O matrimónio canónico-concordatário em Portugal

Abstract

The present text is a synopsis of the points of greater interest in the current legislation on canonical marriage (improperly called catholic marriage) in Portugal. In the first part of the article we describe the legislation itself, while in the second we analyse some of the difficulties it raises. 1. Without prejudice to the principles of non-confessionality and separation between Church and State found in the Constitution of the Republic, the Concordat signed with the Holy See on the 7 t h May 1940 remains in force. Catholic marriage may only be celebrated by someone who has the capacity for marriage demanded by civil law and must be registered civilly in order to have effect in the internal juridical system. No legislative or judicial competence is recognised to the Church with regard to the separation of the spouses: knowledge of cases of declaration of nullity of catholic marriage and of the dissolution of ratum et non consummatum marriages is reserved to the Church tribunals and registers whose decisions can be executed independently of any revision or confirmation. Convalidation and sanatio in radice produce effects upon inscription of a catholic marriage settlement, once determined conditions are fulfilled. 2. The Constitution does not oblige civil law to establish the presuppositions and effects of catholic marriage in the same way as for all forms of marriage. The regulation to adopt on the nature of the registration of a catholic marriage settlement is done by means of a general norm. However, challenging a transcription is meticulously regulated in law and cannot be applied to catholic marriage celebrated under condition. The civil declaration of presumed death does not permit the spouse of the missing person who has been married in the catholic church to marry again, even though Canon Law would permit this. In this case we would be dealing with an discriminatory marriage impediment which would be unconstitutional. Ever since the Decreto-Ley n ∼ /O 30.615 of the 25 t h July 1940, a catholic marriage cannot be annulled by civil tribunals. Proceedings to declare a catholic marriage null or the dissolution of a ratum et non consummatum marriage is prejudicial to divorce proceedings; even though it comes later the exequatur can never be denied to such a decision. It seems more in tune with the spirit of the system to declare a previous civil marriage null or dissolve it on the grounds of ratum et non consummatum, thus declaring the null or dissolving the marriage bond tout cour.