Updated - Adds Divorce Movement reaction - Divorce will reduce marriage to a simple civil contract, weakening the bond to the point that people may start questioning the need to get married in the first place, lawyer Robert Tufigno argued today at a conference organised by the anti-divorce movement today.

“Civil contracts are not annulled by those who are at fault or unilaterally by one party. The Divorce Bill allows the guilty party to dissolve the marriage contract by asking for the divorce. Furthermore, the guilty party can use his fault as grounds for the divorce,” Dr Tufigno said.

This, he added, would create a culture that rewarded those who renege on their commitment.

Dr Tufigno acknowledged, however, that the 'no-fault' concept already exists for marriage separations.

“Divorce, like separation, can be requested by any one of the partners even if the other person does not want,” lawyer Kevin Dingli said.

Dr Dingli and Dr Tufigno gave a critical legal overview of the Divorce Bill presented in Parliament by MPs Jeffrey Pullicino Orlando and Evarist Bartolo.

The Prime Minister’s wife, Kate Gonzi, was in the crowd of about 150 people.

The two lawyers were introduced by the movement’s chairman Andre Camilleri.

Tackling the key aspects of the Divorce Bill and the referendum question, Dr Tufigno said that his legal interpretation was that the four year time lapse for a separated couple to be able to get a divorce “may not be a necessity”. He asked whether this period also applied if divorce was contracted by mutual consent, since in such cases the court could simply take note of the agreed declaration.

Both lawyers questioned the safeguards for children in the Divorce Bill and said the court was not obliged to guarantee maintenance, custody and access to children.

“The fulcrum of the Bill is to safeguard the rights of the couple and not the children,” Dr Tufigno said.

Maintenance could not be guaranteed, he added, because re-marriage after divorce would create a new reality and additional exceptions the court would have to entertain.

Dr Tufigno also pointed out that the Irish divorce gave weight to the standard of living of the people concerned and the income derived by third persons in the second marriage when maintenance was calculated.

“Why did the Divorce Bill proponents, who used the Irish law as a model, leave out these two elements from their law?”

Dr Dingli said that a divorced person who re-married lost the right to maintenance from the first marriage apart from arrears.

He also disputed the use of the word “guarantee” in the referendum question since the law only spoke of “adequate maintenance”.

Lawyer Austin Bencini said one was led to wonder why the pro-divorce lobby was not explaining what the law was all about. He urged the people to consider the impact of the Bill as a whole and not limited only to the referendum question.

DIVORCE MOVEMENT REACTION

In a reaction, the Divorce Movement said the divorce being proposed is a responsible type of divorce because it gives ample time to the spouses to get back together if they so wish before they become eligible to even apply for divorce. This is important in order to have moral certainty that the marriage has in fact really irretrievably broken down.

"Those who try and put doubts in peoples’ minds that the four-year period is not a must, or that maintenance, care, custody and access to children are not dealt with in the law are out to mislead. All of these aspects are taken care of in a divorce decree as per law, either when the spouses had been legally separated or when they apply for divorce without having separated beforehand."

The movement noted that a claim was also made that people who remarry will not have enough money to maintain two families.

"The anti-divorce lobby forgets that this is the same situation in which people who cohabit after separation now find themselves and whether one cohabits or remarries is therefore irrelevant in this respect. The only real difference is that in the case of remarriage the second wife would have the right to be maintained by her husband whereas a cohabiting female partner does not have this right – an injustice that is redressed by remarraige after divorce."

The proposed law stipulates that when calculating maintenance, the court needs to look at a number of factors. It makes sense that such criteria are limited to the former spouses and not to third parties since third parties have no obligations towards former spouses, the movement said.