Malta has asked to be allowed to opt out of an EU Commission proposal to harmonise conflict-of-laws issues affecting the divorce law applicable to international couples. Around 170,000 divorces applied for in the EU each year are by spouses resident in jurisdictions other than those of their nationality. The Commission’s Green Paper on the issue poses a number of cases in which couples are caused anything from inconvenience to real pain and suffering in addition to that of the failure of their marriage because of the law governing their divorce.
A number of “old” member countries such as Ireland and the UK have opted out of the harmonisation exercise for very different reasons: Ireland to avoid having its judges deciding on divorces on the basis of a foreign law more liberal than their domestic regime, and the UK because it deems the proposal far too complex and expensive in relation to its present regime. Sweden objected to the possibility of its citizens not being able to apply for divorce under its own rules if they emigrated to a more conservative jurisdiction. Malta has no right to opt out. Having no divorce law of it own it has no conflict to justify opting out either.
The terms of our accession to the EU restrict the privileges granted to earlier entrants. In this case Malta has to approve or veto the process as a whole. In terms of information obtained by journalists
from unnamed government sources, Malta is trying to squirm out of the dilemma by obtaining special opt out assurances from the Commission.
The tip off to journalists about Malta’s special negotiations and its threat to block the whole process must be interpreted as the government’s declaration of its intransigent opposition to divorce. It could be just another electoral red herring, or maybe the avoidance of an electoral liability if it were found out that the PN government had given its go ahead to anything to do with divorce.
The whole issue is an exquisite illustration of the unreality of Maltese politics. In fact, the Commission proposal is not applicable to Malta in any way. Malta simply does not grant any divorce competence to its courts. There is no possibility of Maltese courts being obliged to apply foreign laws to grant divorces to international couples. They will remain in their present condition, recognising foreign divorces in terms of Maltese law but never issuing a divorce decree themselves.
Who in Malta would make a political issue of the approval by Malta of something that concerns only international couples in foreign jurisdictions? Is it conceivable that the Malta Labour Party should scream in shock at anything of the sort? Alternattiva Demokratika certainly will not. We have been officially in favour of the introduction of divorce in Malta since the 1992 election and we have not changed our minds. What is the government afraid of?
It seems to have no fear at all of the practical consequences of its stance. All over the Internet, in almost every item debating the issue, Malta is quoted as the extreme illiberal jurisdiction. People who may not have heard of Malta before have learned that we, alone of all EU member States, do not allow divorce in our own country although we recognise those made by other courts. It may give them second thoughts about taking up residence in Malta, setting up shop here or bringing their skills to our service.
If Malta were to block the Commission proposal, we would become famous for having prevented the possible alleviation of misery for 340,000 EU citizens each year when we had nothing to gain or to lose from the matter either way. Could we be so daft?
It is bad enough that for the past 31 years since the enactment of the Marriage Act, our laws and our governments have blissfully ignored the misery of their own citizens who would go for divorce instead of separation if they had the option. In 1975, the recognition of foreign divorces was a vast improvement on the pre-existing state of chaos in the field: returned migrants had been treated as unmarried and allowed to remarry if their marriage of decades abroad had been a registry marriage; Maltese validly divorced abroad were prosecuted for bigamy if they remarried. The reform brought some reason out of chaos but stopped short of allowing Maltese judges from issuing divorce decrees of their own making.
There the issue froze into a political taboo. The absence of logic besetting this important field of law never seemed to bother anyone in politics. Why on earth should anybody be prevented from obtaining a divorce in Malta if he or she could now obtain a divorce abroad and have it recognised by a Maltese court? If the Maltese were anti-divorce on principle why should we recognise any divorce? If we had gone so far as to recognise foreign divorces obtained by Maltese couples married by religious rite or civil ceremony in Malta, why not fully regulate the matter in our domestic courts? Inertia reigned supreme.
In effect, we can no longer talk about the introduction of divorce in Malta since it was introduced as a legal institute way back in 1975. Before that, there was darkness and nothingness in legal terms. Since then, there are rules governing the issue, simply no authority for a Maltese court to make a divorce decree on its own.
Clearly this is another version of pseudo-Solomonic wisdom Maltese style; instead of merely threatening harm to provoke reason, justice and humanity, our law brings the cleaver down on the baby. Hundreds of Maltese couples who would opt for divorce have to make do with separation. Popular wisdom in baby-cleaving style has it that there is no need to proceed in the matter because separated people have no problem forming new families without getting married at all. What a solution!
In the most intimate and painful circumstances of a failed marriage, the law intervenes to prevent those who want to remarry from doing so. Who gains from it? Has the cruelty and the nonsense prevented one single marriage breakdown in all these years? Do we still believe that we should hold marriages together simply by the absence of divorce? Did we ever?
When Alternattiva Demokratika way back in 1992 took up a clear position in favour of the introduction of divorce, it may have seemed shocking to some who today find it absurd that the two major parties are still officially opposed to the idea regardless of all the water that has flowed under the bridge.
In its latest exploit on the EU stage the government of Malta has exposed a glaring deficit retained simply out of electoral interest. The Nationalist government refuses to mention the word divorce. In its 1998 electoral manifesto the Nationalist Party, in a virtuoso performance of political gymnastics, promised to pass a law granting legal recognition to cohabiting couples. It was divorce without the name, without mention of the taboo. Following its 1998 victory, it boasted that it did not keep its promise and kept to its principles. How’s that for gymnastics? A world class performance no doubt.
For many years our government has been the laughing stock of thousands of Maltese who see through the absurdity and the hypocrisy. As long as it did not lose the handful of votes of those who continue to believe in the PN’s stated commitment to principles, the government did not care. Its rigid stance has now driven it to paint itself into a corner on the EU stage, which affects the lives not of any perceptible number of Maltese citizens, but of hundreds of thousands of EU citizens who surely do not give a damn how many votes the PN wins or loses. We have exported our political unreality in a big way.
The greatest irony in this farce is that nobody really believes that the ban on divorce retained by the PN is evidence of the beliefs or conviction of anything like a majority of its supporters or even of its leaders. The big freeze on divorce persists simply because of the electoral necessity of the PN to obtain a 50%+ majority at election time. It simply cannot afford to lose or liberate any fraction of its support that may hold strong views against divorce. Our problem is not an innate or a widespread conservatism but an electoral system that keep the major political parties bound to antediluvian political positions.
If electoral reform is not made to prevent the Greens becoming the tail that wags the dog in Parliament, if the fear of a lack of governability is raised in defence of the status quo, just one look at this situation must convince dumb animals and the rocks we stand on that the government is wagged by a tail that will not bother to gain access to Parliament and that the country has not been able to attain reasonable government on this issue for the past 31 years.
Dr Vassallo is Chairperson of Alternattiva Demokratika – The Green Party www.alternattiva.org.mt www.adgozo.com