It’s not a general election, Joseph
My wife on my left, my civil partner on my right, and I'm a happy man
Joseph Muscat and his people are unable to distinguish between the election of MEPs to the European Parliament and the election of a party to government, so he is behaving as though the run-up to June 6 is a general election campaign, talking about national issues and telling us to choose our representatives in the European Parliament on the basis of how we feel about our water and electricity bills – as though an MEP deals with that kind of thing in Brussels and Strasbourg.
Now he’s dragged things up a notch, and so oh dear, here we go again, with some more false initiatives to avoid biting the divorce bullet. Just watch Muscat go, running the general election campaign of 2013 in the spring of 2009 when all he wants is three seats for his boys in the European Parliament.
It’s not so much that he and his people – those titans of political campaigning, Jason, Toni and Anglu – haven’t a clue as to the sort of issues a political party should be pressing home in an EP election campaign (the ability to press the right buttons, for example). It’s that when they go into the arena with their badly misplaced national issues which belong in a general election, even those make no sense and are wildly off the mark.
I keep getting the unpleasant sensation that Muscat can’t think things through, or that he’s being cynical like his predecessor was, and assuming that the people he’s addressing can’t reason things out so he might as well manipulate them. Either way, it’s worrying.
So this week, we had a headline: ‘Muscat calls for civil partnerships’. Oh goody, I thought – no problem with that. It would be nice for homosexual couples to have some kind of formal arrangement so that they don’t end up in the same kind of mess that so many heterosexual couples end up in when they can’t get married.
But wouldn’t it make more sense to put the horse before the cart and legislate for divorce before legislating for civil partnerships for homosexual couples? Otherwise, all we’ll have is homosexual couples joining the ranks of the heterosexuals in agitating for divorce when their civil partnerships go belly up. That makes no sense at all.
Then I read further, and Muscat’s plans – which appear to have been scribbled on the back of a cereal packet while changing Soleil and Etoile’s nappies with one hand and eating a take-out with the other (“Jason, hu nota.”) are even more confused than I imagined at first.
He wants these civil partnerships to regulate the relationships of heterosexual couples as well. What? There is already a legal regime which regulates relationships between men and women. It’s been there for rather a long time, it’s fairly universal, and it’s called marriage.
What Joseph Muscat is proposing here, with his civil partnerships for heterosexual couples, is either no different to a straightforward civil marriage, in which case it is redundant, or it is Civil Marriage II, a second-class partnership for second-class relationships.
If a man and a woman want their relationship regulated by the state, what they do is what the rest of us did: they get married. If they don’t get married, it’s because they don’t want their relationship regulated by the state.
And if they want their relationship regulated by the state, but don’t get married, it’s because they can’t get married, because one of them is married already, to someone else, or both of them are.
So it stands to reason that the solution to this problem is not legislation for civil partnership. It is divorce, which would allow them to marry. A civil partnership would be conditional on divorce anyway, so it would be redundant immediately. If you are free to marry, you marry – you don’t go for a civil partnership.
I can just imagine the reaction a man will get if, newly divorced and free to marry his woman, he gets down on one knee and says to her: “Will you partner civilly with me, my love?” He had better ensure there are no large and heavy objects nearby before he does this, because what he would be saying, in effect, and his beloved would understand this immediately, is that he feels obliged to regulate their relationship but he doesn’t want to take the full step of marriage, so he’s going for second best.
So why would a civil partnership be conditional on the civil partners having first been divorced from their spouses? I should think that would be obvious, even to a non-lawyer like Joseph Muscat, bookended as he is by the brilliant legal minds of Toni Abela and Anglu Farrugia.
A person cannot be concurrently in a civil partnership with X and also married to Y. This would be little other than a form of bigamy, and unheard of anywhere in the world except where polygamy is permitted.
This is precisely why civil partnerships for heterosexual couples exist nowhere in Europe or elsewhere in the western world that I can think of: because if a heterosexual couple want to regulate their union, they get married, and the civil partnership they choose, if they don’t want a religious rite, is a civil marriage.
There is no reason on earth why there should be something similar but of inferior status called partnership, though I do understand that perhaps the Malta Labour Party has a fixation on both the word and the concept.
