Ecclesiastical tribunals in Malta : their jurisdiction over marriage

Abstract

The relations between Church and State have always been in the last two centuries one of the most controversial issues in Malta. With the great majority of Maltese declaring to be Catholic, the Church was and today still is one of the most powerful institutions in the country. The Ecclesiastical Tribunals are the competent organs that administer justice to the members of the Catholic Church. These Tribunals have a long history but the modern set up they have today knows its origins after the promulgation of the 1983 Code of Canon Law. The jurisdiction of these Tribunals in Malta can be divided into four main periods. The first period is that before 1828 in which these Tribunals had wide jurisdiction, that led to a situation of confrontation with the Civil authorities. The Second period is that between 1828 and 1975 in which the Ecclesiastical Tribunals exercised jurisdiction on the ascertainment of the validity or otherwise of marriages celebrated in Malta. This jurisdiction in the civil law area knows its origins to custom and not to written law. The third period 1975 to 1995 is one of the most controversial periods. Here the State denied recognition for civil effects of the decisions given by the Ecclesiastical Tribunals on marriage nullity. The last period starts from 1995 to present day. In this period the Ecclesiastical Tribunals' judgements regarding the nullity of canonical marriages are recognized for civil effects in Malta through an Agreement between the Holy See and the Republic of Malta. This dissertation attempts to illustrate the effects that all these different historical periods had and still have on Maltese juridical order. In recent years the number of requests for the declaration of marriage nullity before the Ecclesiastical Tribunals has increased. This in turn increases the importance of these Tribunals in the modern Maltese legal system. It must be pointed out that the institution of divorce is alien to the Maltese legal order. Therefore the only form of legal dissolution of the contract of marriage is through a declaration of nullity. The Ecclesiastical Tribunals are one of the two fora that are competent to determine this issue in Malta when the marriage is a canonical one.