Both canon and civil law in Malta needed to be “cleaned up” to reflect the clear delineations of competence between Church and State, an expert has told the House Family Affairs Committee.

Manwel Schembri, who discussed the likenesses and divergences between canon law and civil law regarding marriage and divorce, recently presented his doctoral thesis on the matter.

He said both civil and canon law had elements which were beyond their competence and the laws needed to be cleaned up to better reflect the clear delineations between Church and State. He argued in favour of a complete separation of the two laws and said that only then could autonomy in both spheres become complete.

Marriage in canon and civil law was not as divergent as some might be led to believe, he said. Marriage as a sacrament was instituted in the 13th century and was not only a canonical issue but also one of social control.

Unity, monogamy and indissolubility were basic tenets of Catholic marriage. Vatican Council II redefined marriage from a contract to a pact, strengthening the sacramental aspect. Dr Schembri referred to the Pauline privilege as a basis for dissolution of marriage as well as annulment on the different grounds. Catholic marriage was based on consent and consummation.

On the other hand, civil marriage originated as a social contract and the French revolution saw the introduction of civil marriage in the Napoleonic code.

In Malta, civil marriage was introduced in 1972. Monogamy was implicit in the law and bigamy was excluded. Marriage was based on free consent, given contractually in front of witnesses. The law listed eight ways in which consent may be vitiated and non-consummation may lead to the annulment of a marriage.

Dr Schembri talked of similarities and differences in the two forms of law, noting strengths and weaknesses in both legal formats.

He said that both forms of marriage had stringent requirements for validity and strong elements of social contract.

Some aspects of canon law were more suited to notarial deeds than to verification by the parish priest.

Civil law, he said, may annul a Catholic marriage but this annulment was not recognised by the Catholic Church.

Replying to questions by committee members, Dr Schembri said that the Church annulment signified that a marriage was never valid and did not dissolve a valid marriage. Mainly annulment was based on vitiated consent so what might appear to be a valid marriage may in fact not have had all the ingredients for validity.

He confirmed that no ecclesiastical marriage in Malta was valid without a civil marriage.