Eduard Giurgi: The Importance of the Teaching of Gaudium et spes for the Introduction of Dolus as a Ground for Marriage Nullity in the 1983 Code of Canon Law

The present essay is aimed to highlight the impact of the teaching of Vatican II, through the pastoral constitution Gaudium et spes, on the introduction of a new ground for marriage nullity, namely, dolus. In order to reach this aim, the essay provides a short presentation of the teaching of the 1917 Code of Canon Law. The essay emphasizes that in this code was stressed more the procreative end of matrimonial consent and less the importance of matrimonial love in giving consent. The 1917 Code of Canon Law had the advantage of offering juridic clarity on marriage, yet the disadvantage was that the legislation was very much removed from experience of most married members of the Church. To this disadvantage the personalist view of some theologians and canonists was to give equal importance to procreative end of marriage and to matrimonial love. The personalist proposal was accepted and included in the teaching of the Council of Vatican II, more precisely, in the pastoral constitution Gaudium et spes. The council eliminates the hierarchical ordering on the ends of marriage and it teaches that both ends are equally important for a valid marriage. The council stresses the importance of the love between the man and the woman for a valid matrimonial consent. The teaching of the council led to the introduction of a new ground for marriage nullity in the 1983 Code of Canon Law. In fact, according to the teaching of the council, the consent consists in the mutual giving and accepting of the spouses. When one of them is deprived of knowledge of an important quality of the other party by dolus, the mutual giving and accepting in consent is incomplete or truncated. Also, the partnership of life and love about which the council teaches is seriously disturbed in such a case. As a consequence, it was necessary to be introduced this new ground for marriage nullity in the 1983 Code of Canon Law.

DOI: https://doi.org/10.53438/GQMY8527

Dialog 49-5 Giurgi

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