Revised marriage concordat: text (1993, 2014)

Malta MP Deborah Schembri, who is also a divorce lawyer, argued that the marriage concordat ideally should have been entirely scrapped, on the grounds that it entails an ongoing human rights violation. [1] This is because Catholic Church courts do not follow procedures which ensure the human right to a fair trial, a fact that was noted in another context by the European Court of Human Rights. [2]

However, the Vatican managed to avoid abrogation and ignore calls for the other Maltese concordats to be replaced. [3] It was able to confine the changes to the marriage concordat and to only those parts of it which gave Catholic Church tribunals priority over the courts of the Malta. Article 4.1 had prevented people from applying for a civil separation while annulment proceedings were underway in Church tribunals. Since in Malta four years of civil separation are necessary before one can file for divorce, this concordat clause had enabled spiteful partners to begin the annulment process in order to keep their partners from getting on with their lives.

Secret signing by high-ranking member of Catholic order, Latin conceals missing ratification

The text also has a curious feature: at the end is a bit in Latin (highlighted in blue) which is not translated. It gets around the need for ratification by the Maltese House of Representatives. It says that the signed notes of both parties "confirm their agreement" so that it will automatically come into effect less than two months after the signing. No democratic input is necessary.

This means that the concordat came into effect, not through ratification by the House of Representatives, but simply by the Vatican and “Guido de Marco for the Republic of Malta” agreeing to it. But was he really “for Malta”? This President Emeritus, Guido De Marco, turns out to have been a lay member of a Catholic religious order. He  was a top-ranking a Knight of Malta: a Bailiff, Grand Cross of Honour and Devotion. [4] Neither the marriage concordat nor any of the others were ratified by parliament, but were simply “sealed and approved” by the Maltese Foreign Minister on behalf of the government of Malta of the day. [5] Furthermore, it is repeatedly claimed that this ratification was carried out in “secret”: “All was signed without any Maltese citizen’s knowledge...” [6]

To summarise, the revised document makes the following changes:

The repeal of Article 4 paragraph 1 of the Agreement and of Paragraph III of the Additional Protocol thereto whereby the courts of civil jurisdiction are prohibited from continuing to take cognizance of an action for the nullity of a marriage celebrated as a canonical marriage once an action for nullity of that marriage has been filed before the ecclesiastical tribunals; and

The repeal of the Second Additional Protocol to the Agreement whereby if a marriage is confirmed as valid by a final judgement of the ecclesiastical tribunals no action on the same grounds of nullity may be filed in the civil courts in respect of that marriage.

The 2014 revisions to the 1993 concordat are shown below, with deletions in grey and additions in yellow.
 

Conventio*

Agreement between the Holy See and the Republic of Malta on the recognition of civil effects to canonical marriages and to the decisions of the ecclesiastical authorities and tribunals about the same marriages 

[signed 3 February 1993: revision signed 27 January 2014]

The Holy See and the Republic of Malta,

— considering, on the part of the Holy See, Catholic doctrine on marriage, as also expressed in the Code of Canon Law, as well as the teaching of the Second Vatican Ecumenical Council on relations between the Church and the State, and, on the part of the Republic of Malta, the principles enforced by the Constitution of Malta;

— wanting to ensure, in line with fundamental human rights and the values of the family based on marriage, a free choice in matters of marriage;

have recognized that it is opportune to reach an agreement on the recognition of civil effects to canonical marriages and to the decisions of the ecclesiastical Authorities and tribunals about the same marriages.

Wherefore, the Holy See, as represented by Msgr. Pier Luigi Celata, Titular Archbishop of Doclea, Apostolic Nuncio to Malta, and the Republic of Malta, as represented by Prof. Guido de Marco, Deputy Prime Minister and Minister of Foreign Affairs, have, by common accord, established as follows.

Article 1

1. Civil effects are recognized for marriages celebrated in Malta according to the canonical norms of the Catholic Church, from the moment of their celebration, provided that:

 a) it clearly appears from a certificate issued by the Marriage Registrar that the banns required by civil law have been published, or that a dispensation from the same has been granted; such certificate shall constitute definitive and conclusive proof of the regularity of the banns or of the dispensation therefrom;

 b) the Parish Priest of the place where the marriage was celebrated transmits to the Public Registry an original of the act of marriage compiled in the form established by common accord between the Parties, and signed by the local Ordinary or the Parish Priest or their Delegate, who has officiated at the celebration of the marriage.

2. The Holy See takes note that the Republic of Malta recognizes the civil effects of canonical marriages where there does not exist between the spouses an impediment that, according to civil law, produces the nullity of the marriage and that the said civil law considers as mandatory or not dispensable.

