Qualification of Historical Fact and “Caput Nullitatis” in the Canonical Process

Abstract

The ultimate purpose of the marriage nullity processes coincides with the supreme aim of the canonical order: the salvation of souls. In view of it, to highlight the intent to understand the integral experience of the faithful, part of the jurisprudence underlines the importance of recovering the "generic" formula of nullitas ob defectum consensus without further specification of the ground of nullity, an element on which it is requested a further reflection. In this perspective, it is considered useful and appropriate to recover in the probative syllogism also the distinction, which to many may seem pleonastic or even obsolete, between causa petendi proxima (to indicate the caput nullitatis) and causa petendi remota (to indicate the historical facts to be disclosed): in fact, it does not constitute a mere formalistic exercise but helps the judge to correctly understand the notion of the head of nullity, thus avoiding excessive formalism, which prevents the correct understanding of the facts in order to reach the truth, or the exasperated empiricism that it moves away from any legal classification. This distinction thus allows us to justify the doctrine and jurisprudence wherein the judge is empowered to change the head of nullity in the decision-making phase.