FAQ - Canon Law

1) If my marriage is annulled, are the children born during my marriage considered to be illegitimate?
R. Absolutely not! Annulment only concerns the legal status of the spouses whereas nothing changes for the children. They remain the legitimate children with the same rights as they enjoyed prior to the annulment declaration. They keep the same surname and maintain their personal and asset rights towards both parents.
2) Before starting up a marriage annulment petition, must I obtain a civil law divorce or separation?
R. No! Here we are dealing with judgments that are completely separate. You can request an annulment under Canon Law before proceeding with the separation or vice versa. You should remember that it is better, if you have children, to proceed with the annulment petition and the civil separation at the same time to normalise the relationships between the spouses and the children pending the judgment of a marriage annulment.
3) Does an ecclesiastic marriage annulment have any effects under civil law?
R. Based on an Agreement between the State and the Church in 1984, the Concordat of 1929 was confirmed with amendments and hence, civil effects can be attributed to marriage annulment rulings. To this end, once a marriage annulment has been obtained from the Canon Law Court you can start the recognition process at the competent district Court of Appeal to assess if the preconditions and any other matters regarding the ecclesiastic marriage annulment ruling can be recognised by the Civil Court.
4) What are the consequent civil effects of the recognition proceedings of the ecclesiastic ruling of marriage annulment?
R. Following the Civil Court’s acknowledgement of the marriage annulment ruling under Canon Law the outcome will be retroactive (that is from the date of the marriage day) concerning the personal effects of the marriage. In other words, for a sort of juridical practice (fictio iuris) it is as if the parties were never married (except for the legal rights of the children). This needs to be made clear in terms of the assets and, in particular, the assignment of maintenance based on current Cassation jurisprudence: if a divorce proceeding has not been legally processed at the time of the recognition, the right to maintenance assignments will cease; if, instead, the divorce has been made definitive, then the maintenance assignment will continue.
5) Is it true that if I am divorced I cannot ask to have my Church marriage annulled?
R. Wrong! On the contrary if there are the conditions, starting up a marriage annulment proceeding could be the way to regularise your ecclesiastical position.
6) Why should I obtain a marriage annulment if I am already divorced and am remarried under Civil Law? What advantages does this hold for me?
R. The advantages for those who believe are numerous and are of a spiritual nature. If you obtain a marriage annulment you can marry again with a religious ceremony to regularise your marriage status and hence, have your new marriage recognised and not considered irregular by the Church.
7) What are the conditions in the opinion of the Church for those who divorce and remarry under Civil law or who live together?
R. Anyone who is a partner in this type of marriage is considered to be a “public sinner”. This means that even if you have obtained a divorce (or better the termination of the civil provisions of the Concordat marriage) from the civil law point of view, your marriage to your first spouse will always be valid from the religious point of view. The status of your second marriage is considered in the eyes of the Church as cohabiting with another person. The result is that you will continue to live in sin thus, placing the divorced and remarried person / the cohabitator and the new partner in irregular conditions that make it impossible to absolve the sin (there being no real repentance) and as a consequence you cannot take Holy Communion (Eucharist). You can no longer take the role of Godmother or Godfather as you are not deemed capable of providing a genuine role model of Christian life. Should such conditions exist, the solution is to obtain a marriage annulment declaration by means of which you will be able to marry your new partner and regularise you status.
8) How long does it take to obtain a marriage annulment declaration?
R. The average time for a process between the first and second level of judgement is around one year and a half to two years. The time for the ruling also depends on the reason for the annulment and the time schedules of the investigating magistrate which may significantly vary from judge to judge.
9) Can I go to my civil law lawyer to start the proceedings under Canon Law for marriage annulment?
R. No! To make your plea at the ecclesiastic tribunals you will need to have professional specialisation which only few lawyers possess. Among the lawyers qualified are Advocates of the Roman Rota who hold the highest levels of specialisation and can plead anywhere as well as at the Roma Rota and so-called “admitted” lawyers who can only practise at the ecclesiastical tribunal in the region of residence.
10) Where is the hearing held? Is it true that I have to come to Rome?
R. No, it’s not! The process will take place throughout the investigating stage at the competent district ecclesiastical tribunal and generally to meet the logistics requirements of the people involved, the investigation is carried out at the Diocese Tribunal where the parties are resident and the act took place.
11) Which documents do I need to start a marriage annulment?
R. The documentation required is simple: copies which conform to and are part of the Marriage Act issued by the parish where the marriage ceremony was held.
12) For what reasons will the Church declare my marriage as being annulled?
R. There are many reasons and many more that are commonly believed so it is difficult to list them and explain them in detail in just a few lines. The best solution is to contact a specialist lawyer for a consulting session.
13) Is it true that the only reasons for a marriage annulment are the impotency of a spouse or the unsound mind of one of the spouses?
R. Wrong! There are many reasons amongst which impotency and unsound mind do feature but we are dealing with many potential other reasons for annulment.
14) Is it true that if you have children in a marriage you cannot obtain an annulment?
R. Wrong! Also when there are children in a marriage it is not by necessity an obstacle to marriage annulment. It greatly depends on the reasons for the annulment put forward in the process.
15) To obtain a marriage annulment, does my ex-spouse have to be in agreement?
R. No! You can submit a petition together or separately. Agreement is not necessary for obtaining a marriage annulment even if obviously lengthy proceedings are avoided.
16) How is my privacy protected during the process?
R. In the maximum way possible. The acts of the process are in ‘read only’ format and cannot be copied hence, avoiding that declarations drawn up in the Canonical offices can be used in Civil or Criminal Courts.
17) Are the hearings public or are they held in private?
R. In private and in the absence of the public with only the presence of the clerks.
18) During the process do I have to meet my ex-spouse or not?
R. Absolutely not. No meetings are set up between the parties who, normally, appear on different days.
19) Who can intervene in the process in the role of witness?
R. Practically anyone can be a witness if he/she holds the prerequisites established by Canon Law. It is important to underline that different to the civil proceedings even the closest members of the family and their spouses are allowed to be witnesses. On the contrary, for certain cases, it is well known that the people closest to your family circle are usually aware of the personal facts of the marriage annulment proceeding.