The idea that there is something called a common-law marriage in Britain is entirely false, as many silly women have discovered after living with a man for years, bearing his children, helping him in his business, and then ending up thrown out of the house with nothing when he goes out one morning and doesn’t return, either because he’s run off or because he was killed in a road accident.
There is no secondary substitute for marriage, anywhere. It’s either marriage, or it’s nothing except a series of painful law suits in which you sue his ex-wife, his children by his ex-wife, his brother, sister, mother, and business partner for what you believe you are owed.
Why do I assume that it’s the woman who ends up in trouble? That’s because it usually is. When her man can’t marry her because he’s married to somebody else, the solution isn’t a civil partnership so that he can have two ‘wives’ – a full wife and a half-wife. It’s divorce, so that he can stop using his pre-existing marriage as an excuse for avoiding marriage to the new woman in his life.
Because it’s always an excuse, isn’t it? The current situation of “Sorry, darling, I would love to marry you if only I could” is just so perfect for men, if they are the main provider and the one with the house, but far, far, far, from perfect for the woman who lives with them.
Muscat sees his initiative as a move towards the protection of the rights of cohabiting couples. But even here he hasn’t thought the situation through. Forcing legislation on people who might have consciously avoided the regulation of their union is completely unacceptable.
It tramples on their rights, invades their privacy, and marks a return to the time many centuries ago when if two people of the lower social orders set up home together, they were regarded as being married (the same did not apply to people of wealth, who had to formalise their union).
How is Muscat’s law on cohabitation going to be applied? Is it going to be opt-in, opt-out, or mandatory? Let’s say Jimmy and Joan set up home together. Neither of them is married to anyone else. They just don’t want to be married, full stop – or one of them doesn’t. This means that they have consciously avoided regulating their relationship. They don’t want to formalise their union. They just want to live together, with no ties.
It’s their decision and it’s nobody’s business, still less Prime Minister Muscat’s. Is he going to come along and tell them that he’s had their union formalised whether they like it or not, purely by virtue of their being cohabitees?
That’s what I mean about an invasion of privacy and a trampling on of rights. The same applies if only one half of the cohabiting couple doesn’t want the union formalised, but the other does. The state cannot impose on the other person, by default, participation in a formalised union when he or she hasn’t consented and, more so, has expressly ruled out willingness to formalise that union.
Participation in a formal, legal union requires conscious consent, expressly given before witnesses and recorded in the public registry. It is outrageous to suggest that a person can find himself or herself with the rights and obligations of a formal union purely through the act of setting up home with somebody with whom he or she has – or doesn’t have, as sometimes happens – a sexual relationship.
And that is precisely why common-law partnerships are a fiction and not fact, despite the popular mythology. They violate a person’s rights.
Unfortunately, Joseph Muscat has joined in the same old game being played by politicians on both sides of the house for years: kicking divorce around the field and hoping that some deus ex machina will solve the problem or that it will somehow solve itself. Each political leader wants the other one to legislate for divorce so that he won’t have to do it himself.
But it’s a safe bet that both political leaders are unsure how to react in the eventuality that the other one bites that bullet. Will they cooperate with each other or will they raise a ruckus about a free vote?
Muscat – what a surprise – is sitting on the fence already. He has said that he believes divorce to be a civil right. In the same breath, he has said that when he is prime minister he will bring a divorce bill before the house, but – and this is the big but on which the whole thing founders, raising doubts about his commitment to the matter – he will give his MPs a free vote, and that he hopes the Nationalists will do likewise.
This is such skewed thinking that I just don’t know where to begin tackling it. If he really believes that divorce is a civil right, then there should be no question of using the whip to ensure that all his MPs are present in the house and that they vote in favour. If it’s a civil right, then it’s a civil right, and not something to quibble about.
He knows, surely, that allowing a free vote will bring the most enormous pressure to bear on his MPs, especially the more righteous and churchy ones. Bereft of the excuse that the party whip has been brought to bear, they will be subject to the same sort of pressures that made them sign that ghastly petition calling for interference in the Constitution on matters of abortion.
No matter how much Muscat tries to rebrand his conservative, xenophobic party as progressive, when it comes to the crunch they’re a bunch of chest-beating backwater bunnies.