Article 2

1. The act of marriage shall be transmitted to the Public Registry for due transcription within five working days of the celebration of the marriage.

2. Should the transmission of the act of marriage not be effected within the established time limit, it shall be the duty of the Parish Priest to effect the same as soon as possible. The spouses, or either of them, always retain the right to demand such transmission. Late transmission shall not be an obstacle to transcription.

3. When it is ascertained that the conditions laid down in Article 1 have been complied with, the Director of the Public Registry transcribes the act of marriage and, as soon as possible, gives written notice of this to the Parish Priest.

Article 3

The Republic of Malta recognizes for all civil effects, in terms of this Agreement, the judgements of nullity and the decrees of ratification of nullity of marriage given by the ecclesiastical tribunals and which have become executive.

Article 4

[repealed 27 January 2014]
1. For the purposes of the recognition of the civil effects mentioned in Article 3, the Holy See takes note that:

 a) from the moment in which notice is given to the Registrar of Courts of the acceptance by the Chancery of the ecclesiastical tribunals of a petition presented by at least one of the parties to obtain the declaration of the nullity of a canonical marriage celebrated after the coming into force of the present Agreement, competence to decide on the matter is recognized solely to the ecclesiastical tribunals, provided that the civil tribunals have not already given a judgement that has become res judicata, based on the same grounds of nullity;

 b) should it be clear that the ecclesiastical judge has admitted the renunciation of a case opened before the ecclesiastical tribunals or that a case has canonically fallen into abatement, the civil tribunals shall be able to again take up the examination of the case that may have already been presented before them and suspended by virtue of what is provided in letter a) above.

2. The Church shall enlighten prospective spouses about the specific nature of canonical marriage and, consequently, about ecclesiastical jurisdiction concerning the marriage bond.

The prospective spouses shall, by way of acceptance, formally take note of this in writing.

Article 5

The judgements of nullity and the decrees of ratification of nullity of marriage given by the ecclesiastical tribunals are recognized as producing civil effects, provided that:

 a) a request is presented, by the parties or either of them, to the Court of Appeal together with an authentic copy of the judgement or decree, as well as a declaration of its executivity according to canon law issued by the tribunal that has given the executive decision;

 b) the Court of Appeal ascertains that:

 I. the ecclesiastical tribunal was competent to judge the case of nullity of the marriage insofar as the marriage was celebrated according to the canonical form of the Catholic Church or with a dispensation therefrom;

 II. during the canonical judicial proceedings there was assured to the parties the right of action and defence, in a manner substantially not dissimilar to the principles of the Constitution of Malta;

 III. in the case of a marriage celebrated in Malta after the 11 August 1975 there has been delivered or transmitted to the Public Registry the act of marriage laid down by the civil law;

 IV. there does not exist a contrary judgement pronounced by the civil tribunals and which has become res judicata, based on the same grounds of nullity.

Article 6

The provisions of Articles 3 and 5 apply also:

 a) to canonical marriages celebrated before the coming into force of this Agreement;

 b) to the judgements of nullity and to the decrees of ratification of nullity of marriage given by the ecclesiastical tribunals between the 16 July 1975 and the coming into force of the present Agreement:

 I. if the request for the recognition of the civil effects is presented by both parties or, at least, by one of them with the other party not dissenting;

 II. in case there is a dissenting party, if, after the Court of Appeal has granted to this same party a time limit, not exceeding two months, to present a plea to the ecclesiastical tribunal against the judgement of nullity or the decree of ratification of nullity of marriage, such time limit has elapsed to no avail or, if the plea had been entered, the competent ecclesiastical tribunal has rejected the plea or has confirmed the previous judgement of nullity or decree of ratification of nullity of marriage.

Article 7

 1. The decrees of the Roman Pontiff super matrimonio rato et non consummato are recognized as regards civil effects by the Republic of Malta, upon request, accompanied by an authentic copy of the pontifical decree, presented to the Court of Appeal by the parties or by either of them.

 2. The Court of Appeal shall order the recognition of the decrees referred to in paragraph 1 of this Article if it is clear to it that such decrees refer to marriages celebrated according to the canonical norms of the Catholic Church:

 a) after the coming into force of this Agreement;

 b) and also prior to the coming into force of this Agreement, on condition that the copy of the decree is presented by both parties, or at least by one of them with the other party not dissenting.

Article 8

In the exercise of its specific functions as regards the recognition of the decrees mentioned in article 7, as well as of the judgements of nullity or of the decrees of ratification of nullity of marriage mentioned in Article 3, the Court of Appeal does not re-examine the merits of the case.

Article 9

The civil effects flowing from the recognition mentioned in Articles 3 and 7 are regulated by civil law.

