Patricia Cassar Torregiani
Divorce and the rights of the minority
There are a number of legal and sociological reasons against the introduction of divorce in Malta. Firstly, the referendum question is misleading and has a number of inherent faults. Voters will be asked whether they agree with “the option of divorce for married couples who have been separated for four years when there is no reasonable hope for reconciliation and when adequate maintenance is guaranteed and the children are cared for”. The question sets out to promise what is, in effect, an impossibility.
A number of questions spring to mind: How can we ever be sure that children, invariably the silent protagonists in divorce proceedings, are being “cared for”? Children suffer as a result of marital breakdown; that suffering increases when a third party enters the scene; that suffering is further aggravated when a third party displaces one of the parents in divorce.
Further, the question indicates there is an option of divorce while the type of divorce being contemplated is not a consensual one: after four years, one spouse may impose divorce on a non-consenting, innocent spouse. What “option” is that for the non-consenting spouse?
This flies in the face of all principles of contract, which dictate that, once validly entered into, contracts are binding on both parties and cannot be unilaterally revoked.
Why is the marriage contract being treated differently to all other contracts? This is tantamount to saying that I have sold you my car but, after a period of time, I have a right to take it back, irrespective of whether you want to return it. Legally, it is unsound. Humanely, it is unkind.
People may argue that they have a right to be divorced but what of those who wish to ascertain their right not to be divorced? The law as proposed does not cater for this “option”.
The referendum question promises another legal impossibility: guaranteed maintenance. Parliament will face a serious problem if the law as enacted does not provide the guarantee of maintenance promised in the referendum question.
We would have voted for a false fairy tale: the attainment of an “ideal” situation wherein injured parties, remarried spouses and children from earlier marriages are all “guaranteed” “adequate” care and “maintenance”… how realistic is that?
Aside from the referendum question, how can divorce (and consequent remarriage) ever help the children of the first marriage? Indissoluble marriage promotes the stability of the family; stable families build a stronger society.
With the introduction of divorce, children will grow up in an environment that continuously perpetuates a mistaken view of the institute of marriage.
It will instil in the adults of tomorrow an understanding that vows can be broken, that the traditional family is not necessarily the building block of a strong society.
The prime justification we have been given for divorce is the need to regularise the status quo of married individuals cohabiting outside marriage.
With this same logic, what stops promoting the suggestion of legalisation of euthanasia, same-sex marriages or abortion, for example, in order to validate that particular status quo? Where do we stop? When will we realise it is not up to us to make certain rules to suit our societal exigencies?
Arguments in favour of divorce focus on the right for individuals whose marriage has broken down to have a “second (or consequent!) chance at happiness”; that divorce should be introduced to protect the rights and happiness of a minority. As part of the minority whose marriage has broken down, I am tired of hearing that I, and people like me, should have the right to divorce and remarry. Has anyone ever considered that a number of people in my situation may not want to be divorced? What about this minority? Has anyone considered that a number of children of broken marriages do not want their parents to divorce? What about this minority of children who do not have a voice in this debate?
The referendum question fails to cater for these minorities. The law as proposed permits an imposition of the will of one spouse on a non-consenting spouse and on non-consenting children.
This is an unacceptable disregard for the rights of the silent, vulnerable minority.
Dr Cassar Torregiani is head of the Department of International Law, University of Malta.
Popular Stories
In Discussion
22 Comments
Post comment
Please sign in or create your Account to post comments.
