The matrimonial home?
The building of the family court symptomatically symbolises the whole situation. There is a modern, interesting façade as you go in, with a granite marble slab cladding the old structure underneath, and then on one side two lifts, dead in their pits, with open doors, and a notice saying that they are out of action. The couple (i.e. the lifts) have irretrievably broken down, and now for months and months, yet they are still in court !
The modern façade is also in the legal field. We have introduced the "Advocate for Children", pasted a scrap of paper on a doll's house of a room with the title, but the system stops there. The room is used for other purposes, sometimes confounding even the alert and the trained to find out where a conference in being held. In substance there is nothing about children. It is like the beautiful granite cladding on the humid stonework of the groundfloor.
Substantially, our legislation still considers children in a broken marriage as "pets", nice to have them, but they do inherit problems from their parents' situation. To my mind, this was confirmed when I had to deal with a separation (and divorce case) between two Maltese citizens, one living in Malta and one in Australia. In Australia, children have substantive rights, not a doll house in the court in which others play.
If the matrimonial home is acquired during marriage, in a separation suit there is every likelihood that the house is sold and the proceeds divided between the couple. Everyone is entitled to his share. It is true that there is a safeguard which says that the matrimonial home may be assigned to one party, but even if the other party is at fault, the point in time when the breakdown of the marriage started is relevant.
If an offending husband or wife started playing around after the matrimonial home had been built and fully paid for, it cannot be said that he or she did not contribute one-half of the asset. So technically it is fair and just. But it is precisely here where our legislation is creating a social problem. I must add, that it may be to the detriment of the innocent party in the marriage, or of the party who is going to shoulder the greater burden of the breakdown of the marriage, and definitely against the children. Our law does not provide for it.
Let me give a practical, hypothetical example. Let us say that there is a husband who after building a wonderful house for his family, with a strong contribution from his wife who had (not opted to work), reared three children and provided them with every comfort. Having made a sacrifice for a long time, he takes his sabbatical and wants a change. That may be his personal decision. The parties, generally the wife, takes the case to court, and if they do not manage to reach a consensual separation, the matter has to be thrashed out in a full blown case.
As the law stands, in this particular case, the husband will take the blame for the breakdown of the marriage, be condemned to pay maintenance to his wife and children, and the matrimonial home would be sold, by auction if needs be, and the proceeds divided between the spouses. And, I ask, where do the children figure in this? Certainly their care and custody would be assigned to the more suitable parent, who would have to shoulder the burden of their upbringing, their budget, and their accommodation.
Now consider the "winning side" when the matrimonial house is sold, in this case the mother. She has to provide alternative accommodation for herself and three children. Would she fit into a studio flat? If she rents, what would it cost? If she invests her half, what property would be available on the market for four persons at a reasonable cost?
Now consider the "losing side". He takes his share, a studio flat rented or acquired would be enough, and all his obligations would be to pay a monthly amount. And the children? They have to uproot themselves and hope for the best. Possibly they may be better off if the matrimonial home were leased to their parents rather than owned by them. Their upheaval is buffered.
If we really want to be fair to all, and realists about maintenance and support for innocent children, the division between husband and wife should, by written legal norm, be postponed until the children are of age and can take care of themselves. This would not be detrimental to the guilty party, as it is well known that property appreciates. It is not enough to have a monthly allowance for the children. Children need more.
If the formerly innocent party decides to cohabit in the matrimonial home, then there should be a penalty, to be calculated at the time of reckoning, unless the court is of the opinion that in the best interest of the children, the matrimonial home should change hands, without displacing the children.
Everyone has the right to lead their own life. Children too have that right. As our law stands, children have to satisfy themselves with a computer-generated sticker of a boxroom in the court building.