Till annulment do us part

As Malta discusses the possibility of introducing divorce legislation next year, marriages continue to break down at a rate entirely comparable to that of the United States – the country with the highest divorce rate in the world.

Surveys suggest that for every new marriage taking place in Malta, an earlier marriage will be breaking up. But in the absence of divorce legislation, what remedies are available to the couples caught up in this situation?

Effectively, there are three options available (four, if you include divorces obtained overseas – see below). But of the local options, only two actually allow for the possibility of remarriage.

These concern the procedure commonly referred to as ‘annulment’ (though the technical term is ‘declaration of nullity of marriage’), and – like all aspects of Malta’s family law – the situation on the ground is just slightly complicated.

Church and State

Theoretically, there are two separate roads that both lead to an eventual declaration of nullity: a civil annulment granted by the Civil Court; or a Church annulment granted by the Ecclesiastical Tribunal.

In practice, however, these roads tend to criss-cross at various points. And even without such intersections, there are significant variations to the procedures governing annulment in the two legal regimes.

Family court lawyer Dr Christine Bellizzi defines the difference as follows: “A declaration of nullity by a civil court does not in any way affect the validity of a Catholic marriage. Thus, even if you obtain a judgment from the civil court, you would still be considered married by the Catholic Church and would not be able to marry in the Church. A declaration of nullity by the Ecclesiastical Tribunal would, on the other hand, be recognised by the civil authorities.”

This marks the beginning of an anomaly that has long dogged the legal regime governing annulments in Malta. For Church authorities are legally empowered to override Malta’s Civil Court in annulment suits.

In practice, this means that a civil annulment lawsuit commenced by one of the spouses will automatically be suspended, no sooner does the contending side initiate separate proceedings for Canonical Annulment before the Ecclesiastical Tribunal.

The arrangement is unique to Malta, and was made possible by amendments effected to the Marriage Act on 1 March 1995, following a concordat between the Maltese government and the Holy See.

Dr Emmy Bezzina, also a family lawyer and a long-standing critic of the status quo, brands the situations as “unacceptable.”

“This scandalous legislation is still in force, despite protests from a number of legal practitioners,” he told MaltaToday.

Moreover, Bezzina argues that the Ecclesiastic Tribunal procedures are in themselves anti-democratic.

“Church annulments are very complicated and are conducted on regulations that run counter to democratic and transparent legal proceedings. The concept of cross-examination, being present to listen to what the opposing party has to say, free determination as to whom one wishes to produce as a witness, transparency, having transcripts of what is being stated and written… all these notions are fundamental to a fair system of justice being seen to be done, but are glaringly lacking in the Ecclesiastic Tribunal.”

Nor is this the tribunal’s only anomaly. Dr Bezzina contends that there is discrimination in the approval of lawyers to practice in the court.

“To represent a client before the Ecclessiastical Tribunal, you are supposed to be a practising Catholic, and have never declared publicly that you favour divorce, as otherwise you will be struck off the List of Tribunal Advocates that are formally approved to represent their clients. This may be one reason why relatively very few practising lawyers comment publicly about their views on divorce for Malta!”

Foreign divorces

Complaints aside, the centrality of the Church to marriage regulation is in itself a direct product of recent history. Canon Law was in fact the only law regulating marriage in Malta until as recently as August 1975, when the Marriage Act came into force. 

This act introduced three innovations to Maltese law: sovereignty as to what constitutes a valid marriage; the introduction of civil annulment – described by Dr Emmy Bezzina as “the closest remedy to divorce in our marriage history” – and the recognition of divorce decrees and judgements from foreign countries.

Even here, however, there are exceptions. For a divorce decree to be ‘acceptable’ in the local context, it must have been obtained in accordance with a rigorous legal procedure acceptable to the Maltese State.

Bezzina explains that this excludes the Muslim form of ‘talaq’ divorce, whereby a husband can terminate a marriage simply by reciting a formula in front of witnesses.

Similarly, ‘speed divorces’ such as those instantly obtainable (against payment) in places like Mexico, Las Vegas, etc., are not considered valid locally.

“Furthermore, if a Maltese citizen was involved, that citizen would have had to be domiciled (as opposed to resident) in the country legally and validly granting the divorce,” Bezzina adds. “Hence, the Marriage Act 1975 introduced the recognition of foreign divorce decrees, although the word ‘divorce’ at no moment is written or referred to in the said historic legislation.”

‘Brussels II Bis’

More recently, the process was greatly facilitated by EU accession in 2004, which brought with it an additional alternative: the ‘Regulation BRUSSELS II Bis’ (‘BII’ for short).

