The divorce debate (3)

There is a whole list of justifications put forward by the advocates of divorce, who appeal mainly to the emotional rather than the rational side of human beings. To mention just a few:

(1) Just as marriage was born of the free will of the contracting parties, so it can die by it too. This reason, however, does not take into account the social nature of marriage. Any decision about a marriage should take into account not only the situation of the couple involved but also all the consequences which would result for the whole of society.

(2) The state should not force any partners who are no longer in love to belong to one other but they should be left free to enter into a new marriage after obtaining a divorce. The state, however, should protect the common good and prevent the harm that would menace society, as a consequence of divorce. Besides, at least in certain cases, divorce is not the only alternative.

(3) When marriage becomes an intolerable burden, the spouses are tempted to enter into illicit unions, sometimes even begetting illegitimate children. Such unions, or de facto marriages, do not favour public morality and so civil divorce may be the only substitute in this situation. The truth is that it has been statistically proven that in the countries where divorce has been introduced, the number of people cohabiting has not diminished but rather increased.

(4) Separated people, who, on failing to get a divorce, decide to enter into illicit unions sometimes fulfil all the conditions required for a normal marriage because they reciprocate sincere love and take good care of their offspring - therefore they should not be prevented from entering legally into a second marriage and having legitimate children. However, the first condition necessary to enter into a true marriage is being free to marry.

(5) Separated people, after the breakdown of their first marriage, have a right to marry another partner with whom they fall in love and live happily thereafter. However, one should not jump to the conclusion that civil divorce infallibly offers an easy way out for the underlying problems that afflict certain marriages and the married partners requesting it are often mistaken if they hope that separation or divorce will solve their problem. They often overlook the fact that a person carries over his or her negative character traits when s/he remarries. The same causes which brought about their first marital breakdown may eventually crop up again in their subsequent marriage. Practically speaking, no one can guarantee that the second marriage would not be a failure just like the first.

(6) The moral and psychological harm experienced by children of divorcees, or separated couples, is very often the effect not of the dissolution of marriage but of the continuous strife existing between their parents before their separation. This, however, does not exclude the fact that the actual separation of their mother and father adds more trouble to their unhappy state of mind. Once a divorce is obtained, the separation becomes a point of no return.

When indissolubility is disregarded an essential property of marriage is missing and this will bring with it great risks that should be foreseen and averted. In a country where civil divorce is legally permitted, it is very likely that the number of spouses who enter into marriage while reserving the right to terminate the union under certain conditions will increase considerably. Therefore, in my opinion, an important question is being overlooked in the current divorce debate: How real is the risk of creating and multiplying putative marriages in our country once a divorce mentality prevails? And, what is our country, and particularly our legal system, going to gain from such an eventuality?

At this juncture, our legislators are called upon to carry out their duty of reflecting and discerning. So far, our legal system has enshrined the concept of indissoluble marriage. If the state wishes to abide by the parameters of natural law, which should be the basis of any positive legislation, it should endorse the idea of marriage as a permanent and stable bond between a man and a woman.

It should be noted that state laws are just and equitable if they comply with natural laws and not the other way round. Therefore, the introduction of civil divorce would be the warning sign of an extremely perilous turning point by Maltese legislators, who would thenceforth ratify positive legislation that is not based upon the objective natural law but on the relativist and fluctuating opinion of dominant factions.

It would be a choice in favour of the unbridled freedom of individual decision at the expense of the adherence to what is objectively just and binding as regards marriage and the family. Of course, once law makers opt for such a policy that disregards the exigencies of natural law, thus depriving positive civil laws of their sound and objective ethical basis, nothing would impede them from introducing other provisions in the future, such as trial marriage, same-sex unions, abortion etc.

Another appropriate question which should also be borne in mind by legislators regards the practical capability of our judicial system to tackle fairly and efficiently cases of divorce that would surely explode in the eventuality of its legalisation.

The state usually tries to curb court litigation as much as possible, so that its limited resources in the field of the administration of justice would be employed most sensibly and efficiently. Our civil law already caters for a wide variety of marriage breakdowns through the declaration of marriage nullity and separation. If, as happened elsewhere where divorce has been introduced, future social innovations lead to the practice switching from rare to routine, would our courts be able to cope with it? And, I ask, would we?

Mgr Cauchi is Bishop of Gozo.

(Concluded)