Pro-divorce means pro-family | Deborah Schembri

Looked back on in future, the year that is about to pass will probably be remembered for the forceful irruption of divorce onto the national agenda.

Not so much because it was first time this discussion had ever been proposed – divorce has in fact hovered somewhere in the background since the 1950s at least – but rather, because of a recent succession of events that has now made some sort of closure inevitable. 

In July 2010, we saw a (Nationalist) MP present a private member’s bill on divorce – the second of its kind in 12 years, after the miscarriage of a similar Labour initiative in 1998 – followed by a declaration by the prime minister that the issue is ‘too serious to be decided by 65 MPs’.

Then came a vague commitment on both sides for the decision to be taken ‘before the next election’; followed by last week’s launch of a cross-party ‘Yes’ campaign, ahead of what now appears to be an unavoidable referendum.

Underpinning all this is the opposition leader’s declared personal views in favour of divorce, as well as the beginnings of an unofficial ‘No’ campaign – epitomised by a Church billboard carrying the message: ‘Divorce: God does not want it’, accompanied a steady bombardment of anti-divorce messages across the full media spectrum.

It seems as though the whole debate has suddenly shifted a gear, with both sides perhaps realising that – for better or for worse – some form of decision now has to be taken, possibly even in the next few months of 2011.

Critical mass

This lends a certain urgency to the ongoing debate, and none know this more than Dr Deborah Schembri: chairman of the official ‘Yes’ campaign, and the one of the few members of the committee whose name I had never heard before.

The rest will be familiar to anyone who has followed Maltese politics in the recent past: Jeffrey Pullicino Orlando and Michael Falzon (PN), Evarist Bartolo and Marlene Mizzi (PL), Michael Briguglio and Yvonne Ebejer Arqueros (AD)... a cross-section of Malta’s political underbelly, in which Schembri herself appears at a glance to be out of place.

We meet at her St Paul’s Bay office, and my first question for her – as someone not actively involved in politics herself – is whether she was expecting the intensity of the criticism that accompanied the launch of the movement the preceding week.

“Yes,” she replies with an air of resignation, “we did expect a certain amount of criticism. We’re not living in a bubble: we know perfectly well that this is an issue that people feel strongly about. And this is how it should it be: there is nothing wrong with having different opinions and discussing them in public… provided the arguments are at least logical.”

Schembri however explains that logic has decidedly taken a backseat in the unfolding debate.

“The problems begin when people argue from illogical points of view. For instance, arguments like ‘divorce against God’s will’, or ‘what God has joined together, let no Man put asunder’. These are not logical arguments. People who reason like this will not be interested in finding out the truth behind individual cases of marital breakdown. They’re not interested in the truth, because they think they already know the truth. They are too extreme…”

Political pitfalls

But there are other pitfalls apart from illogical arguments to contend with: for instance, scepticism, which appears to inevitably accompany the ‘politicisation’ of any given issue.

I draw her attention to one particular argument involving a possible ulterior motivate behind the private members bill. How does she respond to the view that Pullicino Orlando may be more interested in rehabilitating an arguably damaged political career, than in actually introducing divorce?

She raises her eyebrows. “If that were the case, I’d say he was taking a very large risk for very little gain. Anyone who chooses divorce as an issue to rebuild his career might gain some votes in the process, true... but he would almost certainly lose votes, too. If you want to do something to gain popularity, the chances are you would go for a safe option: one that would win you a lot without costing too much. But divorce? I would say it is definitely not a safe option...” 

Surprisingly, she goes on to volunteer some other examples of sceptical criticism herself.

“I thought you were going to ask me about members of the committee who might be motivated by a personal need for divorce for themselves. It’s true that there may be members of the group who have this interest. But for the same reason, this only makes them more sensitive to the complexities of the issue. I don’t see this as a bad thing in itself... after all, people who are directly involved in real cases will know what the real problems are.”

Family affairs

Understandably, Dr Schembri is keener on talking about what she herself terms ‘the real issues’ – that is to say, the quandaries and bizarre situations brought about precisely (she argues) by the absence of divorce legislation. And as a family lawyer experienced in separation and annulment cases, it is a subject she can discuss at length. 

“One basic fact about divorce is that it is not the cause of marital breakdown, but one of the effects. Divorce comes into the equation only after a marriage has already broken down… a fact which the anti-divorce lobby often tends to overlook.”

She is very emphatic on this point – in fact, she returns to it regular intervals.

“The negative aspects of marital breakdown are with us already. Anyone familiar with the family court will tell you this. Introducing of divorce will not change any of these aspects – but there will be one positive result: the possibility of a new marriage.”

This leads her to her most controversial point: that, as opposed to claims currently made by the opposing camp, the pro-divorce campaign is by definition ‘pro-family’, in that it encourages the creation of new families where earlier ones have failed.

But even without this crucial argument, she would still advocate divorce as a remedy to the countless anomalies churned up by the current status quo.

“At present we have a chaotic situation, whereby couples who have come to hate each other’s guts are still considered husband and wife at law. If people only saw the extent of the confusion and the chaos this brings with it, they might look at the whole debate slightly differently…”

She starts by citing separation cases, and the many incongruities this process brings with it.

‘No fault’ separation

She explains that – just like the divorce-on-demand we associate with places like Las Vegas – the reasons for granting a separation can range from the very serious, to the extreme trivial. Unlike annulment, the process has nothing to do with the validity of the contract… it’s just a case of the State recognising that a couple no longer lives together.

