Divorce: the facts and the fiction

MaltaToday looks into the following campaign statements, and tries to push past the rhetoric:

From Zwieg Bla Divorzju campaign

 - Divorce will lead to an increase in marital breakdown and cohabitation, and a drop in marriage rates. Only Partially True.

 - A ‘reasonless’ divorce will bring about a ‘divorcist’ mentality and create a culture where people will be able to ‘up and leave’ when they feel like. Only Partially True.

 - Divorce will create “a new type of poverty” and burden the state with additional ‘costs’. Only Partially True.

 - Divorce will be imposed on those spouses who do not want it. True.

From Moviment Iva

 - It is marital breakdown that has the potential to harm children psychologically and emotionally, not divorce or separation. True.

 - Divorce does not need to be ‘fault’-based, as ‘fault’ is already taken into account at separation stage. True

 - There is a discriminatory situation where currently, only those who can afford to obtain a residency abroad (a matter of six months living in the UK) can divorce, even if both spouses are Maltese. True

Read the full research -

 - Divorce will lead to an increase in marital breakdown and cohabitation, and a drop in marriage rates. Only Partially True.

While no-fault divorce did increase the divorce rate in the US in the short term, the effect of no-fault divorce law on the overall divorce rate fade with time, a US-based study showed (Does divorce law affect the divorce rate? A review of empirical research, 1995-2006, W. Allan and Gallagher).

The study however adds that “divorce law however is not the major cause of the increase in divorce over the last 50 years. Clearly many other factors besides divorce influence the divorce rate.”

These findings seem consistent with Irish divorce trends, a country comparable to Malta in terms of its socio-cultural makeup.

While Ireland did experience a “rapid” surge in marital breakdown in the 1990s, a study found that the trend “levelled off in recent years and remains low by international standards.” (Family Figures: Family dynamics and family types in Ireland, 1986-2006)

It concluded that “there is no evidence that the introduction of divorce in 1997 affected the trend in marital breakdown.”

Studies also attribute the global increase in cohabitation and concurrent drop in marriage rates to a host of social, cultural, and economic factors, such as shifting perceptions of marriage, increased professional commitment to careers, and demanding economic burdens brought on by the recession.

 - A ‘reasonless’ divorce will bring about a ‘divorcist’ mentality and create a culture where people will be able to ‘up and leave’ when they feel like. Only Partially True.

Despite how cohabitation and marriage trends are dropping worldwide, studies show that divorce is not causing children of divorce parents to view marriage as something any less desirable.

A UK-based study found that over eight out of 10 young women said they still intended to marry, despite how their parents’ relationship broke down, with the average respondent hoping to do so at 26. (Marriage and Wedding Survey, commissioned by More Magazine, 2010)

The study also found that 78% of the 2,000 women surveyed in their mid-20s saw marriage as the “ultimate commitment” above having a baby or buying a house with a partner and felt it should be “for life,” while six out of 10 thought it was important to be married before having children. 

The findings however contrasted government data published in February which show marriage registration in 2008 was the lowest in Wales and England since 1895.

At the same time, another 2007 UK survey (IpsosMORI/Civitas - Attitudes to Marriage Amongst Young People) found that 62 percent of unmarried parents wanted to marry while, only just over a quarter (26 percent) of unmarried parents surveyed actively did not want to marry.

Civitas attributed the main reason for unmarried parenthood today to the ‘prerequisites’ for modern marriage: “Young people want certain things in place before tying the knot: the top three being a partner to whom they want to commit, financial stability and home ownership.”

 - Divorce will create “a new type of poverty” and burden the state with additional ‘costs’. Only Partially True.

While studies show that marital breakdown and divorce are factors that can push spouses into poverty, they make no distinction between separation, annulment, and divorce.

A 2010 study that looked into the factors that make women in the Czech Republic more vulnerable and at higher risk of poverty found that divorce is one of them (Shadow Report on the Implementation of the Beijing Platform for Action, Open Society, p.b.c. – ProEquality Centre).

It found that women were burdened with the responsibility of running the household and bringing up the children fall to the woman, and that men tend to “profit” from divorces as “their careers are no longer restricted by commitments to children and a family and even if they pay child maintenance and might have problems finding somewhere to live, in the majority of cases they do not suffer as large a fall in their standard of living as women do after a divorce.”

The study found that “in the first year after a divorce the standard of living of women fell by 73 percent on average. After a divorce approximately 50 percent of women found themselves in the band threatened by poverty, meaning that incomplete households run by women/mothers after a divorce had incomes of 7 less than 1.5 times the minimum subsistence level.”

But the report’s conclusions draws attention to issues such as lacking or limited education, gender equality and discrimination, and a system that facilitates achievement for men while holding back women, as the biggest factors that can place women in poverty, with no mention of divorce trends.

Additionally, marital breakdown, and not divorce, is also considered a drain on public finances, as studies make no distinction between separation, divorce, and annulment – only referring to marital breakdown or “family fragmentation”.

A 2008 US-based study into the costs of marital breakdown and unmarried childbearing estimated that “family fragmentation costs U.S.taxpayers at least $112 billion each and every year, or more than $1 trillion each decade.”(The Taxpayer Costs of Divorce and Unwed Childbearing, economist Ben Scafidi)

“These costs arise from increased taxpayer expenditures for antipoverty, criminal justice, and education programs, and through lower levels of taxes paid by individuals who, as adults, earn less because of reduced opportunities as a result of having been more likely to grow up in poverty,” the study said.

At the same time, the however study notes that there are at times extenuating factors — mental illness, the job market, drug abuse — that keep families from being stable, and sometimes it's "unwise" to keep some families together.

 - Divorce will be imposed on those spouses who do not want it. True.

