Joseph Bajada
The truth must be told
In the current climate of the divorce debate, a frequent bone of contention is the local Church Tribunals. Some laity and even a number of priests are quick to find in these tribunals a scapegoat for all the ills that assail the Church today. These people not only express mistaken views, but also rush to hurl accusations at these ‘power wielding human inventions’ that seemingly undermine the Church that Christ intended.
However, it was Pope Paul VI who pointed out in 1965 that the “Church which they call of charity cannot exist without the juridical Church”.
Pope John Paul II reiterated that “the juridical and the pastoral dimensions are united inseparably in the Church... Above all, they are in harmony because of their common goal – the salvation of souls. Any opposition between the pastoral and the juridical dimensions is deceptive”.
One thing is certain, however – erroneous and confusing information is being disseminated that has nothing to do with the stark reality.
Indeed, many of these generalised accusations are in essence baseless and fictitious and subsequently contribute to create and actively promote a negative image of ecclesiastical tribunals.
Among such misconceptions we find that marriage nullity processes are skilfully made-up cases ‘divorce’ Catholic style that cost thousands of euros and are therefore a vast source of income for the Church.
It is often claimed that before starting marriage nullity procedures in foreign ecclesiastical tribunals, one is asked to finalise divorce proceedings in the civil courts. The implication is that the Catholic Church elsewhere, contrary to the Church in Malta, recognises divorce. This is not true. The reason some ecclesiastical tribunals abroad refer people to seek divorce civil proceedings is that in such countries this is the only way to safeguard one’s civil rights.
This is not the case in Malta, and in other countries like Italy, Spain, Portugal and Poland, where Church-state internationally recognised agreements are in place.
The objective of such agreements is to uphold the fundamental human right of religious freedom of citizens to choose between a civil and religious marriage.
Furthermore, in the eventuality where the marriage is declared null by a Church tribunal and the person remarries, there will be no apparent discrepancies leading to the mistaken belief that the Church is thus allowing bigamy.
This leads us to the true implications of the assertion made by the Catechism of the Catholic Church, n.2383:
“If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offence.”
Certainly one cannot interpret this as meaning that the Church is upholding divorce in any way.
The emphasis being made here is that divorce is only considered when it is the only judicial means available to safeguard one’s rights in the civil sphere.
Thus the Church teaches that one cannot resort to divorce proceedings if there is another just means – such as separation proceedings – to obtain one’s rights.
This point was also taken up by John Paul II in 2002 in his address to the Tribunal of the Roman Rota: “Lawyers, as independent professionals, should always decline the use of their profession for an end that is contrary to justice, as is divorce. They can only cooperate in this kind of activity when, in the intention of the client, it is not directed to the break-up of the marriage, but to the securing of other legitimate effects...”. Such judicial proceedings, therefore, do not dissolve the marriage in question.
Another frequent accusation is that ecclesiastical marriage nullity proceedings incur exorbitant costs that line the coffers of the Church.
The allegation being bandied about is that if divorce is introduced this source of income will be depleted. Quite the contrary!
The average expenses incurred in both Instances (the Metropolitan First Instance Tribunal and the Second Instance Tribunal) amount to around €1,200, not including expert reports. Fees charged by lawyers are settled directly with the client.
This global amount covers the total cost of engaging two notaries, two chancellors, two defenders of the bond, a number of auditors, six judges, not to mention administration expenses, in both instances.
This explains why the Church is forking out approximately half-a -million euros each year to subsidise the tribunals. Just last year (2010) out of 112 cases decided in First Instance, only 48 paid the full fee, another 48 made a partial payment, while 16 paid nothing. In spite of this, every person’s right to justice is in no way denied.
Contrary to other courts of law, the case still proceeds until the end. Moreover, when one really cannot pay, the fees are waived. In the end, it is the diocese that shoulders the financial burden.
All this might sound apologetic to some ears, but for the sake of justice, the truth must be finally told.
