Aproximación al estudio comparado de la prueba pericial en los procesos de familia desde el ordenamiento civil y canónico

Abstract

This PHD thesis addresses the issue of expert evidence in family processes from the comparative perspective of two legal systems that are a fundamental point of reference for two societies: the civil and the ecclesiastical one. Both the civil law as well as the canon law share a common concern and special sensitivity when regulating matrimonial proceedings. Each one of them offers a particular view to answer the claims of the parties: in the process of annulling canonical marriages the truth takes priority over the connecting link of the parties, whereas in the civil separation or divorce proceedings the main goal is the modification of the civil status of the couple and how the children are affected by the adoption of measures relating to parental authority and the guardianship regime. The theme chosen, within the marriage processes of separation, divorce and annulment, shows how the claims that arise in these proceedings are based on different types of expert evidence. The regulation of expert evidence in civil law is much wider than the expert evidence in the canon law due to the variety of situations that are discussed in civil proceedings. Therefore, we have limited our research to family proceedings since they respond better to the dynamics of this comparative study. We will examine this overlapping area of law taking into consideration the law of both jurisdictions, the weaknesses and the strengths of their legislations through an evaluation of their similarities and differences. Therefore, we will analyse each and every one of the elements that integrate the civil and canonical expert evidence, evaluating them from a critical perspective. A compared study of these characteristics represents in itself an innovation under the absence of doctrinal treatment. We have considered it interesting and timely to provide an in depth analysis of the canonical expert evidence and its regulation over its thirty years of existence. The study of both jurisdictions will allow us to examine the procedural dynamics in which this test is applied. Even though its treatment looks similar in both jurisdictions, the expertise shows peculiarities that could be attractive to implement in both legal systems...