From Dr M. Asciak MD

One tries occasionally to detach oneself from the political discussions that are tethered around the social milieu, however one invariably finds oneself metaphorically drawn back to the cave, with all due respect to Plato and his Republic. I have tried to keep away from the divorce debate because I would rather focus on the issues surrounding the protection or negation of human life such as abortion and embryonic stem cell research. However, I heard a very interesting argument put forward which made me think about the subject. Somebody came up with the query whether the negation of divorce proceedings in our country would amount to a greater threat to the common good than the present status quo, where divorce is not legally available to the community. In such a case allowing it would be the lesser evil, as the common good would be better served. The main determinant of human law should be the common good.

Of course this is derived from the writings of St Thomas Aquinas in his Summa Theologiae, where he discusses law and political theory, particularly in 1a 2ae Question 96 dealing with the power of human law. Essentially, Aquinas says that in a civil society not all that is immoral should become illegal for the State. Imagine trying to enforce a law against the immorality of adultery. It would be impossible to enforce and would create greater disorder trying to do so, therefore it definitely is not in the interest of the common good. It does not make sense then, to make adultery illegal, although it remains strictly immoral. Quoting from article 2 Thomas specifically says that “[L]aw is laid down for a great number of people, of whom the majority have no high standard of morality. Therefore it does not forbid all the vices, from which upright men can keep away, but only those grave ones which the average man can avoid, and chiefly those which do harm to others and have to be stopped if human society is to be maintained (sine quorum prohibitione societas humana conservari non posset), such as murder and theft and so forth”.

It is precisely on this point that I would like to ask some questions. First, would allowing civil divorce proceedings be considered a grave vice or a minor vice for the many people within the nuclear family? True, there are marriages that have irretrievably broken down and the couple cannot stand the sight of each other, sometimes for valid reasons. But for these cases there are separation and annulment proceedings. The introduction of divorce in such singular cases might imply that grave harm can be done to aggrieved people in the other marriages in society for entirely less serious reasons such as the casual courting in mid-life (or not so mid-life) crises of other men or women, leading to divorce and remarriage as a first and easy option for the aggravating partner, if it is available. This surely leads to the harming of others and surely does not lead to the maintenance of human society. Would Thomas consider accessibility to legal divorce as a grave or minor vice? Would he consider it as causing harm to other persons and society or not?

The second question to ask would be, that if the harm to other persons and the disorder and lack of common good caused to society by not bringing in civil divorce is greater than that if civil divorce were to be actually allowed, where is the scientific sociological proof and the statistics that bear this out? We have not been regaled by such proof as far as I know, and by comparing the strength of families in countries where divorce is allowed with those where it is not, I would say on a hunch that such proof would probably be difficult to come by. If anything sociological evidence seems to exist to the contrary. Some time ago I attended a lecture by the university’s EDRC; the visiting professor, Jo Shaw from the UK, simply remarked that she enjoyed holidaying here in Malta because people’s conception of the family was still that which existed in the UK some 50 years ago, whereas now it has become very confusing to understand what one really meant by family. That was a remark that really impressed me.

They say that possession is nine tenths of the law. The current legal regime here is against the possibility of civil divorce and is in possession, as it is up to now considered by the civil authorities to be the greatest good. If the opposite were to be true and legal divorce were to be thought to constitute the greater good, then it is up to the people who are promoting divorce to prove this to the State and to public opinion beyond reasonable doubt.

Michael Asciak