Mr S. Cuschieri
Apr 18th 2011, 16:05
I am going to start by saying that I am not the sort of person who normally cares enough about anything I read to respond to an advice column, but something about this column and the responses has struck a cord and I feel compelled to write in. Frankly, I think you all have it wrong. This is not about contract law or about the rights of any one party or the other, or even the rights of children for that matter. To me, this is about the propensity of human beings feeling entitled to fill their "needs" at any cost regardless of what is right and what is wrong or of who gets hurt in the "crossfire". The reality is I too am in a marriage that has lost that initial "spark", but what marriage hasn't? If you are in a marriage with a person whose heart flutters every time you see them even 5, 10 or 20 years later my hat is off to you my friend as you are one damn lucky bloke. Sure, in some cases there is abuse or mistreatment, however in most that is not the case, rather it is about selfishness and about getting bored by what is "old" and wanting to seek excitement with something new. However, the way I see it is that in offering yourself to another in marriage you made a choice, and in fact a promise, to your spouse, your children, your family, your friends, and most importantly before God that you would stick it out whatever happens, and regardless of what the law does or does not allow you to do, one day you will be forced to justify your behaviour and your choices before the true "judge", and if you believe there is a God (or if you think there is any possibility there is), then I would suggest you think about breaking your word to Him before deciding that you would like to exercize your "right" to give it another go with someone new. If you think I (or Dr. Cassar Torregiani I am sure), were not throughout our own marriages presented with "opportunities" with someone "new", you are sorely mistaken. The reality is, when presented with such opportunities we (or at least I as I can only speak for myself) chose to focus on the commitments I have made and be the best partner and parent I can be. I am not willing to hedge my bets that God does not exist, or that if He does he will be so forgiving when I have to justify why I chose to act on desire rather than do the right thing.
Mr david debattista
Apr 16th 2011, 12:43
Lady do you have any idea of what a dysfunctional marriage is all about , the realities and effects on all involved. You sound like a immature person trying to make a point .
Since when is marriage likened to selling a car, Please Please Please, and all this technical BULL.
You statement is totally unrealistic, and all you points crumble under a truly dysfunctional marriage .
I have seen people coming to realize that their marriage is over, hug each other with tears in their eye and go on their separate lives . WHEN WILL PEOPLE LIKE YOU GROW UP !
Look at it this way Patrica. Let us imagine that you find out that your husband or boyfriend is cheating on you ( God forbid since I don"t want this on anyone) now you truly love him and you say to yourself Well I will forgive him, his the father of my child and I love HIM. After some time you find out that what you have on your hands is that your husband is seeing different woman, or has found some one he spends a lot of time with. You are hurt, angry and you try to make life hell for him. Will it make things better for you, Will it make your husband come back to you, will it help your child. Then the time comes and you ask ......... WHY what have I done wrong to deserve this . To your astonishment your husband breaks down crying like a kid telling you,.. you have done nothing wrong, and that he is the problem , the problem is with him . He is out of the house for 2 or 3 days and a friend comes along and drops the bomb . Your husband is not in love with you any more, and he cannot help it ,and no there is no other woman that he is in love with, he was just sleeping around . do you thing your statements are going to stand under such a situation . Who in his right mind would force a man or wife to live under such conditions. Lady it is humiliating for any person, and would only lead to mental illness.. Yes you should get some advice from professionals in this field, Yes you should do what is in the interest of all Patricia, of all, or it will never work! Under genuine situations your own adviser will recommend if such is the case, to LET GO. Stop wasting your time and energy and live your life. There are times when people, in our case the woman, have talked about a sens of release after finally accepting the truth. Yes I have seen it over here, also a sense of deep respect for each other after divorce or separation for that matter, especially if there was mutual understanding and cooperation . Fidelity to the truth Patricia, this is what makes you happy irrespective if you end up being divorced or not, fidelity to the truth ,and NOT LIVING A LIE OR A LIFE OF REVENGE. Take care,
Kenneth Cassar
Apr 16th 2011, 10:44
"This flies in the face of all principles of contract, which dictate that, once validly entered into, contracts are binding on both parties and cannot be unilaterally revoked".
Dr Cassar Torreggiani forgot an important part. Contracts may be unilaterally revoked through a court of law if a party to the contract does not adhere to the contract conditions.
