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Abstract:
When by marriage the parties are pursuing purposes other than starting a family we are in the presence of fictitious marriage. The parties, in fact, do not want to marry, to establish personal and financial relationships with each other specific to the family, but are pursuing interests which otherwise would not be reached. The real relations between them are the hidden ones [1]. Marriage is fictitious if the following conditions are met: a) their consent (of one or both spouses) does not reflect their real intention, is not honest, so that such a marriage was not entered into in order to start a family; b) the desired purpose (of one or both spouses) was to either obtain some secondary effects of marriage or to circumvent certain mandatory legal provisions, other than those governing marriage; [2] c) the spouses have not been living together, the wife has not given birth or is not pregnant or 2 years from the conclusion of marriage have not passed. According to art. 295 par. 2 Civil Code, the nullity of marriage is covered if, until the final decision of the court, the cohabitation of the spouses has occurred, the wife has conceived or is pregnant, or two years have passed since the marriage.
Key words: fictitious marriage, absolute nullity, Civil Code, marriage of convenience.
Marriage was defined as the freely consented union between a man and a woman concluded according to the law, in order to start a family, and governed by the mandatory rules of law [3].
Fictitious marriage is regulated by art. 295 Civil Code [4]. According to this text, marriage contracted for purposes other than to start a family is null and void (para. 1). However, the nullity of marriage is covered if, until the final decision of the court, the cohabitation of the spouses has occurred, the wife has conceived or is pregnant, or two years have passed since the marriage (para. 2).
Consequently, when the marriage is pursuing purposes other than starting a family we are in the presence of fictitious marriage. The parties, in fact, do not want to marry, to establish personal and financial relationships with each other specific to the family, but are pursuing interests which otherwise would not...