On divorce, it's time to stop arguing and start looking

The bishops have objected to Alternattiva Demokratika's manifesto proposals to introduce divorce and have legal recognition of cohabiting couples (both heterosexual and homosexual). The bishops invoked God's law as well as great social harm. So it's worth pointing out the two important beliefs that are shared by both the bishops and the people who want divorce and some legal recognition of cohabiting heterosexual couples.

First, people who want divorce agree with the bishops that married couples are not on a par with cohabiting couples. Many cohabiting couples would like the possibility to remarry because they consider marriage to be a form of 'upgrading' of their commitment.

This is an attitude shared across many parts of Europe (less so in Scandinavia, it appears, although we are talking here of evolving, indeterminate trends). In England and Wales, for example, the majority of cohabiting couples (the figures include people who have never been married) do not survive 10 years. They either break up, or else consolidate their union by marriage.

The second attitude shared by the bishops and the people who want (at least some) legal recognition of cohabiting heterosexual couples is this. When cohabitation lasts for a substantial period, it brings with it certain rights and duties.

Some rights and duties arise even if the couple has not had children. Surely this is something the vast majority of us recognise in practice. We tend to take a sterner view of infidelity and shabby treatment when it arises within a couple that has cohabited for, say, five years, than when it arises within a couple that has cohabited for a year.

If I have just spent some 200 words making two almost banal observations, it is because unfortunately they need to be made. The divorce debate, especially, is polarised in a way that distracts from the real substantive issues. (For reasons of space, I'm going to focus on divorce, but what I shall say can be applied to the other issues.)

For example, the bishops invoke God's law and Dr Harry Vassallo replies that the state cannot impose Catholic norms on the non-Catholic population. But both statements are beside the point. Even if the entire population were Catholic, it would be a mistake for the state to reason that it could legislate according to God's law. God's law requires God's apparatus - a community of love gathered within the liturgy of the Last Supper. The state's apparatus can just about prepare a dog's breakfast; last suppers and communion, spiritual insight and the healing touch, are way beyond its reach.

It's the duty of bishops to counsel perfection, but the state can only aim lower - at providing a standard of decency, seen in the light of liberty and equality. That means that whether divorce is or is not introduced should turn on, first, looking at the situation on the ground, at people's behaviour and its social patterns.

I mean of course a systemic look, based on statistics and qualitative studies, not an impressionistic one. But I'm not trying to defer the debate by substituting God's Law by Scholar's Law, which would require long years of research and professorial debate. I mean rather studies that give us a better idea than we have now of the context in which the current law is operating.

Incredibly, I have not been able to find anyone who can tell me what the rate of increase of marriage breakdown is in Malta. We're discussing divorce with only an impressionistic assessment of where the country is going.

Second, a practical assessment needs to be made concerning what kind of legislation and social policy that would best address the various kinds of problems and needs that are identified by a more systemic look.

I say 'practical assessment'. That means it will be inescapably political. It cannot be a technocratic one because the social sciences are primitive; because people live contradictory lives with conflicting needs; because some needs cannot be met given the politically acceptable level of taxation or the quality of the state's personnel; and because some of the decisions will require the interests of some people to be given more importance than those of others, and which group to privilege is a political decision, not a technocratic one.

A rational debate would focus on these political issues. Should the law consider marriage primarily as a contract, and therefore penalise anyone who wants to break it, irrespective of fault? Or is it rather 'fault' that is the primary issue? Or is determining 'fault' beyond the reach of the court, even if that means that some outrageous behaviour will not be penalised?

Should economic and social policy privilege married couples? Is the social harm caused by divorce (which is sociologically indubitable) outweighed by the social harm caused by not introducing it? One of the ironies of the Maltese debate is that the anti-divorce side points, correctly, to the social harm caused by divorce in European countries - but can there be any doubt that divorce legislation is needed in countries whose rates of marriage breakdown range from 30 to 50 per cent?

These are not questions that can be answered by dogma, whether it's that of the Church, or of the Gospel according to Mills and Boon, or the Gospel according to libertarians. The questions are open. We cannot debate them without looking systematically at what is going on - in Malta not just abroad.