After weeks of aggressive campaigning, selective quotes from studies and sweeping statements (but no factual information campaign), a large portion of the voting public are still undecided about how to cast their vote in Saturday ’s divorce referendum. Christian Peregin attempts to answer 21 frequently asked questions.

1. What is the referendum question?

“Do you agree with the introduction of the choice of divorce in the case of a married couple who has been separated or has been living apart for at least four (4) years and where there is no reasonable hope for reconciliation between the spouses, whilst at the same time ensuring that adequate maintenance is guaranteed and the welfare of the children is safeguarded? Yes or No.”

2. Is the referendum tied to the divorce Bill?

Proposed by the Labour Party, the referendum question is based on the key points of the draft divorce Bill co-presented by Nationalist MP Jeffrey Pullicino Orlando and Labour MP Evarist Bartolo. If the public says yes, the Bill is expected to be discussed in Parliament where certain details could be amended. Although the referendum is consultative (not legally binding), a yes vote would put political and moral pressure on MPs to abide by the referendum question’s parameters and to approve the presented Bill.

3. What is “no-fault divorce”?

No-fault divorce allows the dissolution of marriage without the need for the spouses to accuse each other of specific faults (such as infidelity or abandonment). These issues are tackled at separation stage, where the party at fault, as a consequence, forfeits the rights of maintenance and succession. Maltese law today allows for no-fault separations, which allows separation on grounds that the marriage has broken down irrevocably. Through no-fault, the person who committed a fault can still obtain a divorce but the element of conflict is done away with.

4. Must you be legally separated before getting a divorce?

According to the referendum question, a couple has to be legally separated or living apart for at least four years to obtain a divorce. If the legal separation already took place, and issues like maintenance are already settled, divorce can be obtained through a court petition which declares the marriage dissolved. But the Bill says that if a couple has not been legally separated, they must go through simultaneous separation and divorce proceedings. Therefore, a separation settlement is required before a divorce can be granted. The four-year period begins when people start living apart, unless they get legally separated beforehand.

5. Is maintenance guaranteed?

The referendum question says adequate maintenance must be guaranteed. In reality, it is the right to maintenance that is guaranteed. This means that, after the marriage is dissolved, the obligations from the separation agreement must continue. Not everyone who gets separated or divorced is owed maintenance, and those who are owed maintenance do not receive it forever. If a person who receives maintenance gets remarried, they will lose that right. If a person who gives maintenance gets remarried, they will have to continue paying. The more people this person must maintain, the more likely it becomes that each person’s share decreases. Today, the right to maintenance could be lost if the spouse receiving the money is caught breaking his or her vows.

6. Can divorce be imposed on someone who does not want it?

Yes. Just like in separation and annulment, a spouse’s consent is not required for divorce. As long as the couple has been living apart or legally separated for four years or more, a person may unilaterally decide to divorce his/her spouse.

7. Can you divorce more than once?

Yes. There is no limit as to how many times you can divorce and remarry – as can happen in annulment. You can also remarry any of your former spouses after divorcing them. In practice, it is uncommon for people to marry more than twice unless they are particularly wealthy and can afford to pay necessary maintenance.

8. What benefits do people gain from marriage?

Besides an issue of love and commitment, marriage gives people rights and obligations. Since it is in the state’s interest to promote marriage, there are a number of benefits available to married couples and not to cohabiting ones. This includes the right to pay taxes as a couple and the right to make a common will. The problem with cohabitation is that the couple owes nothing to each other if the relationship breaks down. This causes problems when one of the partners is dependent on the other.

9. Is divorce a fundamental human right?

No. In 1986, a separated Irish man argued that the lack of divorce breached his basic fundamental right to respect for family life but the European Court of Human Rights rejected this claim. The ruling has never been challenged since, so until today divorce is not a human right. However, almost every country in the world views divorce as a civil right.

10. Which other countries do not permit divorce?

Malta is the only EU country that does not allow divorce. The Philippines also does not permit divorce but, like Malta, it is discussing its introduction. The last country to introduce divorce was Chile in 2004. Last year, New York became the last US state to move from a fault-based divorce to a no-fault divorce.

