Maltese laws on marriage from the point of view of private international law

by Aron Mifsud-Bonnici

There is a fundamental difference between a commercial contract and the contract from which a marriage originates since the latter creates a state of fact which affects both the parties themselves and the society to which they belong in general. The consensual union of husband and wife is one common factor of every marriage. Nevertheless, this consensual union may possess dissimilar features, depending on the law to which it is subject.

The concept of Catholic marriage (the voluntary union for life of a man and a woman) is applicable to any monogamous marriage contracted for an indefinite term, even if celebrated in a non-Catholic manner. This requirement does not mean that marriage must be indissoluble but that in the eyes of the lex loci celebrationis it must be potentially indefinite in duration. The facility with which, according to that law, it may be dissolved is irrelevant to its nature at the time of its creation. However, it is essential that the parties have married in a form which envisages that, in the ordinary course of events, they will live together as man and wife for the rest of their lives.

Although English Law has come to accept as valid such marriages which are polygamous in nature or in fact, the requirement of lifelong duration (despite the prevalence of divorce) is still a necessary characteristic of marriage. The classical definition of marriage which was to form the basis of the Canon Law definition is nuptiae sunt coniunctio maris et foeminae et consortium omnis vitae divini et humani unis communicatio. In essence, both in Roman Law and in Canon Law, marriage is a question of consent. The essential properties of a Canon Law marriage are unity and indissolubility.

There can be no doubt that the Maltese concept of marriage is directly influenced, if not a reproduction, of the classical Roman and Canon Law concepts of marriage. In Emilia Wolgeshaffen noe. v. S.Lanzon et, the First Hall had occasion to emphasise the sacramentality of marriage and the importance of monogamy. Furthermore, the element of dissolubility was a principal feature of the judgment. Also, in D.J.Low v. M.Micallef these characteristics were the basis of the Maltese definition of a valid marriage. This position, in so far as monogamy and indissolubility are concerned, was not changed by the Marriage Act of 1975. Section 6 of this Act provides that "a marriage contracted between persons either of whom is bound by a previous marriage shall be void." The Act does not provide for divorce, although it allows a marriage to be annulled in a number of circumstances. However, a decree of divorce would be recognised in Malta provided that it satisfies section 21 of the Marriage Act.

Not every union satisfying the test of a Christian marriage produces the legal effect of marriage, because the union must not only be "marriage" but "a marriage valid at law." The question arising is what constitutes a valid marriage, especially where the spouses are persons of different domicile or nationality. The answer at Private International Law level is that there are two essential requirements which constitute a valid marriage. However, in a minority of jurisdictions including the U.S., no distinction is made between the rules which constitute a valid marriage; both are governed by the lex loci celebrationis.

In Brook v. Brook (1861) the House of Lords drew a distinction between the rules governing the formalities and those governing the capacity to marry. "While the form of entering in the contract of marriage is to be regulated by the lex loci celebrationis (or contractus), the law of the country in which it is celebrated, the essentials of the marriage depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage."

Both the essential and formal validity rules are regulated by the Maltese Marriage Act of 1975 through section 18. These two requirements raise the preliminary important question of what falls under the essential validity and what falls under the formal validity, as well as the question of which of the two conflicting laws is to prevail in such case. Matters regarded of vital social interest involved in the status of marriage are usually regarded as being matters pertinent to the essential validity of marriage. Essential validity is, therefore, a matter for the personal law of the parties. There is general agreement that this terminology popularly included matters of legal capacity such as consanguinity and affinity, bigamy and lack of age. Indeed, the 1993 amendments introduced the requirement of parental consent in matters of civil marriage. Persons of marriageable age who are still subject to parental authority in the eyes of the Civil law require the consent of the person exercising such authority without which they may not validly contract marriage.

Typically, issues of consent are also included under the general heading of capacity. Nonetheless, it must be noted that that the term "capacity" used in Section 18(b) of the Act is more restricted in meaning than the notion of essential validity as, technically, it would not include within its ambit the vices of consent. From recent judgments it would appear that the lex loci celebrationis may have a special role to play in questions of consent, at least where the marriage is celebrated in Malta.

