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Thursday, July 29, 2010, 10:09 by

Kurt Sansone, Claudia Calleja

Case for divorce already rejected by European Court of Human Rights

A 24-year-old judgment by the European Court of Human Rights may dampen lawyer Lynn Zahra’s hopes of getting the Strasbourg court to “force” Malta to introduce divorce since it was not deemed to be a human right.

Dr Zahra, who has a daughter from a 20-year relationship with former Labour minister Joe Grima, has said that lack of divorce denies her the right to get married and breaches her right to respect for family life. She argues that their family is not recognised as a legitimate unit, socially and legally.

Similar arguments were made in 1986 by a separated Irish man and his British partner with whom he had a child. Ireland had no divorce law at the time and the man argued this violated his human rights because he could not marry his partner with whom he built a family and, consequently, it breached his “right to respect for family life”.

The man had also claimed discrimination because Ireland recognised divorce decrees obtained in foreign courts. He could not obtain a divorce abroad because his estranged wife was also Irish and he had not been domiciled in a foreign country.

On all counts, the European Court turned down the claims by 16 votes to one, arguing that the couple could not “derive a right to divorce” from article 12 of the European Convention for the Protection of Human Rights, which spoke of the right to marry.

The Court also turned down the claim that the lack of a divorce law breached the couple’s right to respect for family life (article 8 of the convention). However, the Court did find a breach of this article in terms of the couple’s child, who was also a party to the case, because, under Irish law, she was considered to be illegitimate and, subsequently, denied certain rights enjoyed by other children.

Judge Giovanni Bonello, who sits on the European Court of Human Rights, said the non-legislation of divorce had not been challenged in the Court since the Johnston vs Ireland case.

Without entering into the merits of the case, Dr Zahra intends to institute against the Maltese government, he explained that when social conditions changed “it was quite possible for the court to have a different view”.

Judge Bonello said the decision of the Court would depend on which of two guiding principles it chose to give preference to when deciding the case.

“The first is the principle of European consensus. If the court, by its own investigation, finds that something has a strong European consensus it could apply the consensus rule.

“The second principle is the margin of appreciation. If the case was about sensitive issues of morality, such as divorce and abortion, the Court could say these matters are best decided by the domestic authorities,” Judge Bonello said.

Dr Zahra would first have to go to the local civil and constitutional courts before taking her case to Strasbourg, something she intends to do in October.

Human rights lawyer Therese Comodini Cachia explained that, if Dr Zahra simply argued that the lack of divorce in Malta was in violation of her right to family life, the court might be averse to rule in her favour. “The court has in the past been hesitant to impose upon a country to regulate its family matters in a way it does not want to,” she said.

However, she added, should Dr Zahra claim discrimination on the basis of marital status, then that could possibly work in her favour. In such a case, the court would hand down a financial remedy and expect that measures be taken to remove the discriminatory element. However, she said, all too often the Maltese government has argued that, although its position violated human rights, it had satisfied the judgement by simply paying the compensation.

Dr Comodini Cachia said judgements of the European Court and the national Constitutional Court were effectively implemented by measures that removed the violation such as by amending laws.

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Raymond Bezzina

Aug 1st 2010, 10:33

@ Sabrina Borda

Ms. Borda,
I have addressed my comment to you, to identify that I am replying to your
previous comments, especially to the one which comes right beneath that
of Mr. Giov. DeMartino.

May I draw your attention that my comment ( of which you have felt offended )
is written in the plural.

My middle paragraph which begins "When a person does not repent from sin......."
is also in the plural.

1. Would you kindly indicate to me where I did not speak the truth ?
2. And would you also tell me, which part of my comment indicates
that I sent people to hell ?
3. And where did I condemn innocent people ?



Sabrina Borda

Aug 2nd 2010, 09:28

Mr Bezzina, you addressed your blog to me. When it is to the general public it is still an insult. You are trying to push on people to REPENT. Your quote is; "When a person does not repent from sin the evil practices would carry him/her to commit more harsher and brutal evils". This is insane to read.

First of all this is a discussion on divorce not Catholic priests that molest children. Secondly for anybody this is an insult. Not even priests preach like this anymore because there are of course also many good intelligent priests who are not crazy and well out of the dark ages.

