The author begins with the recent campaign organized by the mass media with the aim of introducing divorce in the Spanish legal system either for all types of marriage, or at least for the civil formo No type of international agreement in this sense binds the Spanish state, nor is it one of the conditions required by the Treaty of Rome for membership of the EEC. The author studies the indissolubility of marriage in Spanish Constitutional History, in which it is a traditional principie (with the exception of the period 1932-1939). This principie has been incorporated into the Fuero de los Españoles (Charter of Constitutional Rights of 1939); it has been declared a question of internal public order by the judiciary, with the result that divorce is unknown. The Second Vatican Council has not changed the traditional Catholic viewpoint regarding the indissolubility of all marriages, including those purely civil or legitimate cases, as pertaining to Natural Law. When divorce was introduced into Italy the aforementioned teaching was clearly re-affirmed by the Italian Episcopal Conference with the explicit approval of Paul VI. In the conclusions the author deduces that from the position of fidelity of the Church's teaching one cannot introduce divorce into the Spanish legislation, neither in the case of canonical nor of merely civil marriage; the indissolubility of marriage is a principie of Natural Law and lies at the root of the most ancient Spanish tradition. Reference is made to a recent survey made by the Institute of Public Opinion, with the conclusion that there is need of a widespread and intense work of education of consciences and of enlightenment of a public opinion that shows itself to be vacillating and unsure.
Summarium Intendit hoc studium responsum dare articulo P. Romualdo Rodrigo, O. A. R., edito in recensione Romanae Universitatis Gregorianae, «Periodica», a. 1973, p. 503-550. Per copiosa data considerationesque significatur status processuum matrimonialium in Hispania. Urgetur character iudicialis, non administrativus, Decreti ratificantis, sicut in Motu proprio «Causas matrimoniales » regulatur. Respectu matrimonii, Hispania non est fautor divortii, et tramitatio causarum matrimonii canonici, vel nullitatis sint vel separationis, reservatur tribunalibus Ecclesiae. Res publica agnoscit valorem harum decisionum quantum ad effectus civiles, quorum determinatio iudicibus civilibus competit Animadvertitur praestantia quam pro matrimonio et familia leges hispanae habent, non enim tribuunt effectus iuridicos separationi consensuali ad mentem doctrinae et iuris Ecclesiae. Ideo non permittitur transigere in solutione vinculi, neque in ruptura cohabitationis, neque in officio patrum. catholicae filiorum instructionis. Statu actuali divortiorum, nullitatum separationumque considerato, urgetur convenientia Ecclesiae tuendi, ubi possibile sit, sanctitatem atque dignitatem matrimonii familiaeque et non cedendi ius suumcognitionis causarum matrimonialium separationis. Pro munere quod Ecclesia fidelibus suis praestare debet quantum ad iustitiam de matrimoniis, principia, qUibus tribunalium ecclesiasticorum ordinatio regi debeat, studuuntur. Specialiter considerata est convenientia Rotae Nuntiaturae Apostolicae Matritensis, in relatione cum tribunalibus minoribus Hispaniae et cum pontificiis, praesertim cum sacra Rota Romana. Auctor examinat argumenta adducta contra tribunalia ecclesiastica hispana. Denique proponuntur conclusiones et sugerentiae circa tribunal unipersonale in unaquaque dioecesi, circa tribunalia facultativa provincialiaet dioecesana, circa tribunalia Barcinonis Matritique, et circa Rotam Nuntiaturae Apostolicae. Magni momenti sunt varia schemata circa gradationem tribunalium. Erectio Studii Rotalis postulatur. --- Abstract This paper appeared in response to an article of P. Romualgo Rodrigo, OAR. which had be en published in «Periodica» (1973), pp. 503-550, a journal of the Gregorian University in Rome. Reporting a grand Lumber of facts and considerations, the author explains the actual condition of matrimonial processes in Spain. He insists in the judidal, and not administrative, nature of the ratifying Decree, as determined in the Motu proprio .Causas matrimoniales». Spain does not recognize divorce, and the transaction of the causes of marriage according to canon law, whether it be a case of nullity or separation, is reserved for the Church courts. The government recognizes these decisions to all legal effects, which should be determined by the civil courts. The author points out the advantage that Spanish law offers with respect to marriage and the family since the civil code does not concede legal effects to a consented separation, in agreement with Church doctrine and law. Therigidity of Spanishlaw withrespect to the dissolution of the marriage bond, the decision of the married couple to live apart, and the parentalresponsabilities regarding the Catholic upbringing of the children is a logical consequence of this posture. Considering the current state of divorce, nullificationand separation, the •author insists that the