Direito comparado: sentença canônica de nulidade matrimonial e sua incorporação no ordenamento brasileiro

Abstract

In this dissertation, the autor aims to contribute in the improvement of national legal knowledge, especially in the field of comparative matrimonial law, in order to promote and encourage the correct implementation of Canon Law within national territory, displaying that the Ecclesiastical Law has a strong influence on the origins of Brazilian legislation, in order to avoid the production of undesirable effects due to the internalization of canonical judgements. Thus, it discusses primarily the internalization within the Brazilian legal system – in the extrajudicial sphere and throught action before the Superior Court of Justice – of judgement of canonical matrimonial nullity, handed down by the Ecclesiastical Courts, pervading, so, by a study about comparative law; the Brazil-Holy See Agreement; the institutions of marriage in the Brazilian Civil Code and in the Canonical Code; the grounds for nullity and voidability, as well as their implications; the jurisdiction for the recognition of foreign judgments in Brazilian territory, and the requirements for this procedure. The study's relevance is evident in light of the growing number of canonical marriage nullity cases before the Ecclesiastical Court of the Diocese of Santos – which can trigger actions before the domestic judiciary to homologate a foreign judgement, and even attempts to internalize it directly in the extrajudicial registry – as well as in view of the originality of the research in the academic field. In the social field, the failure to correctly apply legal concepts can result in undesirable effects, affecting the patrimonial and personal rights of the parties. Thus, the initial guiding question is whether or not it is necessary to homologate all canonical judgements of matrimonial nullity, given the legislative change that waives the homologation before the Superior Court of Justice of foreign rulings of consensual divorce (CPC, art. 961, §5). Concluding that the institute of canonical matrimonial nullity and consensual divorce are incompatible, and therefore, the need for homologation prevails, the paradigm judgments handed down by the Superior Court of Justice on the matter and the existence of technical errors that compromise the correct application of the law are analyzed, unfolding in the effects resulting from homologation in spite of the notorious incompatibility of the institutes.