For Muscat to claim that he hopes the future Nationalist Opposition will allow a free vote on his divorce bill, too, is doubly self-defeating. If he is going to give his people a free vote on that divorce bill, which means that a significant number of them will vote against it, then he is going to have to rely on the votes from the opposite side of the house to push his bill through.
He should be hoping that the Nationalist leader brings out his whip and uses it for a mass vote in favour.
Joseph Muscat can’t make his mind up even about this. Interviewed by John Bundy taht it-tinda – because having given up on creating its own campaign, Labour has resorted to copying the Nationalist Party’s general election stratagems – he said that he might even have a referendum on divorce and “give the Maltese people a free vote”.
That’s right, sir – go ahead and put a minority rights issue to the vote of the majority. Not to worry, though, because he can always ignore the result or claim that civil partnership won the referendum.
But of course, the really worrying thing is this: a divorce bill written on Labour’s malfunctioning computer and vetted by its legal beagles Anglu and Toni. Something tells me it’s going to be a polygamist’s nirvana, or the marital equivalent of CET.
This article is published in The Malta Independent today.
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Daphne, actually civil partnerships exist in the UK and a version of the, called PACS exists in France.
[Daphne – Yes, for homosexual couples. Heterosexual couples don’t partner civilly. They marry civilly – or religiously. If civil partnerships were to be introduced for heterosexual couples, the difference between a civil partnership and a marriage would have to be delineated. Where would these differences lie? The right to carry on living in your home after your partner dies, but then no community of acquisition during life? The rights that would make civil partnership worthwhile and workable exist already in marriage, so if a civil partnership is going to be functional and sensible, it stands to reason that it’s going to duplicate civil marriage.]
You are totally right and I was just stating a fact. It is actually open for both sexes at least in France where I live.
http://en.wikipedia.org/wiki/Pacte_civil_de_solidarit%C3%A9
That is incorrect. PACS exists for heterosexual couples as well.
Thanks – what I meant is that it is open for homosexuals & heterosexuals.
VAT – CET dealt with money.
Divorce – Civil Partnerships involve people and their families. So, Joseph Muscat be careful. We are not guinea-pigs.
Are we going to keep hearing that dreaded word ‘partnership’, for ever?
I don’t know why you insist in saying that registered partnerships are for homosexual couples only. In a lot of countries they are, but in many others they are open to heterosexual couples as well:
http://www.ilga-europe.org/europe/issues/lgbt_families/marriage_and_partnership_rights_for_same_sex_partners_country_by_country
Granted, where they are open to opposite-sex couples the rights and obligations are markedly inferior to marriage, but they do exist.
Your criticism of the fact that in the absence of divorce, such a law would be an anomaly would only be valid if you assume that the law would only be useful to separated opposite-sex couples (as opposed to homosexual couples and heterosexual cohabiting couples who were never married). There are couples who might want to have certain basic rights associated with marriage but who would not want to go all the way (they might not believe in the institution of marriage, for example).
And I find your criticism of Joseph Muscat’s proposals in this area rather disappointing – you sort of agree with him in principle that divorce needs to be introduced and that gay partnerships need to be recognised. You criticize the solution he proposes, but you keep silent on our ruling Talibans who you supposedly disagree with in principle. Have you forgotten Tonio Borg’s famous ‘Ours is not a liberal party’ battlecry? And his outrage at the suggestion that gay couples be recognised for the purposes of tenancy succession? Oh, God forbid.
[Daphne – No, I don’t agree with Joseph Muscat, not at all. Unlike him, my belief in the necessity of divorce legislation as a civil right is absolute, not conditional. If I were a prime minister putting a divorce bill before the house, I would not give my MPs a free vote. Over and above that, I would cooperate with the Leader of the Opposition and bring the Opposition party on board as well. Another point: by giving his people a free vote, Muscat undermines his very own message on the separation of church and state. The only reason they could possibly want to vote No to a divorce bill is religious diktat. So here we have Muscat berating the government for not doing enough to separate church and state on matters of divorce, when he himself is doing exactly the same thing. Enough of this farce. Tomorrow, there is going to be a document issued by the Today Public Policy Institute (I have a copy but it’s embargoed until tomorrow) about the current pressures and the prospect for divorce.
