The report on an independent public policy think-tank has recommended the introduction of legislation that provides for the possibility of re-marriage after legal separation and civil dissolution, saying the absence of divorce has plainly spared Malta none of the pain and tensions and the destabilisation of modern society.
The report was published by The Today Public Policy Institute and its author, Martin Scicluna, said at a news conference yesterday, that the lack of possibility to get a divorce has simply made life more difficult than it need be for thousands of people.
The divorce debate has been ongoing for at least 15 years, said Mr Scicluna, adding that Malta is the only country in the western world that does not allow re-marriage after legal separation.
The report points out that even though divorce cannot be obtained in Malta, marital break-down is now a fact of life.
In the years between the census of 1995 and 2005, the number of marriages in Malta which were annulled or where foreign divorces were recognised, together with those couples who were granted legal separations, rose by 160 per cent, from just over 5,000 to over 13,000.
The number of legal separations alone increased by over 7,000, from just over 4,000 in 1995 to over 11,000 in 2005.
Since then, there have been over 1,000 ecclesiastical and civil annulments, with over 800 cases currently pending. During the same period, there were about 3,500 sworn separation applications submitted or mediations introduced, with over 1,000 separation cases currently pending.
It has been estimated that the number of failed marriages will exceed 35,000, or over 17 per cent of all marriages, by 2015.
The report tackles the debates on the issue that have come up in the past. Should a particular religious view on marriage prevail? Does divorce transform marriage into a temporary contract? Would changing out current laws undermine society? Does divorce cause marriage breakdowns? What about the effect of divorce on children? What does research on the subject tell us? What about the financial consequences?
The report states that marriage is a vital pillar of society. As such, the state has the right and the duty to regulate it. It must consider the interests of the individuals involved: the spouses, their children (if any) and the persons who would be second spouses.
The state must also, quite properly, examine the economic, social, psychological and other consequences of re-marriage after legal separation, according to the report on the think-thank.
At the same time, it adds, the state must consider how the introduction of civil dissolution might affect the institution of marriage.
The individuals’ right, in all consciousness, to choose their own domestic and family relationships, and to expect due respect and acknowledgement of those choices from the state, together with the wider benefits to society from the stability provided by re-marriage, are fundamental.
“Respect for such rights does not run counter to the general interests of the state in supporting marriage. It reinforces them.”
The report goes on to say that failing to recognise second relationships is actually to undermine the institution of marriage and the family by denying them the equal respect and recognition which come from being married if they wish.
On the roles of the Church and the state, Mr Scicluna referred to Archbishop Paul Cremona’s clear statement that while he considered that the church had a valid contribution to make to the debate on divorce, the church would not seek to interfere – as opposed to participate – in this process.
On cohabitation, the report points out that the regulation and protection of those who choose to cohabit is necessary, but it stresses that not even the most carefully drawn-up safeguards on cohabitation can ever equate with the status of marriage.
Mr Scicluna said that while it is up to society to make the decision on divorce, the best way forward should rest with the government and MPs, who have the duty to act in the best interests of society as a whole. He said he hoped the report will bring MPs to understand the consequences of doing nothing.
The report proposes a restrictive, but fair legal framework. Easy availability of divorce in some countries, where the waiting period is a year or even less, causes problems.
The Irish example, however, provides sensible guidance on this, where the court may only grant a dissolution of marriage if it is satisfied that “at the date of the institution of proceedings the spouses had lived apart from one another for a period of, or periods amounting to, at least four years [author’s emphasis] during the previous five years” and “there is no reasonable prospect of a reconciliation between the spouses”.
While a four-year period may seem to be too long, the report states that anything less than three years would be too short.
Moreover, the report proposes that a “fault-based” remedy should be eschewed since it tends to turn the separation into a confrontational, bitter and destructive process.
fvella@independent.com.mt
