A must-read

Published: February 6, 2011 at 1:03pm

I loved Lou Bondi’s piece in The Sunday Times today, so I’m uploading it for discussion here. It talks about the Nationalist Party’s fundamentally contradictory approach to cohabitation and divorce.

I am totally against cohabitation rights. If two people who live together wish to regulate their relationship (the opposite of liberalism, getting the state to intervene like that, but some people think it is actually the epitome of liberal behaviour) then there is a perfectly serviceable vehicle for that purpose already: marriage.

If two people – or even just one of them – who live together do not wish to have their relationship regulated by the state, then the state has no right to foist cohabitation rights and obligations on them against their will and by default.

A cohabitation law is nothing but Marriage Mark II and the institutionalisation of a form of bigamy which allows a man to have both an official wife from whom he is separated at law but from whom he cannot be divorced unless it is in another jurisdiction, and a concubine with whom he lives in a relationship regulated by the state. The same applies to women except that I can’t find a word for the male equivalent of a concubine.

The Sunday Times, today
Let’s go forward to basics
Lou Bondi

What is it about this country that turns rational men and women into drama queens the moment there is a disagreement about a national issue, particularly if it touches on religion? Is it so difficult to discuss divorce for what it is? Namely, a civil right, pure and simple.

At the most basic level, a new civil right – like divorce – is best discussed in terms of what it gives to those who need it, in addition to what they already enjoy from current legislation. Neither those who are thinking of leaving a troubled marriage nor those who have separated need divorce to act.

Not only is it legal to separate, but the state intervenes to legalise separations. Effectively, the Maltese state is already party to the renegotiation of a broken marriage contract in order to accommodate the new reality that a married couple are no longer, well, a couple. And of course, the absence of divorce does not prevent people from cohabiting after a separation.

Divorce would barely have an effect – except in inheritance matters – on the rights of children born out of wedlock or to cohabiting couples. The fact that one out of every four Maltese children is born out of wedlock should bring those living on cloud nine down to earth.

So, the state does not prevent separations, puts its stamp of approval on separation contracts and does not prevent cohabitation or stigmatise children born out of wedlock.

But there is more. For more than a decade, various measures have been taken – ironically, by politicians who oppose divorce – to give cohabitating couples more rights, effectively bringing them closer at law to married couples. Indeed, the attempt to legally regulate cohabitation goes as far back as 1998, and Eddie Fenech Adami was its proponent.

The issue that remains then is this, and only this. How is cohabitation legislation going to be different from and better than divorce?

For all the name-calling, cloak and dagger politicking, potted histories, invocations of the son of God and ladies not turning, it all boils down to a matter of cold, rational legislation. Choosing what is best between competing goods.

In this sense, the ball is in the court of those who are opposing divorce. It is they who have to justify why cohabitation legalisation is fairer and more just to a man and a woman who wish to remarry than divorce, and offers better protection of the rights of all the parties concerned.

And herein lies the crux of the matter. If cohabitation legislation will continue, as it has done over the last decade, to remove the legal difference – in terms of taxation, social security, inheritance rights, pensions, the stuff laws regulate – between a cohabiting and a married couple, divorce would have been introduced in everything but name.

And that would be so typically Maltese wouldn’t it? Zwieg Bla Divorzju is a name that might strike a chord with the faithful in the pews at Sunday Mass. But I doubt whether Poġġuti Bla Zwieġ, which is exactly what this movement is proposing, would send them dancing in the aisles chanting hallelujah.

Some might object that divorce affects everyone, not just those who wish to remarry. Divorce, the argument goes, undermines the marriage bond by making it breakable.

Not quite. It is not just that no one will be compelled to divorce. Nor is it that the law can never mend what the matrimonial home breaks.

Neither is it that the absence of divorce has not stopped the number of Maltese men and women separating and cohabiting from increasing. The Church itself estimates that the figure will hit 35,000 in four years’ time.

There are two deeper points. First, if a man (or a woman) who is about to get married is comforted by the thought that if things don’t work out he can always swipe the divorce card, my humble conclusion is that he is not ready or fit for marriage or is about to marry the wrong woman, not that divorce is wrong.

Secondly, I grant that the will of the majority can, in certain instances, constitute sufficient grounds for denying a minority civil right. Nevertheless, the civil right to remarry entails one of the most basic, private and life-determining decisions a person takes in a lifetime. A European state should be careful even to tiptoe towards this decision, let alone march over it with black boots.

Denying the right to remarry simply because the majority doesn’t want it for religious reasons – and let’s be honest, for all the verbiage and intellectual gymnastics, this is what the on-the-ground debate in Malta is all about – would be a blow to what we understand contemporary European democracies to be all about.

As I recall, in 2003 we voted ‘yes’ to look north to Europe, not east to the Philippines.

15 Comments Comment

  1. C Falzon says:

    To me, it looks like simply exploiting a loophole in their beliefs. God apparently wasn’t specific enough when saying what can and cannot be done. So while divorce goes against God’s laws apparently cohabitation can fit in without actually breaking any of his laws so the religious politicians convince themselves that it is OK.

    Cohabitation law seems to me no different from marriage except in name and the fact that (as far as I can tell) religion doesn’t figure anywhere in it. So in effect a married person will be able to marry again (even without divorce) provided that that second marriage is not actually called a marriage.

  2. Luigi says:

    The problem is that the past policies presented by this government made it easier for people to cohabitat. For instance, single parent’s social benefits makes it easier for them to get all the state benefits and have a man at sunset.