Other matters are clearly formal in character, such as the time and place of the ceremony, the issue of a religious or civil ceremony, the registration of the marriage, the need for witnesses, and the posting of the banns. However, the validity of the proxy itself is to be determined in terms of Section 14(2) of the Marriage Act, that is, by the law of the country where the proxy is signed. It must be pointed out that the formal validity is just as important as the essential validity because a marriage not celebrated according to the formal validity requirements of the law of the loci celebrationis is equally invalid if one of the aspects of essential validity is found to be missing. Frequently, the actuality of a valid marriage must be established prior to legal proceedings. The rules concerning the validity of a matrimonial union are constantly applied to various circumstances in determining the existing status of the parties to the union. The matters to which such rules of validity may be applied concern various aspects of the law. Thus, a legal suit such as a request for judicial separation, implies that the parties are related to one another as husband and wife. Indeed, if a person claims an inheritance or an indemnity under an insurance policy as the widow or widower of the deceased, such person is free from tax liability due to his or her being the surviving spouse. However, before such can be the case it is necessary that it be ascertained that a regularly constituted marriage existed.

Here problems of private international law may arise since the parties in question may have gone through a marriage ceremony abroad which, even though valid according lex loci celebrationis or by the law of the domicile, does not create the status of marriage according to Maltese law rules or English common law rules. In such an instance the complexity of the rules regarding the validity of matrimonial unions in the private international law field becomes apparent. Section 18 of the Marriage Act of 1975 provides that

"A marriage, whether celebrated in Malta or abroad, shall be valid for all purposes of law in Malta if

The formal validity of marriages celebrated in Malta or abroad are thus tested by the lex loci celebrationis. Under the Marriage Act of 1975, every marriage in Malta must be tested according to the country in which it took place, and if it is found to be valid by the laws of that country, then insofar as the formal validity is concerned, such marriage would be valid throughout the globe. This would continue to hold even if the ceremony or proceedings constituting the marriage were not valid according to the laws of the country of domicile of one or both spouses. If, on the other hand, a marriage is not valid according to the laws of the country in which it is celebrated, then that marriage will not be valid according to Maltese marriage laws. The case Court v. Ernest Stanley Kesslake (1934) was an exception to this rule with the result that an essential clarification in Maltese private international law rules became due. Prior to the Marriage Act there had been some doubt as to which law ought to reign in matters of formal validity, especially in view of some judgments which declared the nullity of marriage of a Maltese Roman Catholic domiciled in Malta celebrated in a form other than that established by the Council of Trent, i.e. the Maltese domiciliary law. The form called vel parocho et duobus testibus is found in Canon 1108(1) of the 1983 Code of Canon Law

• "Only those marriages are valid which contracted in the presence of the local ordinary or the pastor/priest or deacon delegated by either of them, and in the prescience of two witnesses."

Some of these cases justify their view by reference to the fact that this rule was usually an exception to the general rule which followed the lex loci celebrationis. Such a case was Chapelle v. Dr. A. Gauci Maistre et noe (1944), where the Court held that

• "Din it-tejorija mhix accettabbli fil-bicca l-kbira tal-pajjizi fejn l-istat personali jiddependi minn ligi religjuza kif jirrileva Cheshire fejn jghid 'in those countries where status depends upon religious laws as in Yugoslavia and in Greece and in Malta and Cyprus, a marriage contracted in disregard of the religious formalities of the domicile, no matter where solemnized, is not recognized as valid'."

For example, a civil marriage contracted in London by a Roman Catholic domiciled in Malta is not recognised by Maltese law. The case Formosa v. Dr. A Valenzia et noe (1959) justified it in terms of public policy where it was stated

• "... f'materja hekk skwizitament ta' ordni pubblika bhal ma hi l-istat matrimonjali, id-dritt kanoniku ... jikostitwixxi id-dritt internazzjonali tal-ligi Maltija ghas-soluzzjoni ta' kwistjonijiet li jikkontjenu element strangier."

Another cases held that the non-observance of the lex loci celebrationis was irrelevant if the ceremony was concluded in accordance with catholic rites, as was the case in Cutogno v. Cutogno (1882).

One judgment, namely Dr. V. Azzopardi noe v. James Doyle (1927), declared the nullity of a marriage celebrated outside Malta between two non-Maltese domiciliaries without the formalities required by the Council of Trent on the basis that one spouse was a Roman Catholic. On the other hand there exist two judgments which have attempted to limit this principle solely to marriages celebrated in Malta.

The issue of the validity of mixed marriages celebrated in Malta in a Protestant form, between persons one of whom is a Roman Catholic was the cause of long disquisitions. The matter was referred both to the Pope and to the Privy Council. In his decree of 1890 the Pope stated that marriages celebrated in Malta by all those who profess the Catholic religion, whether both contracting parties be Catholics or whether one of them be a catholic and the other a non-Catholic, are not valid if they are not celebrated according to the form established by the Council of Trent. He also stated that persons professing any other religion may validly celebrate their marriage without the necessity of going trough the form established by the Council of Trent.