Article 10

If in future there shall arise difficulties of interpretation or of application of the present Agreement, the Holy See and the Republic of Malta shall entrust the search for an amicable solution to a Joint Commission that shall be composed of the Apostolic Nuncio to Malta and of the President of the Maltese Episcopal Conference or of their delegates for the Holy See, and of the Minister for Justice and the Attorney General or of their delegates for the Republic of Malta.

Article 11

The present Agreement shall come into force when the Parties exchange an official communication that the full implementation of all its provisions through the appropriate legal instruments according to their respective legal systems has taken place.

Done at Valletta, Malta, on the 3rd day of February, one thousand nine hundred and ninety-three, in two originals, each in the Italian and English languages, both texts being equally authentic.

For the Holy See   Pier Luigi Celata

For the republic of Malta   Guido de Marco
 

Protocol of application**

At the time of signature of the Agreement on the recognition of civil effects to canonical marriages and to the decisions of the ecclesiastical Authorities and tribunals about the same marriages, the Holy See and the Republic of Malta, desiring to further specify certain provisions of the same Agreement to ensure their precise application and to avoid all difficulties of interpretation, by common accord declare:

I. With reference to Article 1.1.b)

 a) The Parties shall establish, by common accord, the form of the act of marriage before the coming into force of the Agreement, through exchange of Notes between the Apostolic Nunciature and the Ministry of Foreign Affairs.

They shall follow the same procedure should they, in future, agree to modify the said form.

 b) Except in case of danger of death in which at least one of the parties finds itself, the Marriage Registrar shall, together with the certificate mentioned in Article 1.1.a), issue to the parties a form of the act of marriage, duly filled in with all the information referring to the spouses. The form so prepared shall be consigned to the parties as early as possible after the completion of the period of publication of the banns and, in any case, not later than four days prior to the date fixed for the celebration of the marriage. It is incumbent on the parties to immediately transmit such form to the Parish Priest of the place of celebration. Should the Parish Priest notice any discrepancy between the information referring to the spouses as it appears from the form mentioned above and from the canonical documents, the Parish Priest must, as soon as possible, make the opportune verifications so as to reach agreement with the Marriage Registrar about the correct compilation of the said form.

II. With reference to Article 1.2

For the purpose of putting into effect Article 1.2 the following are understood to be impediments considered mandatory or not dispensable by the civil law:

 a) the lack of age, which is sixteen years completed for both parties;

 b) the infirmity of mind of at least one of the parties which renders it incapable of contracting marriage;

 c) consanguinity in the direct line and up to the second degree in the collateral line;

 d) the subsistence of a previous marriage, valid in civil law, of at least one of the parties.

[repealed 27 January 2014]
III. With reference to Article 4.1.a)   

The acceptance by the Chancery of the ecclesiastical tribunals is to be immediately notified in writing by the Chancellor of the same tribunals or his substitute.

IV. With reference to Article 5.b.i)

The ecclesiastical tribunal is considered to have been competent to judge the case of nullity of the marriage even when it was challenged on the ground of the lack of some element required for the validity of the canonical form or of the dispensation therefrom.

V. With reference to Articles 6.b.i) and 7.2.b)

The peremptory time limit for the presentation of the note of pleas to the Court of Appeal is of twelve working days from the date of notification made by the same Court to the interested party.

VI. The term "parish priest" refers also to any ecclesiastic equivalent to the parish priest, or who substitutes him, according to canon law.

The present Protocol of Application forms an integral part of the Agreement on the recognition of civil effects to canonical marriages and to the decisions of ecclesiastical Authorities and tribunals about the same marriages contextually signed between the Holy See and the Republic of Malta.

Done at Valletta, Malta on the 3rd day of February, one thousand nine hundred and ninety-three, in two originals, each in the Italian and English languages, both texts being equally authentic.

For the Holy See       Pier Luigi Celata

For the republic of Malta      Guido de Marco
 

[repealed 27 January 2014] 
Second additional protocol***   

The Republic of Malta and the Holy See, desiring to avoid all difficulties of interpretation and to ensure the precise application of the Agreement on the recognition of civil effects to canonical marriages and to the decisions of the ecclesiastical Authorities and tribunals about the same marriages, signed on the 3rd February 1993, by common accord declare that:

1. Judgements given by ecclesiastical tribunals in cases of nullity upholding the validity of the marriage, which have not been appealed or which have been confirmed on appeal, including mutatis mutandis judgements in cases in terms of paragraph (b) subparagraph (i) of Article 6 of the Agreement, are recognized for all purposes of law in Malta and shall be considered as res judicata and not subject to re-examination on the same grounds by the civil courts provided that the Court of Appeal ascertains what is laid down in paragraph b) of Article 5 of the Agreement. It shall not in terms of Article 8 of the Agreement re-examine the merits of the case.

