Lawrence Gonzi’s promise to recognise cohabitation without introducing divorce could further undermine the institution of marriage by perpetuating the anomaly where thousands of couples cohabit simply because they cannot remarry. JAMES DEBONO on ‘divorce a la Maltese’
The difference between a legal separation which is available in Malta and a divorce which is available in all countries of the world except two; namely Malta and the Philippines, is that unlike separated persons, divorcees can re-marry.
While some Maltese, like other Europeans, cohabit out of choice, in the absence of divorce legislation others are forced to cohabit and raise children out of wedlock simply because they are denied the opportunity to remarry.
Many cohabit in the hope that their previous union will be dissolved by a civil annulment. But since not everyone can fulfil the criteria required by law to declare a marriage null and void, many end up living in a legal vacuum.
Since cohabitation is not legally recognised people enter in such a relationship at their own peril, denied the legal protection accorded to married couples.
For in the absence of laws regulating cohabitation, people can even be thrown out of their partner’s home despite having lived in it for many years.
Malta is not the only country in Europe where cohabitation is not regulated by law: the same situation exists also in Italy.
But unlike the Maltese, Italians can remarry if their first marriage breaks down. This makes cohabitation a matter of choice for heterosexual couples. In fact the most fervent advocates for cohabitation rights in Italy are gays who are also excluded from the institution of marriage.
Moreover, though in most European countries cohabitation is regulated by law, not all countries give the same rights to these couples.
There are over four million couples cohabiting in England and Wales. Although co-habitants are given legal protection in several areas, they and their families have significantly fewer rights and responsibilities than their counterparts who are married, or same sex couples who have formed a civil partnership.
In the UK unmarried couples have some protection under the provisions of the Rent Act and under the cohabitation rule their income and assets are aggregated for the purpose of claiming social security benefits. A cohabitee can claim maintenance for children, but not for him or herself. On separation, a claim to a share of property can be exercised only by using complicated trust law. By contrast, married couples can go to court to “divide the spoils”.
On the other hand in Sweden and Denmark, where divorce also exists, cohabiting partners have virtually the same legal rights and obligations as married couples, in taxation, welfare benefits, inheritance, and childcare.
Not surprisingly, 50% of all children in these countries are born into families of unmarried couples.
Unlike all other European countries Malta lacks both divorce and cohabitation rights. Statistics show that 25% of all Maltese children are born out of wedlock. Nine per cent claim that the father of the offspring is unknown. There are no official figures for children born to cohabiting couples.
Although many children could be born to single mothers, the figures could also include many cohabiting couples who would be married if divorce were legal in Malta.
Since his re-election, Prime Minister Lawrence Gonzi has repeatedly promised that his present administration will honour an electoral commitment made by the PN in 1998 to recognize the rights and obligations of cohabiting couples. But he has categorically declared that he has no intention to introduce divorce.
Significantly the Maltese bishops have acknowledged the need for legislative changes to establish the individual rights and obligations of cohabiting couples, but insist that these legal provisions should be distinct from the laws regulating marriage.
The Maltese church openings on cohabitation might well be a final line of defence against the introduction of divorce, which would diminish the church’s jurisdiction on marriage.
An agreement signed between the Maltese government and the Vatican in 1993 gave civil powers to the Ecclesiastic Tribunal, forbidding people who are refused an annulment in the Church’s court to file a case for annulment in the Civil Courts.
If divorce is introduced, a new remedy will be available to those who were denied an annulment by the Church.
But the bishops have also lashed out against any proposal to grant cohabiting couples the same rights as married couples.
“We would really be destroying the family when all sorts of cohabiting arrangements are called family”, Bishop Mario Grech warned in May.
After excluding divorce from his options, Gonzi has to choose between granting cohabiting couples the same social and economic rights enjoyed by married couples, thus risking criticism from the Church, or to grant them the most basic rights like protection from being evicted from a shared home.
In the absence of divorce, granting very basic rights to cohabiting couples would only give an official blessing to the Maltese anomaly which forces thousands of families and children to live in cohabitation simply because remarriage is not an option for them.
Since it is very unlikely that a Gonzi administration will grant cohabiting couples the same rights as married couples, the inequalities between couples forced to cohabit because of the absence of divorce and legally married couples will become institutionalised.
Ultimately, by excluding thousands of Maltese from the institution of marriage, Gonzi might well be unwittingly undermining the same institution which he so keenly defends.
For divorce might well strengthen the institution of marriage by offering this option to those who are presently forced to cohabit.
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