Divorce – where minority rights and majority beliefs collide

Rev. Prof. Serracino Inglott was addressing a debate at the University of Malta on the issue of individual rights and the common good in the debate on divorce, organised by the  newly formed Law Debating Society.

The debate was chaired by David Friggieri, a lecturer in the Faculty of Law.

Serracino Inglott said if a state were to forbid everything it considers as morally wrong, it would degenerate into a police state. “Such state would bring the law into contempt,” he said adding the law would end up being more broken than followed.

But he also denied that divorce was a basic right.

“If divorce was a fundamental human right, as is the right to marriage, we wouldn’t be here discussing it,” he said. “However, this does not mean that there are no civil rights or minority rights to it,” he added.

Serracino Inglott also said when legislating, one should consider the effect on the common good.

An adviser to former Prime Minister Eddie Fenech Adami, Serracino Inglott has always stated that divorce should be permitted if there is reasonable proof that society is better off with it than without it.

He took into consideration the number of children being born out of wedlock. “If divorce proves to be a remedy to this problem, then it is only logical that divorce is legislated.” He sustained his argument by quoting statistics that show that one in four babies is born out of marriage.

Serracino Inglott added that research should have been carried out in the first place if interested parties wanted to carry out a serious debate.

Next to voice his opinion was Kenneth Wain, Professor of Ethics at the University of Malta and Commissioner of Voluntary Organisations.  Wain departed from the premise that if divorce is justified as a civil right, then putting forward moral arguments is irrelevant.

“Having a simple referendum question is misleading, because it reads as a moral question when in reality it is a civil right,” he said. Wain added that the divorce issue is about tolerance.

Responding to Serracino Inglott’s call for statistics, Wain queried whether the common good, an abstract entity, can even be measured. “Such a utilitarian approach to the matter does not take into consideration minority rights, which are overridden by the interest of the majority,” he said, adding minority rights exist only if they are convenient to the majority.

Questioning its true meaning, Wain asked “how can one define common good in a pluralistic society?”

Taking a clear stand in favour of divorce, Wain said divorce will benefit those who are harmed by a disastrous marriage:  “The idea that children are hurt because of divorce doesn’t hold water. Children start suffering from the moment their parents’ marriage breaks down. In reality, divorce helps bring stability and closure.”

Alternattiva Demokratika spokesperson on EU and International Affairs Arnold Cassola said that safeguarding individual rights enhances common good. Cassola recalled that apart from the Malta, there are only three out of over 200 countries in the world which do not recognise divorce. “Two of these are religious-run states,” Cassola said referring to Andorra and the Vatican City.

The third country is the Philippines.

Cassola said the ongoing discussions on divorce are futile, since Malta already recognises divorce. “It is now a question of civil rights,” he said, adding that the lack of this legislation is discriminating between those who have the means to obtain it from abroad and those who can’t.

“Why should a Maltese/EU citizen residing in Malta not be able to access to divorce, but a Maltese/EU citizen raised anywhere else has the right to it?” he asked.

On minority rights, Cassola said, “Our Constitution already protects those who are in minority, whether they are an ethnic minority, religious and social or special needs minority. So why should there not be a divorce law which protects this minority?”

Cassola said the difference between the divorce referendum and the referendum of Malta’s accession to Europe lied in the fact that with divorce, the minority is not imposing anything on the majority. “If you do not agree with divorce, you do not oblige to it,” he said.

Present for the debate was also Allied Newspaper director and columnist Austin Bencini, who campaigns for the anti-divorce movement, Zwieg bla Divorzju. Bencini said that wanting a divorce does not make one ‘a minority’ in Malta.

Bencini said being a minority is like a Christian born in Iraq. “It is a status you are born with and you cannot change,” he said. “Does being unemployed make you a minority?”

He questioned statistics suggesting that 90% of families in Malta live in a happy marriage. “I do not believe there is this amount of families living happily, but I believe these families believe in the unity of marriage and are working hard to safeguard it... They do not separate simply because they believe in the promises they made."

“Divorce will only demolish the couples’ will to work on their marriage,” Bencini added, implying divorce would be an easy getaway for couples who do not recognise the responsibility of marriage.

Bencini said fundamental human rights already safeguard the rights of illegitimate children "once considered as a minority” and who are now on equal footing with children born in wedlock.

“These rights have led the state to give compassion to these children, without breaking the concept of family. So why should we tackle family problems by introducing a mechanism which would break it?” he asked.

Asked by MaltaToday to comment about those married couples who still live under the same roof notwithstanding they are not leading a happy family life, Bencini said such spouses were “fulfilling their obligations”.

“Several families are facing problems but they do not want to just up and leave. They want to maintain their stability. Divorce will simply ruin this stability,” he said. "Marriage means duty."

The Yes for Divorce Movement Chairperson Deborah Schembri defended the lobby group’s stand in favour of divorce by asking whether Malta should wait until half of the population is born out of wedlock.

“There will always be a number of marriages who will not fare well. Sometimes, no matter how hard one works to safeguard his or her marriage, the marriage still breaks down,” she said. Schembri stressed that the affects of annulment are precisely the same affects of divorce.

“Where is the difference between the two procedures when the result is the same?” she asked.

Defending the lobby’s stand for the no-fault divorce, Schembri said that if a couple has already separated, the two would have already gone through the fault stage. “Why bring up faults again in divorce?” she asked. “This would only lead to more conflict and emotional harm.”

Schembri said that divorce is only “recognition of the state of fact. We are closing a chapter in someone’s life and we are simply giving a legal status to the truth.”

“By opposing the divorce legislation, someone is imposing on you to cohabit,” Schembri concluded.