Many say that marriage is one of the most important pillars of our society. Traditionally, it was viewed as the basis of the family unit and vital to the preservation of morals and civilisation, and any attempts at tarnishing its solidity and form were traditionally fervently resisted. 

Throughout the years, the institution of marriage has evolved and the concept of what constitutes marriage and who has the right to marry has changed. There is no universal definition of marriage, so much so that each and every state defines the institution of marriage according to its law and custom.

Legally speaking, marriage is however generally defined as a solemn act through which two persons establish a union between themselves.

Regardless of the reasons why couples enter into marriage, it is an institution which is usually taken very seriously. There are two basic traditional forms of marriage, religious and the civil ceremony, and both types will give the spouses certain rights.

Over the years, marriage annulments have been the subject of great discussion and various studies. Both under the canonical system as well as under the civil system, it is now acknowledged that marriage is brought about through the consent of the spouses, legitimately manifested by those qualified according to the law. Just like any other contract, capable consent is key.

Annulment is often associated with the Church and the Ecclesiastical Tribunal; but that is merely half of the reality, since the term ‘annulment’ also encompasses civil annulments. As a matter of fact,  civil marriage annulment has been discussed in a decision given by Mrs Justice J. Padovani Grima in the case of MC v Dr Joseph Brincat nomine et’ decided on October 2, 2020.  (For clarity’s sake, the lawyer here was not a party to the case, but was merely appointed to appear on behalf of an absent respondent, and that is why the case carries his name).

Although each case dealing with annulments is to be considered in light of its own circumstances, our courts tend to annul a marriage when any of the spouses manages to proof some form of impediment or defect that would render the contract of marriage invalid.

Maltese civil law considers marriage as a contract. Just like any other contract, the principle of consent lies as one of the fundamental elements for the foundation and validity of the marriage. Upon exchanging consent, the parties must be endowed with certain degree of maturity and psychological capacity rendering them fully conscious of the obligation, duties and responsibilities that come with marriage. Through various case law, it may be said that our courts recognise the requirements of monogamy, indissolubility and procreation as the essential requisites of marriage.

As bewildering as this may sound, a marriage may be annulled if a person enters into marriage knowingly excluding the consequences of the marriage itself

The facts of the case were as follows.

The parties got married on October 23, 1998. The wife alleged that the defendant’s sole intention in marrying her was to obtain Maltese citizenship. The plaintiff complained that the defendant had a serious defect of discretion of judgement on their matrimonial life as well as on essential rights and duties accompanying marriage.

In a few words, both agreed that the marriage should be annulled but disagreed on whose fault it should be. Unsurprisingly, they blamed each other.

During the proceedings, the plaintiff managed to prove that after a few weeks together as a married couple, the respondent abandoned her completely. Her relatives were not aware that she got married; it was only after the respondent’s abandonment that the wife informed her relatives about said marriage.

On the other hand, the curators who were appointed to represent the defendant’s interest due to his absence from the Maltese islands failed to provide any evidence on his behalf since they were unable to communicate with the husband.

In its judgement, the court pointed out that the marriage is an institution of public order and must enjoy the safeguards which it deserves to guarantee the importance and solemnity of this institution. The court continued to explain that there exists a presumption of validity in favour of marriage which requires that a marriage should not be declared invalid unless sufficient, clear and concrete evidence is produced. The court emphasised that the nullity of marriage is the exception to the rule and, consequently, any request for a marriage to be declared null should be considered on its own, taking into account all the circumstances of the case.

One of the arguments raised by the plaintiff was that the defendant’s consent was vitiated in terms of article 19(10(f) of Chapter 225 of the Laws of Malta. This article states that if spouses’ consent to the marriage is vitiated by the positive exclusions of marriage itself, or any one or more of the essential elements of matrimonial life, or of the right to the conjugal act, the marriage would be deemed as void.

Simply put, this ground of annulment refers to situations where a person is capable of understanding the essential rights and obligations of marriage but simultaneously, this person simulates his/her intention in accepting but in actual fact, s/he is positively and categorically excluding them. As bewildering as this may sound, simply put, a marriage may be annulled if a person enters into marriage knowingly excluding the consequences of the marriage itself.

As a result, and after looking at the facts of the case, the court outlined that the matrimonial cohabitation lasted only two weeks after the marriage. The defendant’s demeanour in this short period of time led the court to reasonably conclude that this was not simply a matter of incompatibility of character or any matter which arose after the marriage, which would result into just a personal separation. For these reasons, the court upheld the plaintiff’s requests and declared that the marriage could be declared null and void in terms of article 19(1)(f) of Chapter 255 of the Laws of Malta. The court ordered that the judicial expenses are paid by the defendant.

Both parties to the suit may appeal from this judgement.

Graziella Cricchiola is a junior associate at Azzopardi, Borg & Abela Advocates.

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