One of the marriage contract conditions is that both partners will love and cherish (let's forget the "obey" part, shall we?) till death do them part.
So in essence, if one or both parties stop loving and cherishing the other, they are in effect breaking the conditions of the contract, and in effect making a clear and indisputable case for the contract to be declared null and void.
I'm surprised that a head of the Department of International Law wouldn't think of this...or maybe she did, but it doesn't suit her agenda.
Kenneth Cassar
Apr 16th 2011, 10:01
1. A third-party may enter the scene even if a married couple only separate and not divorce.
2. The results of separation and cohabitation are identical to those of divorce and remarriage.
3. The abandoned spouse may also be non-consenting to the separation, with or without divorce.
For your arguments to make sense, you would have to suggest the following:
1. It should be illegal for separated spouses to form other relationships with different partners.
2. Separation should be illegal unless the spouses can prove that their children will not be harmed.
3. Separation should be illegal unless consent is reached by both partners, and after consulting their offspring and gaining their approval.
Will you be morally consistent and suggest all this? Or will you admit that your "arguments" are nothing but hot air?
Mr Mario P. Sciberras
Apr 16th 2011, 08:42
"This flies in the face of all principles of contract, which dictate that, once validly entered into, contracts are binding on both parties and cannot be unilaterally revoked". A priest who is ordained, so to speak, marries the church and Jesus and yet he can get out of the relationship, get married and have children. A priest has the benefit of years of preparation and still sometimes they get it wrong. A man/woman attends a handfull of lessons organised by the Cana movement and sometimes unfortunately for everybody concerned they get it wrong. So we punish them. The holier than thou brigade are out again.
Mr Carmel J. Caruana
Apr 16th 2011, 06:40
The most important argument in favour of divorce keeps getting lost: "It is psychologically damaging for the partners to be forced to stay together if for some reason or other it is not possible for them to live harmoniously together any longer. It is even more damaging to their children as they never have an experience of seeing adults living harmoniously together."
Every country in the world has recognized this simple fact ages ago. Divorce is there to make it simpler for people to correct a mistake they have made in their life and find psychological health and peace again. Divorce also shows children that even adults make mistakes and mistakes are nothing to be ashamed of. We all make them and therefore need to have the means to correct them.
The NO-to-divorce lobby simply wants to make this as difficult as possible in the hope that people will give up trying. They want to make it as difficult as possible for two persons to find love again. This is simply inhumane.
Mark Jones
Apr 15th 2011, 21:38
Ms Cassar Torregiani, your basic permise is arrant nonsense. By what logic do you assert that it is an 'impossibility' for children to be 'cared for' after a divorce? Or, indeed, that the proper payment of maintenance is similarly impossible.
HAving the right to divorce does not mean that you must exercise that right. I should have thought that somebody lecturing in law would understand that.
ray huber
Apr 15th 2011, 20:39
I just cannot understand the arrogance of some.
Who are these people who think that they know all and the rest are just stupid and ignorant beings? It is no one’s business what I believe and do with my short life on earth. If I want to live with a woman for 40/50 years it’s my business and if I don’t it still remains my business. How arrogant can these people be to believe that they know and understand what one might be going through? I just hope that they do not experience what most of the separated couples go through when they get a court separation.
please leave everyone to live his life and you live yours!
Mr John Cassar
Apr 15th 2011, 20:24
C.Muscat
Right now if a person in that marriage walks away, the other can do nothing to stop them. It's the same thing today with separation. Therefore you preach removing the legal right to separate as well there is a strange inconsistency in this rationale.
The only consistency in the church right now is that it is preaching to it's remaining faithful that not voting is a vote in favor of divorce. A friend of mine who is a Roman Catholic priest in Boston thought I was joking when I told him of this approach. We both concurred that irrespective of the result this will have negative repercussions on the church in Malta.
Before anyone gets the wrong impression, I am happily married with two kids. However I will be voting yes because people whose marriage failed deserve to remarry if they find love someone else.