2. Whenever a plea for nullity of marriage is presented to the civil court, the judge is to ascertain his competence, in terms of paragraph 1 of Article 4 of the Agreement and of Number 1 of this Protocol.

The present Additional Protocol forms an integral part of the Agreement on the recognition of civil effects to canonical marriages and to the decisions of ecclesiastical Authorities and tribunals about the same marriages, signed in Malta between the Republic of Malta and the Holy See on the 3rd February 1993.

[added 27 January 2014]
Third additional protocol

Parties will be able to continue an action for the nullity of a marriage celebrated as a canonical marriage before the civil courts notwithstanding the fact that one of the parties may have filed an action for nullity of the marriage before the ecclesiastical tribunals after the commencement of the civil action.

When the civil action declaring the nullity of the marriage becomes res iudicata the marriage will be annulled for all civil effects irrespective of the fact that an action for the nullity of the same marriage may still be pending before the ecclesiastical tribunals.

In the exceptional cases where the proceedings before the ecclesiastical tribunals are concluded before the civil proceedings (e.g. matrimonio rato et non consumato cases) the decision of the ecclesiastical tribunals may be given civil effects only after it has been registered by order of the Court of Appeal in accordance with Articles 24 and 26 of the Marriage Act.

In this way parties will save expenses and the need of furthering their civil case while the Court of Appeal will retain the last word;

The fact that an ecclesiastical tribunal would have upheld the validity of a marriage will no longer prohibit a civil tribunal from declaring the same marriage to be null for all civil purposes even on the same grounds of nullity.

Done at Valletta, Malta on the 6th day of January one thousand nine hundred ninety-five, in two originals, each in the Italian and English languages, both texts being equally authentic.

For the Holy See   Pier Luigi Celata

For the republic of Malta   Guido de Marco 

Percussa postquam est Conventio inter Apostolicam Sedem ac Melitensem Rem Publicam, documenta ratihabitionis ipsius permutata sent aped locum Valletta Melitae die XXV mensis Martii anno MCMXCV. Ex illa autem consensione, quam perscriptae utriusque partis Notulae confirmaverant, a die XV Maii mensis eiusdem anni eadem rite valere coepit Pactio.

{Translation of the Latin above: "This Agreement between the Holy See and the Republic of Malta was then sealed and approved in Valetta, Malta on the 25th day of March 1995. The signed notes of both parties confirm their agreement and so on the 15th day of May of the same year this Accord comes into force."]

*A.A.S., vol. LXXXIX (1997), n. 10, pp. 683-688.
**A.A.S., vol. LXXXIX (1997), n. 10, pp. 690-692.
***A.A.S., vol. LXXXIX (1997), n. 10, pp. 693-694.

Notes

1. Raphael Vassallo, “Church-State agreement review ‘a matter of human rights’ – MP”, Malta Today, 23 April 2013. http://www.maltatoday.com.mt/en/newsdetails/news/national/Church-State-agreement-review-a-matter-of-human-rights-MP-20130422

2. “Keeping out of key human rights treaty shields Vatican courts from international standards”, Concordat Watch. http://www.concordatwatch.eu/topic-47307.843 

3. Martin Scicluna, “Revision of 1992 Church and State concordat”, Malta Independent, 01 May 2013. http://www.independent.com.mt/articles/2013-05-01/opinions/revision-of-1992-church-and-state-concordat-1499070466/

4. The Maltese Association, Newsletter No. 76, 2 October 2010, p. 2. http://www.orderofmalta-malta.org/publications/Newsletter%20October2010.pdf

5. Martin Scicluna, “Revision of 1992 Church and State concordat”, Malta Independent, 01 May 2013. http://www.independent.com.mt/articles/2013-05-01/opinions/revision-of-1992-church-and-state-concordat-1499070466/

6. Mario Camilleri, 18 July 2011, reader comment on Matthew Xuereb, “Curia ‘will not oppose’ revision of Church-State agreement”, Times of Malta, July 18, 2011. http://www.timesofmalta.com/articles/view/20110718/local/Curia-will-not-oppose-revision.376025

7. Translated by Dr. David Holohan. He notes:

The original Latin at the end, with the typographical errors corrected, runs as follows:

Percussa postquam est Conventio inter Apostolicam Sedem ac Melitensem Rem Publicam, documenta ratihabitionis ipsius permutata sunt apud locum Valletta Melitae die XXV mensis Martii anno MCMXCV.  Ex illa autem consensione, quam perscriptae utriusque partis Notulae confirmaverant, a die XV Maii mensis eiusdem anni eadem rite valere coepit Pactio.