A proposito di un'interessante interpretazione della appellatio mere evidenter dilatoria e del ricorso all'armonizzazione ex can. 1691, § 1 a tutela del bonum familiae

Abstract

About an interesting interpretation of the “appellatio mere evidenter toria” and the recourse to the warning ex can. 1691, § 1 to safeguard “bonum familiae” The Rota Romana, with the decree under comment, once again deals with the issue of the merely dilatory appeal, introduced by the 2015 reform of the matrimonial process, which is still waiting to find a consolidated jurisprudential opinion that defines its uncertain applicative outlines. The solution proposed by the Rota is especially noteworthy for its appreciable attempt to achieve a jurisprudential balance between the right of defence that is expressed in the appeal and the equally remarkable right to have a speedy settlement of a trial, with priority given to the salus animarum of the parties. Moreover, the conclusion reached by the Rota seems to be poorly balanced as it excessively restricts the space granted to the appeal. Indeed, the decree in review interprets the operation of the filter by making the admissibility of the appeal conditional on the appellant proving – as early as in the appeal application – that he is able to produce new elements, not only argumentative but also probative, having a degree of novelty such as to make it reasonable to believe that it can overturn the outcome of the judgment at first instance. In so arguing, however, there is a risk of likening the appeal, which is an ordinary means of challenging the decision issued at first instance, to the different legal instrument of the Nova Causae propositio. Lastly, the decree contains an explicit warning to the parties to respect each other’s rights and those of the children, which appears to be in line with the protection of the “bonum familiae” that is at the heart of the current papal magisterium, according to which the good of the family, and especially of the children, even in cases of matrimonial nullity, always comes first and, therefore, cannot be left to the discretion civil authorities.