PSYCHOLOGICAL CONDITIONS.
They relate to consent and the capacity of the intending spouses.
1 the consent of the spouses (art. 146, Civil Code)
Consent must exist and be free from defects:
a) Existence of consent must be concientes and serious.
b) Will free of defects: the consent of the spouses must be free and integrates (art. 180, Civil Code). It may be stale if:
- physical or moral violence (exercised in response to pressure, and the awe to parents may be a case of moral violence)
- error if there was mistaken identity ( on the physical identity) or essential qualities of the person, eg schizophrenia ... (Article 180 paragraph 2 of the Civil Code as amended by Law of July 11, 1975) the other spouse may demand the nullity of marriage for lack of consent.
Positive law has evolved over the admission of error, defect of consent.
- For years, he has held that the error "in person" that is only on the physical identity of the person or civil.
Thus in the famous case of Berton combined chambers of the Court of Cassation of 24 April 1862. The Court refused to annul a marriage contracted by a girl with a convict free once sentenced to hard labor for complicity in murder.
- Under the influence of the doctrine, jurisprudence has gradually softened its position retaining error as the cause, mental status, or the inability of the spouse, the error on nationality in time of war.
- This has led to the modification of Article 180 paragraph 2 of the Civil Code by law of 11 July 1975 to "the error in the person" adds the error on the essential qualities of the person.
The legislature did not specify what were the essential qualities that are at the discretion of the courts.
This must be objectively observed, that is to say, appear essential in the public but must also take a subjective to whoever is the victim.
It belongs to the latter to establish that the error was determinative and that if he had known he would not consent to this union.
NB Contrary to the vices of consent applicable in contract law, the DOL is not retained in marriage as vitiating consent. A spouse can not attack the marriage contract, arguing that his consent to be surprised by the artifices of his spouse.
2 Parental consent to the marriage of their minor children.
minor legitimate child must obtain the consent of one of his father and mother if they are alive or if either is alive. when they are dead or unable to be consulted, the right to consent to pass the closest ancestors in each line. A Otherwise, the family council is called upon to make. For minor illegitimate children the right to consent up to the parents and grandparents with whom the child naturally has a link from the law of January 3, 1972, if the family council. For the minor adopted child:
- Full adoption: adopted the same position as that of minor legitimate child.
- Adoption simple: by adopting a single, consent of the adopter; both spouses consent, consent of both.
consent is given orally during the marriage. If given before the celebration must be recorded in a deed.
Dissent is consent.
3 ° For incapacitated adults.
The law of January 3, 1968 submit the marriage
- the main ward with permission of both parents or a special resolution of the family council after consultation with the doctor and hearing both future spouses (art. 506 of Civil Code).
- of full age under curatorship authorizing the Trustee, without the guardianship judge (Article 514 of the Civil Code).
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