CONDITIONS AND PROCEDURE FOR CONCLUDING A MARRIAGE IN THE MATRIMONIAL LAW OF THE HABSBURG MONARCHY IN THE SECOND HALF OF THE XVIII – AT THE BEGINNING OF THE XIX CENTURY

Abstract

The article is devoted to the coverage of the conditions and conclusion of marriage, which are enshrined in three civil codes of the Habsburg Monarchy (the Josephine Code of 1787, the Civil Code for Galicia of 1797 and the General Civil Code of the Austrian Empire of 1811), as well as partially in the Draft of Codex Theresianus of 1766. The author elaborated primary sources, including for the first time in Ukrainian historical and legal science, the German-language text of the Josephine Code and the content of the Draft of Codex Theresianus were investigated. Therefore, a comparative analysis of the relevant norms of the mentioned codes was carried out. The article emphasizes the importance of concluding a marriage contract for the emergence of marital relations. The concept of marriage formulated by an Austrian legislator is presented. The author established that the marriage legislation of the Habsburg Empire did not provide for the institution of betrothal. The article describes in detail 13 reasons for invalidity of marriage, which related to the following three factors: 1) first of all, categories of persons who are not qualified to enter into marriage; 2) illegal methods of obtaining consent to enter into marriage, namely by intimidation, kidnapping, deception regarding the identity of the future spouse; 3) non-observance of the procedure for concluding a marriage, namely the absence of an announcement (notice) about the future marriage, as well as a solemn declaration of consent (wedding). At the same time, the author stated that the Josephine and Galician Codes provided for a similar list of grounds for declaring a marriage invalid, as in the Austrian General Civil Code, with the exception of a conviction for a severe criminal penalty. In addition, the article highlights the possibility of dispensation (exemption) from obstacles to marriage existing in brides, established by the Austrian legislator. Moreover, the author established that, for the most part, this dispensation related only to the procedure of concluding a marriage, namely the exemption from the three-time announcement of the future marriage.