Enacted in 2001, this regulation enables any Maltese Citizen to obtain a divorce from any other EU Member State. According to Article 3 of BII, a court in any member state except Denmark (which opted out of the legislation) can entertain divorce, annulment or separation cases where:

• Both spouses are habitually resident there;
• Both spouses were habitually resident, and one still resides there;
• The defender is habitually resident there;
• The pursuer is habitually resident, and either has resided there for at least a year preceding the application or is domiciled (or a national) there and has resided there for at least six months preceding the application;
• Both spouses are domiciled (or nationals).  

This opens a window of opportunity to Maltese couples (or couples where one spouse is Maltese) to file for divorce in another member State – provided that any one of the above conditions can be met.

Several hundred Maltese citizens have already availed of this opportunity in the six years since accession; but for obvious reasons, it can be an expensive procedure.

Eligibility issues

Back to annulment, and there is another, more onerous distinction that sets it apart from divorce.

Annulments – be they civil or ecclesiastical – can only be granted if certain very specific conditions are met. Dr Christine Bellizzi explains that the list of criteria is broadly similar for Church and State annulments.

“The exhaustive list of grounds on which a marriage may be declared null are listed in the Marriage Act [see table below]. If you go through them, you will find that they mainly revolve around the consent of the parties and whether at the time of the marriage the parties knew what they were going in for, had the capacity to enter into it and whether they did so freely.”

Another factor to bear in mind is cost, with annulment (both civil and church) being significantly cheaper to obtain than legal separation. The reason for this is mainly that – unlike annulment – separation cases deal specifically with division of property and assets.

“The cost of a case can vary according to the lawyer you engage, the length of the procedure, the number of witnesses produced,” Dr Bellizzi explains. “A case for annulment before the civil court would generally cost less than say a separation, because, there are far fewer issues to be decided, the number of witnesses is usually very limited and legal experts are (nowadays) not usually appointed. All these factors keep the costs down.”

This naturally makes annulment a more popular avenue than separation – and not just for financial reasons.

Dr Deborah Schembri, family lawyer and chairperson of the newly-launched Yes campaign for divorce, points out that annulment is not just cheaper, but more effective as a remedy.

“Unlike separation – after which couples are still technically married, although living apart – annulment brings with it closure. The previous marriage is considered null and void, and the partners are therefore free to remarry.”

However, there is a snag. Owing to the abovementioned eligibility criteria – not at all applicable in cases of separation, which in Malta follow the ‘no-fault’ model normally associated with divorce – annulment is by definition unavailable to all couples equally.

Dr Schembri points out that some couples are so desperate to annul their marriage that they are sometimes willing to lie in order to meet specific annulment criteria.

“Sometimes the spouses will agree between them to feign a condition that would make them eligible for annulment – for instance, impotence – so that they meet the criteria and obtain the annulment. Basically, the system as it stands appears to encourage people to lie…” 

She also argues that in some annulment cases she is familiar with, the children themselves claim they prefer the concept of divorce to annulment.

“It is not difficult to see why. In the case of annulment, the marriage in question will be literally nullified, to the extent that, in retrospect, it is supposed to have never taken place at all. This means that the children themselves would have theoretically been born out of wedlock, as opposed to within a marriage that afterwards failed.”   

Bureaucracy matters

The introduction of divorce may or may not serve to iron out some of these anomalies. But it is also possible that – unless a corresponding reform of the existing legal system is effected – other problems will remain, and in some cases may even be exacerbated.

Dr Bellizzi is one of a number of family lawyers who told this newspaper that (with or without divorce) the Family Court is ill-equipped to deal with its existing case-load.

“In family cases, time is of the essence. Many decisions must be taken and must be taken fast. The situation is rarely a static one and anyone working in family law knows that emergencies and crises are the order of the day. Unfortunately, there are not enough judges and magistrates to permit a timely handling of the problems that crop up.”

This situation arises not just from the sheer number of applications for civil annulment each year, but also because of the nature of the individual cases themselves.

“What many do not realise is that besides having to deliver a judgment at the end of the case, which (in family cases) means going through a court file that runs into thousands of pages and can be physically over a foot high, the judges have to deal with a constant onslaught of applications (rikorsi) asking for all sorts of things, from ordering the husband to pay for a new computer, extending access hours over the festive period, revising maintenance/access/use of matrimonial home, what school the children should go to, prohibiting/allowing children to be exposed to the presence of third parties, authorising grandparents to pick up children from access and so on an so forth. This is no mean feat and most decisions will be hotly contested, resulting in further applications.

The Family Court is by all accounts struggling to keep up with these challenges.

“The building is not properly geared for the nature and workload,” Bellizzi contends. “There are only two halls for the hearing of cases, with one of the halls having such a small waiting room that parties end up sitting on the stairs. The rooms for the mediation meetings do not offer any privacy and practically all that is said in the ‘rooms’ can be easily overheard from the waiting rooms, if not from the other mediation rooms. Furthermore, although there are a fairly reasonable number of mediators, they are only assigned 10 hours a week, meaning that even at mediation stage there is a huge backlog of work.”