Civil partnerships for heterosexuals. It is either marriage or it is nothing. The fundamental rights that come with marriage are community of acquisition, by default (you can choose to opt out of this), pension rights, the right to carry on living in your home after your spouse’s death if the spouse was the owner), the right to be maintained by your spouse if you are unable to maintain yourself, equal rights over and obligations towards any children born of the marriage, inheritance rights over your spouse’s estate. Which of these would you propose leaving out of a civil partnership? ]
It’s not what I would propose, it’s what the law states in foreign jurisdictions where such partnerships are open to opposite-sex couples. Examples are: the right to adopt jointly as a couple, the right to change your surname, etc. etc. In countries where partnerhips rights are at the bare minimum this list is much longer.
Regarding your opposition to Muscat’s opinions, I had understood your point. I happen to agree on most points you make. However despite your differences, I still find your opinion on these matters as being much closer to his than to Gonzi’s or Borg’s. You and Muscat both agree that divorce and registered partnerships for gay couples should be introduced. Gonzi and Borg are bending over backwards to make sure Malta remains a satellite of the Vatican.
[Daphne – Going by what you explain, it seems that the rights granted within civil partnerships depend very much on the specific legal regime of the country in question. For example, in countries where anyone has the right to change their name by deed poll – as in Britain – you don’t need a civil partnership to change your surname to your partner’s. Adoption: this is a non-starter. If you are unwilling to make the commitment of marriage to your partner, you are never going to get permission to adopt in Malta, though you will get permission as a single woman. I find it hard to understand how a couple might be unprepared to commit to marriage but be prepared to commit to adoption together. Any serious adoption agency is going to look on this with suspicion. It is just so flaky, like saying ‘Look, I don’t want to marry this woman because I’d rather keep my options open, but I don’t mind adopting a child with her because I can always bugger off and it won’t matter.’ True, married men can bugger off, too, but still. Malta has very clear-cut – and good – laws on marriage. There really is no need for second-class partnerships that will just complicate the situation and leave the woman just as exposed. What there is need for is divorce, so that people can regularise their position if they want to and men can no longer make excuses about why they can’t commit. Men generally don’t want to marry a second time, and right now, they have it pretty good, even though they complain, while the women they live with are on a knife-edge unless they have assets of their own.]
Good and clear-cut laws on marriage? You must be joking. Let me give you two examples of how good are marriage laws are:
1. Imagine we get married in Church. Five years down the line I become an atheist/convert to Islam (as is my right). Ten years later we separate. I open annulment proceedings in the Civil court. You, still being the devout Catholic you are, decide to go to the Metropolitan (Ecclesiastical) court a month later and do the same. What will the Civil Court do? “Oh, the ecclesiastical tribunal has been seized with the case, so we’re no longer competent now”. That’s what it will tell me. It will stay procceedings, wait for the decision of the ecclesiaistical tribunal, and then simply register it without questioning it. There goes your fundamental human right to have your rights and onbligations determined by a CIVIL tribunal, as mandated by the European Convention on Human Rights.
[Daphne – I agree with you absolutely on this one. At the time (1993, as I recall), I seemed to be the only person writing about the dangers of allowing this to go through, then trying to raise awareness about what had just happened. But people didn’t twig, and the usual response I got was: u ejja, if you marry in church are you going to marry thinking about what happens when you split up? Eeeerrrrrrr, yes. It was such a stupid argument. However, before that our marriage law was perfect, and it remains perfect for those who don’t get married in a Catholic Church. The changes were fairly recent. Before that, the man was head of the family and could do whatever he pleased with the communal property and even with the children. I grew up with a girl whose father gambled away the entire communal property and even the family home. That wouldn’t be possible now without the wife’s permission. Both spouses are equally protected – but they have to use their brains – and both have equal rights and obligations. The only point at issue is that there is no law to end it all through divorce.]
2. We get married in a Catholic church. 15 days later you bring an action for annulment on the grounds of non-consummation (I’m gay you see). Do you know what you’ll need for the church court to grant you your annulment? A decree from the Pope himself (I’m not joking) called “matrimonio rato et non consummato”. From the Pope himself, for crying out loud.