In Emilia Wolgeschaffen noe v. Lanzon (1874), the First Hall of the Civil Court examined the formal validity of a marriage concluded under the regime of the Code of the Two Sicilies in the light of the Canon law. Since the marriage was not concluded in accordance with Canon law, it was declared to be null. The applicability of the lex loci celebrationis to questions of formal validity was expressly enunciated in The Court v. Ernest Stanley Kerslake (1934) where the First Hall of the Civil Court stated that "it is indispensable to the validity of a marriage that the lex loci be satisfied insofar as regards the forms or ceremonies", but went to provide for an exception to this rule wherein "a marriage celebrated according to the law of the country where it takes place shall be recognised everywhere as valid insofar as regards its form; a marriage which is null due to a defect of form in the country in which it has been celebrated may nevertheless be recognised as valid in other countries if the form presented by the national law of each of the parties have been observed." Nonetheless, it is essential to note that the Marriage Act makes no such exceptions.

Other judgments holding the rule of the lex loci celebrationis as the one applicable to the formalities of marriage, were revoked on appeal in preference to the exceptions which upheld the application of the lex domicilii. One case which commenced and ended with the application of the exception to the lex loci rule, but with an intermediate judgment which favoured the application of the rule itself, was the case Il-Qorti v. C. Formosa (1952, First Hall). The case regarded the enforcement of an English maintenance order, and the Court raised the question of nullity, and the consequential question of the legitimacy of the children for whom maintenance was also provided ex officio. The Court of Appeal, in 1957, revoked this judgment on the basis of natural justice. When the case returned to the First Hall of the Civil Court it was held that it must prove that the marriage was invalid according to English law, since "sakemm dak iz-zwieg ma jigix imwaqqa' ghandu jsehh ghall-finijiet kollha tal-ligi". Formosa then instituted an action for a declaration of nullity which was duly granted.

In G. Testaferrata Abela v. Ruth Perry (1972) the parties had married in a registry office in England in 1966 and the plaintiff asked for the declaration of nullity since he was a Maltese Roman Catholic. Plaintiff had no interest in pursuing the action since he had declared that he did not wish to separate from his wife - he merely wished for an annulment for income tax purposes. The Court held that

• "Din il-Qorti tirrejalizza li l-attur qieghed jinqeda bir-religjon li hu jghid li jipprofessa, u li maghha ghandha certa attinenza din il-parti tal-ligi taghna, ghall-iskop ekonomiku, imma per se ma jeskludix xjentifikament u skond il-ligi l-interess guridiku ghall-finijiet ta' l-ezercizzju ta' l-azzjoni prezenti."

There can be no doubt that the Marriage Act completely negatived the reference to the personal law of one of the parties as the governing law in matters of form. Indeed, Section 23 severed any reference to Canon Law. However, as from 1993 Section 23 was amended in the sense that reference to Canon Law would be necessary in the case of a Catholic marriages which are now kept distinct from purely civil marriages. Similarly, at English law the question of validity depends solely on the law of the country where the ceremony takes place. This rule is further complicated since English law allows exceptions: where it is impossible to apply the lex loci celebrationis (such as is the case of a marriage celebrated in an uncivilised country) such marriage is still considered to be valid if it is in accordance with the form required by U.K. common law. For a common law marriage to be valid it suffices that there be the verbal consent of the parties and that the marriage be celebrated by an episcopally ordained priest or deacon. It must be kept in mind that such is not the situation in Malta where no such exceptions to the rule laid down in Section 18 of the Marriage Act are allowed.

In English law, the predominance of the lex loci celebrationis is not disturbed even though the sole object of the parties in celebrating their marriage abroad is to evade some grievous requirement of the lex domicilii. In the case Simonin v. Mallac (1860), two individuals who were French by domicile contracted a marriage in London which, though formally valid according to English law, would have been declared void according to the law of France, since the parental consent required by the said law was not obtained. The wife later petitioned for a decree of nullity, which the Court denied on the basis that the necessary parental consent was nothing but a formality, and therefore its absence could not affect a marriage celebrated in the U.K..

Under Maltese law the question may be resolved by considering Section 24(2)(a) of the Marriage Act which provides that

• "Nothing in this Act shall affect the validity of a marriage which was valid at the time it was contracted."

This provision has the effect of clarifying the position in respect of marriages celebrated in Malta prior to the Marriage Act. If such a marriage was valid at the time it was contracted, it cannot then be held to be invalid by virtue of the Marriage Act. Section 24(2)(a) does not distinguish between formal and essential validity, and it consequently applies to both forms. On the other hand, if the marriage was invalid at the time when it was contracted, it may be validated by virtue of the provisions of the Marriage Act. This argument was confirmed Court of Appeal in Agius v. Agius (1988). In other words, marriages celebrated in Malta prior to the Marriage Act are to be tested according to the law as it stood at that time. Furthermore, it appears that just as the Marriage Act did not render invalid that which was valid prior to its coming into force, similarly, a foreign law which retrospectively validates a marriage which was invalid will be given effect by the Maltese Courts.