How strange to read these hideous words. This tactic of yours won't work for those who must have divorce in Malta like the Europeans who are not evil sinners through divorced, yet as the good Christian you portray to be, maybe you should pray for these people in 'plural' not in singular to be happy and not warn them of hell to come. Do not pray or me you scare me. Suffering here reading your blog is more than hell enough. But thanks for the WARNINGS of DAMNATION

Raymond Bezzina

Aug 2nd 2010, 11:35

@ Sabrina Borda

Ms. Borda,
My comment (i.e. the one by which you felt offended) applies to everyone,
i.e. including myself, and I do not feel offended at all by it, maybe this is so
simply because I do my best not to deny the truth.

I believe that those who feel insulted by that comment, are those who try
to deny the truth. Now, since you also believe, as I do, that there are many good
intelligent priests, ( and here I am referring to Roman Catholic priests ),
I suggest that you just print my comment ( i.e. the one in which you have felt
offended ), and take it to one of these priests to give you his advice about it.

After you do this, you can always refer to this site to let me know by the
outcome, if you feel to do so, and if whatever he tells you would not be
confidential.

Sabrina Borda

Aug 4th 2010, 20:36

I will not follow any instructions from you Mr Bezzina. No more trash innuendos and insane remarks please.

Raymond Bezzina

Aug 1st 2010, 11:08

@ Chris Reiff

Mr. Reiff,
The answer to your questions has already been given in that same comment,
from which you have picked up a piece of it.

In that comment I said that : " Where there is abuse of the spouse there is the
separation process, but not divorce. Divorce is not the right solution to abused
persons ".
Has this answer skipped your attention ?


Philip B Cortis

Jul 31st 2010, 09:28

While you do have a point in your argument if it's pointed to the Malta Authorities. However, I would not agree with you if it's pointed to other bodies like the church (well, by church I think you were referring to the roman catholic cause we also have other churches in Malta, both christian and non-christian) or pressure groups (perhaps an anti-divorce groups). You are free to join or not join any group or church that is coherent / not coherent with your views. It's like being a member of a club - if you don't agree with there "rules", you are not bind to stay member. This is the situation in all countries in the world except Malta and Philippines. The state allows Divorce. The roman catholic church don't allow it. Those that decide to follow the Roman Catholic teachings in full, then they will not divorce. Those that want to divorce, can do so.

Democracy is built by multiple people / groups putting forward their different views & then the parliament decides accordingly. Perhaps, sometime after the next election, democracy will be done (although late)

PS - I'm pro state divorce, done sensibly

Raymond Bezzina

Jul 31st 2010, 10:57

@ FJ Brincat

Mr. Brincat,
With regards to your first difficulty, my answer is 'separation ' and not 'divorce'.
By divorce, one person can abuse and break numerous families, hence the
negative multiplier effect on society.

Regarding your second difficulty, where you asked me to expand a bit more:
For an answer, all you have to do is to look at countries where divorce is legal,
and see the results regarding cohabitation and marriage breakdown.

Regarding your third difficulty. Here I ask you, what do you mean by the words
" those who should be married". What do you mean by 'should'?

Regarding your fourth difficulty, about the solution to strengthen marriages, first
I need to know whether you are also a Roman Catholic or not.

H Zammit

Jul 31st 2010, 16:46

For your last question the answer is separate.

Philip B Cortis

Jul 31st 2010, 09:29

Sure - but it has to be done sensibly

H Zammit

Jul 31st 2010, 16:44

WHY?

Sabrina Borda

Jul 30th 2010, 16:37

No I do not believe you are stupid so do not call yourself that.
I do believe that deep down you know the answer to your question...so without beating around the bush you already know your formed opinions.
We all know the truth. The difference is that people have different interpretations of it due to either doctrine or their own opinions and lifestyle choice. Either way, people should be free to choose what is right for them personally, therefor no church or politician must decide what is right for you on a personal level, each individual must have the right to choose ones own journeys in life.

Raymond Bezzina

Jul 30th 2010, 18:42

@ Sabrina Borda Ms. Borda, Those who are in favour of abortion, would say the same as what you have said in your last sentence. They would use that excuse to slaughter their innocent and defenceless child in their own womb.

Sabrina Borda

Jul 30th 2010, 20:52

@ Mr Raymond Bezzina. You are right, it may be so if that is what they want to argue. Yet though what we are talking about here is to do with divorce. I personally do not agree with abortion but I cannot keep anyone from going abroad to have one and it is happening anyway because it is their individual choice.
Here in the case of divorce one cannot just jump onto a flight out of Malta somewhere and get one.

