Divorce - the winds of change

For several years, a war of words has periodically raged in the media between, in one corner, those who advocate, and actively lobby for, the introduction of divorce in Malta and, in the other, those who would like to retain the current status quo.

Meanwhile, staunchly Catholic countries like the Republic of Ireland and Chile have implemented the appropriate legislation, leaving tiny Malta and the Philippines as the only nations where divorce is not permitted.

The arguments of the proponents of divorce are, in the main, predicated on notions such as pluralism, tolerance and personal liberty, whereas their antagonists usually cite a departure from religious tradition, a weakening of family values, and social disruption as their primary concerns.

It would appear uncontested by both parties that the relentless drift of contemporary Western society from the Judaeo-Christian tradition to secular humanism has been accompanied by a challenge to the once indissoluble nature of marriage, to the extent that no other period in human history has witnessed marital collapse on such a monumental scale.

It would appear to be, equally, uncontested that Malta, despite the honourable endeavours of people of goodwill, has not been spared this contemporary change in mentality, which has found expression in a steady rise in legal separations, single-parent families and cohabitation out of wedlock.

In several aspects, divorce and legal separation have identical causes, consequences and penalties. Both arise from marital problems, which include infidelity, physical and psychological cruelty, domestic violence, financial difficulty, and varying degrees of incompatibility; both involve costly, and occasionally lengthy, legal intervention; both involve psychological hardship; both involve final custody, visitation, child support and, if appropriate, alimony orders; both involve permanent division of family assets and debts; and, finally, both do not preclude the estranged spouses from renewing their relationship on a consensual basis.

The fundamental difference between divorce and legal separation is that divorce results in the legal dissolution of the status of marriage, whereas legal separation does not. The upshot of this is that divorcees are legally at liberty to re-engage in marriage, whereas legally separated persons are not.

The social consequences of divorce and legal separation also appear to be closely related. They are both, after all, by-products of contemporary Western ideology, which places far less emphasis on the sanctity and indissolubility of marriage than on the pursuit of human happiness and fulfilment.

Countries which have legalised divorce have witnessed a steady rise in their rate, a decline in the number of marriages, a concurrent rise in the rate of cohabitation out of wedlock, and an increase in single motherhood.

Interestingly, Malta, despite not having legalised divorce, is also experiencing similar patterns of human behaviour albeit, because of prevailing religious sensibilities, on a smaller scale. But it is incontrovertible that we are, slowly but surely, treading the path of our larger cousins on the mainland.

As there can be no doubt that Christianity and divorce are fundamentally incompatible, there can be, equally, no doubt that contemporary pluralism necessitates a complete separation of Church and state for civil society to function at all. This gives every individual the right to his or her interpretation of the truth about religion, and an entitlement to his or her own conscience, guided by the inner light of their faith. It also places an obligation on those entrusted to govern to provide institutional tools, which cater for the needs of all citizens, including those of minority groups.

The present situation in Malta is as chaotic as it is alarming. The steady rise in legal separations and the concurrent absence of a legal framework, which recognises and regulates new relationships, some of which produce offspring, has led to an unenviable scenario, which threatens to get worse.

It is for this reason that practically all nations have legislated to introduce divorce. Most of them realised decades ago that, shorn of its religious symbolism and ceremonial rite, marriage is, ultimately, no more than another civil contract between a man and a woman, albeit one that carries with it great responsibility.

As with any other contract, it may be broken at any time if one or both of the parties so wish, with the proviso that its co-signatories are made to bear the consequences of their action in the form of another contract - the divorce settlement. This gives the right to divorcees to solemnise a future relationship by remarriage, if and when the opportunity arises, and consequently enjoy the civil rights afforded to other married couples.

At this juncture, it is worth mentioning that in countries where divorce is legal, married couples occasionally opt for legal separation, either because of their religious beliefs or some moral objection to divorce. The choice, however, is entirely theirs.

More moderate opponents of divorce in Malta support the introduction of legislative measures to regulate cohabitation out of wedlock, especially where the interests of the offspring from such a union are concerned.

The only problem is that this would present the government with a disturbing legal conundrum. By not sanctioning the dissolution of the first marriage and, simultaneously, giving legal recognition in any form to another relationship, it risks being accused by its critics, at best, of introducing divorce through the back door and, at worst, of introducing a brand of polygamy!

Another problem concerns divorces obtained by Maltese citizens while domiciled in another country. The Maltese government, in the main, has recognised the validity of these divorces. As a result of Malta's accession to the EU, it is possible that, in the foreseeable future, many more Maltese will be living abroad, for varying periods.

In this scenario, their marriages would be regulated by the civil code of their respective country of domicile. It is unconscionable of a modern democracy like Malta to discriminate callously in this manner between citizens who have the inclination and means to live and work abroad and those who prefer to live in Malta or cannot afford to leave its shores for longer than a short holiday.

Most men and women who choose to tie the knot do so for what they believe at the time to be very valid reasons. Unfortunately, human nature being what it is, things do not always work out as planned and it is a draconian government that insists on a lifelong penalty for people whose marriages have failed, sometimes through no fault of their own, and who wish to remarry.

The armchair critic, by blithely referring to the absence of divorce in Malta as "something distinctively Maltese", may conjure up a certain old-world quaintness, but the government, by obdurately ignoring the exigencies of our times, risks condemning a sizable swath of the Maltese public to an existence, rife with uncertainty and disillusion.