Introduction of divorce ‘would limit freedom of choice’ - Robert Tufigno

During an open debate organised by pro-divorce movement Zwieg Bla Divorzju, lawyers Robert Tufigno and Kevin Dingli delivered short talks about the nature of the divorce legislation tabled in parliament, and the effect this would have on the marriage institution.

However, while Dingli delivered a quick overview that dealt exclusively with the draft bill’s legal merits, Tufigno delved into the nature of the unions between people, and the culture behind such unions.

He argued that the only thing the introduction of divorce would add is the freedom to remarry as many times as one wished.

He said that in cases where both parties agree that the marriage shouldn’t persist, or cases where there is no legal basis for the marriage, annulment serves as a fitting option.

In cases where there is domestic abuse, lack of love, inadequate maintenance payments, lack of care for the partner or children, or even any kind of psychological abuse, there is already a remedy available in separation. “This option means ridding one’s self of the obligation to live with the spouse.”

The only new remedy that divorce introduces is the freedom to remarry. “Is this the sort of society we want to live in,” he asked.  He argued that bill proposes solutions, through responsible divorce, “that are so apparently perfect that responsibility in people seems not required.”

“This is alienation and lying,” he maintained, slamming divorce as something that abdicates people from exercising their responsibility. He also maintained that “divorce is not a fundamental right – it does not stem from people’s nature. It becomes a right when a law is especially introduced to provide it. It is not a civil right.”

Tufigno also said that he is “worried” by those who say that they are against divorce but claim not to wish to withhold the right from others. “These do not realise the effect of divorce on the institution of marriage and those who are married ‘beneath’ it.”

He also explored the notion of marriage as a contract, as Maltese law does not define marriage per se, but a defining characteristic of marriage as described by the courts is that it cannot be dissolved. “This is contrary to all other contracts,” he said.

“Why is it? This question needs to be asked,” he said. “Why do we think that this should not be dissolved? The reason is not legal. The state does not recognise marriage as a frivolity, but represents the act through one person seals the loving act of giving one’s self to another.”

He said that this is important as marriage creates a sense of stability within society. “One of the problems that modern society has is that it perceives marriage as a private institution when in fact it is an issue relevant to the whole of society,” he said.

Tufigno also argued that the way the introduction to divorce would be not through amendments to the marriage act, but through amendments to the civil code. “This is indicative of the philosophy that is reducing marriage to something private that, like any other private contract, can be dissolved,” he maintained.

“Why should the state start granting these rights and freedoms that can affect the whole of society?” he asked. He said that through divorce, marriage that can be dissolved on a no fault basis is reduced to a ‘liquid relationship’ or almost, and added that in any state where divorce was introduced, marriage went down and cohabiting increased.

He said that marriage would become "less" than a normal contract, “as a normal contract would have to be honoured. In fact, those who are guilty cannot go to court and request being freed from a contract he or she has breached,” he said.

“With divorce, marriage would be dissolved unilaterally, and can be dissolved by those at fault.” He added that those at faulty could even use their fault to determine their obligations, and divorce would ultimately reduce marriage to a civil partnership.

It also encourages a culture where those who do not keep their word are rewarded, he said. “There would be a de-legitimisation of marriage and a change what the family means.”

“In the past, when I was married, I knew I was signing up for a pact that would last my whole life. However today, the state is saying that what I had signed up for 28 years ago is going to change as from today,” he said.

“There is no institution that allows me to create an in dissolvable pact with someone, while anyone who doesn’t want to make any commitment has all the choices,” he said. “If this is progress, then I don’t know.  We are denying people’s freedom to choose.”

He also maintained that according to one specific interpretation of the separation laws, there is a means through which couples would be able to obtain a divorce without requiring to either have been separated, or even living apart for the previous four years out of five.

He said that the provisions for maintenance within the bill does not consider standard or living or incomes stemming from third parties (following subsequent marriages) as does the Irish model.

Tufigno also argued that the divorce introduction will eliminate the cultural difference between divorce and separation. “That is the effect that laws can have.”

He maintained that the draft bill does not provide or ensure the safeguarding of children’s interests, but only deals with adequate maintenance.

Speaking during the event Constitutional law lecturer Austin Bencini also hit out at the pro-divorce movement for not holding this sort of explanatory discussion about the merits of the bill. He argued that the discussion preceding the referendum should not revolve around the referendum question, but should also take into account the draft bill that is being voted upon.

He also reacted to statements by Jeffrey Pullicino Orlando that he would withdraw the bill if the referendum votes down the introduction of divorce, saying that as an MP, JPO would be obliged to withdraw it whatever he might say or not say on the matter.

He also referred to European Court rulings that say that every EU member state can choose the best sort of marriage union that best fits that MS’ culture. He maintained that marriage is Malta’s cultural heritage.

He augured that there would be less politicians and more people debating the proposed divorce law. What is relevant is not if people are in favour or against, but what the effect of the introduction of divorce would be.

He accused the pro-divorce movement of acting as if it is trying to hide the divorce bill it is trying to push.

The sizable audience was composed mainly of senior and middle aged individuals, among which were also Kate Gonzi, and Child Commissioner Sonia Camilleri.