Joe Fenech

Jul 30th 2010, 23:01

Giov De Martino:

I wouldn't expect the church to introduce divorce. It has its own dictum and people who went through a church wedding need to lump it or else ask for an annullment (I don't know in what way that differs to a divorce!).

The government has no choice but introduce divorce.

What we need to think of is the support given to children by social/children services and carers so trauma and depression are avoided.

Raymond Bezzina

Jul 31st 2010, 08:16

@ Sabrina Borda

Ms. Borda,
Without passing judgement on anyone, I believe that those who think that they
have found a better idea than God about how to live their life, are those who have
already fallen prey to the devil's snares and deceit, and in this condition, they will
swallow the devil's poison in succession, to their own detrement, and to others.

When a person does not repent from sin, the evil practices would carry him/her
to commit more harsher and brutal evils.

If one reflects well, one would realize that divorce is detremental to society, in which
we all form part of, therefore we should all be against divorce. Otherwise, I strongly
believe that if divorce is introduced, abortion would follow; because evil begets evil.


Charles Grixti

Jul 31st 2010, 14:01

GiovDeMartino

Only the State can introduce divorce. It is a civil matter and therefore falls under civil law. The Church in Malta is meddling where it shouldn't. I live abroad and divorce has been availabel for tens of decades and have NEVER heard of any Archbishop, bishop or priest campaigning against Divorce. In fact, the Civil Law of Divorce is the law of the land in as far as dissolution of Marriages goes, and in fact, the Catholic Church here first makes sure that a couple are LEGALLY divorced before it accepts their application for a Church Annulment. It is really simple to understand if you think about it - with all religions about - Catholic, Protestants, Hindu, Muslims, Buddhists etc, it cannot make sense that each of these religions' wedding ceremonies have any legal standing - they are just private religious celebrations each according to their faiths. It is only the State that legally binds and has Divorce to legally dissolve. In other words, no religion can trump the Laws of the Land.

Malta's case is an anomaly, a sort of mini-Shariah, where the RC Church' s annulments have been given the status of Law of the Land!!!

David Caruana

Jul 31st 2010, 18:46

GiovDeMartino, you are surely entitled to an opinion like everyone else, but please keep in mind that for some of us, you are so far from the truth

http://www.youtube.com/watch?v=1Rwioe1SGkQ&feature=player_embedded

D. Azzopardi

Jul 30th 2010, 12:27

Le hi, ahna l'insara meta naghmlu il-babies, inkunu safjin u puri f'ghemilna. Wara ninhaslu u imoru inqerru ghax inkella imorru dritt ghal infern:P

Joseph Carmel Chetcuti

Jul 31st 2010, 01:05

I would prefer to be judged by God than George Vella any time. What a simplistic version of history. Divorce is neither a case against marriage nor against stability in society. Why does Malta breed sio many clowns? And what proof does Vella have of the other world in which, as he says, we are not free. That being the case, I do not want to go to the other world. Absolute banality.

Sabrina Borda

Jul 30th 2010, 08:52

I do not envy the stance of the way some people; "believe because 'He' said so". Who is this 'He who spoke words to man'. And how come 'He' gave us so many varied religions if 'HE' is the Almighty while the whole world looks like one big mess thanks to religions? People always fighting over there beliefs for power. This is not God it is Mans doing. Man created this mess and Man wrote the bible. Inspirations happen.
Of course it is entirely up to them how to live their own life so I say live and let live, we all have our own way, but for God's sake why do some people not ask the big questions of life to find the truth?.... Because they are happy to keep it as limited as possible and as safe as they want to feel, its just easier to go with the flow of blind faith like the flock are expected to be because that's how the Maltese church have always enforced it, so unquestioning people turn out to be meek. The truth is out there, away from distracting man made religions.

Joseph Calleja

Jul 29th 2010, 19:02

If you really believe that, I own an igloo in the middle of the Sahara Desert I would like to sell you.

PGatt

Jul 30th 2010, 08:47

And since Maltese "catholics" claim that the majority of the Maltese are catholic, I'll let you draw your own conclusions based on your statement.

