A legislation for divorce

It is ultimately up to our law-makers in Parliament to make the decision on the best way forward on the issue of divorce, mindful of the need to act always in the best interests of Maltese society as a whole, including those who may only form a relative minority within it. As legislators, members of Parliament have a duty and a responsibility to ease the human suffering caused by marital breakdown.

What kind of legal frame-work should be enacted by Parliament? It is crucial that a legal remedy for marriages that are shown to have irretrievably broken down should be just, civilised, responsive to the interests of any children of the marriage and sensitive to the needs for the protection and security of the parties to the divorce.

It must also aim to be fair, well-ordered and reflective of the needs of Maltese society. Most importantly perhaps, it must avoid the pitfalls of divorce legislation that have arisen in some other countries where, as each successive change of the law made divorce easier, there was an inevitable increase in the rate of divorce.

In my judgment it should consist of a fair but firm frame-work, having five key characteristics. Access to the divorce remedy should be restrictive but just.

The easy availability of divorce in some countries, where the waiting period is a year or even less, causes problems. Before the courts will consider granting a civil dissolution, it is therefore proposed that the period during which the couple had lived apart from one another should be established at four out of the previous five years before the institution of proceedings and the courts should be satisfied that there is no reasonable prospect of reconciliation.

"No fault" divorce, a technical phrase that means that neither party has to prove in court the other's wrong-doing, would be adopted, though "fault" can be taken into account by the court in reaching a settlement between the couple. The reason for the introduction of "no fault" provision is not - as some wrongly state - to make divorce "easier" (it never is) but to avoid, so far as possible, turning the separation into a confrontational, bitter and destructive process, to the extent that no sensible discussion can take place between the couple or any agreement reached relating to their marriage or their children.

The legislation should provide for divorce on grounds of "the irretrievable breakdown" of the marriage. In every case, there should be a judicial process to ensure a breakdown has really occurred and that no abuse of the system has taken place. While the "irretrievable breakdown of marriage" should provide the only basis for divorce, it would be prudent to retain the principle that matrimonial misbehaviour ("fault") may be taken into account by the courts on grounds that such behaviour was also evidence that the marriage has broken down irretrievably. Considerations of "fault" are especially relevant when the future welfare of children is involved.

The courts should be given sufficient powers to provide for the welfare of the dependent spouse and any children. This should apply especially to custody arrangements for the children, where it has been shown that joint custody arrangements are more beneficial by comparison with sole custody. The welfare of the children must be given the court's paramount consideration, especially where financial provisions and housing are concerned.

The courts should be given sufficient powers to adjust property, income and maintenance rights equitably, including making a proper contribution towards reasonable maintenance for any children of the family, taking into account the financial needs, obligations and responsibilities that each of the parties to the marriage is likely to have in the foreseeable future.

This legal framework for the granting of a civil dissolution of a marriage should also be underpinned by a comprehensive social support system, including, inter alia, comprehensive family mediation and counselling services.

The introduction of legislation for the civil dissolution of marriage would force no one to avail themselves of this option. It would not undermine marriages that last and remain stable for life. The existence of legal separation in Malta for more than a century has not led to an outbreak of frivolous marriages. But this legal remedy has been inadequate and, thus, inimical in its effects on society. The unintended consequences have been to encourage cohabitation and to cause untold pain to those who wish to re-marry. Neither individual justice nor the common good have been well served by it. It is time for leaders to exercise moral courage and to effect the necessary changes to our laws.