VICES OF THE WILL:
A) VIOLENCE AND FEAR : Violence is characterized by threats emanating from one person
and directed at another in order to induce him or her to enter into marriage. Fear, on the
other hand, can arise either from a natural fact or from human behavior (e.g., a calamity or
dangers in one's own country due to the existing political regime) that is not aimed at
inducing the person to contract marriage, but from which he or she intends to escape by
acquiring the conjugal state.
Violence: Since family law legislation does not provide a definition of marital violence, the
rules of Art. 1434 ff Civil Code on contracts apply. Thus the threats must be of such a nature
that a sensible person would fear exposing himself, relatives, property, to unjust and
considerable harm, bearing in mind the age, sex and condition of the victim. Moreover, these
threats must have been determinative of the
consent to the marriage. They have relevance whether they come from the other spouse or
from a third party.
Because of violence, a marriage can be challenged, as the law protects freedom in marriage
choice.
Fear: fear is a cause of invalidity of marriage when it
- it is of exceptional gravity: A fear has the character of exceptional gravity when it is referred
to the dangerous situation and the harm that could result and if the occurrence of the harm
appears extremely probable. Exceptional gravity must then also relate to the threatened
harm, relating to the fundamental rights of the person and not relating to property
- arises from causes external to the spouse (122 cod civ).In addition, the fear must arise from
causes external to the spouse; therefore, it is a cause of invalidity if it arises from the
pressures of the person who arouses the fear in the other, even if the true and proper
characteristics of the threat do not occur.
Violence is fear both involve the annulment of the marriage. Legitimate to appeal is only the
spouse whose will has been vitiated. The action is time-barred in ten years, but the defect is
cured by the cohabitation of the spouses for more than one year after its termination.
B) ERROR: Error is a cause of invalidity of marriage if it falls on the identity of the person or
certain qualities of the person.
The error on quality is relevant if it is essential, that is, if it is determinative of consent and
related to qualities
peremptorily specified by law. It is determinative when the spouse would not have entered
into marriage if he or she had known exactly what was true.
The qualities concerning one spouse and ignored by the other, indicated by law are:
Existence of a physical or mental illness or
an abnormality or sexual deviation such as to prevent the performance of married life.
Existence of a conviction for a non
culpable crime to imprisonment of not less than five years. The spouse's ignorance in this
case is relevant to the social reprobation arising from having been responsible for serious or
infamous crimes.
Declaration of habitual or professional delinquency
Conviction for crimes concerning prostitution to a sentence
not less than two years
State of pregnancy caused by a person other than the
person who has fallen into error. The system wants to protect in this way the man who has
contracted marriage because of the woman's state of pregnancy, holding himself responsible
for it, but it is also intended to protect the man who has ignored the pregnancy altogether,
resulting from relations the woman had with another man in the period immediately
preceding the marriage. In this case the husband must act to disown the child if the
pregnancy was carried to term.
The error that falls on qualities other than those mentioned is irrelevant. A marriage vitiated
by error is voidable at the initiative of the bona fide spouse: he must
prove in court the existence of the invalidating cause and the fact of having ignored it before
the celebration,
while the defendant must prove that the plaintiff knew of its existence at the time of the
marriage.
The defect is cured if spouses continue to cohabit for more than one year from the time of its
discovery, while in the case of failure to cohabit, the ten-year statute of limitations applies
from the time of discovery.
C) IRRELEVANCE OF WILL: Article 122 of the Civil Code does not include wilful misconduct
among the defects of the will that render the marriage invalid.
Therefore, malice is can only cause the invalidity of the marriage insofar as the deceived
spouse has been misled about those qualities that are relevant in the case of error or about
the identity of the person.
The deception may come from the other spouse, from the third party, from both resulting in
liability for causing the invalidity of the marriage.
5.5: SIMULATION
According to Article 123 of the Civil Code, marriage simulation occurs when the spouses
have agreed, before the celebration, not to fulfill obligations and not to exercise rights
descended from the bond.
Simulation results in the annulment of the marriage itself. This is a novelty introduced by the
'75 reform to regulate those marriages that were mutually agreed upon by the spouses to
create an apparent bond to be enforced against third parties, but in reality unintended by the
spouses. The
former discipline did not allow these marriages to be invalidated since the celebration was
nevertheless intended.
The figure of sham marriage is also known in the present day, when the parties want to
create an appearance of the bond in order to socially regularize their relationship, child
status, or to obtain advantages that derive from marital status.
Characteristic element of simulated marriage is the agreement of the spouses to exclude the
establishment of the marital relationship, that is, from the communion of life based on the
duties prescribed by law (absolute simulation). The vice in this case is the lack of intention on
the production of the typical effects of marriage.
If the spouses have excluded the observance of one or some matrimonial duties, there is the
figure of partial simulation. This falls under the discipline of Article 160, which prohibits
derogation from the rights and duties arising from marriage, resulting in the nullity of the
agreement.
Valid for is also marriage in the case of mental reservation, which occurs when the will to
form an apparent bond can be found in only one spouse.
The difference of the simulated marriage with that celebrated as a joke is that in the former
the celebration intended by the spouses to create a semblance of a bond and is voidable,
while in that celebrated as a joke this intention is not there and is void.
Absolute simulation causes the marriage to be voidable.
Legitimate to the action is each spouse within one year of the celebration, but the defect is
curable by the cohabitation
marriage put in place by the spouses after the celebration, even if of short duration.
There are no limits of proof, so spouses can also resort to testimonial evidence.