One major issue which must be dealt with is the essential validity of marriage. Section 18(b) of the Marriage Act adopts the dual domicile test, namely that

"A marriage, whether celebrated in Malta or abroad, shall be valid for all purposes of law in Malta if - ...

This holds true whether the incapacity is absolute (e.g. a child below a certain age cannot marry anyone), or relative (a father and his daughter cannot marry one another). Before 1975 the Maltese Courts have consistently held that capacity, including defects of consent, affect the essential validity of the marriage and are consequently to be determined by reference to the personal law of the parties, which with respect to Maltese nationals or domiciliaries was common law.

Two judgments which make it clear which law is to govern the capacity of the parties are The Court v. Ernest Stanley Kerslake (1934) and Vella v. Vella (1940). Indeed, the latter judgment stated that

• "...it is indispensable to the validity of a marriage that the personal law of each party be satisfied as far as regards his/her capacity to contract it, whether absolute in respect of age, or relative in respect of the prohibited degree of consanguinity or affinity, i.e. each of the parties must have, according to the law of his/her respective domicile, the capacity to marry each other."

The greatest merit of the dual domicile theory adopted by the above two cases (and later by the Marriage Act) is that it refers the capacity to marry to the law which until that time has governed the status of each party. However, Section 18(b) may be criticised because it tends towards the invalidity of marriages, there being two possible different laws under which the essential validity of a marriage must be tested, rather than one. Of course, had the section included nationality together with domicile, there would potentially be four different regimes which must be tested.

This problem also exists in the U.K., where it is still being debated whether the essential validity of the marriage should be determined by the dual domicile doctrine as is the case in Malta, or by the intended matrimonial home doctrine, which states that the capacity to marry is governed by the law of the country in which the parties at the time of the marriage intended to establish their home, and in which they in fact did establish their home within a reasonable time. This rule is undesirable because it renders it important to decide whether a marriage was valid or void at the time of its celebration. Such may be the case if it is doubtful whether the parties genuinely intended to establish their home in the named country. According to U.K. law, a foreign lex domicilii that governs the capacity of the parties to marry will not be recognised if it is contrary to public policy. This is one of the major complexities propounded by the application of Section 18(b). The English Courts have a discretionary power to repudiate capacity or incapacity on the grounds that to give effect to it would be unconscionable. This discretion is exercised sparingly. Section 18(b) of the Marriage Act expressly refers capacity to the lex domicilii and makes no exception thereto.

With regards to divorce, annulment and the capacity to remarry, one may note that prior to 1975 the Maltese Courts categorically refused to recognise foreign divorces on the ground of public policy. Following the enactment of the Marriage Act in 1975 foreign divorces were recognised if they conformed to the requirements of Section 21. Section 21 provides that the decision of a foreign court on the status of a married person, or affecting such status, shall be recognised for all purposes of law in Malta if the decision is given by a competent court of the country in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen.

The first problem which arises is where a person is domiciled in one country but is a national of another country and his divorce is recognised by the law of the country of his nationality, but not by the law of the country of his domicile. According to Section 21 the divorce would still be recognised in Malta, because in terms of this provision it is sufficient that the divorce is considered to be valid by either of these laws. In terms of Section 18, Maltese law refers the question of capacity of the persons to contract marriage to the lex domicilii. The conflict which arises between Section 18 and Section 21 is due to the fact that both sections use different connecting factors for two interrelated situations.

This conflict could possibly be solved by reference to the private international law doctrine of classification and the incidental question. The principal question should be classified as one of capacity, and the recognition of the foreign divorce or annulment should be classified as a question incidental thereto. Consequently, if according to Section 18(b) the reference to a person's lex domicilii reveals that such a person is married, he should not be allowed to marry in Malta notwithstanding that the divorce was granted in the country of his nationality. This solution seems to imply that rules of validity as regards the capacity of the parties contained in Section 18(b) ought to prevail in view of any conflicting provision under the Marriage Act.

