Till divorce do us part

The divorce debate has raised its head once again. As expected, this has happened over the years at regular intervals with the arising of every opportunity to peg onto it. It is a debate that will continue for a long time. It is a valid debate. It is not an easy one to decide upon. There are pros and cons and strong arguments on both sides. To make things more complicated (though not necessarily right or wrong) we have the Church ingredient. Quite frankly, I have my views, but no hard and fast position on the issue; but certainly it is an interesting one and worth discussing.

But first let's go to the roots of the current debate and put things in their proper perspective; albeit in simple terms.

The European Union is striving to harmonise the regulation of divorce throughout its member states, providing cross-border flexibility and certainty in terms of legislation and jurisdiction. One of its aims is to make things easier for EU citizen divorcees from third countries by giving them access to EU courts. I will not go into detail. Malta does not allow divorce (the only member state not to do so). That is our right and our business and, accordingly, the EU Commission cannot impose any eventual legislation on our government or the courts.

However, the Maltese government is not happy with the situation. It wants a specific "opt out clause" in any legislation clearly stating that such legislation will not apply to Malta. It is not happy to rest on an interpretation, but requires a written statement. It is not opposing the divorce rules being applicable in all member states as long as Malta is specifically exempted from their application. Unless this exemption is forthcoming Malta will not feel safe in voting in favour of the new rules and will thus vote against.

Now it just so happens that divorce is an area where unanimity is required for the passage of laws. So Malta can veto the divorce rules unless it gets what it wants. The government - and this must be stressed - is not against the proposed measures being applicable in all other member states, as long as our legal position is safeguarded.

Whether one agrees with the exclusion of divorce from Maltese law is totally another matter and another debate. The fact is that it is and this should put the lie to all those who have been chanting and ranting about what right Malta has to deny European citizens the sacred rights of divorce and so on and so forth. They seem more religious and fervent than the Church which they criticise for getting involved.

Now divorce brings marriage down to a simple, cold, impersonal contract. With divorce marriage is a contract, which, like any other, can be dissolved - a contract of works or services, a contract for the purchase of property and so many others. One will then be totally free to re-marry, once, twice, perhaps three times. Meanwhile, there are children from the first marriage, from the second and so on. And such a divorce may arise from the most trivial of issues. Perhaps the romantic flame in a marriage dies away (as it is normally bound to do) and there are resultant disputes and frequent squabbles. No problem, let's divorce and find someone else - a younger man or woman perhaps?

We hear on television very often in some dramatic series: "I want a divorce"! It's as simple as all that. "I have a meeting with my lawyer tomorrow. Why don't you get yours to meet him so that they can sort things out?"

But what about the institution of marriage, the social fabric, the family as the basis and core of our society, the good of the children? That's not important. "I want a divorce." But, one might say, what is separation all about then? Is it not simply divorce without the right to remarry? Does this not lead to cohabitation and children born out of wedlock? But I would say that's the responsibility of the cohabiting couple if they want to have children. It is a choice they have, but this chosen state of fact in itself should not automatically lead to the introduction of divorce as an institution.

One can argue in the same way vis-à-vis the position of the Church. The Church has its position on marriage. Marriage is indissoluble - "Till death do us part". Marriage can be annulled, of course; both a civil marriage and a Catholic marriage, but then that refers to a defect existing when the marriage actually took place or rather when marriage vows were exchanged, like lack of consent (but let's not get complicated). But that is the Church position. There is no doubt that this country is heavily influenced (albeit decreasingly) by the Catholic Church, but the Church's stand should not be an obstacle to the introduction of divorce should the government and the people of Malta decide to.

On the other side of the debate, and in all fairness's sake, there are many couples who cohabit, who love each other and their children dearly and who live the lives of a perfect married couple. Many have suffered terribly, emotionally and sometimes even physically, during their previous broken marriage. Should they not have the right to a second chance?

But where does one draw the line? There are many couples too who have gone through the whole process of separation and who then reconciled and got back together and are now living happily ever after.

Perhaps the divorce issue should be tackled openly once and for all. It is a national issue of the greatest sensitivity. It calls for a direct decision by the people. Let the majority decide. It calls for a referendum (perhaps concurrently with the upcoming general election - but let's leave it a separate issue). Personally, I tend to be against divorce, but then who am I to impose my views on what might be a majority of the people? If it is introduced then it is up to me whether to use it or not.