A leap in the dark | Arthur Galea Salomone

If information is the key to success, our country’s immediate future seems to lie behind a firmly locked door. This at least is the impression given by Arthur Galea Salomone when we meet for an interview in his Floriana office.

Seated at his desk overlooking the tree-line of the Argotti gardens, Galea Salomone outlines what has become a mantra for the Zwieg Bla Divorzju campaign.

“I doubt the voting public has been given the proper tools to take an informed decision. There has been an inexplicable rush: no social impact assessment, and a prohibition on the use of State funds to inform the public. The Yes camp claims that a social impact assessment was not possible. I beg to differ. Taking such a fundamentally important decision without assessing the impact is tantamount to a leap in the dark…”

Galea Salomone claims more preparation and research was needed including  on the economic impact of divorce.

“As it is today, people are already struggling to cope with one family. Few wage earners earn enough to sustain two families. I fear that the introduction of divorce will bring about a new form of poverty. The second family will inevitably be maintained at the expense of the first….”

In fact the proposed legislation has been criticised – not, it must be said, only by the No lobby – for being too vague in this regard. Galea Salomone seizes on this weakness to buttress his argument.

“I think the pro-divorce lobby is only now aware of how unfortunate its choice of wording was, when it insisted on ‘guarantees’. Now, they are performing all sorts of somersaults to justify this word; but in both legal and financial terms, what they are talking about cannot be described in those terms.

Arthur Galea Salomone insists that, whatever the context, “a guarantee is a guarantee”.

“If I am expected to put up a guarantee and, for instance, I default on my contractual obligations, the other party can cash in on that guarantee – be it property, money, etc. This does not apply to maintenance in cases of divorce. What happens if maintenance is not paid up because the person can’t afford it? The only remedy is to take the defaulting spouse to Court. That is no guarantee. Defaulting parties may even be sent to prison. But prison sentences don’t pay water and electricity bills. The whole guarantee business is a deceptive joke.”    

Nor is this the only faux pas by the Yes movement to have been capitalised upon by its counterpart lobby. Galea Salomone reminds me that one of the Yes campaign ads had been withdrawn, after what he describes as ‘second thoughts’ about the message.

“The message was that everybody should have the right and liberty to walk away from a commitment. The Yes lobby withdrew this advert, claiming that there was a chance it might have been ‘misunderstood’. I think the reason was another. I think they were afraid the public would understand it only too well…”

Fair enough, but these are just shortcomings of the Yes campaign. I point out that the No lobby has been behaving remarkably like a political party in this regard: making mountains out of every molehill the ‘opposition’ platform provides, without proposing anything itself…

Galea Salomone begs to differ. “This is not a general election, where the voting public is expected to decide on two electoral manifestos. This is a referendum where the voting public is being asked to decide in favour or against the JPO/Bartolo proposal for the introduction of no fault divorce.”

Precisely: so let’s talk about the proposed legislation itself, rather than the many mistakes of the Yes campaign. Galea Salomone agrees, and invites me to consider the type of divorce actually on offer. 

“The JPO-Bartolo proposal would allow any spouse to walk away from their commitments, without reason or justification. That’s what ‘no fault’ divorce means… that one spouse may impose divorce on a non consenting spouse. That in itself is unacceptable….”

But isn’t this the same as separation? Legal separation also operates on a no-fault basis. So why is ZBD so concerned with no-fault divorce, when theoretically the same objection should also apply to separation?

“Separation and divorce are fundamentally different concepts. Separation allows for the possibility of reconciliation. Besides, divorce has to be seen in the context of regularising a second relationship, in a manner that impinges on the rights of the first family.”

Here the arguments expand into more familiar territory: with divorce, it is the State itself that is telling children that their natural family may be legitimately supplanted.

“When children are brought up in an environment where the State is telling them that is fine to walk away from one’s commitment, that mentality eventually takes its toll on society. What is permissible by law eventually becomes the norm in society. Should divorce be introduced, there will come a time when we will not even regard it as an injustice for a husband to walk out on his wife, or vice versa, without reason or justification, since it is law which implies that’s fine.”

Again, however, an analogous situation already exists. The State permits spouses to walk away from commitments without any reason – it’s called separation (and annulment, though here specific criteria must be met). So the question remains: if the No lobby is successful, as the polls seem to indicate at this stage… what remedy does it actually propose for people who are in that predicament anyway?

Polls apart (so to speak), Galea Salomone prefers to talk of the result as “a very close call where every vote matters.” But he concedes that some people will inevitably be hurt by a No outcome, and that this is a cause for concern for him personally.

“I can’t go as far as to say that, a spouse will never be better off without divorce. I can understand it may be viewed as a remedy in some cases. We have constantly kept in mind those who are suffering the effects of marriage breakdown, and sincerely believe that divorce is remedy for them…”

Still, the No campaign is not offering them any alternative remedy. What would he say, for instance, to a person whose marriage has long broken down… whose children have grown up and are themselves now married… and who has started a new relationship, but cannot get married for lack of divorce legislation?

He replies by insisting that divorce will cause more problems than it might solve. “Solutions should not be achieved at the expense of the other spouse, and to the detriment of children. Nor can they be achieved without asking whether our society will be the better off in the long run. Divorce is not only a private remedy: it is also a public concern as it impacts on the rest of society. The Parliamentary Resolution acknowledges this by saying: ‘this is a historic decision which will have a significant impact on society…’”

Conversely there is a chance – some would say almost a certainty – that divorce will probably not change very much at all. Isn’t the No lobby exaggerating the social impact of divorce, in a country where marriage failure is already a reality?

