Divorce and Catholic marriages

I wonder whether the proponents of the Private Member’s Bill seeking to introduce divorce into Maltese law have even given a moment’s thought to the possible implications their proposal gives rise to in relation to the existing Concordat between the Holy See and Malta on The Recognition Of Civil Effects To Canonical Marriages And To The Decisions Of The Ecclesiastical Authorities And Tribunals About The Same Marriages. This was signed on February 3, 1993, which came into force on May 15, 1995 and which is reproduced in the Schedule to the Marriage Act.

A cursory reading through of the Bill suggests they might very well have not. Possibly this is because the proposal is to legislate for divorce not through an amendment to the Marriage Act, which already regulates annulment of marriage, as one might logically have expected, but, rather, in virtue of an amendment to the Civil Code. This, ironically, is being proposed to be done by seeking to append a new subtitle IV styled Of Divorce to title I thereto captioned Of The Rights And Duties Arising From Marriage.

One of the principal aims of the agreement, which was transposed into Maltese domestic law in virtue of Act I of 1995, was to ensure the same civil effects are given to Catholic marriages, meaning marriages celebrated in Malta with effect from the operative date in 1995 in accordance with the norms and formalities established by canon law, as marriages celebrated in accordance with the norms and formalities of the Marriage Act. This in particular pursuant to article 21 of the Marriage Act.

While divorce as a civil law concept clearly brings about civil effects, yet, by its own nature, divorce cannot be categorised as being in itself a civil effect of marriage. Any attempt to argue otherwise would result in a contradiction in terms because the primary effect of divorce is to dissolve, for all intents and purposes of civil law, a marriage otherwise validly contracted to the extent of allowing the parties to such dissolved marriage to remarry, such remarriage then producing new civil effects of marriage in its own right, and so on ad infinitum.

It is also noteworthy to observe that article 35 of the Marriage Act, in excluding the application of canon law insofar as it once had effect as part of the law of Malta on marriage, now only does so without prejudice to inter alia the provisions of article 21 above referred to, conferring civil effects upon marriages celebrated in Malta in accordance with canon law. Also, as is universally known, canon law does not contemplate divorce which, according to the catechism of the Catholic Church, constitutes “a grave offence against the sanctity of marriage”.

Thus, in entering into the Concordat with Malta, the Holy See could hardly be expected to have with any degree of seriousness sought to ensure that Catholic marriages would equally qualify for divorce as a “civil effect of marriage” under Maltese law in the event that divorce were ever to be placed on the statute book of this country at any future projection in time.

Once the state of Malta has obliged itself to give, and has in fact given, full civil recognition to Catholic marriages, based on the contracting parties’ express mutual recital of “wanting to ensure, in line with fundamental human rights and the values of the family based on marriage, a free choice in matters of marriage”, then Parliament legislating in such a manner as could potentially put an end to the civil effects of Catholic marriages, such as divorce would bring about, could well be held to be in manifest contradiction of and most certainly breach the spirit of the agreement, if not also of the letter thereof.

Somehow, I do not believe this is what the late Guido de Marco quite had in mind when inking the document with the Holy See on behalf of the Republic of Malta a little way back in 1993, even though provision is made therein to entrust the search for an amicable solution to a Joint Commission in the event that any difficulties of interpretation or of application should in future arise.

Perhaps that time is now or soon to be.

Dr Dingli is a lawyer by profession.