    But they do not want to get married because they will lose the free cheque at the end of the month, plus the energy subsidy voucher, rent subsidy and what-not.

    Besides that, the birth certificate of their offsprings reads ‘unknown father’. Mhux hekk, inkella jaqtaghli c-cekk hux, u ma’ jkollix biex noqghod id-dar, nghaddi l-hin on the internet, niltaqa mal-hbieb, u jkolli ghas-sigaretti. Xi dwejjaq ta’ pajjiz u policies bazwin.

  3. Cannot-Resist-Anymore says:

    Shouldn’t cohabitation be regulated by what is referred to in other jurisdictions as “Common Law marriage”?

    [Daphne – There is no such thing as common law marriage. It is an urban legend. Under English law, if you’re not married, you’re not married, fullstop – the same as it is here. If you live with a man in England for 30 years without being married, you have no rights at all. It is as though your relationship did not exist. When people in that position protest, they are told – and rightly so – “You had a solution – marriage – and if you never bothered to use it, that’s your problem.”]

    I imagine we do not have such a thing as common law marriages here in Malta.

    Would legislation on cohabitation, therefore, establish a common law marriages in Malta?

    [Daphne – No, because Malta does not have ‘common law’. Common law is Anglo-Saxon. Maltese law in is rooted in Roman law and the Napoleonic code.]

  4. Loyalist says:

    The cohabitation law is a mockery of marriage. I oppose it for the same reason I oppose divorce. And I do so purely from a social aspect.

    You can say whatever you want but I’m not a very religious person and as a citizen I believe firmly in the separation of Church from State. Divorce is not conducive to a healthy society.

    It does undermine the concept of marriage.

    Bondi made the point that certain people are simply not prepared for marriage. With divorce they are more likely to jump right in because they can back out. Without divorce maybe they’ll think twice.

    We do not need divorce in Malta and we don’t need pseudo-divorce laws masquerading as cohabitation regulation.

    The state needs a comprehensive relationship education campaign. It does work because a county in America embarked on a rigorous marriage education campaign that has slashed divorce rates by 50% in 10 years.

    I do sympathise with those whose marriage has broken down irrevocably. But this is a national law, one that will regulate a nation-wide institution. It must cater for the common good and not simply individual needs.

    We live in a society and we have a duty to uphold that. If you don’t want to then find yourself an island and set up your own personal little kingdom and do as you please.

    I am against the introduction of divorce of any kind because in this consumerist lifestyle, we are becoming more and more greedy and any form of regulated divorce will be stripped down to unregulated wanton marriage dissolution within a couple of years.

    Pullicino Orlando’s divorce bill will institute unregulated, no-fault unilateral divorce. You don’t need to prove any fault (still an important aspect of most country’s divorce laws)… and there are even provisions for the courts to proceed even if there isn’t an official 4 year legal separation period prior to filing for divorce. I’d be more willing to accept regulated divorce than this… it’s tauntamount to social anarchy.

    • Lomax says:

      Actually we already have the concept of no fault in separation whereby there is no “guilty spouse”. No fault divorce would be nothing new.

  5. Jojo says:

    Lou Bondi should talk some sense to his cousin Austin Gatt.

  6. Joe Micallef says:

    Bondi introduces his piece suggesting that religion should not be involved but then makes religion the basis of his argument.

    I see the choice in favour or against divorce as the choice between a society founded on the family unit to one that is founded on the individual and I am not comfortable with the latter.

    If cohabitation law is moving to something to that same affect, than I am not even comfortable with that.

    When faced with this decision one is then free to choose what forms his decision, for some it could be the Roman Catholic Church and for other is could be Disney Land

    For all it matters a British acquaintance of mine thinks divorce has ruined the UK – he is a hard core atheist.

    • Interested Bystander says:

      Ask your mate what he thinks of the Roman Catholic Church declaring nul and void the marriages of couples who have had children.

      • Joe Micallef says:

        Interested bystander do you remember Dave Allen?

        In comparison to my mate’s views, Allen’s take on religion and religious orders would be considered as a very mild curry not hot enough to feature on the menu of a entry level Indian curry house.

        So I am not happy to repeat them!

  7. Ray Spiteri says:

    whaw, daphne likes lou bondi`s pen. how sweet. i hope you called him up and urged him now to write something vs PL.
    ex pn.

    • ciccio2011 says:

      Ray, what does “ex pn” mean? Does it mean you are now part of the PL?

      Tell us, how does it feel to be part of the same party of the 1970s which the PN fought against on the streets and against which the PN has now won 6 out of 7 general elections…and one out of one referendum?

    • TROY says:

      Whaw! Ray Spiteri likes Joseph’s, and his madding crowd’s speaches, how sweeeeeeet.

      • Kramer says:

        it spells WOW not whaw, you ignorant twat! Troy do us all a favour and go suck on your thumb in the corner before coming here blubbering nonsense!

        [Daphne – Errrr, I guess you don’t do sarcasm or irony. Read back Ray Spiteri’s comments and try to work out why Troy wrote WHAW and not Wow.]

  8. The validity of Bondi’s point is limited. The way I see it, regulating cohabitation is a sort of “damage containment” exercise.

    Nobody is saying that marriage breakdowns and subsequent cohabitation are OK, but it happens all the time so from a “societal” point of view there has to be some sort of regulation. Honour-among-thieves sort of thing.

    Divorce won’t add to the existing “chaos”. It is purely an ethical/moral issue.

    It is bad enough that people can’t or won’t adhere to a set of established and proven values, but issuing an “official” declaration that it’s OK to look upon marriage as something that can be undone is something else again.

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