It is axiomatic that marriage is a matter for the parties. The state should not in any way be involved in the decision to enter into that union and in the choice of marriage partners. The state registers a marriage and recognises certain rights of the parties.
This is not to say that the state has no stake in the stability of marriage, because it is within stable marriages that its future citizens are nurtured and brought to maturity in the best possible way and because the spouses in a stable marriage are not distracted unduly from their normal civilian working life.
The state has traditionally anchored marriage stability to the indissolubility of the marriage bond, freely and properly entered into by the parties. One cannot put in doubt that indissoluble marriages are more stable than dissoluble ones.
Within the daily travails of married life, there are many moments which might tempt one party or other to think of the possibility of changing partners. The anchor of indissolubility can help to keep the partners within harbour.
It has been said that social patterns have evolved and that less stable relationships have become more frequent. It is not a positive development for the state, should not be favoured or welcomed and has wrought havoc on the emotional stability of children of broken homes, in no way assuaged by the start of new relationships entered into by the estranged parents.
People who deal with juvenile delinquency and with drug addiction, know this very well.
The state has no mandate to save souls. In 1974, adultery ceased to be a crime in Malta, though, of course, it has continued to have consequences in civil law vis-à-vis the other partner. This decriminalisation was justified in theory and in practice.
Criminal law is not the best enforcer of the marriage bond, so cohabitation with a partner different from the one to which one is bound is no longer criminally punishable.
Nobody is constrained in Malta to live with a married spouse if he or she no longer wishes to. Every person is free to live with a person of their own choosing. By and large, most people would respect the decision taken by others.
However, the state, having registered and recognised rights within a valid marriage, is interested in the outcome of legal separation, and there exists the Family Court and mediation to cater for a proper definition of rights and duties.
Personally I have dedicated a lot of time and effort to the machinery of mediation in the hope that some reconciliation or more reasonable accommodation of rights and duties could be achieved.
If we legislate for divorce we will be discarding the anchor of indissolubility. Marriage cannot be at the same time entered into “until death do us part” and be subject to dissolution by divorce. Logic and good sense should then make us change the marriage formula into something like: “until we agree to dissolve or there are circumstances in which one of us can ask for dissolution”.
The logic in the present formula is that of indissolubility, if we retain it after divorce the spouses would be deluding themselves and in part, so would society.
To my mind, it is not in the public interest to discard indissolubility and introduce a form of union which is, in essence, temporary and subject to being dissolved on certain conditions. The public interest militates in favour of stability and of a bond remaining a bond. So does logic. Should we care for public interest and logic?
What are the supposed benefits of divorce and what is the burden that indissolubility is imposing on people whose marriage has failed?
There are people who have been wronged by the other party and who, in all justice, feel they should be entitled to seek solace in a new union; there are some who have been really unlucky; there are those who erred and cannot be reconciled; there are those who think their former ‘marriage’ was a sham even though the courts, Lay and Ecclesiastical, have not found a way to declare them so.
If the parties ‘make’ a marriage, some feel that they, as a constituent party, know more than anyone else whether it was a real marriage or not. All these people might enter into a new relationship and ask for the state’s recognition of their union as a new marriage.
One extends sympathy, but there are obstacles to be overcome if divorce is to be introduced. One offers to regulate cohabitation and the rights that might arise without erasing the rights contracted with marriage. Is this insufficient?
There are two main obstacles: one is the anchor of indissolubility; the other is the overlapping of rights at civil law or social service and fiscal laws, contracted by the first marriage.
Our provident legislator, in the Civil Code, has sought to protect, in the case of a second marriage after the death of the first spouse, the rights of succession acquired by the children of the first marriage.
Experience shows that the ‘new’ family edges out the first, not only in affection. With a second marriage after divorce, the matters are much more complex: competing maintenance rights as much as competing succession rights and pension rights. It is not realised how much is involved in divorce: how many public and private justice interests are involved.
Should we abandon indissolubility? For what? So as to render cohabitation (the new start, the new relationship, the new ‘family’) more respectable? Is our society’s simple respect for these unions not enough?
Is this pseudo-respectability a proper price for the destruction of the regime of indissolubility? Is it in the general interest to introduce divorce? Is the state justified in favouring a relaxation of the stability of marriage?
Besides the logic and consistency, there is the proof of fact: the rate of marriage breakdowns has increased in every country where divorce has been introduced. Our rate is one of the lowest in the Western world. Should we try to augment it?
Dr Mifsud Bonnici is Minister for Justice and Home Affairs.