Dr Joe Brincat

Jul 29th 2010, 20:03

I sort of understood that you were referring to my comment. I may be wrong. What I quoted come from a judgment of 1month 5 days ago (24/6/2010) Schalk et v Austria (para 62) :"ECHR 24/6/2010 : Schalke v Austria : "62. In that connection the Court observes that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society".
Is this 24 years old ? Secondly there is the message that it is the responsibility of State Parliaments to legislate in this field.

Raymond Bezzina

Jul 29th 2010, 18:18

@ Joseph Calleja,

You said that : ' Nobody is forcing anybody to get a divorce but it should be
available to any who wants it '.

I strongly believe that many of those who are in favour of divorce, would later
on use the above same argument with regards to abortion; only this time they
would insert the word abortion instead of the word divorce. And the main reason
for this, is that evil generates other evil.

Therefore, divorce should not be legalized.

Joseph Calleja

Jul 29th 2010, 19:17

First of all we are talking about two separate things and one has nothing to do with the other. The majority of people who want divorce are against abortion. Most people who opt for divorce is because sometimes marriages fail. Divorce can stop the wife abuse, the child abuse and the man or women cheating on their spouses. You can see for yourself instead of divorce men and women in Malta are opting for cohabitation. These are facts Mr Bezzina. You are listening to the holier than thou fantasy stories. Open your eye and see.

E Camilleri

Jul 29th 2010, 20:26

@ Joseph Calleja

"Divorce can stop the wife abuse, the child abuse and the man or women cheating on their spouses." Kindly mention one country that has managed to eradicate, or at least significantly reduce these thanks to divorce.

"You can see for yourself instead of divorce men and women in Malta are opting for cohabitation. These are facts Mr Bezzina." Actually, Mr. Calleja, statistics show that cohabitation increases exponentially when divorce laws are liberalised. Therefore not only does divorce not manage to provide the solution, but it actually worsens the problem. These are the facts Mr. Calleja.

Divorce is not some fool-proof solution to marriage problems. Just look at other societies that have legalised divorce - what have they solved? Absolutely nothing. Worse, they ended up with greater social problems than they had before! Our nation is blessed not have divorce. Let's look for better solutions to help marriages, rather than legalise their destruction.

Raymond Bezzina

Jul 29th 2010, 22:14

@ Joseph Calleja,

Regarding your first sentence; although divorce and abortion are two
separate matters, the mentality of many is not : evil generates more evil.

You said that, 'Divorce can stop the wife abuse, the child abuse and the
man or woman cheating on their spouses '. The abuse will only stop
from one spouse, but it would give the abuser other chances to repeat
the violence on other future spouses and / or children, therefore in such cases
the solution would be separation and not divorce.

Mr. Calleja, and if you think that these are my fantasy stories; just look at other
countries, and you will discover that where divorce is legal, abortion followed,
in some way or another.

Those who reject God's graces and guidance, will undoubtedly fall into the devil's
snares and deceit.

Alex Ciantar

Jul 29th 2010, 20:25

Adding to what Mr Calleja has said ..............so a priest or a nun can divorce the church whenever they please but the common person cannot seek a divorce from a bad and broken down marriage?

I leave the conclusion to whoever!!!

Jean Azzopardi

Jul 29th 2010, 16:18

I congratulate you for knowing your bible well. Now please learn how to use a keyboard.

Paul Barrett

Jul 29th 2010, 16:23

What on earth has your comment got to do with civil marriage and the legal dissolving of a civil contract.

It is accepted that the Roman Catholic Church forbids and does not recognize divorce and all those that follow these teachings are perfectly entitled to live by that should they wish to.
However, religion is personal as well as voluntary and in a secular state, the laws of a particular religion should not be applied to those that do not wish to follow them. Additionally, those that make the laws should do so in the interest of good governance as well as social justice and not be threatened with "hell and damnation" .

There is a social need to do something to rectify and legalise the position of families living in a state of limbo as well as removing the stigma from the innocent children born out of wedlock.

Divorce will not cure every problem but it will allow at least some relief to the current pressure of what is basically an ever increasing social disaster.

M.Camilleri

Jul 29th 2010, 12:38


.. I mean, I wouldn't call it fixed in stone !

Paul Barrett

Jul 29th 2010, 11:52

Very well said, especially:

Divorce will change nothing except giving the right to a new beginning and the hope of a new happiness.

Raymond Bezzina

Jul 29th 2010, 16:49

@ Josephine Bugeja

Divorce legislation would give an abuser the right, to abuse new spouses
and / or their children.

