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.