The civil and canonical concept of simulation in marriage : a comparative study in the respective doctrine, case law and jurisprudence

Abstract

The main theme analysed in the following study relates to the concept of simulation. This vice of consent was introduced to the Marriage Act by Act XXXIV of 1981. Declarations of marriage nullity awarded by the Civil Court, First Hall throughout the period starting from 1981 and 1995 as well as the accompanying referee reports have been analysed in order to provide a complete study about the interpretation of this concept. Reference to the relative referee reports was essential since a number of the said declarations were not substantiated. The latter analysis contributed to a more detailed study of the interpretation of the concept for the instances that the Civil Court, First Hall did not adhere to and confirm the conclusions arrived at by the referees appointed by it, were extremely rare. The purpose of the study is to discover and understand the way simulation was interpreted and applied both by the Civil Court, First Hall and by the referees. The end result was that such interpretation is very close, if not identical, to that developed by canonical doctrine. However, it was also necessary to deduct the discernment of the Civil Court, First Hall and of the referees of other related issues such as marriage and consent. The Marriage Act has often been criticised for its failure to provide such definitions, or any other guidance as to their meaning. The two hundred and fifty-eight declarations of marriage nullity studied, have disclosed the importance of the crucial moment of exchange of consent. Both the Civil Court, First Hall and the referees have established that the intention of the contracting parties at the moment of the exchange of consent, must be determined in order to analyse whether there is the relative vice of consent. Sometimes this was rather put aside as will be eventually seen in the part relating to marriages where one of the parties is of Muslim faith. A few non-consummated marriages were classified as simulated ones and thus a discussion relating to section 19 A was necessary. In some other cases, the party's admission of the claims forwarded in the writ of summons was considered as enough to deliver the declaration of marriage nullity. Finally an interesting debate was provoked by the number of declarations of marriage nullity delivered according to section 19(1)(d) and (f). This is followed by a discussion of declarations according to simulation and the other grounds contained in section 19 (1). The last chapter draws a number of conclusions resulting from the study.