Konstrukcyjne aspekty wadliwości zawarcia małżeństwa

Abstract

The Family and Guardianship Code provides for two types of defects connected with the contraction of marriage: non-existence of marriage (matrimonium non existens), which results from an infringement of Article 1 of the Code, and voidability of marriage, which results from a violation of marriage bans, defects in the declaration of intent to enter into marriage or certain defects of marriage by proxy. Both in civil law literature and in family law scholarship, these kinds of defects are commonly identified with a non-existent juridical act and relative invalidity (challengeability) of a juridical act. An analysis of how juridical acts are performed and how marriages are contracted, as well as the mechanism of the aforementioned defects emphasizes major differences between the constructions applied in civil law and in family law. The paper puts forward the thesis that they appear as soon as at the stage of basic regulatory assumptions. In civil law, the central construction is the juridical act as a civil law event, being a basic instrument for implementing autonomy of intent. A civil law relationship is a “product” of a juridical act, whose substance, in the basic scope, is determined by the parties’ intent. In family law, the central institution is marriage as a legal relationship which constitutes the emergence of a family (which clearly results from Articles 23 and 27 of the Family and Guardianship Code). From the point of view of family law, the thing of basic importance is whether the marriage exists and whether, possibly, it can be voided, rather than the defects in the very act of contracting marriage. The legal relationship of marriage is seen as separate from the activity of contracting it. These reflections are an important argument supporting an autonomous classification of entry into marriage as a legal event which is different from a juridical act.