Is it till death do us part?

Is it till death do us part?

Till death do us part. Such a common phrase but, nowadays, does it still ring true? What is marriage? Some might believe it is a rather easy question to answer. You just get married in a church. That is marriage… and it lasts forever. But is such a general statement true? If marriage lasts forever, what is separation? How can marriage last forever when there is cohabitation and annulment present in Malta? These are some burning questions that are haunting marriage.

First we must define what marriage is in order to understand whether the above questions ring true.

What is marriage? According to the Code of Canon Law, Canon 1055 §1, marriage is “The matrimonial covenant by which a man and a woman establish between themselves a partnership of the whole of life and which... has been raised by Christ the Lord to the dignity of a sacrament between the baptised”.

A covenant is more than a contract. It is a pact and it is therefore“for the whole of life”. That is why in the marriage vows we state: “…till death do us part”. In Malta, if a couple gets married in Church, thus getting married according to the Catholic Latin rite, it is also automatically married civilly. If a couple does not want to get married according to the Latin rite but only civilly, the option is civil marriage, governed by the Marriage Act.

And how is marriage defined according to the Marriage Act? It is not defined at all! The Marriage Act lists the restrictions of marriage – for example, legally, a valid marriage cannot be contracted between persons under the age of 16 unless with the consent of whoever has parental responsibility. But that is it. Apart from the restrictions and the legal formalities such as the proper issuance of the banns, marriage is not defined at all.

Does that mean the canonical definition of marriage should also be applied to civil marriage? The courts have defined a marriage as being a contract whose nature is sui generis and one which belongs to the public order, thus it cannot go against public policy.

But if marriage is forever, how can a couple have their marriage declared null and in certain cases also dissolved? In an annulment, the marriage is declared null from the very beginning that is there was no marriage at all from the very beginning and that is why the Church grants the couple the faculty to marry since the “first marriage” was not a marriage at all.

However, a valid marriage can in certain cases be dissolved if, for example, the parties did not consummate the marriage. This differs from a marriage being declared null and void because in such a case the marriage is in fact a valid one.

An annulment is not granted in all cases but only in specific cases listed in the Code of Canon law, for example, if one of the parties was unable to assume the marital obligations of marriage or did not have due discretion. This limits cases of annulment to only those cases listed in the Code of Canon Law.

The obligations arising out of marriage do not continue to exist in an annulment or dissolution because the marriage has been declared null or was dissolved. Therefore, the phrase till death do us part still makes sense when confronted with an annulment because in an annulment the “marriage” was not in fact a marriage.

What about separation? When the parties to a marriage separate, their intentions are clearly not to spend the rest of their lives living together. Therefore, does the phrase till death do us part still make sense when confronted with separation? The answer is in the affirmative, because, although the couple might have separated their marriage is still legally valid. They might be separated but legally they are still married! That is, the obligations and duties stemming out of marriage still hold, such as the duty of fidelity. The only obligation which is severed is the one that they do not have the obligation of cohabiting. In fact, a separated couple does not remain so separated if they decide to go back and live together again.

What about cohabitation? Obviously, in cohabitation the phrase till death do us part has no place in such an equation because a couple who is cohabiting chose not to be regulated by the duties and obligations regulating marriage.

However, this does not mean the vulnerable parties in cases of cohabitation should not be protected.

The phrase till death do us part might seem out of touch given today’s reality but a closer look at today’s situation in Malta would show that in marriage, separation, annulment and cohabitation, the phrase till death do us part is not antiquated after all.

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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