The Bill before Parliament will allow any one of the partners in a marriage to seek divorce and this is no different from separation procedures in force, according to a lawyer.

“Divorce, like separation, can be requested by any one of the partners even if the other person does not want to,” lawyer Kevin Dingli said during a debate organised by the anti-divorce movement yesterday.

Dr Dingli and another lawyer, Robert Tufigno, gave a critical legal overview of the divorce Bill presented by MPs Jeffrey Pullicino Orlando and Evarist Bartolo.

The Prime Minister’s wife, Kate Gonzi, was among the sizeable crowd made up mostly of elderly and middle-aged people.

The two lawyers were introduced by the movement’s chairman, Andrè Camilleri giving their marital status (both are married) and the number of children they fathered.

The analysis varied from Dr Dingli’s sober breakdown of the law and its comparison with legal provisions already in force for separation proceedings to a more passionate anti-divorce statement by Dr Tufigno.

According to Dr Tufigno, divorce will reduce marriage to a simple civil contract, weakening the bond to the point that people could start questioning the need to get married in the first place.

“Civil contracts are not annulled by those who are at fault or unilaterally by one party. The divorce Bill allows the guilty party to dissolve the marriage contract by asking for the divorce. Furthermore, the guilty party can use his fault as grounds for the divorce,” Dr Tufigno said.

He said this would give rise to a culture that rewarded those who reneged on their commitments but acknowledged that no-fault separation already existed.

Tackling the key aspects of the divorce Bill highlighted in the referendum question just approved by Parliament, Dr Tufigno said his legal interpretation was that the four-year time lapse for a separated couple to be able to get a divorce “may not be a necessity”.

Both lawyers questioned the safeguards for children in the divorce Bill and said the court was not obliged to guarantee maintenance, custody and access to children.

“The fulcrum of the Bill is to safeguard the rights of the couple and not the children,” Dr Tufigno said.

Maintenance could not be guaranteed, he added, because remarriage after divorce would create a new reality and additional exceptions the court would have to entertain.

Dr Tufigno also pointed out that the Irish divorce gave weight to the standard of living of the people concerned and the income derived by third parties in the second marriage when maintenance was calculated. “Why did the divorce Bill proponents, who used the Irish law as a model, leave out these two elements from their law?”

Giving a detailed analysis of the Bill, Dr Dingli said it was proposing amendments to the Civil Code rather than introducing a law in its own right. He explained that a divorced person who got married lost the right to maintenance from the first marriage, apart from arrears.

Dr Dingli said divorce, like separation, could be requested by any one of the partners by opening divorce proceedings in court. However, divorce could also be attained by mutual consent if both parties reached an agreement and filed it in court.

Dr Dingli highlighted the four-year separation time lapse as a necessary ground for obtaining divorce but questioned whether this also applied if divorce was contracted by mutual consent since in such cases the court simply took note of the agreed declaration.

He disputed the use of the word “guarantee” in the referendum question because the law only spoke of “adequate maintenance”.

ksansone@timesofmalta.com