Judicial Vicar, Regional Tribunal of Second Instance, Malta.
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Mr Lawrence Fenech
May 10th 2011, 13:21
I thnk the church should start making a "censiment" on the church going poplulation.
Ms Monica Muscat
May 8th 2011, 21:28
Good for you! It is time to stop all this negative and untrue statements and comments being bended around against the Catholic Churches tribunal. Many, too many, keep trying to give the impression that the Ecclesiastical Tribunal is made up of a handful of Bosses in the Mafia style, who love to pick on one or other of "poor couples" who need their services to suck them dry!
But as they say: "a little knowledge is dangerous". So please keep enlightening us common mortals so that you will be able to put the carpet from under the feet of those Badly/Wrongfully intentioned.
Mr Victor Laiviera
May 8th 2011, 14:54
Mgr Bajada writes "every person’s right to justice is in no way denied."
Not true at all. As long as people are:
a) being forced to appear before religious tribunals against their will, and
b) denied the right to choose their legal representation
their right to justice is being clearly denied.
Mr Tommy Vella
May 8th 2011, 17:45
Why against their will? Because divorce is not available? Don't you know that an annulment is totally different from a divorce and even if divorce is legalised (as it is in other countries) cases of annulments will still be filed?
Thank you for a very clear elucidation Mgr Bajada. I hope that the pro-divorce lobby and their supporters will now desist from mixing things up. I believe that every one has the right to his opinion but opinions, especially if broadcasted in any form of media, should be informed.
Mr Victor Laiviera
May 9th 2011, 08:42
If one spouse decides to take the case for annulment before the Church Tribunal, the other side cannot refuse and insist on taking the case to the civil court.
Thus one is forced to participate in something inherently religious.
Many experts are of the opinion that this is a breach of our constitutional right to freedom of religion.
Mr Tommy Vella
May 9th 2011, 13:27
Isn't this the same as the proposed no fault divroce law? One partner can file for divorce without his/her partner's consent?
Mr Tommy Vella
May 9th 2011, 13:36
An annulment is the declaration that the marriage was not valid and if one person has proof that there was a condition invalidating that contract there is no need of the other person's agreement, more than that it would be unjust if the other person's agreement was required, especially if the condition invalidating the contract was known to that other person and kept secret.
In no-fault divorce, unless both parties agree, it's worse, because it would be the unilateral breach of a contract signed between two people, and to annul that contract, if we accept the thesis of divorce, at least the agreement of both parties should be required.
Mr Victor Laiviera
May 9th 2011, 15:18
@ Mr Tommy Vella
In ALL cases (separation, church annulment, civil annulment, divorce "with fault" and "no fault divorce" - ALL of them), one partner can open the case even if the other partner opposes. And that other partner has to abide by the verdict, whatever it is.
If you did not know that, no wonder you are not making much sense.
Mr Tommy Vella
May 9th 2011, 15:36
Furthermore I don't agree with the anonymous experts who say that this is a breach of our constitutional right to freedom of religion.
Don't forget that in order for a marriage to be annulled by the ecclesiastical tribunal it has to be a marriage (religious) in the Catholic Church. I would think that in a marriage both partners agree to what form of marriage they undertake (civil, religious, or religious and civil). I would not think that one of the partners was co-erced. In that case there would be the breach of the constitutional right to freedom of religion.
Once their marriage was celebrated in the Catholic Church (even if one of the partners has reneged on his religion) it would be no breach of freedom of religion to undo what was done, in the place where it was done. Since the couple were married in the Catholic Church it HAS TO BE the ecclesiastical tribunal to decide on the validity or otherwise of said marriage, irrespective of whether one of the partners was still a believer or not. That is my humble (no expert) opinion.
Mr Tommy Vella
May 9th 2011, 15:58
"In ALL cases (separation, church annulment, civil annulment, divorce "with fault" and "no fault divorce" - ALL of them), one partner can open the case even if the other partner opposes. And that other partner has to abide by the verdict, whatever it is".
