ecclesiastical legislator includes it among common [ordinary] errors having no influence upon the will. Employing these notions the author enumerates elements of knowledge essential to validity of marriage paying particular attention to the comparison of the notions „societas permanens” and „societas indissolubilis” and „inter virum et mulierum” und „unitas". In Part 2 the author examines verdicts of the Rota from 1968-72 asxhe wants to present the problem a seen in the latest Rotai jurisdiction. In this period the Rota investigated (relatively few cases under Canon 1082 § 1. Mostly these were cases involving mental illness and the resulting lack of discretion. On the other hand no: verdict was passed directly by right of the lack of intentions resulting from substantial error (ex defectu intentionis propter errorem substantialem). Using as the example several verdicts, however, the author proves that the discussed problem is not unknown to the Rota although the tribunal tends to consider the question of validity of such marriages in the right of .simulation which is not always correct. Finally the author presents the conclusions resulting from the broader interpretation of Çainon 1082 § 1 and the examination of the verdicts of the Rota. He concludes that in future the number of cases under Canon 1082 will unfortunately tend to increase.