Separation, Nullity, Dissolution, and Property in Marriage Law
Section 2: Separation, Nullity, and Dissolution
Separation
The separation of spouses involves physical separation and the suspension of the obligation to live together. Separation can be legal, granted by a judge, or de facto, when spouses separate by their own volition without third-party involvement. From a canonical perspective, a valid marriage cannot be dissolved, only separated. Canonically, separation is the breaking of the communion of life while the marital bond remains. Remarriage is not permitted under canon law.
In Spain, marital separations are handled by civil courts, not ecclesiastical courts, because the 1979 agreements between the Holy See and the Spanish State do not recognize the judgments of ecclesiastical courts.
Annulment
Ecclesiastical or civil annulment is a declaration that a marriage never existed because the legal requirements for its formation were not met. In civil annulment, grounds for annulment include incapacity, defects, or defects of consent.
Canonical annulment means that the Church recognizes that the marriage was void from the beginning (ab initio). Common causes for annulment include:
- One spouse was already married to another person.
- Impotence (inability to engage in sexual intercourse).
- Lack of sufficient use of reason by either party.
- Lack of necessary discretion of judgment by either party.
- Inability of either party, due to psychological reasons, to assume the essential obligations of marriage.
- Simulated consent by either party, such as:
- Exclusion of fidelity.
- Rejection of procreation and education of children.
- Marriage based on error or deception about a quality that could seriously disrupt marital cohabitation.
- Marriage under duress or lack of sufficient freedom.
The annulment process aims to verify the existence of a cause of nullity. It declares that the individuals were never truly married, but children born during the invalid marriage are considered legitimate, and obligations for support and education remain. After annulment, remarriage is permitted.
Dissolution of Marriage
The competent authority can dissolve a marriage in the following cases:
- If the marriage is unconsummated, it can be dissolved for a just cause at the request of both parties or one party, by the Roman Pontiff.
- The Pauline Privilege allows for the dissolution of a marriage between two unbaptized persons if one wishes to be baptized and the other does not.
- The Petrine Privilege grants the Roman Pontiff the power to dissolve a marriage in favor of the faith. This power applies to marriages of unbaptized individuals. Examples include:
- Polygamy: The marriage can be dissolved if the husband remains with his first wife, allowing him to marry another while separating from the others.
- If an unbaptized person, after receiving baptism in the Catholic Church, is unable to reconnect with their spouse due to captivity or persecution, they may contract another marriage.
Divorce
Divorce is a traditional method of dissolving marriage that has existed in many historical civilizations. In the 12th century BC, it was permitted among the Hittites, as well as in Egypt, Athens, and medieval Rome. The Church in the Western world strongly opposed divorce, viewing Christian marriage as a sacrament.
Divorce in France
Divorce was restored in France during the French Revolution in September 1792, with grounds for divorce established in July. Napoleon considered abolishing divorce, but ultimately supported its retention in the French Civil Code of 1804. Divorce was abolished in France in 1816 with the restoration of the monarchy but reinstated in 1884. Reforms to divorce law continued, with a significant liberalization in 1975.
Divorce in Spain
The Spanish Constitution of 1931 introduced divorce, which was then codified in a 1932 law. This law was abolished after the Spanish Civil War. During the Franco regime, divorce was not permitted. The 1978 Spanish Constitution, in Article 32, supports divorce, which was subsequently legalized. This law underwent minor changes under later governments.
Section 4: Matrimonial Property Regime
Marriage has always required an economic foundation. Traditionally, this came from the contributions of both spouses. Initially, the primary contribution was from the husband, but later, the focus shifted to providing economic security for women. The Visigoths’ system, known as “dowry of the husband” and the medieval “arras,” provided women with financial security until they had children.
Historically, the husband’s contribution was replaced by the woman’s contribution, leading to two types of “dowry of women.” This dowry aimed to alleviate the burdens of marriage and provide economic security for women. It could not jeopardize the inheritance of siblings and was returned to the woman if the marriage dissolved. The woman owned the dowry, but her husband managed it. Separate property was also recognized, where the woman owned, possessed, and administered the property, but could assign it to her husband.
Donations made by reason of marriage, either from parents or husbands, and nuptial gifts exchanged between spouses before the marriage were also recognized.
Section 5: Muslim Marriage Law
In Muslim law, marriage is a civil contract where the man obtains the right to physical enjoyment of the woman in exchange for payment (mahr) and the obligation to provide support. The contract is concluded before witnesses and a Cadi (judge). A woman who has already been proposed to and accepted by another man cannot be sought for marriage.
Muslim marriage allows for polygamy, but a man cannot have more than four wives and must treat them equally. Polygamy, though permitted, has declined in many Muslim countries, with Turkey and Tunisia abolishing it. A Muslim woman cannot marry a non-Muslim man, but a Muslim man can marry a non-Muslim woman. Certain impediments to marriage exist, including those based on blood relations (e.g., parents, children, siblings, uncles, aunts, nephews, nieces) and milk kinship (e.g., foster siblings). The Quran emphasizes the importance of treating wives with decency, fairness, and responsibility.
Consent of the involved parents or guardians is important. Physical and psychological capacity for the purposes of marriage is also required. Issues of age and marriage registration remain unclear in some Muslim countries. Only Tunisia and Bangladesh have signed the UN Convention on Consent to Marriage, with Bangladesh having reservations.
Sexual union is important in Muslim marriage, but emphasis is placed on consent. Intervention of a judge or religious figure is not required for the validity of the marriage. The husband is obligated to support his wife, providing food, clothing, shelter, and medical care. Islamic law recognizes the husband’s right to discipline his wife, based on a Quranic verse, but this has been subject to various interpretations.
In a mixed marriage, a Muslim man can marry a woman of another religion, but the children must be raised as Muslims. A Muslim woman can only marry a Muslim man. Repudiation (rejection) and divorce are recognized in Muslim law. Muslim marriage has undergone significant changes throughout history and across different Muslim countries.