In the plethora of arguments for and against divorce, there is also a lot of confusion and there is the possibility that the facts will give way to mere conjecture and speculation. Josanne Cassar asks Dr Christine Bellizzi, a Family Law practitioner, to elucidate the real implications of divorce and how it differs from legal separation
“When a couple reaches the unfortunate decision to break up, various decisions have to be made, including what will happen to property forming part of the community of acquests, who will be awarded care and custody of and access to the children, and the amount of maintenance to be paid for the spouses as well as for the minor children. These decisions will have to be taken whether the spouses legally separate or whether they apply for a divorce,” explains Dr Bellizzi.
“A couple may separate either by means of a consensual separation commonly known as a ‘bonarja’, in which case the couple takes the aforementioned decisions themselves and their agreement is incorporated into a contract signed before a Notary Public. If no agreement is reached, these decisions are taken by the court. In a court case, the judge also decides which party is guilty of giving rise to the breakdown of the marriage. The party who is found guilty of causing the marriage breakdown, may lose the right to maintenance, certain inheritance rights, as well one half share of a particular asset which has been acquired mainly through the work of the other party. Generally, the guilty party may have to foot the costs of the court case.”
“At present, our law provides for four different grounds that can give cause to personal separation: adultery, desertion for two years, cruelty, threats or grievous injury and irretrievable breakdown of marriage. Whereas the first three grounds may be invoked at any point during the marriage, the ground of irretrievable breakdown of marriage may only be resorted to if the couple has been married for at least four years.”
Would any of this
differ with divorce?
“As mentioned before, the same decisions will have to be taken, whether the spouses separate or they obtain a divorce decree. It all depends on how divorce will be introduced – if it is indeed introduced. According to the original draft of the Divorce Bill presented by the Honourable Jeffrey Pullicino Orlando, the only requirements for obtaining a divorce is that the spouses must have been living apart for four years and there is no hope for reconciliation. The draft does not make reference to the grounds of adultery, cruelty or desertion. Furthermore, although the draft provides for maintenance grants, welfare, custody and access to minor children as well as use of the family home, it does not provide for the liquidation of the community of acquests. Presumably, the present rules relating to legal separation will still apply to the termination and liquidation of the community of acquests.”
The most common argument being heard is that divorce
is more detrimental to women than to men. Do you agree?
“The essential difference between separation and divorce is the possibility of re-marriage. When couples separate, they are freed from the obligation of cohabitation and assistance but they are still bound by the obligation of fidelity. They are still married to each other and thus are not free to re-marry. Divorce dissolves the marriage therefore, from the date of the divorce decree, the parties are free to remarry.
“I do not think that divorce and the right to remarry discriminates between men and women.”
Maintenance
According to the law both spouses have the duty to maintain each other and their children. The amount of maintenance to be paid is established according to the means of the one who pays the maintenance and according to the needs of who receives it.
Dr Bellizzi explains that in the case of the granting of maintenance for the spouses, there seems to be a trend that if a woman has the capability to work then it is less likely that she will be granted maintenance for herself. Therefore, if a woman separates in her 30s and is capable of working she is far less likely to be granted maintenance than a woman in her late 50s who has never worked and has limited possibility of paying enough social security contributions to entitle her to a pension. Consideration, however, is given to the fact that the wife may be the primary carer of the minor children and the limitations that this may impose on her potential for generating income. It is unlikely that these criteria for awarding maintenance will change substantially if divorce is introduced.
What is to be noted is that according to the first draft of the Divorce Act, any order to pay maintenance to the spouse will cease to have effect upon remarriage of that spouse in whose favour the maintenance order was granted.
Inheritance rights
The law of succession reserves a portion of the estate of a deceased person as well as other rights over the estate to the surviving spouse. Unless the court would have disqualified a spouse from these rights due to their having given rise to the marital breakdown, the surviving spouse would enjoy these succession rights, in spite of having been legally separated. In the case of divorce, if the parties re-marry, these succession rights will be reserved by the current spouse. Thus in the case of divorce, the ex-spouse would lose any inheritance rights, he or she may have enjoyed in the case of separation.
