In the current debate about the need to introduce divorce legislation in Malta, we have heard unfounded criticism of the fact that the Private Member’s Bill now before Parliament proposes a ‘no fault’ system of civil dissolution

The criticism is not only misplaced and an attempt to engender fear, but also hypocritical. For the truth is that, even if the Private Member’s Bill was to introduce a ‘fault-based’ system of divorce, Żwieġ bla Divorzju would still be against the introduction of this legislation.

Let us be clear at the outset about the meaning of ‘no fault’ divorce legislation. ‘No fault’ divorce is simply a technical legal description of the kind of divorce legislation where neither spouse is required to prove ‘fault’ (that is marital misconduct) on the part of the other before the marriage can be dissolved. All divorces in such cases are granted by the courts on the sole ground that the marriage has irretrievably broken down.

Prior to the establishment of ‘no fault’ divorce in countries already having the divorce legal remedy, those seeking the civil dissolution of their marriage would often try to find ways to by-pass the ‘fault’ requirement in order to obtain their divorce. As a result, legal fictions, sometimes of the most creative kind, started being staged (for example, the classic stories of the chamber-maid ‘surprising’ the man (usually) in bed with a woman not his wife in a hotel bedroom) as a way of getting round the statutory ‘fault’ requirement.

To an extent this kind of concoction often happens today with Ecclesiastical Tribunals for couples seeking annulment (often after several years of marriage, and with children), who have to find means to prove defect at the time the marriage was entered into in order to render it invalid. I understand some most creative psychiatric or psychological reasons to demonstrate defect or ‘fault’ have been devised which the Tribunals accept at face value.

Legislators the world over have concluded that the statutory ‘fault’ requirement brought the law into disrepute and was not the best way to conduct what is inevitably a very difficult legal process. The reason why ‘no fault’ divorce has been introduced in every advanced, western democracy having divorce legislation, therefore, is that, far from shedding any new legal light on the marriage breakdown, a ‘fault-based’ legal remedy (the opposite of ‘no fault’) would simply tend to turn the separation of the two spouses into a confrontational, bitter and destructive process.

This would be in nobody’s interest. Great hostility and resentment may be generated by the recital of allegations of misbehaviour – often exaggerated and stretching back over years – to the extent that no sensible discussion could take place between the parties, or any agreement reached, on any matter relating to their marriage or, more importantly, their children.

The ‘no fault’ approach has been adopted in the Private Member’s Bill now before parliament, in line with the well-proven Irish legislation on which the Bill is modelled. In every case, however, the law will provide for a judicial process by the courts to ensure that there has indeed been an ‘irretrievable breakdown of the marriage’ to demonstrate that the marriage is truly finished and that no abuse of the system has taken place. By any measure, a couple that has not been living together for four years or more can reasonably be said not to have a marriage worthy of the name, nor to be accused of divorcing on a whim.

The ‘no fault’ divorce process is recognised as a more civilised and realistic approach, which acknowledges that marriage breakdown is almost always unique to the two persons involved. No two broken marriages are ever the same. To adjudicate between two spouses and to seek to allocate blame (‘fault’) serves neither the individuals concerned, nor the courts or, most importantly, the children of any such marriage.

It is a fact that in those cases where the parties are bickering about whose fault has caused the marriage to break down this leads them to try to use the evidence of their children in favour of one parent and against the other. This is reprehensible. But a fault-based divorce would encourage that very thing. The Private Member’s Bill seeks to avoid this in-so-far as it is possible in such difficult circumstances to do so.

Malta has had a ‘no fault’ process for legal separation for the last 30 years. Neither spouse is required to prove ‘fault’ by the other before the courts grant the separation. ‘Fault’ may be taken into account, but all that the courts have to decide is that the marriage has broken down and the parties to it wish to be legally separated.

The proposed legislation in the Private Member’s Bill – which will make access to the divorce remedy possible only if at the time of the institution of proceedings for divorce the spouses had lived apart for a period of at least four years during the previous five years – takes as its starting point the fact that legal separation has already been granted by the courts. In those cases where the couple had not sought a legal separation but were none the less able to show that they had been living apart for the last four years, the grounds for divorce would be the same as those for legal separation.

A ‘no fault’ divorce process makes practical legal sense and, at a time of great stress for the parties concerned, makes compassionate sense too. To argue, as those who are opposed to the introduction of divorce legislation, that ‘no fault’ divorce is a means of introducing a system where people can just leave their husband or wife on a whim, is utterly untrue and a travesty of the proposed Bill before parliament.

Those who argue in this way are challenged to say whether they would support the current legislation if it were to be ‘fault-based’. The answer is they would still not support the Bill since they are against the civil dissolution of marriage under any circumstances. Their arguments against ‘no fault’ divorce are therefore not only hypocritical, but also designed to engender fear and to mislead people.

The fact of the matter is that the introduction of a ‘no fault’ system in Malta is in line with the policy which already exists under our laws for legal separation and provides the most civilised and practical approach to resolving the difficulties that arise when marriages have irrevocably broken down. To infer from this that ‘no fault’ divorce is offering an ‘easy option’ (whatever that may mean in this difficult situation) or, as one commentator wrongly described it, ‘Easy come, easy go’, is to confuse legal means and ends.

The legal means that are being put in place are to ensure the most practical and civilised legal end to a finished marriage.

Martin Scicluna is a member of the IVA Campaign and the lead author of the Report ‘For Worse, For Better: Remarriage After Legal Separation’