Divorce legislation has become an urgent necessity and laws to regularise cohabiting couples are no substitute, according to a report drawn up by an independent think-tank.

Describing the situation of broken marriages as a "deep malaise", the report, penned by Martin Scicluna for the Today Public Policy Institute, suggests the introduction of divorce legislation to grant legally separated couples the right to re-marry.

The institute, which has produced influential reports on Mepa reform, immigration, climate change and energy, proposes a divorce law based on the Irish model. This stipulates that couples would be able to file for divorce after having been separated for at least four years.

To avoid acrimonious court battles the report suggests the "no-fault" remedy, whereby neither spouse would be required to prove fault or marital misconduct on the part of the other. This means that divorce would be granted on the grounds that a marriage is "irretrievably broken down".

The report insists that in every case a judicial process must take place to avoid abuse and ensure the marriage has really broken down.

It is the first report of its kind to argue the case for divorce since 1998 when a government commission set up by then Prime Minister Alfred Sant had suggested the introduction of divorce legislation.

The new report says that in 1995 broken marriages accounted for almost three per cent of all marriages. The figure shot up to almost seven per cent 10 years later.

It estimates that the number of failed marriages will exceed 35,000 or over 17 per cent of marriages by 2015.

"What the figures show... are the trends in society and the looming social pressure-points which an enlightened government can no longer ignore," Mr Scicluna writes.

He says that existing legislation, which caters for annulment and divorces obtained in a foreign court, already allows people bound in marriage to re-marry.

The other legal avenue is separation, which however prohibits the individuals from re-marrying.

"We have legal remedies equivalent to divorce in every respect except one - the right to re-marry," the report says of separated couples who do not qualify for annulment or cannot obtain a divorce from abroad.

In a detailed exposition of the arguments in favour and against divorce legislation, the author also dedicates a whole chapter to examining the roles of the Church and the state on the matter.

He argues that the issue should not be a "doctrinal struggle" but an "earnest endeavour by people of good-will to find a just and practical solution to an urgent problem".

Legislators have to acknowledge that religious faith is a private matter and the principle of the separation of civil and religious authority is among the most important characterisations of a liberal democracy.

The primary concern and responsibility of members of Parliament should be the "well-being of all the individuals within society".

Aware of the cross-party consensus to regularise the position of cohabiting couples, which also finds support in Church quarters, the report cautions against adopting this solution at the expense of divorce.

"It would be tempting to suppose that introducing safeguards in the law on cohabiting couples would provide the solution, however. The reasons for introducing this type of legislation are well-intentioned, but misplaced," the report says.

It argues that cohabitation does not provide the "stability" that marriage does and making it a "necessity" would be "incompatible" with encouraging marriage.

"This would be the finger-in-the-dyke improvisation, which simply satisfies those unwilling to accept the deep malaise of broken marriages in Malta and the need to encourage the stability and social order which marriage provides. Re-marriage after legal separation would do so."

The report chastises those who say divorce is based solely on the selfish happiness of those who wish to end a failed marriage.

"Such an argument ignores completely the traumatic anguish and pain of those whose marriages break down, often in spite of repeated attempts to save the marriage. The plight of these people is a legitimate concern of the State."

Broken marriages

Census year: 1995
Annulled/divorce: 978
Legally separated: 4,120
Total: 5,098

Census year: 2005
Annulled/divorce: 2,309
Legally separated: 11,045
Total: 13,354

Source: National Statistics Office.

The long divorce debate

1975: A Labour government introduces civil marriage but not divorce. However, Maltese courts can recognise a divorce obtained abroad.

1984: The Labour Party's women's section approves a motion for the introduction of divorce and seeks to present it at the party's annual general conference. It is withdrawn after pressure from the party's leadership not to aggravate the situation with the Church that was already tense because of the Church schools dispute.

1989: The newly set-up party Alternattiva Demokratika makes divorce a central plank of its political programme and includes the proposal in every electoral manifesto since then.

1996: Former Labour MP Joe Brincat, who at the time was estranged from his party, presents a private member's Bill for the introduction of divorce for couples that have been separated for five years. The Bill is never discussed.

1998: The Commission for the Future of the Family set up by Prime Minister Alfred Sant proposes the introduction of divorce through a parliamentary free-vote. No Bill is ever presented as the government faces mounting internal pressure on the matter.

2008: Labour's newly elected leader Joseph Muscat says he will take it on himself to introduce a Private Member's Bill on divorce once his party is in government and Minister John Dalli tells The Times it is about time the country starts a serious discussion on the matter.

ksansone@timesofmalta.com

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