EU and divorce

Malta's strongest stand within the European Union has been about a regulation on divorce. On other matters, we comply benignly with an almost "more European than thou" attitude.

Malta has not legislated about divorce, except that it recognises divorce judgments given in other countries, provided that certain conditions are fulfilled. It must be a judgment of a competent court and one of the parties must be domiciled in that country. A Maltese citizen who is married to another Maltese citizen in Australia, but who has his domicile in Australia may apply for divorce to the Family Court in that country, and the judgment would be recognised in Malta. That means that he may come over and marry another Maltese girl in the Public Registry in Valletta.

Closer to home, if an Italian signore, married to a Maltese girl according to the rites of the Catholic Church, obtains a divorce in Catania, that judgment gives the right to the Maltese girl to contract another civil marriage in Malta.

But what if the ex-wife of the Italian signore remarries in Catania? Does Malta recognise that marriage automatically? My opinion is that this is no longer a recognition of a divorce judgment, but a subsequent state of fact that a new marriage has been celebrated. The question is now that a new marriage ceremony has been performed. The parties are married.

Take the case of two Maltese citizens who took up residence in Italy, immediately after marriage. After a number of years, the husband petitioned for divorce and this was granted. The wife came back to Malta to rejoin her family. The Public Registry is requesting proof of domicile from Italy.

According to Italian law, the divorce law applies to persons "domiciled" in Italy. There is no other proof obtainable except the judgment itself. The gentleman may marry again in Italy and bring his wife to Malta. The Maltese ex-wife is still stuck to her old marriage with a divorce judgment not recognised because Malta wants proof of domicile. If they apply the same rules to the gentleman, then he should be charged with bigamy.

All this may seem complicated enough. The EU is right in trying to harmonise marriage laws. As a learned British judge once said: "You cannot have a person married in one country and not married in another".

The true picture

Once I laid on the table of Parliament a Private Member's Bill to introduce divorce in Malta, under some stringent conditions. The idea was not to attack the holiness of a Catholic marriage, the values of the family, and the obligations towards the offspring, but to legislate for those who attempted such a laudable course and failed. Some failed through no fault of their own, but were victims of their partner.

A friend, who is a surgeon, approached and remonstrated with me for taking such a step. My reply was that I respect him a lot, but I would hate to be under his professional hands, were I to need his services. Divorce may be a solution, just as surgery is.

Since then, the number of broken marriages in Malta has been growing. The number of children born out of wedlock is rising, according to statistics. Cohabiting couples have become accepted as married couples. Strangely enough, few of them really bother about going through another marriage ceremony. The losers in this process are generally the cohabiting women, who have a precarious position under the law, without any rights arising from the partnership.

This is not fair. If it is not fair, it is not morally correct. Exploitation is immoral, and situations arise where there is such exploitation between cohabiting partners. "Thou shall not steal" comes before the commandment "thou shall not commit adultery".

The "holier than thou" attitude we are assuming is hypocritical. The idea that legislation introducing divorce would give a greater impetus to marriage breakdowns is a figment of the imagination. Married couples break up because they want to break up, irrespective of the legislation they have in their country.

An example may prove this. In Italy there is an ongoing debate about cohabiting couples and the protection that should be introduced. One of the staunchest opponents is Pier Ferdinando Casini of the Unione dei Democratici Cristiani e di Centro, UDC (an offspring of the old Democrazia Cristiana) who proclaims moral values, and caters for the Catholic vote. On the opposite side there are people like Fausto Bertinotti and Piero Fassino (Communist and ex-Communist). Casini is divorced. Bertinotti has been married for a long time, as is Piero Fassino. This situation in the debate brought the comment from the Radical Emma Bonino that Casini rightly upholds family values, because he has two!

Yet...

I know that there are members in my own party who are adamant against the idea. Equally I know that there are members on the other side who agree but remain silent. I agree with the Church that it insists on its position about divorce, and it is its mission to inculcate the principles of what is right and what is wrong.

That appeal is for the individual conscience. It cannot be heeded by those who do not belong, or who no longer belong. Legislation for true Catholics is not needed. But what about those who have never been or are no longer within the Church's fold? This may be the same as with the civil form of marriage, and when it was introduced. And, by the way, do church marriages last longer than civil marriages?