The no camp's approach is selfish preservation. A yes vote from me is solidarity with those who were not as lucky as I was.
Kenneth Cassar
Apr 16th 2011, 10:39
Are you saying that if one of the spouses doesn't wish to separate, they should be forced to stay together?
It is also good to remind you that the marriage vows include the vow to love and cherish one's spouse for the rest of your life. Shall we start arresting people who fail to do so?
Mr C Muscat
Apr 15th 2011, 15:18
People may argue that they have a right to be divorced but what of those who wish to ascertain their right not to be divorced? The law as proposed does not cater for this “option”.
This is exactly the shame for anyone that would like to introduce re marrying for those that contractually agreed to marry till dead ends one life. If the divorce is to be introduced, it should be an option for those that would like to marry until fed up. For marriages that are for life, there should be nothing again for the losers. If the marriage agreed and signed for life, no other marriage to any of the couple should be the case.
At least the Church is consistent with its teaching. I hope that we will be consistent with our agreements and still keep what we have.
I conclude that with or without divorce/remarrying legislation, if a couple has found the second happiness, there is nothing today to stop them. On the other hand, the aggrieved partner that has been left out for so many reasons divorce / remarrying will be adding insult to injury.
Mr Daniel Soler
Apr 15th 2011, 15:34
What? This gets better and better.
Ms Mandy Abela
Apr 15th 2011, 15:13
Everyone goes on and on about what God has joined, let no man divide. Yet, someone who is divorced and was married in, for example, the Church of England, can get married in a Roman Catholic Church without an annulment. Is God not present in the Church of England? According to the internet "It’s a ceremony that bonds you, not just in front of your family and friends, but in the eyes of God as well". Are these not double standards?
Mr Paul Barrett
Apr 15th 2011, 14:17
Dr Cassar Torrigiani as a Department head of International Law, I can quite understand your pedantic interpretation of the divorce referendum question rather than the big picture and indeed the background and intention of the divorce proposal.
You quite rightly state that children suffer (for better or worse) as a result of marital breakdown but you overstep the mark when you state that suffering is further aggravated when a third party displaces one of the parents in divorce. Why blame divorce – what about the same suffering in annulments or even worse in bed-hopping cohabitation.
As for consenting or none consenting divorce – Just what sort of marriage do you imagine physically exists in reality after four years of legal separation. As for the “contract” angle of marriage. If the terms of the contract are broken by one or both parties to the contract then there should be a legal remedy to dissolve the contract. It is humanely unkind to not have a legal remedy.
There should be a right to obtain a divorce. If either party to a marriage considers that it is totally unworkable to stay together then (because slavery has been abolished) there should be a prefect right to legally unbind the two parties.
If you have been following the debate and especially the declaration regarding the “guarantee” in the referendum question, you would not even have raised that point as it was well explained by JPO. As a person with legal training, you must be aware that every guarantee comes with the well know “small print”.
Indissoluble marriage when the marriage is irretrievably broken down does not promote the stability of the family. Children of the first marriage can as equally find love, care and attention in a second marriage by their parents as they can find the opposite. Apart from which they stand to get more birthday and Christmas presents :-)
With the number of marriages breaking down at the moment; increasing numbers of annulments and legal separations, the concept that vows can be broken is already well set and divorce legislation will not make the slightest bit of difference either to a strong family or a strong society.
To bring up euthanasia and abortion in a debate on divorce is the tactic of someone that is unable to find any good, sound and honest argument against divorce. It is a scare tactic because divorce legislation does not threaten the life of another human where as the other two do.
You mention the right for individuals to have another chance but then go on to say that people in your situation may not want to be divorced. Fine you may have several reasons for that wish but why should you prevent others from that option. No one will force you to re-marry if you do not want to but again, why should you prevent others from doing so. Children from broken marriages may or may not want their parents to separate, nor have any more or less say than the do at the moment than in separation (and annulment) where the damage is done.
