MATRIMONIAL NULLITY IN CANON LAW: GROUNDS, CAUSES AND LEGAL EFFECTS

Abstract

This paper presents a comparative analysis of matrimonial nullity in Canon Law and divorce in Brazilian Civil Law, aiming to show that they are distinct institutions in their legal nature, grounds and effects. It starts from the common misconception that the Catholic Church “annuls” or “undoes” a valid marriage in a way similar to civil divorce. The research is bibliographic and documentary, qualitative and exploratory-descriptive, and draws on the 1983 Code of Canon Law, the Apostolic Letter Mitis Iudex Dominus Iesus, Brazilian legislation, including the Agreement between Brazil and the Holy See, and specialized scholarship. The study examines the nature of canonical marriage, consent, diriment impediments, defect of form, defects of consent, the psychic incapacity of canon 1095 and the nullity process with its safeguards. Nullity is then compared with divorce as shaped by Constitutional Amendment No. 66/2010. The paper concludes that nullity, which is declaratory in nature and retroactive in effect, assesses the original validity of the bond and, as a rule, produces effects in the ecclesial order, whereas divorce, a unilateral right requiring neither cause nor fault, prospectively dissolves a valid marriage with civil effects. The possible homologation of the ecclesiastical judgment by the Superior Court of Justice does not equate the two institutions, and the distinction matters for legal counseling.