Who are we to...?

A woman asked me to explain to her when a marriage ends. Being a lawyer my answer was to refer to reasons for separation being cruelty, excesses and abandon. She then stopped me short and exclaimed that her marriage still existed even though her husband was dead and none of those reasons applied.

I was taken aback and decided to leave matters at that. However, I still reflect on that answer since in reality our law does not contemplate an end to marriage and even though, of course, the death of a spouse allows the surviving spouse to re-marry, it certainly does not wipe out the effects especially at the emotional level of the original marriage.

The same is true of so many separated people, particularly mothers who publicly declare they are still married and fully prepared to dedicate their full energies to their children as their one sole family despite the separation whether factual or legal claimed by the other spouse.

These experiences all show how difficult it may be to decide on the referendum issue on the many unfortunate individual cases put before our consciences.

Yet it is a fact that the current law lists the particular reasons for a judicial separation of husband and wife which do not end the marriage itself. Separation allows spouses who entered into a marriage freely to continue in the ‘family’ mission which marriage represents, even if on their own, and should the other spouse want to move out.

This is important in view of the fact that today a couple may agree to separate after abandonment by one of the spouses. Today many are comparing it to the proposal we are voting on where a divorce would be granted after a separation of four years.

However, there exists a fundamental difference: under the current law if an agreement is not reached, the ‘in fault’ spouse is required to prove his case before the courts according to the reasons listed by law to allow separation. In the proposed divorce law there is no need to do so. This shifts the negotiating power against the spouse who does not want separation in the first place.

Leading British divorce lawyers advise: “It would be possible to obtain divorce within two years if both consented but in reality a person who seeks separation instead of divorce is very unlikely to consent to divorce at all within two years or five years or ever.” So they advise the person seeking divorce goes directly for divorce, by-passing separation, to gain the best possible advantage in negotiations.

Our law therefore gives more power to the elbow of the spouse wanting to preserve the family even after separation; while the proposed divorce law gives the power to the individual person who wants to opt out completely of the family. He would just need to state to the court that there existed no chance of ever agreeing with his wife again – without specifying why.

British lawyers say this makes the courts “not demanding in their requirements making it difficult to oppose a request for divorce”.

Hopefully, the above example will explain the issue of “with or without reason” dispute which separates the Yes and No campaigns respectively.

Then there is the myth that separation discriminates against children born outside marriage. The law has removed any difference between children within marriage and those outside marriage.

The fundamental human rights of a child in either situation are the same and the Constitutional Court and/or the European Court of Human Rights will remove any difference in treatment between them.

Another myth is that the Church marriage tribunals in Malta are exempt from review by Maltese courts on matters of fundamental human rights.

The Maltese courts will examine any claim that proceedings before the Ecclesiastical Tribunal amounted to an unfair trial. It is therefore unfortunate the question of whether Deborah Schembri was rightly or wrongly banned from appearing before the tribunal was used as divorce propaganda.

The law today allows her every right to seek legal remedy before the courts of Malta – divorce or no divorce.

Similarly, the Maltese courts will not register a divorce from abroad if the applicant keeps any link with Malta. This puts all people married in Malta in exactly the same and equal position.

Where does all this leave us? To my mind at exactly the same starting point of this article.

Seen from the present legal perspective: who are we to interfere with the right of a married person who had freely entered in a marriage to continue in the marriage even if a spouse departs through physical or legal separation; are we to remove this last vestige of married family life against his/her will?