“Marital breakdown is a reality, true, and this should be addressed. But not by doing away with lasting marriage and introducing no fault divorce.”

He also admits that the negative impact of divorce will not be felt overnight. 

“We’ve never said that strong marriages will suddenly cease to exist the day after we introduce divorce. But eventually, what will change is the concept of lasting marriages and commitment…”

And yet, for many people, the concept of lasting marriages is already a thing of the past… with or without legal divorce. Sometimes I get the impression that the No lobby is in denial on this point; that it is clinging to a vaguely romantic notion of Malta being a ‘special’ place, a magical land of Christian values, and any reality that doesn’t fit in with this view is simply ignored. Is ZBD defending the ideal of marriage without divorce, at the expense of the reality on the ground? And of so: isn’t this delusional?

“That’s a fair question, but I disagree that the notion is just an ideal. Surveys illustrate that Maltese people do treasure stability of marriage, and have a high regard for the family…”

But surveys – especially opinion polls – are open to interpretation. There have been polls suggesting that the vast majority of Maltese consider tax evasion to be ‘major crime’. Surely he will appreciate that there is a difference between what people claim on surveys, and how they actually live their lives…?

Galea Salomone replies by turning my attention to what surveys do not say.

“There are two statistics that are of fundamental importance to this debate, and both are missing. How many people are actually interested in divorcing? And how many of the countries have experienced a drop in marital breakdown and/or cohabitation after introducing divorce?”

He expresses scepticism regarding the Yes movement’s claims regarding the first point. “Certainly not everyone whose marriage has failed will go on to get a divorce.”

Regarding the second, I counter that divorce was never intended to reduce the number of failed marriages… only to supply an option in cases where marriages have already failed. Again, he points towards the evident flaws in the Yes campaign.

“They (Iva) are promoting divorce as if it were a solution to marriage problems, a solution to children born out of wedlock, a solution to domestic violence. We’re trying to point out that this is definitely not the case…”

On the subject of surveys and children, I draw to his attention to studies (including one recently distorted by the Children’s Commissioner) suggesting that the effect of divorce on children is no different from that of separation or annulment. It is marital breakdown that harms children, not necessarily divorce….

He nods. “Children invariably suffer in separation, annulment and divorce. That is why we felt it was important to focus on children during this campaign. There is a difference in considering the children’s best interests and insulting them, by using pejorative language to suit one’s own end, as the pro-divorce lobby has done on its billboards….

OK, but why so much resistance to divorce, when its effects are the same as other legal remedies which already exist?

“Without entering into the merits of the study you quote, it confirms that ‘some children are harmed by parental divorce’. Should not we consider the interests of that relevant minority? Besides, the least that could have been done, prior to forcing this issue onto the national agenda, is give serious consideration as to whether children will be better or worse off with the JPO/Bartolo proposal. Children fare best in a stable permanent family. Hence any law which undermines the permanence of marriage and family stability, as the JPO/Bartolo proposal does, will in the long run negatively impact children. The economic effects of divorce will also impact negatively on children, as divorcees will inevitably struggle to cope with maintaining two families… and that comes at the expense of children.”

And yet, Malta all along recognises divorce… so long as it is not procured locally. Isn’t this hypocritical? We have no problems recognising divorces obtained overseas, so long as the concept is not present on our statute books…

 “The recognition of foreign divorces is a consequence of the fact Malta abides by the principles of private international law. It’s not just divorce. We recognise foreign judgments on other issues, too… just as foreign courts recognise judgements of Maltese courts.”

So how would he react if Maltese courts started recognising same-sex unions granted by overseas jurisdictions? After all, various countries – the UK, for one – now grant ‘such civil unions’… but Galea Salomone dismisses this question as a ‘standard journalistic ploy’.

“This is a referendum about divorce and not same sex marriages. You’re mixing two unrelated issues here…”

But are they really unrelated? Both concern different marriage conventions which are allowed elsewhere but not here. So why should Maltese courts recognise one but not the other? All the same, I agree to drop the question and ask instead whether he would prefer it if Maltese Courts did not recognise foreign divorce decrees at all. He surprises me with a purely pragmatic reply.

“There would be too many complications. If a person divorces in a foreign jurisdiction, and then gets married a second time in Malta, will we be expected to prosecute him for bigamy? Besides, recognition of foreign divorce decrees has been overstated, as many cases refer to marriages which do not involve two Maltese residents…”

Galea Salomone here pauses to express a certain impatience with the way foreign examples are bandied about.

“I think it’s symptomatic of an inferiority complex to argue that Malta should introduce divorce because other countries have done the same thing. We should be proud to treasure our values which include indissoluble marriage and stable families, which are the backbone of a strong society…”

And yet, the government has just drafted a bill – ‘top secret’, it would seem – to regulate cohabitation at law. For a country so proud of permanent marriage as the backbone of society, isn’t it odd that we are giving unmarried partners some (possibly all) the legal rights and obligations that we associate with marriage? I ask Galea Salomone whether he intends to say ‘No’ to cohabitation, too. Doesn’t this law also undermine the stability and permanence of marriage, by rendering the institution practically obsolete?

“Like everyone else I haven’t seen the law, so I can only limit myself to general considerations at this point. Presumably the law will not single out cohabiting partners, but persons who for various reasons live under one roof and should be protected in their life choices. In so far as cohabiting partners are concerned, they should not be given the same rights as married couples. This would devalue marriage, so of course I would object. But there should be never be any difference in the way children are treated, regardless of whether their parents are married or cohabiting.”