University debate focuses on divorce and the common good
No-fault divorce reduces domestic violence and female suicides, according to research quoted by family law expert Ruth Farrugia at a University debate today.
She gave the keynote speech about the different types of divorce around the world, during an event organised by the newly-formed Law Debating Society.
No-fault divorce – as is being proposed for Malta – is common around the world and means that a divorce is granted when a marriage has irreconcilably broken down. In the law being proposed for Malta, someone seeking divorce does not need to cite any particular grounds to do so as long as the spouses would have been separated for four years or more.
The last state in the US to move towards a no-fault divorce, last year, was New York, she said.
The debate was focused on whether divorce should be discussed in terms of the common good or individual rights.
Fr Peter Serracino Inglott and Professor Kenneth Wain debated the concepts of common good versus individual rights.
Fr Serracino Inglott said that if divorce was a fundamental human right, there would be no need for a debate on the issue. But since it had not been declared as such, it must be debated in terms of its impact on society. The common good argument, however, was not “the greatest good for the greatest number”, but a question of what was in the best interest of the collective good – the good for society as a whole.
If divorce reduced the number of children being born out of wedlock or the number of people cohabiting, it should be introduced. But if divorce went against the collective good, such as if it made the situation worse for children, it should not.
Prof. Wain said the common good argument as it was being made by the anti-divorce lobby was dangerous and went against Malta’s practice of safeguarding fundamental human rights (including the right to life) and minority rights. He said this was an issue of tolerance since in a pluralistic country there were divergent views on the definition of common good.
He said fundamental human rights were not absolute and were justifiably limited when there was concrete evidence of tangible harm being done to society to exercise such rights.
But divorce, he argued, simply provided closure to a couple whose marriage has been a disaster. If divorce went against the common good, the onus of proof fell on the anti-divorce lobby to prove how this was the case.
The debate continued with Alternattiva Demokratika chairman Arnold Cassola arguing that Malta, unlike the Philippines, the Vatican City and Andorra (which all do not have divorce) recognised divorce rulings granted in other countries – so Malta already had divorce.
He also criticised the anti-divorce lobby for lacking compassion and opposing a no-fault divorce but then also arguing that a battered wife should not be granted divorce because her husband would then be able to remarry and beat up his new wife.
Speaking on behalf of the Marriage Without Divorce organisation, constitutional lawyer Austin Bencini said divorce was not a minority right because being single, married or separated was simply a status which changed over one’s lifetime. He also argued that divorce should only be introduced in Malta if the country’s family law had failed. Currently, he said, the country’s family law managed to wed fundamental human rights without needing divorce.
The Yes for Divorce movement chairman Deborah Schembri said that her 10 years experience in the family court showed that marriages did not always work out, even if one tried one’s best. Divorce, she said, was a statement of fact: when someone died there wasa death certificate, when a marriage died there should be a divorce.
She said divorce would create no impact on society that did not already exist with annulment.
Participating in the debate from the floor, a number of University students argued that the concepts of common good and individual rights were not mutually exclusive since individual rights can be seen as part of safeguarding the common good.
The debate was organised in conjunction with law student organisations GhSL and Else and was chaired by David Friggieri, lecturer in the Department of European and Comparative Law.