In deciding on divorce, Austin Gatt admits he will be inspired by what is good for society, the country and the people but, in doing so, he will be influenced by his religion.

An argument that is made is: “We have to decide according to what the Catholic Church states”. Of course not, and not even the Church expects us to.

I am a practising Catholic and proud of it. In my work as a minister and member of Parliament I cannot but be guided by the moral precepts and social teachings of my Church. I would have to be a schizophrenic to do otherwise! However, as a Catholic I know not everyone in Malta is a Catholic or even believes in God. I am inspired by my Catholic values when I legislate but I cannot legislate as if everybody necessarily shares my same values. That basically means my religion is my business. My religion will influence how I think and act but I cannot act as if only my religion existed.

The Church itself teaches distinction between the Church and the state and it is the Church itself that recognises and teaches that the state is a lay and not a confessional entity.

It is wrong for the anti-divorce lobby to make this a religious issue. It is not. Of course, the Church – and not only the Catholic Church – has a right to speak. Indeed, it has a duty to do so clearly. It has the same rights as any pro-divorce lobby and it is wrong for some of these to expect the Church does not participate in the debate. It is also ridiculous to expect it not to use its media, its pulpits and its churches to send out its message to those who want to hear it.

Trying to eliminate the Church from the debate is wrong and anti-democratic. I and many others expect to hear our bishops speak clearly without, as they said, crusades or condemnations but outlining what is the teaching of my Church.

So I have absolutely no problem in clearly stating that, in my decision on the issue, I have to be inspired by what is good for our society, for our country, for our people. In coming to this decision, however, it is illusory to think I will not be greatly influenced by my religion and it is also ridiculous to even ask me not to.

Similarly, I think everyone should also understand this country remains overwhelmingly Catholic and we, as a people, are still greatly inspired by the Catholic social ethos and values I think we are the better for it and I am not particularly impressed by what I see when I look at societies that were once like us but have gone down the secular route at a much faster pace than us. I do not think their “lifestyle” or “social values” are anything to emulate, even though they may be economically stronger than us. This reality cannot be ignored if, as we all seem to agree, we are seeking what is best for Maltese society.

It is indeed ironic to reflect that the introduction of divorce owes a lot to religion! When the Catholic religion became the official religion of the Roman Empire, its values became progressively enshrined in the Empire’s laws, the civil rights of the citizens of the Empire. The civil law concept of the indissolubility of marriage was actually the direct opposite of what existed under Roman law, which viewed marriage as very soluble!

The primacy of the concept of indissolubility received its first blow with the rise of Islam in the 7th century and, with its spread in North Africa and the Middle East, swathes of people had their civil rights changed because in Islamic thought marriage was a dissoluble contract! Next blow came with the Great Schism of the Orthodox Churches in the 11th century, which did for the Slavs and Greeks what Islam had done three centuries before. The Protestant Reformation in 1517 came next and politics had a good hand in it when King Henry VIII got on board that particular boat! The speedy conversion of Germany and all the Nordic states to the Protestant faith introduced divorce as a consequence of that religious change. Canada and the US were mostly populated by Protestant immigrants so divorce followed.

All this change left only countries with a staunch Catholic influence still considering marriage as indissoluble, basically South America and countries in the south of Europe and it is only in these countries the change which brought about the recognition of divorce can really be said to have come about as a change brought about by society – for all the rest it is really a change brought about by religion!

In all of these countries divorce was introduced hundreds of years ago not because people insisted it was a right but simply because it was part of the religious belief system that was adopted by the people of a particular country, which goes to show how incongruous is the affirmation that the Catholic Church has no role in the divorce debate.

Another argument is that “It is discriminatory to recognise foreign divorce awards when divorce is illegal in Malta”. Of course it is not. The justification is somewhat legalistic but nonetheless correct, apart from the simple fact the numbers involved are so small as not to affect the issue.

We recognise foreign court judgments containing divorce decrees in the same way as we recognise all foreign court judgments given in jurisdictions that practice the rule of law. The same happens with judgments given by the Maltese courts on any issue determined by them. It cannot be otherwise if we are to live civilly as nations.

