Church and State: Malta and Marriage

Religion in Malta follows the “State Church model”, and under Article 2 of the Maltese Constitution

  • The religion of Malta is the Roman Catholic Apostolic Religion.
  • The authorities of the Roman Catholic Apostolic Church have the duty and the right to teach which principles are right and which are wrong.
  • Religious teaching of the Roman Catholic Apostolic Faith shall be provided in all State schools as part of compulsory education.

In addition, a number of concordats were agreed between Malta and the Vatican between 1985 and 1995 on a range of issues including: the School of Theology’s incorporation into Malta University; the financing of Catholic schools; Catholic education in public schools; temporal goods of the Church; the recognition of civil effects to canonical marriages and to the decisions of the ecclesiastical authorities.

Although the population of Malta is predominantly Roman Catholic, there is a movement for the abolition of the concordats. The Church’s influence over marriage has been particularly contentious and until 2011, along with Vatican City and the Philippines, Malta was one of the few states in which there was no provision for civil divorce. The Marriage Law Amendment Act 1995 recognised the exclusive jurisdiction of ecclesiastical tribunals over Roman Catholic marriages; and though it was possible to obtain a civil annulment the civil courts also recognised Roman Catholic annulments. After a referendum in May 2011 the ban was lifted by the Civil Code (Amendment) Act 2011 and divorce was permitted under certain circumstances. However, under the Concordat “On the recognition of civil effects to canonical marriages and to the decisions of the ecclesiastical authorities and tribunals about the same marriages”:

  • Civil effects are recognized for marriages celebrated in Malta according to the canonical norms of the Catholic Church from the moment of their celebration… [Art.1.1]
  • The Holy See takes note that the Republic of Malta recognizes the civil effects of canonical marriages where there does not exist between the spouses an impediment that, according to civil law, produces the nullity of the marriage and that the said civil law considers as mandatory or not dispensable [Art.1.2].
  • The Republic of Malta recognizes for all civil effects, in terms of this Agreement, the judgments of nullity and the decrees of ratification of nullity of marriage given by the ecclesiastical tribunals and which have become executive [Art.3].
  • For the purposes of the recognition of the civil effects mentioned in Article 3, the Holy See takes note that:

a) from the moment in which notice is given to the Registrar of Courts of the acceptance by the Chancery of the ecclesiastical tribunals of a petition presented by at least one of the parties to obtain the declaration of the nullity of a canonical marriage celebrated after the coming into force of the present Agreement, competence to decide on the matter is recognized solely to the ecclesiastical tribunals, provided that the civil tribunals have not already given a judgement that has become res judicata, based on the same grounds of nullity

  • The Court of Appeal shall order the recognition of the decrees [of the Roman Pontiff] super matrimonio rato et non consummato referred to in paragraph 1 of this Article if it is clear to it that such decrees refer to marriages celebrated according to the canonical norms of the Catholic Church [Art. 7.2].
  • In the exercise of its specific functions as regards the recognition of the decrees mentioned in article 7, as well as of the judgments of nullity or of the decrees of ratification of nullity of marriage mentioned in Article 3, the Court of Appeal does not re-examine the merits of the case [Art. 8]
  • The civil effects flowing from the recognition mentioned in Articles 3 and 7 are regulated by civil law [Art.9].

The Court of Appeal is the final appellate court in civil matters in Malta which, unlike most other jurisdictions, has only a single tier of appeal. The Court

“gives the necessary orders so that decisions delivered by the Ecclesiastical Tribunals in marriage annulment proceedings can be registered and thereby have civil effect. Before giving such an order the Court of Appeal must ensure that certain procedures laid down in the Marriage Act (c. 255) have been followed, and in particular that in the proceedings before the Ecclesiastical Tribunal there was assured to the parties the rights of action and of defence in a manner substantially not dissimilar to the principles of the Constitution of Malta”.

As a result of Malta’s general election on 9 March 2013, the Labour Party won a majority of seats and defeated the Nationalist Party which had been in power for 15 years. An early outcome of the election was for Prime Minister Joseph Muscat to approach the Vatican with a view to revising the 1992 Church-State agreement relating to marriage so that the civil marriage law would no longer be subordinate to the Ecclesiastical Tribunal.

Comment

The present situation in Malta is similar to that in England prior to the introduction of the Matrimonial Causes Act 1857 and the secular state formally accepted the Church of England’s doctrine of marriage. The 1857 Act secularised English divorce law by abolishing ecclesiastical jurisdiction over divorce and created a secular court with the power to dissolve marriages.  However, in addition to the supremacy of the civil courts in this area future discussions in Malta are likely to include “civil unions” for same-sex couples, an issue on which the Church and many of its ~450,000 inhabitants are opposed.

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