Fidelity rules on island

Maltese youth say they will not marry until they can divorce. Adrian Mourby reports

The former British colony of Malta is one of those countries hoping that the European Union will be enlarged to include it. The benefits are obvious to higher education. They include EU grants for development, and freer movement of students. To help matters along, a number of changes have recently been made to ensure that life on this small Mediterranean archipelago conforms to all 31 chapters of the Aquis Communautaire , the EU's body of legislation. In 1996, Malta's EU application was given the green light despite the fact that there is virtually no provision for divorce and remarriage on the island and that many Maltese women separated from their husbands find that this means they are plunged into a precarious financial situation.

Ruth Farrugia, lecturer in civil law at the University of Malta, in Msida, puts this down to the fact that the pro-divorce lobby in Malta has no real support in either the Nationalist or Labour parties. "Labour has said that if it were in office, it would be in favour of a free vote, and laws do change as a result of public opinion. But a recent survey showed that, although the younger generation on Malta want the possibility of divorce, the majority... are opposed."

There are three remedies before a Maltese couple who wish to separate permanently: legal separation; living abroad long enough to obtain a divorce from the judgment of a foreign court; or annulment, civil or ecclesiastical.

Farrugia says: "Providing the separation is consensual, the whole thing is quick and efficient. One of the couple has to petition on the grounds of adultery, abandonment, violence or irretrievable breakdown, a judge makes sure that both parties fully understand what has been agreed in terms of maintenance and division of the community of acquests (joint property) and to check for provision of the children. It's very like what you have in Britain. The only difference is that neither party can then remarry."

Not only do both parties remain committed for ever to their first marriage but, until recently, a woman who has been legally separated from her husband would lose all maintenance if she had even the briefest of relationships with another man.

"There was a landmark case in 1999," says Farrugia. "In Borg vs Borg gia Bugelli a husband discovered that, after their legal separation, his wife had had a one-night stand with another man. He argued that not only was he not obliged to pay her maintenance any more, but she should refund all maintenance paid to her since (the separation). You see, in Malta not all the obligations of marriage stop after legal separation. Moral support ceases, yes, material support may or may not cease, but fidelity is still required."

The court initially ruled that Mrs Borg should refund her husband the agreed maintenance. She appealed and the Court of Appeal decided that, as she had slept with this other man only once, it did not count as sundering the bond of fidelity. "Which has everyone in Malta asking: 'Are one-night stands OK then?'" Farrugia says.

Such complexity and apparent inconsistency stem from the fact that the country's civil law has not diverged significantly from canon law on marital breakdown. Even under radical Labour prime minister Dom Mintoff no provision was ever initiated for divorce. Monsignor Joe Bajada, of the university's department of canon law, says the furthest Malta went under Mintoff was to recognise divorces that were given elsewhere.

The only problem, Farrugia says, is that, although lawyers shop around for the best deal, you have to be quite wealthy to live abroad long enough to initiate a divorce.

The only other option for a Maltese spouse who wishes to marry someone else is getting the marriage declared null. This can be initiated by either party. Civil annulment takes place in the lower court and commences when one party issues a writ of summons.

"Even where the couple agrees, there is still a court case," Farrugia says. "One party has to petition that the marriage should never have happened whether it be because of mistaken identity, incapacity to assume (the responsibility of marriage), mental illness, force or fear."

Petitioning for a declaration of nullity in the canonical courts involves both parties taking part in an inquisitorial process before three judges, with a priest or lay person acting as "defender of the bond".

"The defender of the bond is a sine qua non of the process," Bajada says. "He has to bring forth all the arguments for the validity of the marriage."

One party has to present a petition based on one of a number of grounds, such as impotence, crime, abduction, lack of judgement or that they were forced to consent to the marriage. The petitioner, respondent and defendant present their cases separately. Once the evidence has been given, the acts are published and a judgment is given by the college of judges. If they agree to annulment, the case goes to the Court of Appeal and, if confirmed, the marriage is annulled. If not, it passes to a higher court. The process normally takes about 18 months, but waiting lists are long.

The only possibility on Malta for genuine remarriage (rather than a second first marriage) is to have the first marriage dissolved, which Bajada says is possible if it can be proved that the marriage was ratified but not consummated. "A ratified marriage is one between two baptised persons, and hence a sacrament. According to canon law, a dispensation is granted from a ratified but non-consummated marriage by the Roman Pontiff alone." Similarly, the 1995 amendments to the Civil Marriage Act have introduced non-consummation as a possible ground for civil nullity.

Little is likely to change in the immediate future and this is making the younger generation increasingly cautious about committing to marriage. As one student on the Msida campus remarked: "I'm not getting married until I know I can get divorced."