The Marriage Act amendments by Act 1 of 1995 : a workable solution?

Abstract

The introductory chapter deals with how the Marriage Act amendments made by Act I of 1995 came into being, that is, the reasons why it was felt that amendments were necessary. The 1995 Concordat between the Church and the Republic of Malta on the Recognition of Civil Effects of Marriage and Declarations of Nullity Delivered by the Ecclesiastical Tribunals will also be discussed in some depth with a view to giving the reader an overview of the principles on which the Agreement was based. A discussion of the political climate obtaining in Malta at the time of the enactment of Act I of 1995 will ensue so as to give the reader an insight into the Marriage Act amendments of 1995. This chapter will also shed light on the various reactions to Act I of 1995 both from lawyers and Ecclesiastical Authorities alike. The second chapter focuses on the amendments themselves and their mechanism. Each amendment in Act I of 1995 is dissected and explained in detail and in so doing conclusions are drawn and implications are discussed. Case-law is examined where relevant and evaluated in the light of the 1995 amendments. The third chapter tackles the Italian position vis-a-vis the 1929 Lateran Pacts and the 1984 Italian Concordat. It must be appreciated that a study of the relationship between the Italian State and Catholic Church is particularly interesting from a Maltese perspective because the Maltese Church-State relationship is, substantially, similar, though in some important respects different from the Italian 1984 Concordat. The 1984 Italian Concordat was also used as a model by our legislators when drafting the 1995 Agreement between the Holy See and Malta. Accordingly, the Italian 1984 Concordat will be discussed in some detail and, where applicable, a distinction will be drawn between the position obtaining in Malta and that obtaining in Italy. Case-law will be referred to extensively in order to fully bring out the subtleties between Italian and Maltese Marriage Law. Since the 1995 Agreement between the Maltese State and the Holy See, like the 1981 amendments to the Marriage Act, 1975, brought about another rapprochement between Civil Law and Canon Law, the scope of the fourth chapter is to identify, as concisely as possible, the main areas of similarity and of discord between Civil Law and Canon Law. These are to be found, principally, in the following broad categories: • grounds of annulment; • dispensations; and • procedure. A general overview of the alleged unconstitutionality of the 1995 amendments in terms of the Maltese Constitution and the European Convention on Human Rights will ensue in the fifth chapter. Conclusions will be drawn with a view to ascertaining whether Act I of 1995 is a fundamentally sound law or whether there is room for ameliorations in the law. Views expressed in newspapers are referred to extensively and the opinions of lawyers and Ecclesiastical Authorities are collected and discussed. The sixth and final chapter will concentrate on proposals which can be made to ameliorate the existing Maltese Marriage Law. The provisions of Act I of 1995 will be examined as a whole and in so doing an attempt will be made to point out the positive and negative aspects of the controversial provisions trying where possible to make proposals so as to mitigate such effects of the Act which may result to be questionable. Final observations will be made.