Abstract

The Family Code does not provide for invalidity of marriage ex lege. Marriage can be nullified only as a result of a judicial verdict. Defective declarations of will constitute obstacles to marriage within the meaning of Art. 15¹ of the Family Code. According to the Family Code defects of a declaration of will include: ignorance, error as to the identity of the other party, and threat. The Family Code described both differences and similarities between the notions of ignorance, error, deception and threat as used in the Civil Code. The Civil Code provisions should be applied per analogiam.A totally incapacitated person is incapable of entering into legal transactions. Therefore it should be assumed that their declaration of entering into marriage and signature on respective documents are null and void, and bear no legal consequences. Marriage has not been concluded. Therefore it is not the procedure of nullification of marriage under Art. 11 of the Family Code that should be applied, but the procedure for finding the marriage non-existent under Art. 2 of the Code. The entire hitherto practice of nullifying marriages because of total incapacitation has been incorrect. The introduction in Art. 16 of the sanction of nullifiability of marriage instead of declaring it non-existent is incorrect. In case of the withdrawal of a proxy, its invalidity or no consent of the court for making a declaration of entering into marriage by proxy marriage is not concluded at all as the simultaneously present prospective spouses do not make the vows (cf. Art. 1 § 1 of the Family Code). Therefore the prerequisites for the conclusion of a marriage have not be fulfilled. Matrimonium non existens. Such a defect should not result in the nullification of marriage but a request to find it non-existent.