There could also exist a similarly difficult but converse case where a foreign divorce or annulment is recognised by the lex domicilii but not under Section 21 of the Marriage Act. Such a case arose in Canada in Schwebel v. Ungar (1963), and a similar situation was also under discussion in Malta in the case Amanulla v. The Marriage Registrar where the defendant refused to allow the plaintiff to marry in Malta on the basis that a divorce by "talak" cannot be recognised in Malta. If a Muslim, divorced by "talak" wanted to contract a marriage in Malta, the issue in question would be one of capacity only and therefore Section 18 should be applied. If the law of the domicile of the party recognises divorce by "talak", and under that law a person so divorced can contract another marriage, such person should be considered as capable of contracting marriage in Malta. To hold otherwise would be to determine the personal status of a person not domiciled in Malta.

Even though the Marriage Act of 1975 does not define marriage, it still adopts the notion of Christian Marriage whose principal characteristics are monogamy and indissolubility. The Act does not deal specifically with the Maltese position in regard to polygamous marriages, but the position can be established on the basis of Sections 6 and 18 of the said Act. On the basis of Section 18(b), if the law of the domicile of the person allows him to marry notwithstanding that he is already bound by a previous marriage, that party still possesses capacity to contract marriage with the consequence that, in the words of Section 18, that marriage "whether celebrated in Malta or abroad shall be valid for all purposes of law in Malta."

Section 18 appears to conflict with Section 6 which prohibits marriage "between persons either of whom is bound by a previous marriage ". Section 6 leaves no doubt that a marriage celebrated in Malta can be no other than a monogamous marriage. Therefore, Section 6 is intended to regulate the form of Maltese marriages and, together with Section 18(b), the capacity of Maltese domiciliaries to contract marriage. Unlike Section 18 however, Section 6 does not also regulate marriages celebrated outside Malta. Section 6 requires monogamy only in those marriages which are celebrated in Malta. It should therefore not be extended as a means of invalidating a valid polygamous marriage contracted outside Malta. Such a marriage is valid in terms of Section provided that both the spouses are capable by his or her domicile of contracting such a marriage. On the other hand it may be argued that Section 6 is a provision of Maltese public policy which may induce Maltese judges to refuse to recognise a marriage which is perfectly valid according to Section 18, although polygamous, since Maltese public policy requires that all marriages, whether contracted in Malta or abroad, must necessarily be monogamous in order to be valid. This public policy argument holds true by virtue of Section 6 with respect to marriages celebrated in Malta, but it would be unreasonable to invalidate a valid polygamous marriage contracted outside Malta under Section 6 which, in fact, should never apply to such a marriage.

It is therefore possible to conclude that for a second polygamous marriage to be considered valid by Maltese law four conditions must be satisfied, namely, that the lex domicilii at the time of the first marriage must avail him of the capacity to contract a second marriage, the lex domicilii at the time of the second marriage must again offer the capacity of contracting a second marriage, the lex loci celebrationis of the first marriage must permit polygamy and the first marriage must be formally valid in accordance with that law and also, the lex loci celebrationis of the second marriage must also permit polygamy and the second marriage must once again be formally valid under that law. If one of the four conditions is left unsatisfied, the second marriage cannot be held to be valid in Malta, with the consequence that only the first marriage should be considered as valid.

Subject to the exception established by the lex loci celebrationis rule prior to 1975, the formal and essential validity as explained are governed by Section 18 of the Marriage Act. Preliminary Maltese law, such as the lex fora, must be used in order to classify the question as one of form or capacity. Therefore, if a Maltese Court is to annul a marriage celebrated in Malta, such Court must examine whether the formalities prescribed by Maltese law have been observed. If the marriage has been celebrated in another country, then the Court must examine whether the formalities laid down by the foreign law have been observed.

An annulment, contrary to a divorce, presupposes a marriage which was void ab initio. If the marriage was celebrated abroad, the foreign law will govern the issue of whether the marriage was void or merely voidable. However, once the marriage is declared null, the effects of such a declaration in Malta must be adjudged in terms of Maltese law (Section 20 of the Marriage Act). Defects of consent are intimately connected with capacity, and in order to determine whether one of the parties' consent was vitiated (by violence, fraud, error), reference must be made to his or her ante-nuptial domicile, and it is in accordance with that law that one must determine the degree and extent to which any of such rules are sufficient to negative the consent required for a valid marriage.

It is therefore factual that the rules governing the validity of marriage are simple in appearance but complex in application. In many contexts such a situation would arise when the written law merely offers guidelines and leaves many questions open to interpretation and debates. This is often true in the field of Maltese private international law. Enactment of positive law covering the present grey areas appears to be the most desirable solution, but ultimately also the most difficult to carry through.

(c) 1995, Aron Mifsud-Bonnici, Dip.Not.Pub.

For private educational use only. Any other use is strictly prohibited under Maltese law and international treaties. The article does not purport to give any legal advice.