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.