“Sometimes when I tell a client that, after years of separation proceedings, they are still technically married, the reaction I get is: ‘WHAT?!’ But that is in effect what separation means: for all the hardship, it doesn’t actually change the legal nature of the relationship.” 

Schembri also points towards an anomaly in the different ‘types of separation’ available. If separation is by sought by consensus among both partners, and no individual fault is cited as a reason, then proceedings can only begin after the couple has been living separately for a year.

But in case of a ‘fault’ being cited – for instance, adultery – procedures may begin immediately.

“When I explained that to a female client of mine, her immediate reaction was: ‘OK, I’ll just make sure that the next time my husband comes home he’ll find me in bed with someone else’…”

She adds that the legal situation as it stands today serves to encourage this sort of mentality. “Is this the sort of thing we want as a society?  I don’t think so…”

Annulment anomalies

But what about annulment, I ask? Dr Schembri concedes that there is a difference, which makes the annulment option considerably more popular than separation.

“Unlike separation, annulment does bring with it closure, in the sense that the individual spouses will be free to remarry.”

But she rejects out of hand the argument that this fact automatically renders divorce ‘obsolete’. There is a difference, she argues: namely, that annulment can only be considered if one of a number of ‘conditions’ is met.

Admittedly, the criteria are wide and vague enough to apply to a broad number of cases. But there will always be some where the couple is simply ineligible for annulment. This, she claims, creates a loophole for deceit.

“Very often the spouses will agree between them to feign a condition that would make them eligible for annulment – for instance, impotence – so that they meet the criteria and obtain the annulment. Basically, the system as it stands encourages people to lie…”

She adds that such ‘conniving’ between two estranged spouses is more common than one would think.

I ask her what she makes of a criticism frequently levelled at the Church: that it currently enjoys a near ‘monopoly’ on annulments, and may be reluctant to relinquish this position of power.

As I understand it, two types of annulment are available in Malta: civil, obtainable from the Civil Court, and Church annulments, granted only by the Ecclesiastical tribunal.

But, owing to a Church State agreement dating to 1995, Church authorities take precedence over Malta’s Civil Court in annulment suits.

Dr Schembri explains that, in practice, a civil annulment lawsuit commenced by one of the spouses will automatically be suspended, no sooner does the contending side initiate separate proceedings for Canonical Annulment before the Ecclesiastical Tribunal.

“This gives the Church a lot of power,” she asserts, “power that it shouldn’t really have. Authority over civil marriage should not be the Church’s business. It is welcome to as much power as it likes over Church issues... but civil issues are not the Church’s affair, and were never meant to be.”

Unique to Malta, this anomaly has a number of serious drawbacks. Apart from the legal quandary over jurisdiction, Dr Schembri points out how it can also place women at a direct disadvantage.

“Church annulments take significantly longer than civil ones to obtain. So what if a childless 30-year old woman, whose biological clock is ticking away, wants an annulment to remarry? She would obviously prefer a civil annulment, which is faster. But if her estranged husband initiates Church annulment proceedings, he can delay the process by seven years or more. I know of several cases where one of the two partners did this deliberately, just to cause problems to the other…”

And yet, she continues, the Church seems to see no intrinsic problem with this state of affairs.

“The Church is fine with annulment. It only has a problem when it comes to divorce…”

This brings her to yet another anomaly about annulment that rarely gets a mention. In cases she is familiar with, the children themselves claim they prefer the concept of divorce to annulment.

“It is not difficult to see why. In the case of annulment, the marriage in question will be literally nullified, to the extent that, in retrospect, it is supposed to have never taken place at all. This means that the children themselves would have theoretically been born out of wedlock, as opposed to within a marriage that afterwards failed.”  

Referendum rumbles

Faced with all this, Schembri argues that divorce is no longer just another possibility to add to the rest. The sheer extent of the absurdities arising from its absence has made it an urgent necessity for the good of society.

But how to decide the matter? I point out that, implicit in the creation of the ‘Yes’ movement, is also a tacit acceptance that the matter should not be decided by Parliament. ‘Yes’ implies a referendum, which implies a campaign, which implies... money.

So what about funding? How does the ‘Yes’ campaign intend to compete against a lobby that has so many resources already at its disposal?

Schembri acknowledges it is a ‘problem’. “Nobody is funding us at the moment. No, we don’t receive any funding from the political parties…”

What about the Malta Developers’ Association, whose chairman Michael Falzon is also on the committee? She shakes her head.

“As we speak we are trying to find ways and means to finance the campaign. This will involve fund-raising, but we are also looking at ways to minimise expense… for instance, by conducting an online campaign, which would be cheaper.”

She does however concede that the playing field, as things stand, is not exactly ‘level’.

“I would be lying if I said we were not concerned. But the reality is we were faced with a choice: either do this with the limited resources we have, or not do it at all.”

She is however optimistic about the outcome. “You often hear it said that the vast majority – certainly the older generation – will be against divorce, but I’m not sure myself. I don’t know of one family that has never been touched by a separation case. A grandparent might also be motivated to vote for the benefit of his or her grandchildren, who might be affected by the outcome. I am hopeful that there are many who do not a divorce themselves, but who can appreciate and understand the need on behalf of others.”

Paradoxically, Dr Schembri views this as a facet of our Christian heritage.

“I think it is a Christian value to be tolerant and aware of other people’s problems. After all, God left people free to choose for themselves... why shouldn’t the Church?”

This interview first appeared in MaltaToday on Sunday