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Harry Vassallo | Wednesday, 20 January 2010 Issue. 147

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Sometime in the mid-1990s a law was passed making the recognition of the decisions of the Church Tribunals automatic before the Civil Courts. A parallel jurisdiction had been created and the whole idea of it set my teeth on edge.
I was still a student at university when the 1975 Marriage Act had been passed regularising a chaotic situation in which the State used the Church’s yardstick in the recognition of marriages. There had been a lively debate about it but who could defend what had had gone before? Registry Marriages were considered to be bits of paper and no more: a Maltese who married before a Public Registrar in the UK was free to abandon his wife of many years standing and their offspring and remarry in Malta, a Maltese divorced in Australia who attempted to remarry in Malta could be prosecuted for bigamy if his first had been a church marriage.
That process of disentangling the State from the Church was already long overdue when it took place 34 years ago. At some point we will learn that some deal went down between the Church and the Labour government which allowed the recognition of foreign divorces if divorce would remain unavailable in Malta. Politics is the art of the possible and not even Dom Mintoff wanted to go back to war with the Catholic Church.
It was Karmenu Mifsud Bonnici’s administration that embarked on the counter crusade in its attempt to take over Church Schools and to expropriate the Church of almost all its property for next to no compensation. Amazingly that extravagant conflict fizzled out when, following the change in government in 1987, a deal was struck between the Church and the State in which the Church surrendered its lands to Government in return for the public financing of its schools. What KMB had attempted and had been so vigorously opposed by everything non-Labour, was concluded by a Nationalist administration without a murmur from anyone.
Was the recognition of Church Tribunals on marriage part of the deal? If so it was a case of the path to hell being paved with good intentions. The Church wanted the introduction of divorce postponed in 1975. It seems to have struck a similar deal in 1995. Certainly the PN Administrations have had an over-my-dead-body attitude on the issue until just recently. The result has been the normalization of cohabitation for a very long period: a far more damaging situation for the institution of marriage than the grant of permission to remarry following separation.
Beyond that grave issue, the 1995 deal, effectively making Church tribunals part of the State judicial apparatus, raises issues of the right to fair trial which remain unresolved. Proceedings before these tribunals follow Canon Law and allow the evidence of witnesses in the absence of the parties with no confrontation of cross examination possible. No witness can be summoned to appear before a Church Tribunal as they can be before a Civil Court. The parties may review evidence at the Tribunal but may not obtain copies of it to prepare a rebuttal. Psychiatric reports prepared on a one sitting basis are not normally made available to the party examined; all this, quite apart from the issue of independence of the tribunal and the possibility of statistical scrutiny of the cases before it. The whole set-up is a constitutional challenge waiting to happen.
The vast majority in Malta is Catholic and inevitably most of the marriages in trouble are Catholic marriages. While many of the parties would prefer to have their separation regulated by the Civil Courts, Catholics seeking an annulment of their marriage prefer to have a pronouncement from a religious court in order to qualify for second marriage by religious rite. Fair enough, but the Church Tribunals have always been available for these purposes and no separation from the state judicial apparatus would affect their authority in the eyes of the faithful.
They can also be avoided. If both parties simply go to the Civil Courts whether or not their marriage had been a Catholic marriage, the jurisdiction of the Church Tribunal is not engaged. The problem is that if one of the parties has recourse to the Church Tribunal the Civil Courts will suspend any proceedings before them on the same matter. The other party is effectively constrained to submit to the Church Tribunal.
The idea must have been to avoid the situation where the Civil Courts have granted an annulment while the Church Tribunals have refused to do so or vice versa. It did not seem tidy enough for our politicians. The Church must have been keen to retain as much of its domain over marriage in Malta as possible.
It all appears to have been counterproductive. The Church does not increase its power over hearts and minds by sharing State power. What does the State gain by surrendering part of its powers to a private institution? A clear separation is workable. So what exactly if one’s marriage is annulled by a Civil Court but not annulled by a Church Tribunal? If the party involved is an practising Catholic his or her marriage remains in being for all intents and purposes. If not, not.
Our individual relationships with Church and State occur on separate planes in any case and any attempt to meld them together only causes more unnecessary confusion. Ironically it is the marriage of State and Church which is an unworkable relationship. They are incompatible partners and their 1995 marriage should be annulled. As with many other such marriages it is likely to drag on for many more years: an anachronism surviving on the strength of its own inertia.


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