Il riconoscimento civile dello scioglimento canonico del matrimonio non consumato e l'attuale regime pattizio: spunti per un ripensamento (in vista d'un possibile "ritorno")

Abstract

The Concordato lateranense, as modified in 1984, no longer includes a provision on the recognition of the civil effects of dispensations super rato: and this is mainly due to political-ideological constraints which affect both the (bilateral) path of revision, and the concurrent intervention of the Constitutional Court (decision No. 18/1982) which endorses (while negotiations were still ongoing) the theory underpinning those constraints (the State's 'domination' over the regulation of the marital relationship), while examining the super rato procedure in a formalistic way and stating that judicial protection is not sufficiently guaranteed. Firstly, the present paper deals with the origin, the extent and the incidence of these constraints in leading to the removal of the aforesaid provision; highlighting, hereinafter, the resulting (contradictions and) contrasts, due to such removal, with respect to the axiology, the philosophy and the purposes of the Agreement of Villa Madama. Afterwards, the essay carries out a nimble examination of the innovations/developments occurring - after the conclusion of the Agreement - in the two (respective) legal systems, which facilitate (in various aspects) a more complete delineation of the specificity of the super rato procedures (and of the effective extent of the guarantees provided therein); emphasizing, with regard to the Italian legal system, the key developments in case law that appear to indicate – in many ways – the urgency of a complete dispelling of that persistent "shadow" (of political-ideological kind) burdening the Agreement.