True separation between Church and state

It has been argued that in Malta there is no clear distinction between Church and state. I must say that, in one aspect, I feel this assertion could be quite correct.

A few years back, a treaty was signed with the Vatican state granting the local ecclesiastical tribunals supremacy in dealing with marriage annulment cases. In fact, the decisions of these tribunals are recognised by the state and are duly registered in the Marriage Registry. More interestingly than this, however, article 30 of chapter 255 of the Laws of Malta, The Marriage Act, goes much further. It actually grants the Church’s tribunals jurisdiction which, in fact, surpasses that of the ordinary courts.

The said article of law provides for the eventuality of when one party to a marriage opts to file a case before the ordinary courts while the other party decides to refer the matter to the ecclesiastical tribunals. In such hypothesis, once the Civil Court is informed of the ongoing suit before the Church tribunal, it must refrain from proceeding further.

Undoubtedly, here the Church is directly assuming a role which is due to the civil authorities because such decisions do not only affect the sacramental aspect of a marriage but also the civil aspects of a contract. This state of affairs was eventually contested before the courts. I will refrain from mentioning the parties by name for privacy’s sake but will only quote the case’s reference number, 64/2007.

In this instance, the husband had filed proceedings before the ecclesiastical tribunal seeking an annulment from his wife. Shortly afterwards, the wife, oblivious to this pending case, decided to file a suit seeking herself an annulment, this time before the ordinary courts. The court was duly informed of the existence of parallel proceedings before the ecclesiastical tribunal and, as it was bound to do, it abstained from proceeding further.

The wife decided to challenge all this and requested the court to refer the matter to the civil court in its constitutional jurisdiction. She asserted that the relative article of law infringed her rights protected by the Constitution and the European Convention of Human Rights, which grants everyone the right of access to the courts. By a decision delivered on April 26, 2008, the plaintiff’s request was denied. Unfortunately, no appeal was submitted.

Thus, we see that the only challenge to the status quo was rejected by our courts and, therefore, today, in a particular area of law, the country’s judiciary has been made subservient to the tribunals of another state: Vatican City.

It could be argued that years ago our laws regarding the nullity of marriage was aligned very closely to Canon law but, to my mind, this is not sufficient. It is beyond doubt only too apparent that the procedures adopted by the Church tribunals are far removed from those of the ordinary courts and that the interpretations given by these tribunals are usually much more restrictive than those of the country’s judiciary. Furthermore, it may also be argued that statistics will show that the Curia’s court proceedings, as a rule, take far longer to be concluded. All this can be prejudicial to that party seeking an annulment and who would be satisfied with acquiring a mere civil one.

Unquestionably, the Church tribunals should be given all the freedom and authority to function in the best way possible. There is neither anything wrong in accepting their decisions as final when we have two consenting parties. On the other hand, however, imposing the jurisdiction of these tribunals on our citizens is no longer acceptable because this, to my mind, defies the very concept of the separation between state and the Church, so elementary in a country that upholds lay principles. All this is especially noteworthy when we consider that divorce does not as yet form part of our corpus juris.

I find it ironic that, in times when we are debating the issue of the introduction of divorce, we still adhere to a legal regime that resonates aspects of fundamentalism and reflects an era when matters of religion were associated with those of simple public administration.

In the light of all this, I think it is time to revisit the Marriage Act and update the relative provisions to meet today’s reality and needs.

Dr Herrera is a Labour member of Parliament.