Sunday, 4 April 2010

Times: Gay marriage-lite and divorce Nationalist-style
Sunday, 4th April 2010 by Claire Bonello

Just when we thought the interminable divorce debate was over (essentially with the Nationalist Party saying 'never' and Labour opting for their fence-sitting 'free vote' approach), up pops the Parliamentary Social Affairs Committee (PSAC) with proposals that would introduce divorce by stealth. Actually, if the current proposals make it to the statute book, the PN would also be ushering in a sort of marriage-lite for same sex couples.

With one swish of the legislator's pen, we would have the introduction of the institutions and divorce and gay marriage under different names. The Prime Minister would be able to claim that he is safeguarding the rights of cohabitees and the gay demographic, without falling foul of the more conservative sector of the electorate.

This strategy is both disingenuous and hypocritical. It is clever because it addresses the desire of separated people to be able to regulate second, third, or successive unions, and also because it will allow for same sex couples to regulate their relationship in a way which approximates marriage, without the Prime Minister ever having to utter the word 'divorce'.

Once more, the Prime Minister would have succeeded in straddling both sides of the liberal and conservative divide, with a little nifty word play. Whether he will be able to keep a straight face about it is another matter. How will he be able to explain his stubborn resistance to divorce legislation which terminates a marriage, with the introduction of laws which permit separated people (who are still married in the eyes of the law) to enter into another union recognised by law?

Let's face it, the introduction of cohabitation laws will benefit two main groups - people who want to get married but cannot because of some legal impediment. That means people who are married and separated, and gay people. There has been mention of a third group - consisting of family members living together, but I get the feeling that all the talk about siblings living together is just there to put a morally-acceptable gloss on what is essentially divorce legislation.

From what I can make out, the main objection to divorce arises from those who say that it is a threat to the family and that it encourages marriage breakdown and serial relationships.

According to this line of reasoning, divorce legislation would only make it easier for spouses to break free of the shackles of marriage and to take up with other partners. That's why exponents of this school of thought militate against the introduction of divorce - to discourage people from forming relationships with people other than their first husband or wife.

Having cohabitation legislation which confers rights that are similar or identical to those enjoyed by married people would do away with this disincentive against subsequent relationships. Which brings me to ask why the government is pussyfooting around and pretending that divorce legislation is out of the question.

It's quite plain to see that cohabitation legislation is mainly intended to be a divorce-law and gay marriage substitute. Most of the rights which it is said to provide can easily be provided by the application of existing legislation.

Take the proposal that couples living together should be able to inherit a portion of each other's estate. This would come into play if a cohabitee had to die without leaving a will specifying the people who were to be his heirs. In that case, the surviving cohabitee would automatically inherit part of the deceased's estate.

However, if a will had been drawn up, the property would be inherited as specified in the will. There is nothing which precludes cohabitees from drawing up wills, naming each other as beneficiaries, so legislation in this regard may be superfluous.

Equally superfluous is the proposal of having authority to decide on children's custody, maintenance and access to the children born in cohabitation, when a relationship ends. It seems that the PSAC is not up to scratch with current legislation which obliges parents to maintain their children. The Family Court, which is the competent authority to decide on maintenance and custody issues, has also escaped the PSAC's notice and it is desperately looking around for another authority to do the job being carried out by the court.

In view of the fact that so many of the rights which are purportedly being introduced by cohabitation legislation are already available under current legislation, I wonder why it is being brought in at all. And if cohabitation legislation will produce the same legal framework as divorce and gay marriage, why not usher them in instead and be done with the whole charade?

The Maltese publication Delitti u Misteri compiled by police historian Eddie Attard offers a fascinating insight into local crime history and law enforcement. Considering its following, I have often wondered if the interest in the true crime genre would spill over to detective fiction in Maltese. Now that I'm half-way through Prima Facie, a detective story written by Mark Camilleri, I'm going to be in a position to judge whether fiction is as engrossing as true crime. So far it's proving to be equally absorbing.

[Click on the hyperlink above to view the comments on the Times' website.]

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