At the risk of understating the case, the quality of discussion in Malta on the subject of divorce has to date been woefully substandard.
Historically, the issue has been so badly mishandled that the events of the past 40 years now make for painful, embarrassing re-evaluation.
The starting point has to be the Marriage Act 1975: a legal watershed in the regulation of marriage in Malta, introduced after a long and acrimonious conflict between Church and State. Prior to its enactment, only the rules of Canon Law prevailed – causing bizarre anomalies, particularly in the interface with other jurisdictions.
For instance: a Catholic divorcee who married in Malta could be prosecuted for bigamy if the first (indissoluble) marriage was valid in church terms. Likewise, a Catholic who contracted a registry marriage abroad, established a family for 20 years and jumped ship to Malta, was allowed to remarry in Malta as though he had never been married at all.
The 1975 Act made the registration of marriages obligatory, and made the recognition of foreign divorces (pronounced in acknowledged jurisdictions) possible. But it stopped short of actually introducing divorce.
As a consequence, the previous anomalies were replaced by a new one. Non-recognition of civil marriage and divorce was no longer a tenable option, and with the reversal of the situation the anomaly became that our courts recognised foreign divorces, even though they could not pronounce one themselves.
The predictable (and regrettable) outcome was that divorce became accessible to Maltese citizens in a limited way: if they established a domicile abroad. From the outset, it seems the government’s stance was to accommodate a changing world while preserving Malta’s isolation.
Incredibly, we have progressed little or not at all in the intervening 34 years. There may have been some mention of divorce between 1975 and 1992, but nothing serious. In its 1992 electoral manifesto AD became the first political party to pronounce itself in favour of the introduction of divorce. It was also grievously penalised for its initiative. The unfair and illogical twinning of divorce with abortion also dates from a 1992 article in Lehen is-Sewwa. AD continued to suffer this until 2009.
Eddie Fenech Adami is on record stating that divorce would never be introduced as long as he led the PN government. And while some PN exponents such as Michael Falzon and Georg Sapiano have more recently publicly expressed a liberal view on the divorce issue, it was only John Dalli’s foray in the summer of 2008 that provoked some concession from a Nationalist Prime Minister to allow a debate on the issue – for which perhaps we should be grateful for very small mercies.
On the Labour side the liberal progressive facet remains largely elusive. The Sant government set up a commission to explore the matter, although no mention of the issue was made in the 1996 manifesto. In the 1998 manifesto the MLP promised to hold a referendum on the issue, and the rest is history.
In response to the Dalli/Gonzi mini-exploit in 2008, Joseph Muscat committed to presenting a private bill in parliament on taking office: not a government bill enforcing party discipline, and not a confidence bill either.
Meanwhile the absence of divorce has produced yet another anomaly in the acclimatisation of Maltese society to “forced” cohabitation following the failure of a first marriage. Cohabitation in Malta is an altogether different phenomenon to its counterpart elsewhere in Europe. It is a product of the absence of divorce, rather than a rejection of marriage.
While elsewhere, legislators have developed the reciprocal rights of cohabiting couples in the face of a growing phenomenon of marriage avoidance, in Malta it is only our legislators’ prohibition of remarriage that forced people to cohabit.
In the 1998 PN manifesto a law on cohabition was promised but – not unlike other electoral promises – never enacted. However, amendments to the Civil Code, particularly on the rights of succession of illegitimate children can be viewed as a PN accommodation of an actual situation created by the absence of divorce.
But with an astonishing 160% increase in the rate marriage breakdown, there can be no disguising the fact that all we have achieved since Independence is a series of anomalies and that make of our country something of a museum piece in the eyes of Europe.
From this perspective, the publication of the Today Public Policy Institute’s report entitled For Worse, For Better – Remarriage After Legal Separation makes a welcome change, for finally examining the issue in the cold light of facts and statistics without the kind of emotive arguments that have elsewhere reduced this serious matter to an exercise in tele-evangelism.
That even this rational and moderate approach should have fallen on deaf ears was a pity, but not exactly a surprise.
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