Both the Marriage Act as well as Cannon Law provide for instances where a marriage can be annulled instead of opting for divorce. Looking at annulment versus divorce, annulment presupposes that a marriage never took place and that therefore the said marriage was null ab initio. The declaration of annulment presupposes that the marriage never existed due to a defect of form or a defect of capacity or consent. One must distinguish between null and annullable marriages. A marriage that is merely annullable remains valid until the nullity is pronounced, therefore the nullity is pronounced prospectively. On the other hand, if the marriage is null, then the declaration of nullity will be retrospective to the moment of its celebration contrary to the divorce jurisdiction in Malta. The general rule is that one has to define whether a marriage is valid or otherwise, and also in case of annulment, that is provided for in our Marriage Act, according to the time and the law when the marriage was celebrated.
Hereunder, we find the three time periods in the history of divorce which deal with marriages under our law and the way they might be effected when divorce in Malta is introduced in Maltese legislation.
• Marriages that were contracted prior to 1975 – in this period of time, marriages were contracted exclusively under Cannon Law and therefore it is not possible to obtain a divorce for marriages celebrated at this time. In the eventuality that divorce will be introduced it would not be applicable to these marriages because the law related to marriage does not have retrospective effect, however, it might terminate the civil marriage.
• Marriages contracted between 1975 and 1995 – here there were two different marriages running concurrently, being the catholic marriage and the civil marriage. The civil marriage was introduced and therefore one could not just marry in church without registration taking place as well civilly. Also in this case, if in the eventuality that divorce will be introduced it would not be applicable to these marriages because the law related to marriage does not have retrospective effect, however, it might terminate the civil marriage.
• Marriages contracted after 1995 – the parties here have an option on whether to have a catholic marriage or a civil marriage and here in both cases the marriage will be legally recognized and will have civil effects arising from the said union. Here the State had forgone any competence in matters arising from catholic marriage as regards annulment versus divorce and other similar matrimonial causes. So, one could envisage that a couple who had chosen to get married in church would not be able to apply for a divorce in Malta in the eventually of the breakdown of their marriage.