For doctrinal reasons, some cannot accept the civil dissolution of marriage after legal separation. But, having already acknowledged the marriage is finished – as is already the position with legal separation – reasons of doctrine are not of themselves a sufficient argument that it is in society’s wider interest to prevent the parties to an irretrievably broken marriage from subsequent remarriage.
The crux of the issue is that a secular democracy should consider and respect the passions religious faith animates on moral dilemmas. Believers of whichever faith have the right to abstain from practices they consider wrong. But they have no right of veto over others who may hold a different view. The determining factor has to be the requirements of justice, which apply to all, and not the Church’s marriage doctrine, which may be preached to all but forced on none whose conscience it offends.
Persons married but legally separated are denied the right to re-marry. Legally, if they form a new relationship, there is no husband, no wife, merely a cohabiting couple. It is manifestly in the interests of the common good of society to seek to rectify this inequity.
At the core of the argument is the overriding conviction that civil dissolution leading to remarriage may be sanctioned to prevent greater harm to the common good caused by the dislocation and insecurity in society of cohabitation and the injustice of preventing those already legally separated from remarrying . It has to be the state’s function not to prevent remarriage but, on the contrary, to provide a mechanism that, on behalf of society, it regards as fair and workable. The only missing element in the present legal remedy of separation is that separated people are not allowed to remarry.
Maltese society today pays a heavy price for sustaining the concept of the indissolubility of marriage and the hope that separated couples may one day be reconciled. Divorce enables the parties to an irretrievably broken marriage to acknowledge legally that it is finished and to be free to marry again. The well-regulated civil dissolution of marriage is a way of minimising the consequences of failed marriages. It allows people to rebuild their lives. To give legal recognition to caring second relationships, can only advance the cause of the institution of marriage, not weaken it.
The absence of divorce has plainly spared Malta none of the pain and tensions of marriage breakdown but it has complicated unnecessarily the social consequences. Indeed, all that it has done is to make life more difficult for many people caught up in this situation. The way to remedy this is to regularise second unions by bringing them within the scope of marriage law. The availability of civil dissolution after legal separation would make this possible.
The individuals’ right to choose their own domestic and family relationships and to expect due respect and acknowledgement of those choices from the state, together with the wider benefits to society from the stability provided by re-marriage, are fundamental. Respect for such rights does not run counter to the general interests of the state in supporting marriage. It reinforces them. The state has to find solutions when marriages break down, just as, for example, it provides remedies for broken commercial contracts.
To fail to recognise second relationships through remarriage is actually to undermine the institution of marriage and the family. The introduction of divorce will give a chance to people who are in stable and loving second relationships to obtain all the benefits and stability that come from a happy marriage. There are thousands of marriages in Malta that have entirely collapsed and are marriages in name only. On the other hand, there are many second relationships which are marriages in everything but name.
The freedom to marry again after legal separation and civil dissolution is an intrinsic responsibility of the civil rights and liberties of a well-ordered democratic and pluralistic state. Thousands of ordinary people trapped in irrevocably broken marriages seek justice and fairness through the legal remedy of remarriage after separation. This is the civilised, and civilising, experience of every other advanced western democracy in Europe and elsewhere.
The weight of argument in favour of divorce legislation is overwhelming.