Putting Church and State asunder

If other aspects of his electoral programme may be slow in materialising, Prime Minister Joseph Muscat has moved with considerable speed to implement those promises which concern the separation of State and Church; a marriage which, 50 years since Independence, has proved to be difficult to put asunder.

On Monday, representatives of both sides signed amendments to revise the existing Church-State agreement of 1992, which regulates the civil effects of church marriages. It remains to be seen precisely to what extent, but the main contention - namely the apparent overlap of jurisdictions between church and civil tribunals regarding marriage annulments - appears to have been ironed out. 

The official objective of the 1992 agreement was the state recognition of marriages celebrated in Church, and it followed on from decades of acrimonious Church-State wrangling dating back to the Labour Party's notorious 'six points' of the late 1950s. In a sense we can talk of this process of secularisation as having been stalled by the events of the late 1950s and early 1960s. Indeed it was only in 1972 that civil marriage even became a possibility - and it is testament to the tensions of that period that Church-State issues remained a cause of major instability until the 1987 change of administration.

In this context, the 1992 agreement also served as a 'rapprochement' between State and Church. But it did not roll back the clock. Even after this agreement, legally recognised marriages (with all pertaining rights, duties and obligations) remain the sole prerogative of the state... and while Church weddings have a ritual significance within the confines of the Catholic religion, since 1972 they are not in themselves legally binding without the consent of the Maltese Republic.

Still, the agreement facilitated this recognition to the point where Catholic weddings were almost automatically ratified without even needing to leave the Church. Likewise - and here's the rub - the state just as automatically recognised Church annulments (which, like Church marriages, are not in themselves legally binding). In the process the same agreement arguably overstepped its remit by conferring legal authority to church instruments... and given that the Vatican is also ceded the status of sovereign territory by the Lateran Treaty of 1929, the precise boundaries between two separate legal jurisdictions were often blurred as a result.

All this may seem a small matter compared with the daunting challenges facing the incoming government in other sectors, but there can be little doubt that a revision of this agreement was sorely needed. The situation as it existed before was absurd, and the incongruity became all the more manifest with the ratification of the divorce referendum result in 2012.

Until that point, civil annulment was the only means to terminate a marriage and retain the possibility of legally remarrying in future. The upshot of the 1992 agreement was that if one of the two separating parties initiated proceedings before the Ecclesiastical Tribunal - which is answerable to Canon, not National law - all existing proceedings before civil tribunals would have to stop until the Church courts reached a verdict. Moreover, civil courts could not overturn rulings by the Ecclesiastical Tribunal, but were bound by the 1992 agreement to recognise them.

In any other context it would be unthinkable for Malta to cede part of its jurisdiction over any aspect of its own laws to another state such as (for instance) Italy or the United Kingdom. Yet since 1992 this was the de facto status quo, at least insofar as the annulment of Catholic marriages was concerned. And apart from illustrating the mutual incompatibility of affairs of State and Church, the same situation also proved to be a source of considerable frustration and exasperation to the general public. Complaints about the excessive delays to court proceedings caused by this confusion surfaced frequently in the divorce debate, and may even have been a factor in the final result.

In a sense the divorce referendum was itself a catalyst for this and other reforms which gnaw at the umbilical cord attaching Malta to the Church at various levels. Such reforms include a revision of the National Minimal Curriculum to provide non-religious ethics as a subject; and separately, a civil unions' bill, which will give state recognition to non-traditional family units unrecognised (and arguably frowned upon) by the Church.

Certainly the referendum result would have motivated the incoming administration to prioritise the issue; and one assumes it also played a part in convincing even the Church of the need to move on from its former role as political kingmaker. Perhaps it is also due to a change in overall direction under Pope Francis, but the Vatican did not seem unduly fazed by the reform.

Above all, however, the 'Yes' result in June 2012 sent out a clear signal that a majority of ordinary citizens fully concurred with the need for a separation between ecclesiastical and government affairs... and in so doing, they also demonstrated that one can still be a committed Catholic, yet not feel compelled to follow Church teachings on all matters.

If ordinary citizens can make this distinction, it remains a mystery why the organs of the country have taken so long to do the same.