Limitedly to marriage and divorce, a marriage contracted in Malta is recognised in all other countries, so much so that if a person who is married in Malta marries again in another country s/he is charged with bigamy in that country. Similarly, Maltese judgments granting separations and annulments are also recognised in all other countries. We do the same with their judgments and, since their systems recognise divorce, we have to recognise those judgments as well.

It is not a choice, it is simple reality because we do not live on our own and it is eminently logical that a person has only one status in life wherever s/he goes. If it were not so, it would mean one could legitimately have different families in different countries and that, I hope we all agree, is certainly not conducive to stable societies. However, recognising foreign divorce decrees does not mean we have a discriminatory system because the comparison is not between the Maltese system and the state granting a divorce decree. If that were the test, then discrimination would also exist between the Irish and the Swedish system (and all other systems) because the relative grounds for divorce are different (with the Swedes being more liberal) so that an Irish person is “discriminated” vis-à-vis his Swede counterpart.

The only test for discrimination is internal to the system granting a particular divorce decree and that test is ensuring that legal system is open to everyone on the same basis and does not discriminate. In fact, if that foreign system did discriminate, our courts would be bound not to recognise that divorce judgment!

At the end of the day, data shows the numbers make the argument irrelevant. Since 1980, we have had an average recognition rate of 26 divorces per year with the trend in the last 10 years rising slightly to 40 registered divorces per year – the numbers are too small to make any difference.

“Annulments are the same as divorce, so if you allow annulments you should allow divorce.” That is a completely wrong argument. The statement is not only incorrect, it also does not make sense because if annulment equals divorce then there is no need to introduce divorce because annulment already serves the purpose!

Annulment and divorce may seem the same because in both cases the end result is both parties are free to marry but then so is the case where one of the partners dies and no one in his right mind would equate death with divorce simply because the end result is the same. What one needs to look at is not the end result but the cause. After all, even the pro-divorce lobby agrees divorce can only be granted for a serious cause. The fallacy of this argument is shown by the simple fact that all countries having a divorce system also have an annulment system because they are two different issues.

Annulments are based on the simple legal principle that a contract is invalid if the person entering it is incapable – for reasons set out by law – of contracting and the consequence is that the contract is null and void, hence the annulment of the contract.

Marriage – in its lay aspect (and, once again, we should ignore the Church side of marriage) – is a contract between two persons and civil law (not Church law) lays down who may or may not marry. If any of those conditions result (after the marriage) as not having existed (at the time of the marriage), the marriage contract may be annulled by the Civil Court (not the Church courts). To take a very extreme example, if one of the parties to a marriage was below the age permitted by law when the marriage took place, that marriage may be annulled. It is, however, very unlikely that any country would allow a divorce in such circumstances.

The proponents of this wrong argument in Malta are in reality motivated by the “even me” syndrome. They do not understand – or pretend not to understand – the difference between annulment and divorce and equate causes for divorce to causes for annulment simply because the latter might not apply to them and, therefore, they cannot remarry. Most proponents of this argument would have attempted an annulment and not obtained it and are stuck with a separation, which they cannot turn into a divorce. Hence, they cannot remarry as they would wish to do while people who have been successful in getting an annulment – usually also judged as less deserving than them – are free to do so. It is evident this is simply the politics of envy and should be ignored!

The issue is further complicated by the fact that in Malta annulments are perceived as being something controlled by the Church when, in fact, it is a matter controlled by the courts. It is no use getting an annulment from the Church (if you had previously married in Church) unless you also get an annulment from the court because you would still not be able to remarry. Admittedly, the Church process is not very transparent, which, again, leads to misconceptions on how the power is exercised and who has access to it.

But the bottom line does not change: annulments will have to remain there even if divorce is introduced because they are premised on totally different criteria and bring about totally different legal consequences. In fact, the pro-divorce lobby is not arguing that annulments should be abolished if divorce is introduced, so I fail to see how it can argue that by accepting a system to annul marriages one has also to accept a system for divorce.

Tomorrow: What data says about marriage.

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