So what are you griping about if that happens in the church tribunal as well?
And as I said in the case of annulment it has to be like that, because as I explained, a case for annulment is about some invalidity which is not part of the contract and hence did not have the assent of both partners.
While in my opinion in divorce and separation it SHOULD NOT be like that because marriage is a contract entered into by two persons and for that contract to be undone there should be the consent of both.
Mr Tommy Vella
May 8th 2011, 12:21
Thank you for being so clear. I hope that the pro-divorce lobby and its supporters will not keep on passing these untrue comments. Any opinion, especially if broadcasted in any media, should be informed.
Mr Paul Barrett
May 8th 2011, 11:54
Quote: The average expenses incurred in both Instances (the Metropolitan First Instance Tribunal and the Second Instance Tribunal) amount to around €1,200, not including expert reports. Fees charged by lawyers are settled directly with the client. Unquote.
Still sounds like a lot of money for a lot of people but then again, the Civil Court costs are not overall going to be any cheaper but hopefully they will be an awful lot faster.
Mr Tony Camilleri
May 8th 2011, 11:31
Can the Judicial Vicar therefore please inform the readers whether they consider employing more auditors to collect the evidence given by witnesses so that annulment procedures do not take years and years?
Can he also explain how come certain persons can get an annulment for their children and to cap it all two annulments for the same person within three years meaning that after the annulment the person married again and had his second marriage annulled while the other lesser mortals may become pensioners before their marriage is annulled?
Thank you.
Ramon Casha
May 8th 2011, 10:24
"The objective of such agreements is to uphold the fundamental human right of religious freedom of citizens to choose between a civil and religious marriage."
But not between a civil or religious annulment. In Malta, the ecclesiastical tribunal takes precedence over the civil courts, which means that even if one of the former spouses disagrees with it, he or she must be subjected to a church trial with all of its anomalies such as not being able to select a legal representative of choice.
Mr edwin formosa
May 8th 2011, 21:18
@Ramon Casha
""L-istqarrija tal-Moviment Iva tgħid li għandna ftehim bejn il-Knisja u l-Istat fejn l-annullament tal-Knisja għandu precedenza fuq dak tal-Istat. DAN MHUX KORRETT
Il-Ftehim juri li l-preċedenza tingħata lil mod ta’ kif beda ż-żwieġ. Dan ifisser li jekk tnejn jiftehmu li jiżżewwġu bi żwieġ kattoliku, jekk jiġu biex ifittxu nullita` għaż-żwieġ tagħhom u ma jaqblux jekk imorrux fit-Tribunal tal-Knisja jew fil-Qorti Ċivili, il-preċedenza jeħodha t-Tribunal tal-Knisja b’rispett għad-deċiżjoni li l-koppja tkun għamlet flimkien meta żżewwġu. Iżda jekk koppja jaqblu bejniethom li jmorru quddiem il-Qorti Ċivili, minkejja li ż-żwieġ tagħhom ikun sar bir-rit kattoliku, il-Qorti Ċivili tisma’ il-każ tagħhom.
Veru li jekk xi ħadd minnhom waqt li jkunu għaddejjin il-proċeduri ċivili, ikun irid imur fit-Tribunal tal-Knisja, il-kawża ċivili titwaqqaf. Min-naħa l-oħra, tnejn li jiftehmu li jiżżewwġu bi żwieġ ċivili allovalja wara jikkonvalidaw dan iż-żwieg bir-rit kattoliku, jekk jiġu biex ifittxu n-nullita’ taż-żwieġ iridu bilforx imorru fil-Qorti Ċivili. Għal raġunijiet ta’ kuxjenza, il-parti li trid tgħix ta’ nisranija trid tmur ukoll fit-Tribunal tal-Knisja.""
http://maltadiocese.org/lang/mt/news/id-dikjarazzjoni-ta%e2%80%99-nullita-mit-tribunali-tal-knisja