A Christian’s perspective

11. Is voting for divorce legislation a sin?

Not necessarily. Although members of the Church have given different opinions, seven theologians answered this question last October in a paper that was endorsed by the Archbishop. They said Catholics must vote with a formed and informed conscience. Those who only follow their thoughts or personal interests are not doing their Catholic duty and “may possibly be sinning”. But those who have a formed and informed conscience and still do not see why they should vote against (or decide to choose the lesser of two evils), have a duty to follow their consciences.

12. Does divorce affect Church marriages?

Being married in church does not prevent you from being able to obtain a divorce. However, divorce only dissolves the civil part of a marriage. The sacramental part is indissoluble as it is deemed to be a contract between the couple and God. In fact, people who get divorced cannot remarry in the Church unless they also get a Church annulment.

13. Does this change the definition of marriage?

Marriage is not defined in Malta’s Civil Code, so legally there is no change in definition. However, since civil marriage was introduced after Church marriage, the Maltese still tend to define marriage in the Catholic terms, where indissolubility is a main factor. Therefore, the introduction of divorce would bring about a distinction between civil and Church marriages.

If not divorce… what else?

14. Is cohabitation an alternative to divorce?

Today, there are no cohabitation laws protecting vulnerable people living with someone outside marriage. A draft cohabitation law has been drawn up but the government has decided against publishing it before the referendum. This law is likely to protect siblings and heterosexual and homosexual couples living together. But it is unclear whether the law would protect a relationship where one of the partners is still legally married to someone else.

15. Can’t people use civil annulment instead of divorce?

No. To obtain an annulment the marriage must be invalid at the start of the marriage (such as if one of the spouses was forced into marriage, or hid a mental illness from a spouse, did not intend to remain faithful or have children). Very often proof of this defect of consent emerges once the couple starts living together. But annulment cannot be used when problems emerge during the marriage, such as in the cases of infidelity, abandonment and domestic violence, unless these constitute a sign that the person was unable to assume the essential obligations of marriage.

16. Is it true that Maltese people can obtain a divorce from abroad?

Yes. Divorces obtained abroad are recognised by the Maltese state. But to obtain a divorce from abroad, one of the parties must be recognised as a citizen or resident of another country. Foreigners married to Maltese people can get a divorce with relative ease. Maltese people married to foreigners can also obtain divorce with relative ease. Maltese couples can do the same by becoming residents of other countries, which is a complex and sometimes costly matter.

What about the children?

17. Does divorce affect children?

It is commonly accepted that marital breakdown affects children emotionally and psychologically, particularly if the separation is acrimonious and if they are involved in court proceedings. The No lobby claims that things would become worse because the children of the first marriage would be introduced to new spouses and, possibly, new children. However, the Yes lobby counter-argues that this is already the case because one cannot stop a spouse from cohabiting and having children with someone else after separation.

18. Are children born out of wedlock discriminated against?

Legally, they are considered equal to children born in wedlock. But some legal discrimin-ation still remains. Today, if a father dies without a will, the children he had within wedlock are owed a larger share than those born from another non-marital relationship. Children born out of wedlock also still seem to suffer considerably from social stigma.

After divorce…

19. Does the introduction of divorce increase marital breakdown?

There is no evidence of this. In Ireland, the marital breakdown rate actually decreased in the decade after divorce was introduced but the No lobby insists this is because there were fewer marriages. However, some studies claim that the rate of divorce in many countries was accelerated throughout the last century because divorce laws became more lenient and divorce became easier to obtain, such as through the increased acceptance of no-fault divorce. The Yes lobby has disagreed with this interpretation.

20. Does divorce stop cohabitation or increase it?

Cohabitation is becoming increasingly popular around the world, including in Malta. In Ireland, cohabitation continued to increase after the introduction of divorce but there is no proof of divorce having any connection. Divorce will allow couples who today are forced to cohabit the chance to remarry, though not everyone will make use of this option.

21. Does divorce lead to abortion?

Since divorce does not impact the right to life, it is completely distinct from abortion. Malta is the only EU state to have an absolute ban on abortion, like Chile, which introduced divorce in 2004 and has since retained its absolute ban. On the other hand, Italy introduced abortion only four years after introducing divorce in the 1970s. Since introducing divorce, Ireland has held on to its very restrictive laws, permitting abortion only when the pregnancy threatens the mother’s life.