Divorce: Beyond the soundbites

Observing the divorce debate, I sometimes see a re-run of the one about the EU, except that then one side with a specific membership package argued against another promising a nebulous fantasy island. In the divorce debate, both yeas and nays are equally evasive on institutional detail.

Blocking or introducing divorce is not just about abstract values and the law. It involves the action of other state institutions. A debate that does not discuss what these should and should not do, while promising liberty or warning of dire social consequences, is just vacuous.

Take Spain. In 2005, the Zapatero government drastically liberalised divorce. But it made no change to the state's rudimentary family policy, with its limited social spending and services. It is too early to be sure, but two scholars, Lluis Flaquer and Anna Garriga, have provisionally concluded that the new law will raise the rate of marital disruption while the risk-of-poverty rate will also rise significantly - as will the number of households unable to address unexpected expenses, such as unemployment and illness. (Mr Flaquer and Ms Garriga speak of "marital disruption" to include separated Spaniards, who are affected in the same way as divorcees.)

Should anyone care? Not if we agree that liberty is the privilege of being left to swim or sink alone. However, Spanish Prime Minister José Luis Rodríguez Zapatero is a self-styled champion of equality as well as liberty. He comes out looking hollow and callous.

Mr Flaquer and Ms Garriga are part of a larger project, which consists of a set of studies of European welfare set-ups in Nordic, middle and southern Europe: the book, When Marriage Ends: Economic And Social Consequences Of Partnership Dissolution (Edward Elgar) is edited by Hans-Juergen Andress and Dina Hummelsheim.

Before we return to the Maltese debate, it is useful to look at the book's three general conclusions.

First, partnership dissolution (including cohabitation) is, for most adults, an economic and social calamity. In the UK, whose institutional approach to dissolution is individualistic and largely leaves solutions to the market, the risk-of-poverty rate is very high. But even in the generous Scandinavian states, the hit is significant, although markedly smaller.

Second, men and women are not affected in the same way. The latter take a harder economic hit everywhere. But single, divorced fathers without child custody suffer longer-term social consequences, including isolation and long-term unemployment in Denmark. In southern European countries, where the state does less and the natal family does more, the social consequences are blunted but at some cost to everyone's personal liberty and lower financial independence for women.

Third, because the four kinds of European welfare systems are each a package deal of pluses and minuses, the editors find no objective basis for preferring one over another (although the Anglo-Saxon system, with its high divorce rate, high risk-of-poverty rate and high-but-hidden welfare bills, strikes me as the worst by any standard). We are swayed by our political instincts about liberty and equality, individual responsibility and social solidarity.

Back to the local debate. The nays, first. Their statistics are almost invariably from the US and UK, including their divorce price-tags: Could not this money, they ask, be better spent on preventing marriage breakdown?

Fair enough. But why choose the US and the UK, which have some of the worst results? Scandinavian welfare is generous with married couples but the divorce rate remains high.

Admittedly, this is partly because the system is also generous with other kinds of households; divorce carries no risk of loss of benefits.

The nays urge positive discrimination in favour of married households. Elsewhere, such steps would also reward divorcees who remarry. Without divorce and remarriage as a legal option, however, is there a substantial way to privilege marriage without punishing the children of adults willing-but-unable to remarry? If this does not bother the nays, I think we should be told.

Let us move to the yeas. They link divorce to liberty, which involves negative liberty, or freedom from institutional interference, and positive liberty, or empowered freedom to pursue happiness and another mother-in-law.

But the evidence is clear: In any national context where divorce comes with a high risk-of-poverty rate, positive liberty is just theoretical for many at risk. Even negative liberty can be conditional: the Church is not the only powerful institution around with a consuming interest in your personal well-being; so is the state. Welfare handouts can come with a snooping case-officer attached.

All this would be irrelevant if a divorce law simply addressed existing demand. But again, the tested evidence is clear: divorce laws contribute to higher rates of marital breakdown; in Europe, by roughly 20 per cent between 1960-2002, according to one study. A Maltese divorce law would clean up some of the current mess but also add to it. So arguments about liberty need to be more forthcoming about what (if any) collective social and financial responsibility is to be taken.

If we do not fill out the debate with some institutional proposals, it will remain empty - except, of course, when we fill it with cant.

ranierfsadni@europe.com