Marriage of a minor. Art. 84 cc

Marriage in the Italian legal system

Marriage is the legal act, regulated by articles 79 et seq. of the Civil Code, through which two subjects freely choose to share their existence until the cessation of the bond itself, which can occur either by the death of one of the two spouses, or by the dissolution of the marital relationship through divorce.

The contraction of this legal transaction obviously entails the emergence of rights as well as obligations and duties for the parties, in their relationships with each other and with respect to any children, as provided for in articles 143 et seq. of the Civil Code. The termination of the marital bond, however it occurs, inevitably affects marital rights and duties, leading to the end of these as well. Through separation, however, a weakening of marital rights and duties occurs, while the marital bond still remains in existence.

In the Italian legal system there are different types of marriage to which the civil effects are equally attributed: in fact, in addition to the civil marriage which is celebrated before the civil registrar, there are also religious marriages, which are contracted before a minister of worship of one of the religious denominations that have stipulated an agreement with the Italian State (the oldest in time, among the non-Catholic denominations, is that with the Waldensian Evangelical Church).

In this second case it is necessary to mention a distinction between the Catholic confession and the other religious confessions that have stipulated an agreement with the State. The first is also called “concordat marriage”, and produces effects not only in the Italian legal system, but also in the canonical system. Instead, the marriage celebrated before a minister of worship of one of the other religious confessions is, in reality, a civil marriage in all respects, with the only peculiarity that it is not officiated by the civil registrar, but by a minister of worship.

Marriages contracted before a minister of worship of a religious denomination that has not entered into any agreement with the State have no value under the Italian legal system.

Requirements to be able to get married

In order to validly contract a marriage, the conditions set out in Title VI, Chapter III, Section I of the Civil Code must be met. It lists all the cases in which it is not possible to stipulate a marriage contract, both to guarantee the protection of certain particular categories of people and to prevent marriage from being contracted in certain specific situations involving interpersonal relationships.

The first article of this chapter III, section I is art. 84 which regulates the position of minors in relation, precisely, to marriage.

Article 84 of the Civil Code and the marriage of a minor

The first paragraph of article 84 of the civil code is quite eloquent: “Minors cannot marry” . This provision states the universally applied general rule according to which minors cannot marry.

In the following paragraphs, however, marriage for serious reasons is permitted for minors who have reached the age of sixteen; the latter must present a request in person to the territorially competent juvenile court, which has the task of ascertaining the minor's psycho-physical maturity, as well as the validity of the reasons given, after hearing the public prosecutor, the parents or, if absent, the guardian.

The court issues a decree, issued in chambers, which is communicated to the public prosecutor, the spouses and the parents (or guardian). It is possible to appeal against the court's decision within 10 days of the communication of the decree. If the aforementioned deadline passes without an appeal being lodged, the decree will become effective. If an appeal is lodged, the Court of Appeal will be responsible for ruling by means of a non-appealable order, also issued in chambers.

From what has been said so far, some fixed points can be made: first of all, it is evident that the prohibition of marriage is absolute for those who are under sixteen; for those who have reached this age it is possible to marry, but only after evaluation by the court, having ascertained the necessary presence of serious reasons.

The serious reasons – the case history

Our legislator does not expressly provide what the “serious reasons” mentioned in art. 84 of the Civil Code, which is why, in order to list the reasons in question, it is necessary to rely on the work carried out over the years by jurisprudence, which is essential to create a valid case law. Given the absence of the regulatory data, it is nevertheless appropriate to proceed with particular attention.

Let us begin by saying that the state of pregnancy of a minor, in and of itself, is not sufficient by itself to constitute a serious reason for marriage; it must be accompanied by maturity and psychological independence with respect to the parents, corroborated by valid prospects in the formation of an autonomous family (Trib. Min. Naples, 05/06/1995).

