Revisiting the Church-state annulments pact

The agreement between the Church and the state granting civil recognition to canonical marriages and decisions delivered by ecclesiastical authorities and tribunals on those same marriages has generated misgivings from its very beginning.

Following the 1993 deal between the Holy See and the Maltese state, a Bill amending the 1975 Marriage Act was passed through Parliament in 1995. The agreement was then ratified by the Holy See and the Republic of Malta and the amended Marriage Act came into effect on May 15, 1995.

Controversies centred mainly about what was termed as the supremacy of the ecclesiastical tribunal in matters of marriage annulments. However, arguments also emerged as to whether it was right and acceptable that the Church tribunal should block certain lawyers from representing their clients during the tribunal’s proceedings considering that its decisions also had a civil effect. This issue reached boiling point when, very untimely, during the divorce referendum campaign the Church tribunal suspended lawyer Deborah Schembri who was leading the pro-divorce movement.

In subsequent exchanges between the Chamber of Advocates and the Archbishop’s Curia, the Church explained that lawyers who spoke publicly in favour of the introduction of divorce legislation in Malta are not prohibited from appearing before the tribunal. Similarly, lawyers who assisted clients in divorce cases in court shall not be banned from appearing before the tribunal.

The Chamber of Advocates intends to discuss with the Church the case of individual members of the legal profession who were still prohibited from appearing before the tribunal. However, even if this particular issue is resolved to the satisfaction of all, the need to seriously revisit the original agreement remains.

In the wake of the pro-divorce referendum result and the divorce legislation that Parliament is about to approve, the Archbishop’s Curia was cautious but sensible in its response on whether the Church favoured a review of the agreement.

A Curia spokesman said that “Particularly at the current junction, while still awaiting the final outcome of the legislative process for a local divorce law, from a legal point of view, various new scenarios could develop and the Church in Malta is confident that they will be duly addressed by both signatories to the current agreement through the proper channels”.

The Church knows very well that, once divorce is introduced, the state of affairs is bound to change, possibly even dramatically, also with regard to the grounds on which people file an application for annulment before the Church tribunal. For instance, with the introduction of divorce, the number of nullity applications on a conscience factor is bound to increase. Indeed, it is the experience of the Church in various countries that many of the faithful who obtain a divorce and are, therefore, permitted by civil law to marry again, ask for a declaration of nullity because they know that, for Catholics, a valid marriage can only be one that is celebrated according to the laws of the Church.

With divorce legislation now here, there are at least two particular challenges facing the Church.

First of all, it needs to forge a fresh kind of pastoral activity that entails sufficient clarity about its teaching on the indissolubility of marriage, accompanied by effective continued support for marital love and communion.

At the same time, it also needs to address the potential failures of the faithful in a way that aims at restoring peace to one’s conscience.