What is affectio coniugalis?
The legal jargon, especially that used by judges, often resorts to Latin terms: ancient maxims sometimes perfectly encapsulate concepts that in modern language require lengthy explanations. One such term is affectio coniugalis, frequently heard in matters related to marriage, separation, fault attribution, and residence permits. But what is affectio coniugalis?
It’s a Latin term that literally translates to “conjugal affection.” Within Italian family law, this concept represents a foundational element of marriage, though not expressly defined by the law.
Affectio coniugalis isn’t merely love but a blend of feelings and duties that bind spouses, urging them towards mutual sacrifice for a common goal: the family. It encompasses a range of reciprocal duties and rights arising from the marital bond, including affection, moral and material assistance, fidelity, collaboration in managing family life, and cohabitation.
Affectio coniugalis is crucial for a valid marriage. Its presence is presumed at the time of marriage but may diminish over time. Indeed, a crucial condition to understand when a marriage is in crisis – thus allowing for separation – is the loss of affectio coniugalis.
If marital crisis and the rupture of affectio coniugalis are attributable to one spouse, fault for the separation can be assigned to that spouse. For instance, if behavior violating marital duties (such as abandoning the family home) leads to the rupture of affectio, the responsible spouse may incur fault and may not claim maintenance support. Conversely, if it’s proven that the marital communion was already broken before the wrongful conduct (for instance, if infidelity occurs when the marriage is already in crisis), fault may not be assigned.
The absence of affectio coniugalis from the outset of the marriage can even be grounds for nullity in extreme cases.
At the time of marriage, the existence of affectio coniugalis is presumed. However, marital crisis, characterized by a rupture of the couple’s bond, results in the loss of affectio coniugalis and, consequently, all associated marital duties, such as cohabitation, fidelity, and cooperation.
Given its abstract and intimate nature, affectio coniugalis is subject to judicial evaluation based on the specific circumstances of each case. There’s no single factor that can objectively demonstrate its presence or absence.
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