It is considered possible, however, for the court to issue authorization to marry to a couple who are expecting a child and who express the conscious will to assign the unborn child a family environment that is not only de facto, but also formally recognized by the community (Trib. Min. Turin, 26/03/1986); and also the case in which, in the minor, the pregnancy is accompanied by the serious intention of creating a communion of life with her partner (Trib. Min. Caltanissetta, 10/07/2018).

On the contrary, difficult family and environmental conditions cannot be an obstacle to the release of the authorization, if the minor is found to have balanced and responsible behavior aimed at ensuring that the conceived child has that state of legitimacy guaranteed by the marriage between the two parents, giving proof of having reached psychophysical maturity (Ministry Court of Palermo, 17/06/1981).

A pregnant minor whose marriage is opposed by her parents because of an unjustified aversion towards her partner and who suffers serious limitations of her freedom may be authorized to marry (Ministry Court of Palermo, 18/12/1985).

The state of pregnancy, therefore, is considered very relevant, but it is not sufficient by itself to integrate the serious reasons; it must be accompanied by the verification of psychophysical maturity which must be ascertained with rigorous criteria, also considering that the obligations and responsibilities deriving from becoming a mother require a lower maturity than that deriving from the contraction of marriage and the subsequent assumption of the role of wife (Trib. Min. Genova, 08/04/1981).

For the authorization of early marriage, the minor's situation was considered sufficient if, in addition to demonstrating a valid degree of discernment, she had been living together for about a year. more marriage with the spouse marrying the parents of the same applicant with a conscious plan for married life and with the possibility, in this way, to heal the previous cohabitation through the institution of marriage, also taking into account that the same took place in a small agricultural center (Trib. Min. Perugia, 31/05/1995); in this sense, a previous decision is followed in which, the serious reasons were considered integrated due to the negative consequences deriving from the importance that the cohabitation more marriage can lead to a small provincial environment, where the values ​​of the legitimately constituted family are still central (Court of Appeal L'Aquila, 16/03/1994).

From the various decisions set out above, it can be well understood that the court, when consulted, assigns particular importance to the evaluation of the psycho-physical maturity of the minor involved; among other things, as also provided for by the same art. 84 of the Civil Code. In this regard, it is useful to remember that the required psychological maturity is that which the legislator recognises in those who have already reached the age of majority; therefore, the minor must be recognised as having the level of understanding and evaluation presumably reached by an eighteen-year-old subject (Court of Appeal Bologna 12/12/1978).

Practical aspects – the necessary documentation

In order to submit the request for authorization to the Juvenile Court, minors must go, accompanied by their parents or, in their absence, by their legal guardians, to the civil registry of the Juvenile Court of their place of residence and file the application (sometimes a duplicate copy is requested).

There are some documents to attach to the marriage authorization request and more precisely:

1) the birth certificate of the engaged couple; Request your birth certificate here!

2) the certificate of residence; Request your certificate of residence here!

3) a medical certificate describing the level of psychophysical development of the minor, accompanied by a reasoned report, and in which there are elements from which the maturity of the subject can be explicitly deduced;

4) the pregnancy certificate, if the minor is pregnant;

5) the birth certificate of the child of the engaged couple, if the birth has already taken place;

Furthermore, any other documents supporting the application aimed at better defining the reference situation would be useful (e.g. a declaration from the employer of the interested party).

Marriage contracted in violation of art. 84 cc

In the event that a marriage is nevertheless celebrated in violation of the provision set forth in art. 84 of the Civil Code, the subsequent art. 117 intervenes in support, which in paragraph II provides for the possibility of challenging it by the spouses, each of their respective parents, as well as the public prosecutor. The time limit for filing the action for the minor is one year from reaching the age of majority.

The action filed by one of the parents or by the public prosecutor must be rejected by the Court if, even while the trial is pending, the minor has reached the age of majority or there has been conception or procreation; it must also be rejected when the minor's will to maintain the marital bond has been ascertained.

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