It’s been a year since The Today Public Policy Institute launched its report, ‘For Worse, For Better: Re-marriage After Legal Separation’. Lead author MARTIN SCICLUNA talks to Raphael Vassallo about the increasing urgency of the situation
If a week is a long time in politics, what can be said of a whole year of complete inactivity? Such is the expanse of time since the publication of the TPPI’s report on the issue of divorce: a topic that has since attracted much discussion and heated debate – including last week’s seminar organised by Progett-Impenn – but virtually nothing in the way of political initiative to actually address the issue.
In fact the situation has remained virtually unchanged for couples whose marriage has irretrievably broken down, except perhaps in one, highly significant detail. If government’s attitude towards divorce has remained inflexible, the same cannot be said for the general public, with recent statistics suggesting an outright majority of 53.4% in favour of its introduction.
Martin Scicluna, who authored the report, is satisfied with the feedback to date, if not with the corresponding action on the ground.
“On the whole, the feedback has been most positive. It has certainly re-ignited the public debate on this very important issue. Although there have been one or two commentators who have seemed at a loss to know how to respond, the overall coverage by the media has been well-focussed on the key issues, and the personal correspondence and contacts I have had to the report have been overwhelmingly in favour of change across all spectrums of society and across the political divide. The broad message has been ‘We cannot go on like this, pretending there is no problem’.”
Scicluna discounts from this the Maltese Church itself, which he concedes is bound by doctrinal adherence to the ‘indissolubility of marriage’.
“I naturally respect that view, though I have to say that I find it difficult to reconcile it with the Church’s altogether more flexible position over the ‘indissolubility’ of priestly vows. After all, if you preach absolute moral values, you will be held to absolute moral standards. But I cannot accept, as the Church chose to argue in an ill-advised response to the report, that divorce directly causes marriage breakdown, which clearly flies in the face of logic...”
For all this, there remains a good deal of resistance in some quarters to the ideas expressed in the report. In a letter to The Times, Scicluna himself countered some of this criticism as coming from ‘do-nothing apologists’.
“These seem to be extremely resistant to change even in the face of the over-riding arguments set out in the report and the huge pain being caused to thousands of our citizens. I find it unconscionable that these people seem to have difficulty getting their minds round the 160% increase in the number of people in broken marriages in the 10 years between the census of 1995 and that of 2005, or the increase from over 13,000 broken marriages in 2005 to the estimate by Discern, the Church’s own advisers on this matter, of 35,000 by 2015.
“What more evidence do these commentators – or the government for that matter – require that marital break-down is now a fact of Maltese life? To say ‘We must strengthen marriage’ is the easy bit – like saying that you are in praise of motherhood. But in so many cases, saying this is not enough.”
As Scicluna succinctly puts it: ‘Doing nothing’ is no longer an option.
“The legal provisions currently in place are insufficient, the growing number of marriage failures is alarming and the effects on society are becoming unsustainable. The reality is that, no matter what we do to strengthen marriages – and our report starts from support for this incontestable basis – marital break-downs will continue to occur with the resulting unsatisfactory strains on families and society. We need to cater for this reality.”
Meanwhile the basic issue of whether or not to introduce divorce remains unresolved locally, even though local courts are empowered to recognise divorces granted by other jurisdictions. Even here there is an apparent contradiction. After all, our law courts do make exceptions in this regard – we do not recognise the ‘talaq talaq’ model prevalent in Islamic societies, among other overtly liberal models. Why is it so difficult to apply the same principle on a local level, and allow courts to grant (rather than just recognise) divorces within reasonable parameters?
“Your question goes to the heart of the issue. The situation in Malta today, which allows for divorces obtained abroad (may I add that since we joined the EU, many scores of Maltese have availed themselves of this freedom) is anomalous, hypocritical and arguably discriminatory. The situation is a mess. While couples whose marriages have broken down and who obtain a divorce abroad are permitted to re-marry, those whose marriage failure has led to a legal separation are not, no matter how long they have been separated or how strong their new relationship with another person. The result – co-habitation – is unsatisfactory. To find reasons for this extraordinary situation, you have to reach deep into the national psyche. First, the influence of the Church – for years in the past, on other issues (not on this), a force for good. For reasons purely of doctrine, this has been critical, but in many people’s judgement misguided.
Secondly, as the report brings out most clearly – and as the Archbishop himself has acknowledged – what is of fundamental importance in a pluralistic democracy (as opposed to a theocracy) is that the distinction is maintained between the right of individuals to have religiously-based convictions, and the rights of others not to have those same doctrinal convictions. This distinction is the basis for the separation of Church and State. Legislating for divorce would not force anyone to revoke his or her moral stand on marriage. If our legislators had the courage to grasp this distinction, they should find it in themselves to make the right decisions to legislate for divorce in Malta on grounds of justice and the greater public good of society.
“Thirdly, there is an inescapable element of hypocrisy in our approach. We are prepared to recognise divorces obtained abroad, but not to enact legislation to enable people to get a divorce remedy in Malta. There are, regrettably, far too many people whose attitude is ‘You made your bed, now you lie in it.’ These people, in their self-righteousness, prefer selfishly to pretend there is no problem, like ostriches with their heads stuck firmly in the sand.”
The conclusions of the TPPI study suggest a non-fault basis as the model for Maltese legislation. Wouldn’t this also make divorce a somewhat easier option, thereby appearing to ‘ encourage’ the option?
“Let me immediately stress that a ‘no fault’ system of divorce is simply a technical legal phrase. It does not mean there is no fault or blame attached to those whose unfortunate marriage has broken down. We are all human, and there will always be human faults on one or the other’s part, or both. Nor does the phrase imply in the least that it makes divorce ‘easier’, whatever that may mean in this context, for no divorce is ever easy for the parties involved. It is an extremely traumatic and painful experience.
“The ‘no fault’ legal system is designed to avoid turning the separation between the couple into a confrontational, bitter and destructive process, which is in no one’s interest, least of all any children of the marriage. Great hostility and resentment may be generated by the recital of allegations of misbehaviour (‘fault’), often exaggerated and stretching back several years, to the extent that no sensible discussion can take place between the parties, or any agreement reached on any matter relating to the marriage or, most importantly, their children. Introducing a ‘no fault’ system seeks to avoid this.
“We also recommend in the report, however, that the new law should retain the principle that matrimonial misbehaviour (‘fault’) may be taken into account by the courts on the grounds that such behaviour was evidence that a marriage had ‘irretrievably broken down’.”
As to how divorce legislation should be enacted, there is no question in Scicluna’s mind that the matter should be decided by our legislators in Parliament.
“It is not, under our system, something that should be put to a national referendum. It should be a matter for a free vote of our legislators, who one hopes would be conscious of their duty to ensure that the doing of justice for all citizens and the enhancement of the wider common good of society should over-ride all other considerations.
“If Members of Parliament lacked the moral conviction to do the right thing and were to falter at this vote they would be condemning thousands of their citizens to blighted lives, a situation which no other developed country in the world condones or is forced to endure.”
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