[Daphne – You’re confusing issues. The state can never interfere in the way a church regulates its marriage laws. What it can and should do is provide an alternative system so that individual rights are not violated. The system we had before 1993 was ideal: you had your religious rite, but you also had to marry civilly. Now, the religious rite is registered automatically by the state. Unfortunately, though – as with ‘duttrina’ – people want to have their cake and eat it. Despite being fully aware of the rod they are making for their own backs by marrying in a Catholic church in Malta, they carry on doing it, and hope to avoid the problems. It’s not as though there aren’t alternatives.]
I’m sorry – my last post was a bit of a mess. I wanted to write ‘civil court’ instead of ‘church court’, but then again I was still incorrect with respect to my second point. I double-checked and you can actually get the civil court to declare your marriage null on grounds of non-consummation. However, unlike in proceedings before the civil court, where the other party can contest your claim of non-consummation, if you obtain a papal decree, that decree is deemed conclusive by our courts and is registered as if it were a res judicata, i.e. a final sentence of our civil courrts not subject to any further appeals! (vide article 25 of the Marriage Act)
As for people still getting married in church – few people actually are aware of the consequences, so given the societal pressures there are in Malta for young couples to get married in church, I can empathise.
Yes heterosexusl couples partner civilly too Daphné, in France and in some cantons in Switzerland.
http://en.wikipedia.org/wiki/Pacte_civil_de_solidarit%C3%A9
http://fr.wikipedia.org/wiki/Partenariat_enregistr%C3%A9_(Suisse)
[Daphne – It appears from a cursory reading of this that PACS is designed to protect the interests of the state, rather than the interests of the civil partners: by ensuring correct assessment of their assets for tax purposes through a joint income tax declaration.]
What PACS does is it gives the couple lots of benefits typically enjoyed by married couples (housing allowance, tax benefits, etc) but makes it easier to dissolve the union, since in this case it wouldn’t be divorce. It also restricts the list of rights enjoyed by the couple (e.g. the right to adopt a child, or to obtain a French passport). Look at it as France’s way of preventing homosexual couples from adopting while giving them most of the rights of married couples. And a way of giving financial aid to cohabiting couples who don’t want to go the whole way and get married. At least the French didn’t obfuscate matters by calling it “marriage”.
And for the couple declaring together to pay less taxes.
[Daphne – In Britain, you pay more tax if you are married than if you are two people living together. And in Malta, it makes no real difference whether you declare jointly or singly. So you really have to consider these things within the context of the existing marital regime in any one country.]
One has to consider the different laws in each country. As a single person with no kids the tax rate here in France is a killer for both me & my partner. A PACS is for us a great way to pay less taxes and also have some legal rights.
“What Joseph Muscat is proposing here, with his civil partnerships for heterosexual couples”
Concubines?
Don’t be so sure Muscat will introduce a divorce bill on which he’ll give a free vote. Do you notice, for example, that the focus is not on the divorce bit but on the free vote?
The Times reported him as referring to a “motion” on the “introduction of divorce”. A kind of a show of hands.
I think he’s trying to attract votes from those who would benefit from divorce and hoping that the matter will split the Natio]nalist Parliamentary Group more evenly than it would split Labour’s. About divorce he does not actually seem to care much.
[Daphne – That’s right. He’s from the new Mittelkless, the one that sees marriage as irrelevant and shacking-up as hip. I don’t know about you, but I can see him straining at that particular leash.]
Marriage is one of the biggest commitments we will ever make. I am not sure Mr Muscat is qualified enough to discuss the issue considering his party can’t commit to anything.
I do not think that our politicians will ever grow the guts to introduce divorce in Malta. Malta may be a secular state on paper but it certainly is not in spirit. Indeed the religious reactionaries who seem to be on both sides of the political fence think that the words ‘secular state’ are filthy words, and spare no effort to make shows of their obeisance and servility to the Catholic Church. Recent case in point – the photo of Joseph Muscat slobbering all over the archbishop’s hand. I mean this is the leader of the supposedly left wing, progressive, and secular party of the island.