No Divorce Please - We`re Maltese

The Malta Independent on Sunday 

 

The growing minority that wish to see Malta join the rest of the world by legalising divorce are hoping that the election of a younger Prime Minister would permit the issue to be placed on the country’s agenda.

The fact that our staunchly pro-EU government has been refusing even to discuss the issue let alone consider legalising divorce, could only lead to the simple conclusion that the power of the Church in Malta is unmatched in any other country.

Malta is a civil state that acknowledges in its Constitution the right of individuals to exercise freely whatever religion they wish. Whilst the Catholic religion is acknowledged as the national religion it means not that this religion and its practice can be imposed on any individual.

Whilst the Church obliges believers to follow a ritual of events, like hearing mass, fasting on specials days etc., which rule the life of believers, the State takes a completely neutral view on such issues and makes no provisions in the civil code obliging anyone to follow such Catholic rituals.

When it comes to marriage and divorce the State behaves differently. Not only it does not provide the civil mechanism for divorce in case of purely civil marriages which the Church does not recognise, but the State has shamefully agreed to divest its authority to the jurisdiction of the Church in cases of annulment of marriages, executed both civilly and in Church, entered into after a certain date where one of the party elects for such Church jurisdiction.

It is the only case where a civil contract concluded by two adults in terms of civil law cannot be brought for adjudication by any of the parties in front of the same civil law which bound them in the first instance. Its legality is at best questionable and would in my opinion be an interesting case to bring before European Courts who are much less impressed by the power of the Church than is the case with local legislators or adjudicators.

Those who are against the legalisation of divorce bring several arguments to sustain their case. None impress me. The first argument is that the majority is against the introduction of divorce. Whilst this could very well be the case, though I have no doubt that such majority is getting smaller and smaller, divorce is a civil right which belongs to the individual irrespective of the views on the subject of the majority. By the same majority reasoning we should not provide free hospitals because the majority does not make use of them, we should abolish smoking because the majority does not smoke, and we should stop teaching Spanish because the majority has no interest in learning Spanish. Democracy is about executing the will of the majority as much as it is about preserving the rights of the minorities. Divorce is one such area where the rights of the minority, and a significant minority, are being trampled.

Another argument which prima facie tends to make more sense is that divorce would weaken the institution of the family and would harm society in general. Whilst this argument could have been true in the days when we were a closed insular society one must question whether it holds true in the current state of play. Firstly if divorce is harmful to society how is it that all present and prospective EU countries have legalised divorced and Malta would be the only exception inside the enlarged EU? Even staunchly catholic Ireland and Poland recognised the right of the minority to have a civil remedy for a failed marriage. Even if we take a wider view beyond the EU, Malta is one of two or three remaining countries without legalised divorce. Are we right and all the others wrong or is our society still ruled by the Catholic Church who seeks to impose its teachings by the force of civil law rather than by faith and conviction?

Let me make it clear that no one is suggesting any liberal form of divorce in Las Vegas style. But for couples whose marriage has broken down irreparably and beyond any reasonable doubt, who have been living their separate civil lives for years on end, who no longer have minor children to take care of, how can such couples be deprived the remedy of a new marriage through divorce?

I have looked with interest at some EU social statistics for the year 2002 to try to find corroboration or otherwise to the claim that divorce is harmful to society. The marriage rate in Malta is 5.7 per 1000 inhabitants in comparison to 4.9 per 1000 inhabitants in EU -25. The absence of divorce in Malta is not dissuading people from getting married. There is no case to assume that its introduction would so dissuade.

Birth outside marriage in Malta is 15% of all births in 2002 compared to 29% average in EU -25. One would have thought that the facility to re-marry in other countries should lead to a lower birth rate outside marriage but clearly this is not the case. I can only conclude that in other countries families are being formed without first or second marriage irrespective of the facility of divorce. If we benchmark ourselves to particular countries with strong Catholic cultures we find that the marriage rate in Poland is 5.0 to our 5.7 per 1000 inhabitants and the births outside marriage are 14.4% of all births compared to our 15%. Without divorce Catholic Malta is in the same league as divorce-permitting Catholic Poland. This hardly lends any sniff of corroboration to the claim that controlled divorce would weaken the institution of the family or that it is harmful to society.

On the eve of our joining the EU there is a strong case for the divorce debate to be put on the national agenda and to stop pretending that the growing minority that needs a civil solution to broken marriages can continue to suffer in silence according to the will of the majority. Divorce is not for the majority. Like hospitals, smoking and Spanish it is for those who need it and wish it in the exercise of a civil right already enjoyed by the 500 million with whom we will be sharing the EU same passport. If we start now we might get there by the time we are ready to share the same currency.