Review article
Dissolution of Marriage in Roman, Canon and modern Croatian family law
Marko Bratković
Abstract
Marriage and different ways of dissolution of marriage have been viewed differently in various chronotopes and this is because the legal articulations of marriage and its dissolution were affected by the factual state of the society in which they were shaped. Their complexity prevented all theoretical concepts from encompassing their true essence. Classical Roman law basically supported the idea of liberal marriage, but the infiltration of Christian moral thought in all pores of social life was reflected in the divorce regulation and therefore divorce sine iusta causa was viciously punished in the Post-Classical Era. Although the Church upholds the fact that the hard and consummated marriage is indissoluble because that can save the marriage, and in that way prove useful for the spouses, their children and the community, in specially prescribed circumstances marriage can also be dissolved through forgiveness for an “unaccomplished marriage”, Pauline privilege and vicarious power of the Roman Pontiff. Moreover, the Church allows the separation of the spouses in extremely severe cases but only if accompanied by insistent reconciliation attempts. Although the teaching of the Roman Pontiff on the absolute indissolubility of the hard and consummated marriage does not have a dogmatic character, it has strongly affected the slow penetration of the classical Roman idea of liberal marriage into the civil law systems of countries that were under the influence of the Catholic Church until the 1970's. The resurrected idea on liberal marriage derived from the rationalistic philosophy of the 18th century managed to somewhat reduce the meaning of marriage as a haven, which will provide lifelong economic security and social status, since for many people a sufficient amount of emotional and economic security can be accomplished in cohabitations. It is completely clear that in real life circumstances marriage duration cannot be ensured by law-regulated inability to dissolve it nor by coerced maintaining of a loveless marriage. Therefore, in modern Croatian family law all the causes are broadly classified as a disruption of the matrimonial relationship and collaborative divorce is considered to be a fully legitimate way for dissolution of marriage.
Keywords
family law; divortium; separatio; divorce; separation
Hrčak ID:
65251
URI
Publication date:
22.2.2011.
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