On divorce, Malta is a juridical anomaly. In vast tracts of the world, in the past as much as the present, among tribes, peasants and city-dwellers, black, brown, yellow and white, divorce has been permitted. But in its sharp critique of Martin Scicluna's argument for the introduction of divorce, ProġettImpenn urged Malta to stick to its non-conformist individualism.

How strong is the case? It had better be good.

In fact it is; but nowhere near as conclusive as its proponents think.

The argument is three-pronged. First, in answer to those arguing that Malta needs a law addressing significant levels of marital breakdown, ProġettImpenn points to the official statistics. The number of individuals describing themselves (in 2005) as separated, divorced or with an annulled marriage is comparatively low at 6.83 per cent for the total married population. (Note: That percentage is not the same as a "divorce rate".)

Although ProġettImpenn believes divorce is a bad idea for any society, with these figures even someone far less categorical might have good reason to conclude that here is another instance of Maltese exceptionalism: anomalous rates of marital breakdown calling for an anomalous ("tailored") legal framework.

Second, ProġettImpenn contests the argument that a divorce law would bring down rates of cohabitation and out-of-wedlock births while raising marriage rates: the reverse happened "wherever divorce legislation was introduced".

Actually, that claim is untrue for most places but it does hold for the post-1960s Western society that Malta most resembles. Moreover, liberal divorce laws themselves demonstrably contributed to the rise in rates of formal marital breakdowns.

So, why worry about being the black sheep? "Learning from the various experiences of these countries, it would be unwise for Maltese society to embark on proposals that have failed miserably elsewhere." To those who accuse ProġettImpenn of trying to reinvent the wheel, the likely retort is: Europe's wheel is square.

Like everyone else, ProġettImpenn selects which success to count and which to discount. But rather than parse the criteria, I want to show why the argument is inconclusive - on its own grounds.

For the argument's third prong is to reiterate a series of proposals, made before the last general election, aimed at strengthening the stability of marriage and family life.

Among the proposals: the recognition and promotion of "the family as emanating from an indissoluble bond of marriage", following which "the state should provide assistance to persons who are living out painful situations resulting from failed marriages, decisions to co-habit, and most especially single mothers, among others".

But: "those who are not married should not be given exactly the same form of assistance as those who are married. While acknowledging the existence of such relationships, the state cannot treat all forms of social relationships in the same manner".

Without unequal treatment, the distinction between marriage and the rest would be blurred. People would have an incentive to choose weaker forms of commitment. Marriage would not become cheap but the considerable costs of leaving it would be reduced. Marriage would be weakened.

However, ProġettImpenn is silent about the kind (or levels) of assistance that ought not be given to unmarried couples with children - especially where the couple cannot marry. We should be told.

Would it be the family-friendly measures arranged at state and private-industry level? Would it be the financial compensation offered to a parent who opts to remain at home with the children? Social housing for low-income couples? What?

I, for one, cannot see what kind (or level) of assistance can be withheld without punishing the children for the behaviour of their parents. If assistance is so vital to preserve the stability of a couple, should it not also be given to unmarried couples (especially since the chances are their relationship is far more fragile already)?

ProġettImpenn concludes its critique by trying to indicate clear blue water: "Who is not part of the solution for healthy families and marriage is part of the problem". But what is needed is a clear blue answer to the benefits question.

Without it, the water for legislators is murky. Their dilemma: shoring up marriage but doing less than they could for children born outside marriage; or doing what they can for all children but in the process, unwillingly but knowingly, weakening marriage. (The latter would also be harmful for children but the dilemma remains because we are not talking about quantifiable effects.)

That dilemma is not radically different from another: whether to introduce divorce, knowing it will clear up some mess while creating another.

In practice, the dilemmas could be weaker than they appear. But we can only know that if we knew more about the current patterns of Maltese marital breakdown, in terms of age cohort, income group, presence of dependent children, etc.

But to acknowledge that is to recognise that the optimal policy will change with society, depending on the discernible patterns of family formation. Legislators operate in a world where they need ProġettImpenn's realism about marital breakdown and its consequences but in which the categorical context-free certainty about the right solution is misplaced. The black sheep may have to begat the white.

ranierfsadni@europe.com