Published: 2022-12-27

Temporary exclusion of offspring: terminology and practical problems

Lucjan Świto
Ius Matrimoniale
Section: Rozprawy i artykuły
https://doi.org/10.21697/im.2022.33.2.01

Abstract

The article attempts to answer a question which is very important from the point of view of judicial practice: can the temporary exclusion of offspring, which refers to the principle of conscious and responsible parenthood, make a marriage invalid, i.e. is it the same as excluding the good of offspring? Often in proceedings for the nullity of marriage one may find a declaration of the parties and witnesses, from which it follows that the nuptial couple wished to have children with each other not immediately after the marriage but at a later time, more convenient for them. Answering the question posed, first a brief analysis of the norm nullity of marriage consent due to the exclusion of the good of offspring was made, and then the principle of conscious and responsible parenthood. The analysis of doctrine and rotal jurisprudence made it possible to formulate a thesis that a defectively expressed marital consent will be determined by the moment of taking a decision to temporarily exclude offspring and the force with which this decision was expressed. There will be no exclusion of the offspring’s welfare if the temporary exclusion of the offspring was taken after the marital consent was expressed. If, on the other hand, the temporary exclusion of offspring was taken before the marital consent was given, the good of the offspring will be presumed to be excluded if the intention to postpone the possibility of conception and birth of the child was taken in an absolute or conditional manner, or if the intention to exclude the birth of offspring forever was known.

Keywords:

bonum prolis, offspring well-being, procreation, simulation of matrimonial consent, exclusion of offspring, nullity of marriage

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Świto, L. (2022). Temporary exclusion of offspring: terminology and practical problems . Ius Matrimoniale, 33(2), 5–32. https://doi.org/10.21697/im.2022.33.2.01

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