Martin Scicluna | Sunday, 09 August 2009
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On remarriage, the Church’s response is fundamentally flawed

It was interesting, as well as revealing, to read the Maltese Church’s reply, led by ProgettImpenn, to the report by The Today Public Policy Institute, ‘For Worse, For Better: Re-marriage After Legal Separation’, of which I am the lead author. The Maltese Church’s report has at least attempted to engage in a serious debate on the issues raised in my report unlike earlier responses by those who have closed minds on this issue.
But it was disappointing to see that the arguments deployed were so narrow and predictable. I wouldn’t have expected anything other than doctrinal adherence, but the Church’s attempt to dress this up as an objective, responsible and reasonable secular case to prevent re-marriage after legal separation was inevitably selective and self-serving.
Let us be clear. This is not an argument about divorce per se. It is an argument about the right to re-marry after being legally separated. The State currently forbids the former, but allows the latter. Is it really the Maltese Church’s position that it would use the prevention of re-marriage after a legal separation simply as a means to protest about divorce, when half the process – and arguably the most painfully wrenching part – is allowed? Is the Church really saying that what it may call adultery is preferable to a formalised and respected relationship?

1 – Dealing first with the fundamental flaw in the Church’s report, indeed the main thrust of its argument – namely, that the availability of divorce of itself causes marriage breakdown and that it is in society’s interests to forbid it. Its argument is based on false foundations: the prism through which the Church sees the issue, to the exclusion of justice, charity, compassion or the greater public good of society. Much as it seeks to dress up its arguments differently, it cannot escape from thisfundamental misreading of the position.
Its refusal to recognise the suffering and difficulty caused by broken marriages is betrayed by the way it cynically refers in its report to “walking out of the marriage”, as though that is how people going through the trauma of a broken marriage approach separation or civil dissolution. In the Church’s eyes these people have ‘failed’.
Nobody in a successful marriage wants to divorce. Nobody enters into a marriage intending to “walk out of it” as the Church so infelicitously puts it.
Although, for doctrinal reasons, the Church cannot accept the civil dissolution of marriage after legal separation, this is not of itself a sufficient argument that it is in society’s wider interest to prevent the State, and the parties to an irretrievably broken marriage who do not hold the same doctrinal views, from acknowledging that it is finished (this in itself is already the current position with legal separation); or to prevent subsequent re-marriage by allowing a mature, adult relationship to be recognised by the State, society, friends and family (if not by the Church) if the chance arises.
A secular democracy should respect the passions that religious faith animates on moral dilemmas, but it should not have its laws dictated by them. Catholic believers have the right to abstain from practices they consider wrong, but have no right of veto over others.
Moreover, to say divorce causes marriage breakdown (rather than offering a legal remedy for the breakdown) is distorted logic: it’s like saying a heart operation is a disease, not remedial surgery. Marital discord and marriage breakdown precede – often by years – legal separation or divorce. Far from being the cause of breakdown, separation or divorce is a civilised way of reducing the negative consequences on society of irrevocably failed marriages and to allow people who wish to re-build their lives to do so. And to argue – as the Maltese Church does – that cohabitation is higher in other countries where divorce exists than in Malta, and then to conclude that the cause of cohabitation is the presence of divorce legislation is statistical and logical nonsense. There is no causal link.

