People must have the final say

In May 2009, when the campaign for the European Parliament elections was reaching its climax, I had the audacity to make a simple, yet to my mind, very crucial suggestion. Writing in The Times of May 12, I proposed we should, as a society, consider putting forward the divorce issue for the ultimate consideration of the Maltese people through a referendum.

The point I raised then, and I reiterate now, is quite simple. It is based on the premise that, to date, Malta remains the only European Union member state without effective legislation allowing couples whose marriages have failed from being able to enter into stable and legitimate second relationships. This, however, does not mean in Malta marriages are not breaking down. Quite the contrary, in fact. Statistics show the rate of failed marriages in Malta is consistently on the rise.

The only real difference between what is happening in Malta and in the rest of the EU is that, whereas in our case spouses in a failed marriage remain condemned – unless they are somehow able to obtain a declaration of nullity of their first marriage or else are able to afford obtaining a divorce from a foreign jurisdiction – to remain formally tied to their estranged spouse even though they might have moved on to a new relationship which, in the eyes of the law, remains illegitimate. Within the rest of the EU each spouse in a failed marriage can legitimately exercise its “get out of jail” card, so to speak, in the form of seeking a dissolution of marriage through divorce legislation.

I understand the issue of divorce stirs up emotions. Perfectly reasonable persons can argue points in favour or against with fervour and clarity of opinion. Moreover, let me be absolutely clear in stating that, no matter what, there should be no doubt that the traditional family unit upon which Maltese society is largely built should be the recipient of the utmost respect and support.

Unlike what some anti-divorce campaigners might wish to think, those advocating in favour of the introduction of responsible divorce in Malta – and it is important to highlight the word “responsible” because no one is talking of an “à la Las Vegas” type of divorce – are not against the traditional family unit. Most people I know who are in favour of the introduction of divorce are primarily so because they themselves or their loved ones wish to formalise their new relationships through the contraction of marriage, something they are prevented from doing because they are still tied down to a long estranged spouse.

Opponents of divorce often dress up their arguments as being pro-family. To me, such arguments seem flawed because they are based on a fallacy. Such supposedly pro-family arguments, in fact, tend to be built upon the premise that the concept of the family is stronger if there is no access to divorce.

My argument against such a philosophical line of thought is that not only does reality not support such a conclusion, with marriage failures in Malta comparing well with those in any other comparable society, but, more so, since this argument fails to take account of the fact that in Malta divorce is actually recognised and accepted, so long as this is obtained from a foreign jurisdiction.

Whereas Maltese courts are unable by law to decide themselves on a divorce application, they are in turn mandated by law, subject to certain conditions being met, to recognise foreign divorce decrees.

I could have understood, even if I don’t agree with, a position of categorical opposition to divorce on whatever grounds one might wish to base such an objection. The prevailing hypocritical legal position prevalent in Malta is sickening.

In fact, what our legal position reflects at the moment is none other than a blatant and in-your- face discrimination between the haves and the have-nots – with those whose pockets are deep enough to allow them the opportunity to obtain a foreign divorce or, at the very least, an annulment on the one hand while the rest of the population have to make do with the institute of marriage separation and the hope that, one day, the present government fulfils its commitment to provide legal safeguards for cohabitees.

As things stand, Malta is truly the odd one out. Even fervently Catholic bastions of faith like Ireland, Portugal, Italy and Spain have long since recognised that one can no longer do an ostrich and ignore reality with respect to marriage breakdowns.

Back in 2009, I expressed a belief it was in the interests of everyone that Malta took a decisive position on whether it was to enact divorce legislation or not. Perhaps, back then, the time was not yet ripe for such a debate to be taken forward. Today, I am glad to note progress is being registered.

The issue is no longer taboo and in, all likelihood, the people of Malta will be called upon in the coming months to express themselves.

Although personally in favour of the introduction of responsible divorce legislation, my position from the start was that on this sensitive issue the political class should take a step back and truly consult the people. Every citizen should be afforded the right to state whether Malta should introduce divorce legislation or not.

For this to be achievable, however, it is essential that any referendum held on the issue is a truly non-partisan affair. It is a deeply worrying sign the Nationalist Party has already clearly and unequivocally expressed itself against the introduction of divorce legislation in Malta, thus legitimately raising the concern about whether the will of the people – should this result in a pro-divorce vote – be respected by members of Parliament upon whose shoulder the ultimate responsibility of legislating would rest.

The final decision should be left in the hands of the people. This is, after all, the essence of democracy and the political class should, as of now, clearly and unequivocally bind itself to honour the will of the people as expressed in a referendum.