is eligible application for dissolution of communion that may also be brought pending the result of separation between spouses. However, the dissolution is effective after the court decision becomes final step of separation.
Thus, the Court of Cassation, the sentence no 4757, upheld the appeal of a man who, during the same time of separation had already applied for the dissolution of the communion.
Judges Supreme Court, reversing its earlier policy, declaring the question "impossible", said that "We believe the court decision becomes final step of separation, sure basis of the dissolution of the communion, must precede the application for division of the assets means clearly qualify as a condition of the case (or, if you will, of the admissibility condition), rather than as a condition of the ". In short, this distinction is not clear, further reflected in the code of ritual, but is commonly followed by case law and doctrine, almost unanimous.
"As you know, in fact, the conditions of the process relate to the very existence of the process and its validity and admissibility, and must be met before submitting the application. If the existence of the process requires that the claim is made against a judge, and must evidently consist of a request for judicial protection, the profiles of validity of the process for proposing and demand relate to the power and duty of the court to reach a ruling on the merits ".
For stoats, therefore, procedural requirements are the jurisdiction, competence and legitimacy of the case, the power of the person proposing the question and the person against whom the application is made, to make the pleadings. In essence, "the conditions are the requirements of the merits of the application, to ensure that the concrete actions that would achieve the purpose which it purports" . For this it is sufficient that such conditions exist at the time of delivery, and not necessarily that of application. Among the conditions of the action, are finding safe legal interest in bringing proceedings (art. 100 CCP), in the pursuit of judicial protection, a guarantee of substantial interest to which it is proposed the question, a subjective legal situation of advantage, which recognition is place subject to the claims brought in court.
Judge reaffirming the "art. 191 cc provides the grounds for dissolution of the communion, and the separation between them (judicial or consensual). Settled law of this Court held that the dissolution is finalized with the court decision becomes final step in a legal separation (or the approval of the consent).
Then, in step judicata (or ordinated) then you locate the point at which there is the locus standi to present concrete and dissolution of communion and division, but it may also relate to as giving rise to a right to get this up and, consequently division.
0 comments:
Post a Comment