FAQ - Separations

1) What is the difference between an amicable separation and a judicial separation?
R. Amicable separation is the legal means by which the spouses both agree between themselves, to put an end to married life. This agreement is confirmed in a petition where the spouses establish agreements concerning asset rights, alimony for the weaker of the spouses, visiting rights and child maintenance and assignment of the conjugal home.
Juridical separation is pronounced by the competent Tribunal on the request of one of the spouses if, once the requisite evidence has been completed, facts making their lives together are ascertained to be intolerable or if that they seriously prejudice the children.
2) How long does it take to obtain a separation?
R. There are two distinct types of separation. The proceedings for amicable separation start with the petition submitted by the spouses and are followed by a hearing before the competent President of the Tribunal where both spouses sign the conditions agreed in the petition and is completed with an approval decree issued by the Tribunal. Amicable separation is the fastest of the proceedings and normally takes a few months to complete.
In juridical separation proceedings, times are protracted and may last several years depending on the disputes between the spouses. The first court hearing involves the personal appearance of the spouses before the President of the Tribunal and takes the same form as that of an amicable separation whereby the President may adopt the necessary and urgent processes for protecting the weaker of the spouses and the children. Subsequently the proceedings take place under ordinary rites and finish with a ruling.
3) How long after a separation do I have to wait to ask for a divorce?
R. Under the provisions of Article 3, no. 2 letter B9 of Law No. 898 of 1/12/1970 and its subsequent amendments, three years with no interruption need to have elapsed after the separation hearing in front of the President of the Tribunal.
4) When is a legal union between spouses in default?
R. The disposition in Article 1919 of the Civil Code is mainly applied in the personal separation of spouses. Mere separation does not constitute the dissolution of a union. In case of the personal separation of spouses, dissolution of the legal union of assets is controlled with ex nunc effect only when there is a juridical separation ruling or with approval of the amicable separation with no effects regarding the presidential provision ex Article 708 Civil Law Proceedings.
5) What are the effects of separation on the asset divisions of the spouses?
R. The judge who declares the separation shall rule in favour of the spouse who is at not at fault in the separation, applying the right to receive the amount necessary for his/her maintenance from the other spouse should he/she not have sufficient income.
6) How is maintenance assigned?
R. In order to quantify the assignment of maintenance, the judge must, first and foremost, ascertain the life style of the spouses during the marriage and check if there are sufficient financial means to allow for this lifestyle regarding the assignment. Finally the economic status of the other spouse will need to be assessed.
7) What are the consequences for the spouse considered to be at fault in the separation?
R. The declaration regarding the spouse at fault carries excludes him/her from the right to maintenance if he/she was responsible for the separation even if he/she does not have sufficient means.
8) Does the length of marriage influence the assignment of maintenance?
R.Short term marriages do not have an effect on the recognition of the right to maintenance in cases where the prerequisites provided by the laws exist.
9) Can the provisions established in separations or divorces be amended?
R. Modifications to separations and divorce conditions can be requested at any time should there be new circumstances and these can be justified. These can take place since the provisions adopted by the Judge in separations or divorces are not definitive and by their very nature can always be modified. It is possible to modify the statues relating to the assignment of maintenance, children and to the family home. Modifications to the provisions adopted in separations come with the presentation of a petition under the dispositions of Article 710 Civil Law Proceedings and the provisions adopted shall be a decree of a ruling nature which must be justified by the Judge- This provision can be contested in the modes provided.
10) Following a separation, who gets custody of the children considered minors?
R. Before the introduction of Law 54/2006 the only custody form established by the Civil Law was sole custody by one of the parents. With the reforms made to the cited law, it is possible to give joint custody to both spouses. This type of custody means that both parents have to fully cooperate and make a balanced division of specific responsibilities and keep the parenthood of both unaltered thus, protecting in the best way possible the parent’s relationship with the children.
11) In cases of separation or divorce, does the obligation to maintain the children cease when they become adults?
R. Law No. 54/2006, by introducing Article 155 quinquies c.c., has specifically given the Judge the possibility in cases of separation or divorce to recognise children of 18 and over, a periodic maintenance allowance who are not financially independent. Then it is still the responsibility of the parent contributing to the children’s maintenance even if 18 or over until they become financially independent. The parent’s obligation does not cease automatically when the child reaches 18 even if such child has achieved a sufficient level of economic independence. In fact, this obligation may last until the parent requests an amendment ex Article 710 Civil Law Proceedings by providing proof that the child is economically independent or has the conditions to be economically autonomous without profiting from this following his fault or his choice.
12) When can I request a share of my ex-spouse’s TFR (End of Work Contract)?
R. Article 12-bis of Law 898/70 recognises that an ex spouse who has not remarried and gets a share from the divorce is entitled to a share of the indemnity of the end of work rapport of the other spouse when he/she finishes his/her work contract. This share is equal to 40% of the total indemnity of the years in which the working contract coincided with the marriage.
You cannot request a share of the TFR (End of Work Contract) if the maintenance allowance at the time of the divorce was agreed to be una tantum.
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