Church must, whenever possible, strive to safeguard the dignitv and holiness of marriage and of the family; and should not surrender its right to decide cases of matrimonial separation. In relation to the service which the Church offers its faithful seeking justice in matrimonial affairs, this paper studies the principies which should guide the organization of the ecclesiastical courts. The author hasexamined with special attention the convenience of the Rota of the Apostolic Nunciatura in Madrid, in •relation to the lower Spanish and pontificalcourts, specially the Sacred Roman Rota. The author analizes subsequently the arguments which are employed in Spain to discredit the ecclesiastical tribunales. At the end of this paper various conclusions and suggestions are offered with respect to the unipersonal diocesan courts, the provincial and diocesan tribunales, the courts in Barcelona and Madrid, and the Rota of the Apostolic Nunciature. The report also provides interesting illustrations, showing the different levels of the distinct tribunales. The author advocates a serious study of the Rota.
The reason for bringing up this particular topic possibly stems from the continuous contradictions the professional comes across day after day in the Spanish mass communications media during the pre-election phase which the country is going through at the time of this writing. In effect, the press is more and more explicit in its definitions and does not seem to be very willing to remain exquisitely impartial. Television pretends to be operating in accordance witha new phase but the truth of the matter is that it continues to cater to the same people and groups it always has. Our politicians are all trying to outdo each other in order to appear on television, and when they finally do achieve their aim . they take advantage of the situation to address themselves to their friends using the language and style of a long outdated speech. It is indeed strange that at a time when everybody is interested in the electoral system to be adopted and when the Government and the Opposition are in the process of negotiating the bases of an electoral law, nobody -at least not at this very moment, although it is to be hoped that things will have changed for the better by the time these lines are published- raises the question of setting up new and special control s with regard to electoral propaganda, apart from the demand for the mere access to Spanish television. And precisely in a moment of transition when a new and democratic system is in the process of being established, itis even more necessary ~indispensabl~ to have a clear sét of regulations which would serve to offset the lack of democratic experience and practice. It is clear that in order to come face-to-face with principies of control the first thing to be done is to find out the nature of electoral propaganda and that of propaganda in general, in harmony with the mean s and techniques in use today, Perhaps this particular aspect is discussed too much at length in this work, but the author believes that it is not possible to ignore such techniques as political marketing which is overlooked by all regulations. Once this obstacle has been overcome, the resulting concept can be analyzed in the light of the human and fundamental right to information, and conclusions can be formulated in the form of presuppositions, limitations and requirements. These are -according to the author- the principie gUidelines which must preside over any type of regulation in this field. The fact is that these conclusions were common to generic political propaganda and to that which is properly electoral. Before applying them specifically to the case of electoral propaganda, the author carries out a brief study of Compared Law. After classifying several possible feasible models in accordance with political, juridical and informative conditions, he studies sorne of the most significant cases of the types mentioned. The systems analyzed are those found in England, the United States, France, Italy, Japan and Portugal. The study of the two latter systems are the most extensive due to the fact that we are dealing in these cases with attempts at complete regulation through which the legislators have pretended to create adequate channels in order to make electoral propaganda serve the democracy being restored. In effect, the Japanese law dates from 1950, the various Portuguese laws from 1974, 1975 and 1976; these dates coincide with the implementation of democracy in both systems. For this reason precisely, these countries are especially interesting with regard to the subject matter being analyzed. From the comparison between the general principies derived from the right to information and the reality offered by Compared Law, there arise a series of guidelines for control which are discussed in the last part of the present work. Other solutions can naturally exist, but the author hopes that the ones put forth in this paper can be at least helpful indicators in the setting up of a possible juridical regime with regard to electoral propaganda.
