Divorce and detail

A nasty, prolonged separation case made the news the other day. Nine years after the wife of a violent husband filed for separation, the Court of Appeal delivered its judgment.

The husband wanted to pay his wife and daughter less maintenance, arguing they could get the rest as welfare benefits. The court dismissed that argument.

The wife, however, was apportioned a share of the blame for the failed marriage. And she was ordered to sell the matrimonial home at once; she wanted to live in it for a year.

This case highlights three points that are salient to any legal marital separation. Until it considers them, our divorce debate will remain superficial.

But first, a word about what I am not going to say.

The Court of Appeal had harsh words to say about the selfishness of the couple.

But I am not using this case to generalise about marital selfishness. (Nor should anyone: Given the domestic violence, in this case separation was advisable. The court stopped just short of saying this marriage was null.)

I want to generalise about the law and some of the options that lawmakers crafting a divorce law would need to keep in mind. They are criteria against which we should judge their decisions.

First, what a difference a child makes. What prolonged the case were arguments over maintenance owing the child (and the mother) and over custody and access.

Had the couple been childless, or without dependent children, the division of the assets of the couple would have been much simpler, the consequences of the separation less delicate.

Some legal regimes elsewhere used to give the courts special discretionary powers when children under 16 were involved. Separations and divorces involving dependent children are so particular that we should seriously consider distinguishing them in debate and, should we get there, in legislation.

Second, the court had no hesitation in apportioning fault, which, depending on the legal regime, may or may not have implications for the right to file for divorce, maintenance, custody, etc. If Malta passes a divorce law, will the notion of fault be retained?

Today, all European divorce laws are "no fault". In some countries, the switch from fault to no-fault occurred in the 1960s. Spain, Portugal and Ireland adopted no-fault divorce laws immediately; Italy, after four years. Since one Maltese argument for divorce states that we should "catch up" with Europe, expect a great deal of pressure to adopt the general European model of no fault.

The motives behind no-fault divorce are not capricious. The court is not the best arena in which to establish the entangled faults for a broken marriage. Examining the matter would prolong the case and intensify the acrimony.

But in some countries, like the UK, the no-fault provision has sometimes led to the person clearly at fault for the marriage breakdown being effectively rewarded for bad behaviour, the innocent party losing child custody and matrimonial home. (Because, for example, even if the mother is clearly at fault, she might still be considered the best person to take custody and the law is biased in favour of the child remaining in the family home.)

No distinguished European or US scholar of the law, economics or sociology of divorce argues for repealing divorce as such. But several do argue for a reconsideration of the no-fault provision. On this point, even pro-divorce advocates should consider not "catching up" with Europe, at least for cases involving children.

Third, the Maltese court made it clear that the state should not be expected to pick up the tab on marital maintenance. It decreed that the matrimonial home be sold immediately, presumably to generate the liquidity the estranged couple needs.

The court avoided any bill being footed by the welfare state now. But we do not know - although the authorities should tell us - whether separated couples have a disproportionate need for welfare services. In unequal societies, like the UK and US, single mothers (including divorced mothers) are at a particular risk of poverty.

In the mid-1990s - during the Clinton boom and social reforms in favour of single mothers - 53 per cent of US single mothers lived in poverty. The classic Scandinavian welfare state avoided this. In the same period, only six per cent of Swedish single mothers lived in poverty. Income redistribution reduced US poverty by five per cent, Swedish poverty by 81 per cent.

It matters what kind of welfare state we have. And it is relevant to divorce legislation: statistical studies indicate that divorce legislation makes an independent contribution to the rise in rates of marital breakdown in Europe. If Malta follows the trend, separated and divorced individuals and their children will tend to need more welfare services.

To me, prepared to pay more taxes, that is not enough reason to rule out divorce. But if welfare claims do rise, how would our pro-divorce politicians foot the bill? By raising taxes or cutting funds elsewhere? I think we should be told.

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