Yes there are weak points in the referendum question and you do not have to be a legal expert to argue them. However you slant towards demonising divorce but not additionally demonising annulment and legal separation which destroys any real meaning in your article.
Joseph Camilleri
Apr 15th 2011, 13:35
Dr Cassar Torregiani asks: A contract cannot be revoked unilaterally. Why should the marriage contract be treated differently from a legal point of view?
A contract cannot be revoked unilaterally but every party to a contract can ask the Court to dissolve that contract. Let us take a less simple contract than the selling of a car. Tom and Harry form a business partnership and sign a contract to that effect. After some time, Tom, for some reason or for no reason at all, informs Harry that he wants to terminate the contract. What happens then? Tom and Harry can reach an agreement to the benefit of both to dissolve the contract by mutual consent. If they cannot, each has the right to go to Court. The Court cannot force Tom to continue working with Harry (that would be a breach of his human rights) but it can dissolve the contract and award damages to the aggrieved party, if there is one.
Ergo:
(a) Every contract can be revoked by mutual consent.
(b) No contract that involves long-term human relationship is indissoluble.
So I ask: Why should the marriage contract be treated differently from a legal point of view?
Mr Karmenu Dalli
Apr 15th 2011, 11:01
The author asks: "Has anyone ever considered that a number of people in my situation may not want to be divorced?" OK. You 'may not want to', because you WOULD have a CHOICE. And you WOULD be perfectly entitled to it. Right now you, (any) 'number of people', simply DON'T have that CHOICE.
Robert Henry Bugeja
Apr 15th 2011, 10:39
Mr.Cassar Toreggiani, what you have mentioned about children is happening right now and presently there is no remedy for it. Children are still being born out of wedlock and funnily enough this is okay for the church, but to divorce and have another family and to have children born in another wedlock that is not okay for the church. I understand your position cause Im not just seperated, Im legally divorced (not annulled). It seems to me that the party who do not want to be divorced is most probably living in denial. This is either because this party cannot understand the reality of its situation (love has died) or it is because it wants to leave the other party in a status quo due to some personal vengeance..i.e (if not with me, than with nobody else).
Kenneth Cassar
Apr 16th 2011, 10:47
Repeating a mistake after being corrected several times is a sign of dishonesty.
For the n'th time, there are NEGATIVE rights as well as positive rights. Look it up.
Mr Joe Zammit
Apr 15th 2011, 10:37
Rights are positive. Divorce is negative, so it is no right. Rights entail duties. Divorce entails no duty (not even to remarry), so it is no right.
The European Convention on Human Rights is reticent on divorce, so divorce is no right.
The United Nations Universal Declaration of Human Rights is mum on divorce, so divorce is no right.
Therefore, any argument depicting divorce as a right in view of introducing it in our legislation is flawed right at the start.
No MP, no person can vote in favour of divorce without sinning seriously against God. Christ tells all our MPs, all voters that what God has joined together let no MP, no voter put asunder. Any MP, any voter who votes for divorce is betraying Christ.
Join in the battle between God and the devil! Fight the good fight! The victory is ours, it's already guaranteed!
Peter Galea
Apr 15th 2011, 10:55
Mr.Zammit,
Judge not so that you will not be judged. We had enough of your bla bla.
Steve Pace
Apr 15th 2011, 12:55
If only you had some knowledge on what you are talking about ! Civil Marriages and Church Marriages are two seperate issues. Civil divorce only affects the civil marriage. Civil marriage is not recognized by cuhrch more than cohabitation. This only logically means that NO ONE IS SIINING AGAINST GOD since anyone who votes on divorce is voting in relation to a civil marriage and not a church marriage.
Mr david debattista
Apr 16th 2011, 13:48
@ Joe Zammit You know Joe, at times I wounder if what is behind your statement is what is called as THE COSMIC JOKER or the devil himself .