2 – The Church questions the statistics in ‘For Worse, For Better: Re-marriage After Legal Separation’ not only to undermine the credibility of the report, but to down-play the effects of all these broken marriages on Maltese society (to quote ProgettImpenn’s report “to prove the reality is not as bad as presented by TPPI”). The main thrust is to ignore completely the plight of irretrievably broken marriages.
Based on NSO statistics, in 1995 there were 5,098 annulled, divorced or legally separated individuals in Malta (3%) out of a total 181,875 married individuals. By 2005, this figure had risen to 13,354 out of 195,523 married individuals – a proportion of 7% – more than twice as high the rate in 1995.
The forecast by the respected Institute for Research on the Signs of the Times, Discern, is that, on present trends, this rate will rise to 17% of marriages (35,000) by 2015. Between 2006 and 2008, there were 1,028 new or introduced ecclesiastical and civil annulment cases; 844 cases pending; and about 3,500 sworn separation applications submitted or mediations introduced, with over 1,000 separation cases pending – a total of 6,360 couples, or up to 12,720 individuals whose cases are in the pipeline, the majority of whom are likely to end up separated or annulled (not to mention those who will get a divorce abroad). This is a figure which comes on top of the 13,354 individuals recorded in the 2005 census, thus giving credible support to the 35,000 which has been projected for 2015.
What is it, therefore, about the Maltese Church that makes it adopt a high-handed attitude to the facts? Why is it that it appears not to wish to consider the severity or validity of these figures? What is it that it does not understand about a 160% recorded increase in the number of individuals in broken marriages of all kinds between 1995 and 2005? Or the175% recorded increase over the same period of those legally separated? Or the estimated increase between 13,354 individuals in 2005 and the 35,000 divorced, annulled or separated individuals within the next six years?
The Church’s complacency – driven by prejudice, rather than rationality – about the accelerating number of broken marriages is a form of denial. This is cynical, irresponsible, unjust, uncharitable and hypocritical and leads it to put forward the kind of self-serving arguments which run through its report.

3 – Thirdly, the hypocrisy of the Maltese Church. One aspect was perhaps best epitomised in the explanation given by the Pro Vicar General, Monsignor Anton Gouder, in reply to a question from the press corps when launching the ProgettImpenn report.
Asked about the apparent discrimination between those Maltese who go abroad to obtain their divorce and have it recognised under Maltese law (over 200 have done so since Malta joined the EU) and those who could not go abroad to obtain a divorce, he replied there was no discrimination in law: simply that those who obtained a divorce abroad did so because they satisfied the condition of domicile under Maltese law, while the rest were all treated the same by not having recourse to a Maltese divorce law. This inability to give a straight answer to a straight question is symptomatic of the Maltese Church’s partial and selective approach to the argument about marital breakdown.
There was no mention in the Pro Vicar General’s reply that foreign divorce was, in the Church’s eyes, morally wrong and that, by his logic, it should not be recognised in Malta. Simply a readiness, couched in weasel words, to turn a blind eye to this discrimination against those Maltese not rich enough, or able for whatever reason, to go abroad to obtain their divorce, so long as this glaring inconsistency and inequity in our law was not highlighted.
Anything, indeed, as long as the legally divorce-free and remarriage-free territory of Malta was preserved regardless of the costs in human pain, equity, justice, charity or compassion to those living here, thus preserving the hypocritical illusion of a morally superior society.

The challenge to the Maltese Church, which it fails to address, is that, given there is legal separation, how can it be in society’s continued interests to stop re-marriage after legal separation and civil dissolution?
Maltese society currently pays a very heavy price for sustaining the concept of the indissolubility of marriage and the hope that separated couples may one day be reconciled. It is both unjust and hypocritical to marginalise legally separated couples and prevent their further participation in a stable, orthodox and healthy family environment which re-marriage would provide. The Maltese Church’s report sneeringly (and misleadingly) calls this ‘bigamy’ in its attempt to blacken and undermine the proposals in ‘For Worse, For Better: Re-marriage After Legal Separation’. The alternative is for couples to co-habit and I challenge the Maltese Church to confirm that co-habitation is preferable to re-marriage after legal separation.
The State, through its legislation, must decide what is best for the whole of society, striking the proper balance between the human rights and the natural aspirations of individuals, and the interests of the community and society as a whole. The State should generally allow an individual to exercise his personal freedom of action provided no harm is done to society as a whole. The freedom to marry again after a legal separation is an intrinsic part of the rights and liberties which are characteristic of a well-ordered democratic and pluralist State.
The Maltese Church could do better by playing a more constructive role, and thereby earn greater respect, if it recognized two realities: first, that legal separation is already allowed, and secondly – and sadly – that Maltese marriages are failing in increasing numbers. It should then ask itself what should be done about those who wish to have a stable relationship recognized by the State and family and friends as the preferred framework in which to bring up children?
It would be better, therefore, if the Maltese Church were prepared to engage positively in a dialogue to ensure that Malta adopts the best legislative process for the introduction of re-marriage after legal separation and civil dissolution. Respected though the Maltese Church is, a purely doctrinal view is not enough on this vital social issue.

Martin Scicluna is the lead author of The Today Public Policy Institute Report ‘For Worse, For Better: Re-marriage After Legal Separation’


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