Civil dissolution of marriage

I am the lead author of the latest report by The Today Public Policy Institute dealing with the vexed issue of divorce, entitled For Worse, For Better: Remarriage After Legal Separation. The report examines the subject in six parts: the state of marriage in Malta today; the roles of Church and state in relation to marriage; the options open to the state in dealing with marriage break-down; the possible consequences of introducing changes to the law; proposals for a new legislative structure; and conclusions and recommendations from the arguments adduced in the report.

In the 2005 census, the number of people in broken marriages (divorced, separated or marriages annulled) stood at 13,354, a 160 per cent increase over 1995. Between 2005 and 2008, there have been over 1,020 annulments (with 840 cases pending) and about 3,500 sworn separation applications submitted or mediations introduced (with over 1,000 separation cases pending). It is estimated by the respected Institute for Research on the Signs of the Times, Discern, that by 2015 the number of people in failed marriages will have increased to 35,000.

The thousands of people in Malta whose marriages have broken down are an alarming statistic. Each individual marriage break-down represents a human tragedy. But marriage failures in Malta are now an ever-present reality and increasing steeply as the figures demonstrate.

It would be hypocritical to pretend there is no problem. It would be cynical and irresponsible - as some sanctimonious apologists for the do-nothing approach have already shown - to try to ignore it. It would be uncharitable to suppose that matters can remain the same. Society pays a very heavy price for sustaining the concept of the indissolubility of marriage and the hope that separated couples may one day be reconciled.

The situation in Malta today is anomalous and, arguably, discriminatory. Legislation exists today, which allows people who were married either to get divorced abroad or to have their marriages declared null and void and in both circumstances to remarry. Alternatively, they may separate but will never be permitted to remarry. The only missing element in the present law on legal separation, therefore - in contrast to divorce or annulment - is that these people are not allowed under any circumstances to re-marry.

Yet, many who are separated wish to re-marry. Many form new, stable and happy relationships, which are marriages in all but name. Many co-habit and have children. Is their position just? Should we, as a society, allow separated people to begin a new relationship based on marriage if they wish to do so?

In responding to this question, our legislators in Parliament face three options. First, to leave matters as they are. Secondly, to focus simply on tidying up the current arrangements for co-habitation. The third course is to introduce legislation allowing for the civil dissolution of marriage after legal separation and the right to re-marry.

To leave matters as they are is no longer an option. The legal provisions in place are insufficient, the growing number of marital break-downs is alarming and the effects on society are becoming unsustainable. Whatever proposals are made to buttress marriage, the reality is that marriage break-downs will continue to occur with the resulting unsatisfactory strains on the family and society. The reluctance of the state to recognise that a problem has existed has led to a fracturing in parts of our society, which no responsible government can any longer ignore.

It would be tempting to suppose that introducing safeguards in the law on co-habiting couples would provide the solution. But even the most carefully drawn up safeguards on co-habitation can never equate with the status and stability provided by marriage. By definition, and in practice, co-habitation is more fragile than marriage because the couples cannot enter into a legally-binding contract. To make a necessity of co-habitation would be misplaced as it would be incompatible with encouraging marriage to meet the needs of Maltese society. This would be the kind of finger-in-the-dyke improvisation, which simply satisfies those unwilling to accept the deep malaise of broken marriages in Malta.

On the other hand, the civil dissolution of marriage and the right to re-marriage after legal separation will give a chance to people who are in a stable and loving second relationship to obtain all the benefits and stability that come from a happy marriage. There are thousands of marriages in Malta that have entirely collapsed and which are marriages in name only. By contrast, there are many second relationships which are marriages in everything but name.

The right to re-marry should be viewed as a just and necessary resort after all other options aimed at saving a marriage have been tried and exhausted.

At the core of the argument is the conviction that the dissolution of a marriage, which has already irrevocably broken down, may be sanctioned to prevent greater harm to the common good that is caused by the dislocation and insecurity in society of co-habitation and the injustice of preventing those who are already legally separated from re-marrying if they wish to.

The state, through its legislation, must decide what is best for the whole of society, striking the proper balance between the human rights and the natural aspirations of individuals and the interests of the community and society as a whole.

A state that legislates only in the interests of the majority is setting itself against the interests of social justice. Genuine social justice requires recognition by the state of the freedom and rights of all individuals and the right, which every individual has, to well-being under the law without any form of discrimination.

To give legal recognition through marriage to caring second relationships can only sustain the stability of society and, therefore, advance the cause of the institute of marriage. The obvious way to do so is to regularise second unions by bringing them within the scope of marriage law. The availability of civil dissolution after legal separation would make this possible.