Divorce only makes a bad situation worse.

Divorce gives one the right to break numerous families.

Therefore divorce is not the solution to failed marriages.

Joseph Calleja

Jul 29th 2010, 17:07

@ Raymond Bezzina. " Therefore divorce is not the solution to failed marriages.". So what is Mr Bezzina? COHABITATION? Abandonment? How do you explain that to a battered wife whose husband beats her, abuses her, cheats on her and abuses the kids.? It seems like either you have never been married or you are lucky enough to have a happy marriage which some people don't. Either way you don't have any clue of what you are talking about. He who stirs the pot knows what is in it. Enough said. I suggest you join the Joe Zammit congregation.

Raymond Bezzina

Jul 29th 2010, 21:19

@ Joseph Calleja

The answer to your three questions is 'separation'. I truthfully do not know
why you have left this option out.

To continue on your third question, divorce would give the abuser multiple
opportunities, to repeat the abuse on future spouses and / or children, with
the result that one person would break numerous families. From this, one
can realize the negative consequences of divorce on society.

Regarding your last sentence; I am a Roman Catholic, and if Mr. Joe Zammit
is also a Roman Catholic, I absolutely would not mind to join in the good fight,
without violence.


wally vella-zarb

Jul 29th 2010, 11:57

"Rights entail duties. Divorce entails no duty (not even to remarry), so it is no right."

There you go again, basing an 'argument' on an inane generalisation! I do have a right to life: what are my duties in this respect? I also have a right to a peaceful and serene existence: can you explain what are my duties vis-a-vis this right? Or, perhaps, you don't consider life and peaceful existence as rights either?

Kenneth Cassar

Jul 30th 2010, 07:07

Since you have copied and pasted the exact words you said weeks if not months ago, I will give you the same answer.

Babies don't have duties. Do you believe that they have no rights?

J Farrugia

Jul 29th 2010, 10:51

cant you read correctly? the crux of the article is that someone has already made an application before the ECHR in like manner saying that divorce is a civil right and the court has thrown it down the drain. Divorce is no civil right. It is a human wrong not a civil right. Civil rights are awarded to all citizens. Divorce cannot be put in the same level.

Roberta Buhagiar

Jul 29th 2010, 11:06

Divorce is a human wrong? Who are you to say that? God?

martin saliba

Jul 29th 2010, 14:11

@ J farrugia. not long ago the church believed that the world was flat and it took the same church about 400 years to appologise to Galaleo ,if im not mistaken, for punishing him for it. The church also changed its mind quite recently with respesct to unbaptised babies. They no longer went to hell . The church is stil to appologise for the trauma caused to parents that lost their child before it was baptised. So if you can accept that your church which represents your god can change its mind on such serious matters you must also accept that we mere humans can change our mind with regard to divorce. what is certian is that it will not take hundreds of years.

Lydia Pace Workman

Jul 29th 2010, 14:35

@ J. Farrugia " Divorce is a human wrong?" My goodness, from under which rock did you crawl out? You are the epitome of self righteousness and arrogance. You obviously have not heard some of the appalling stories of domicile abuse, be it emotional or physical. For years I worked with abused spouses and their children and the emotional baggage carried with me at the end of the day, the helplessness and sense of failure in the inability to do something immediate about it is beyond description. Some of these women are so conditioned to their desperate fate that they start to feel that the abuse is well deserved, now that is a human wrong for you. I certainly hope that none of the misery caused by a bad marriage will ever hit you or your immediate family, for if it should, you would certainly change your tune. Every human being has a right to happiness without the stigma of being in a state of " human wrong".

Raymond Bezzina

Jul 29th 2010, 16:20

@ Lydia Pace Workman

What you did not mention in your comment is, that divorce would give
the abuser other opportunities, to repeat the abuse on other future
spouses and / or children.

Where there is abuse of a spouse there is the separation process, but
not divorce. Divorce is not the right solution to abused persons.

Divorce only makes a bad situation worse, therefore it must not be legalized.

C. Azzopardi

Jul 29th 2010, 10:47

Truer words were never spoken. Well said.

Philip Grech

Jul 29th 2010, 10:31

'A judgment handed down almost a quarter of a century ago should and must be reviewed in light of present day circumstances'.
...Lots of sentences to review, then? Good job we don't have the death penalty!

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