The widow’s pension
Presently, a separated woman who is receiving maintenance from her husband and is therefore dependant on him at the time of his death will be entitled to a widow’s pension. If the husband remarries, it is the wife at the time of death who will be the widow and therefore the person entitled to the widow’s pension.
Partition of assets
Dr Bellizzi agrees that the image which Maltese people have of divorce is very much influenced by American culture which we see portrayed on films and TV, where a spouse who has been unfaithful is ‘taken to the cleaners’ by the other spouse.
“First of all it’s not part of our culture. The Maltese system doesn’t work that way. According to the laws governing separation, the general rule is that the assets forming part of the community of acquests are divided equally between the parties. However, if one party is found to have given cause to the separation, they may lose their right to one half of those assets that were acquired mainly through the efforts of the other spouse. Therefore, the so-called innocent party has to firstly prove that the other party is at fault and secondly prove that a particular asset was acquired mainly through his or her efforts. This is not a simple task at all.”
Since, as mentioned before, the Divorce Bill does not provide for the termination and liquidation of the community of acquests, it seems that there will be no change in the terms and conditions for the partitioning of assets of the community.
Pre-nups
I asked Dr Bellizzi whether she thinks people will consider entering into pre-nupital agreements because of divorce.
“A prenuptial agreement is an agreement entered into before marriage, that regulates the terms and conditions that will apply to the patrimonial aspects of marriage, throughout the marriage and in the eventuality of a marriage breakdown. Currently, future spouses may enter into a contract before marriage to choose the legal regime that will apply to their marriage. Therefore, they may elect to exclude the application of the community of acquests wherein anything acquired during the marriage belongs to the spouses in equal portions, in favour of the regime of separation of estates, wherein the property acquired during marriage will belong solely to that spouse who has acquired it. This is normally done to safeguard a spouse from exposure to the risks arising from the other spouse’s commercial activities and debts. There is no reason why the introduction of divorce, as proposed in the Bill, should give rise to an increase of prenuptial agreements.”
Can you be divorced
against your will?
One of the biggest fears of those who oppose divorce is that despite being against it in principle, they might find themselves divorced against their will because the divorce will go through anyway.
“This is definitely the case. The consent of the both spouses is not needed to obtain a divorce. Even in the case of separation, the consent of both spouses is not necessary to initiate proceedings. Each party will be entitled to being heard and to present their side of the case, but ultimately no matter how much one of the parties tries to delay, the separation case will go forward just the same.
“According to the Divorce Bill, any spouse may apply for the divorce decree independently of the other. If the court finds that there is no possibility of reconciliation, it would issue the divorce decree. It does not depend on the other spouse’s willingness to obtain a divorce.”
Children and divorce
Dr Bellizzi does not feel children will fare any better or worse with divorce, because as with separations, it all depends on how the parents handle the marital break up and issues of child custody. Children need to be protected from their parents’ conflict and the parents need to keep up a common front when it comes to their children’s welfare. Unfortunately, in a number of marital breakdowns, the parents try to instrumentalise the children. Ideally, she says, children should not be brought into the fray to testify against one or the other of the parents or decide which parent to reside with, because this will place a heavy burden on their shoulders. In the majority of cases, children love both parents and wish to remain loyal to both of them so asking them to ‘take sides’ can only be detrimental. Additionally, there are cases when the efforts of the parents to manipulate the children against each other backfires and the children themselves easily learn how to manipulate the parents against each other. “I have seen cases where the children switch allegiance according to which parent allows them more freedom or buys their affection.”
Very often, it is not the separation itself that harms the child but the way the parents handle the separation. The same will apply in the case of divorce.
The new spouse – and the
children from first marriage
Very often, with separation cases, if one of the party objects to their children being in the presence of the new partner, the court usually grants this right. With divorce and re-marriage this will be much more difficult.
“The way it is usually worded is ‘must not be in the presence of third parties who are not members of the family’. The issue is that, if you are going to re-marry, the legal status of the new partner is legitimised. The relationship between the new partner and your children is going to change. There are usually attempts to keep the children protected from the new person – however, I don’t see how it will be possible with re-marriage because legally if that person is now your wife/husband, and legitimately part of your family, it will be difficult for the court to impose the physical separation.”