The proposed divorce law does not require the consent of both spouses to be filed for and obtained. However, the same can be said of separations and annulments.

Article 16 of the Civil Code says that (36) “separation may not take place except on the demand of one spouse against the other and on any of the grounds stated in the following articles, or by mutual consent of the spouses.”

The conditions it lists as not requiring consent of both parties are “adultery” (38), and “excesses, cruelty, threats or grievous injury” by one spouse on another or their children, “or on the ground that the spouses cannot reasonably be expected to live together as the marriage has irretrievably broken down.” (40)

The separation cannot be requested on the grounds of ‘irretrievable breakdown’ “before the expiration of the period of four years from the date of the marriage”, however. Nevertheless, the court can decide to grant separation on the grounds of “irretrievable breakdown” even if a spouse did not request separation such grounds.

A spouse may also demand separation if he or she was abandoned by the other spouse “without good grounds” for two or more years. (41)

None of these grounds require the consent of the partner to be obtained.

In the case of annulment, article 19 of the Marriage Act that deals with marriage annulments requires that that “an action for the annulment of a marriage” be commenced only by “one of the parties to that marriage”. (19.2)

Also, a valid marriage may be annulled at the request of one spouse on the grounds that the other party has refused to consummate the marriage, but not before the lapse of three months. (19a)

From Moviment Iva

 - It is marital breakdown that has the potential to harm children psychologically and emotionally, not divorce or separation. True.

International debate over whether martial breakdown causes lasting damages to children is very much alive. Study after study question whether calling it quits is preferable for child development, as opposed to the alternative: living in a tense, unhappy and possibly abusive domestic setting.

Notably however, research does not attribute this risk to divorce alone. Rather, reports and studies look into the effects of marital breakdown, also taking into account legal separation, de facto separation, and annulment.

A 2003 study (Children’s Adjustment Following Divorce: Risk and Resilience Perspectives’, by Kelly and Emery) however suggests that “although some children are harmed by parental divorce, the majority of findings show that most children do well.”

The study found that approximately 75-80% of children and young adults do not suffer from major psychological problems, including depression; have achieved their education and career goals; and retain close ties to their families. “They enjoy intimate relationships, have not divorced, and do not appear scarred with immutable negative effects from divorce.”

“Approximately 42% of young adults from divorced families had well-being scores above the average of young adults from non-divorced families,” the study found.

Kelly, one of the authors of the study, said that “there is no reason to expect that the psychosocial outcomes for children whose parents divorce, get an annulment or legally separate would be any different.

“Divorce and legal separation are the same, from the perspective of the children,” she asserted.

The study also points out that “the current consensus in the social science literature is that the majority of children whose parents divorced are not distinguishable from their peers whose parents remained married in the longer term.”

 - Divorce does not need to be ‘fault’-based, as ‘fault’ is already taken into account at separation stage. True

Maltese separation laws (Articles 48 and 52, Chapter 16 of the Civil Code) take into account the fault of that spouse who has “given cause to the separation on any of the grounds” (48.1).

Fault manifests itself through the forfeiture by the spouse at fault to gifts given to the faulted spouse either before or during the marriage, and the loss of any rights to a share of any “acquests” made thanks to the “industry” of the other spouse after a cut-off date decided by the court. (48.1.b)

The date is chosen to correspond to the date when the spouse is to be considered as having given sufficient cause to the separation. The spouse at-fault also loses the right to any sort of maintenance stemming from marital obligation.(48.1.c)

While it is true that, for separated couples looking to obtain a divorce decree, fault-based issues are taken into account at separation stage, the same cannot be said of spouses obtaining a divorce decree by means of the divorce law’s article 3(a): that of having “lived apart from one another for a period of, or for periods amounting to, at least four years during the previous five.”

This means that couples can simply opt to by-pass the fault-based separation. However, the divorce law draft nevertheless provides the option (article 70.1a) to either of the spouses to have the divorce demanded and granted on the same grounds as those of separation (according to articles 46, 46A, and 47).

This means that while a fault-based divorce is possible, any spouse who wishes for fault to be taken into account will not lose their right to a fault-based divorce

Currently, Canada, the United States, Sweden, and Russia are the countries with a no-fault divorce system. In 2001, the UK government scrapped attempts to adopt a no-fault divorce, despite how in 2006, judges overwhelmingly favour ‘no-fault’ divorce.

 - There is a discriminatory situation where currently, only those who can afford to obtain a residency abroad (a matter of six months living in the UK) can divorce, even if both spouses are Maltese. True

Obtaining a divorce abroad is not uncommon. Since the relevant article was introduced into the law in the 70s, 785 divorce decrees handed out abroad were recognised locally, and the rate is constantly increasing.

Locally, a divorce granted in a foreign court dealing with or affecting marital status is recognised by Maltese law if the decision is given by a court “in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen” (33).

EU accession has made it easier than ever for this to occur, and it is no surprise that 422 divorces obtained abroad were recognised by Malta were registered in the UK, as it requires one of the smallest time frames of residency within which an EU citizen can request a divorce.

An EU member state, the UK only requires that a Maltese person who wishes to institute divorce proceedings in British Courts must have resided there for at least six months before the start of the application.

After the UK, the most divorce decrees recognised locally were obtained in Australia (112). Another 43 divorce decrees were obtained in the US, 31 in Germany, 29 from Canada, and 18 in Italy.

The costs of fulfilling residency conditions can be considered prohibitive for anyone not earning substantially over the minimum wage, however. Those who do, are free to resort to this ‘workaround’.

Living expenses in the UK are far from cheap however. A 2008 report by the Joseph Rowntree Foundation (JRF) found that a single person in Britain needs to earn at least €15,335 (£13,400) a year before tax to ensure a minimum standard of living.
Malta’s own average wage stands at €14,466.