Children from the
second relationship
Up to a few years ago, children born out of wedlock had less rights of succession in comparison to children born in wedlock. However, the discriminatory laws were amended a few years ago and now all children whether born in or out of wedlock have the same inheritance rights. “Divorce and the right to re-marry will not change the rights of children, neither will it give any new rights to children that are born out of new relationships that the former spouses may have entered into,” Dr Bellizzi confirms.
Will divorce lead to
‘serial marriages’?
Critics of divorce legislation maintain that once the possibility to divorce and re-marry is introduced, there will be a new culture of people getting married for the 2nd, 3rd and 4th time.
Dr Bellizzi queries just how beneficial it will be for people to re-marry.
“Is it a positive thing to have the right to re-marry? Is it going to make your life any easier? It is an open secret that a number of separated persons enter into relationships and even cohabit with new partners, after they separate from their respective spouses. A number of these relationships do break up, with the parties entering into further relationships. The likelihood is that if divorce is introduced, when the parties enter into the second or third relationship, they would have married their then partner. This means that when the subsequent relationship breaks up they would have to go through divorce proceedings again. Simply consider that a separation case can easily take five years, including the run up towards the court case. During those five years, your life is more or less put on hold because of the stress, the expenses involved and the fact that since the community of acquests has not yet been liquidated, the spouses cannot buy another property. Say you’ve gone through the trauma and made a fresh start, you got married and now your second marriage has broken down and you have go through all this again – so that’s another five years of your life on hold. The question is, how many five years of your life can you put on hold? How much money can you afford?”
Will women be worse off
financially because of divorce?
Sociologists often point to the adverse financial repercussions of a marital separation on women. A commonly held belief is that, with divorce, women will be even worse off financially. Dr Bellizzi, however, puts this into a different context:
“I would say it is the person who is actually taking care of the children who ends up financially worse off. People often fight for custody and very often it is the mother who is awarded care and custody. Now even though the other party pays child support, somehow the parent who is residing with the children and taking care of their daily needs, will generally end up forking out more than the other parent. There are a lot of hidden costs when it comes to raising children. You cannot ever really compute all the costs and expenses and divide them equally. In addition, one has to consider the limitations that being the primary carer imposes. Very often, the possibility of working long hours is reduced. The possibility of dedicated extra time to further training is also limited. If the parent taking care of the children does not have members of the family who are willing to take care of the children, that parent would either have to work on a part-time or reduced hour basis or pay for someone to take care of the children after school. Clearly, this can pose serious difficulties and reduce the potential income of that party.”
None of this will change with divorce, she adds.
Will divorce introduce
a ‘divorce mentality’?
“Divorce does away with the concept of permanency of marriage. Marriage, with divorce, changes in nature. It is no longer a contract which is binding for life, but can be terminated at the will of one of the parties. The claims that there is the requirement of having had to have lived apart for a minimum of four years, is by no means a deterrent, particularly since the second draft of the Divorce Bill allows for separation cases to be ‘transformed’ into divorce proceedings when the necessary time period of four years would have elapsed. Basically, anyone can initiate separation proceedings and by the time it is time for the judgement to be delivered, the four year period requirement would in almost all cases have been fulfilled.”
Dr Bellizzi firmly believes that not enough is being done to lay the groundwork for solid marriages in the first place. Efforts should be invested in better preparation before marriage.
Co-habitation laws
One cannot really speak about the divorce issue without also mentioning a concurrent issue also being debated: the introduction of a new law to cover the rights of those who choose to live together.
“As things are now, when two people cohabit, whatever belongs to the man is his, and whatever belongs to the woman is hers. There is no legally binding contract – they remain together for as long as they decide to, and unless they buy property together in equal portions, their estates will remain separate. With the introduction of a law regulating cohabiting couples certain rights and obligations will be imposed, such as the duty to provide for each other,” Dr Bellizzi says.
Dr Bellizzi raises the point that persons who cohabit may have purposely elected not to marry and may not want to take on the commitment associated with marriage. If cohabitation law is introduced, those same persons may find themselves burdened with obligations that they did not freely contract.”