Monday, 19 March 2012

Independent: You can’t have failed to notice, Jeffrey, but the situation has changed
23 February 2012 by Daphne Caruana Galizia

The incredibly tedious Jeffrey Pullicino Orlando is at it again, this time harrying the government to press on with the enactment of its cohabitation law. "The Nationalist Party first promised this law in 1998," he said in parliament. "Hundreds of Maltese couples" – as opposed to what sort of couples, given that we are in Malta, Jeffrey? – "are affected negatively by this procrastination."

The insufferable member of parliament omitted to mention (oddly, given that he was the architect of the exercise) that the context changed completely last year, with divorce legislation. The Nationalist Party's 1998 promise for a law to regulate cohabitation, a promise which it continued to work on right up until 2011, was a way of circumventing the need to introduce divorce and allow people to remarry. The most obvious way to allow people to acquire rights, who were living together, was to render them able to marry. But because the Nationalist Party's leader then, like his successor, had strong objections to divorce, another way had to be found to sort out the legal mess created by the absence of divorce legislation and the inability of people to remarry even when they started new families.

I was one of the few who objected in the strongest possible terms to this proposed law and to the warped pragmatism which drove it. My main argument – and here I am not talking about the need to regulate the situation of cohabiting siblings, which is an entirely different kettle of fish, or of gay couples, for whom a cohabitation law should not be used as a substitute for a civil union – was that there is a perfectly serviceable legal regime already for the regulation of the unions of same-sex couples. It's called marriage, has seen the test of time, and is universally recognised. If people wish to regulate the legal status of their union, then allow them to marry and don't fool around with cohabitation laws. The government of the time and its current successor were driven to defend their stance, most unconvincingly, because they did not wish to allow people to remarry. They preferred, strangely enough, to have a situation in which people stayed married to X while gaining mutual cohabitation rights with Y.

My second argument against this proposed law and its enormous potential for creating even messier situations than we have in the present, hinged on precisely that. The politicians who object to divorce because they regard marriage as a sacred religious union, rather than as a civil, legal regime, cannot see that regulating a union between two people when one (or even both) of those people is in a regulated union – marriage – with somebody else creates an anomalous situation of quasi-bigamy. This law has taken so long to be brought before parliament for this main reason. It was reported in the press some time ago that the lawyers who were asked to review the proposals were unanimous in that you could not allow a person to enter into a 'couple with rights' situation when he or she was still technically married to somebody else.

This farcical situation, which is in effect an attempt at doing with the rights of couples what Alfred Sant tried to do with VAT and CET, has now been rendered pointless by the wholly unexpected and unforeseen summary introduction of divorce. If people can divorce, then they are free to marry again. They do not need 'cohabitation rights'. If one half of the couple is not willing to make the commitment of marriage, leaving the other half vulnerable, then the law should assume that grown-ups make their own choices and have to live with the consequences. The state, through the law, is not there to nanny adults and to rescue them from their own choices. Also, the person who does not wish to marry has made a choice against law-regulated commitment. It is deeply wrong – the very opposite of liberal, though it is touted as just that – to foist legal obligations on such people when they have made a deliberate choice against them. What the law will do here is to reduce our choices to living together in legal commitment under one regime or another, or living alone.

If Jeffrey Pullicino Orlando thinks that all this is terribly avant-garde and liberal, then he is a truly silly man. It is shades of George Orwell. The liberal stance, Jeffrey, is this. If one or both halves of a couple wish to live together without legal commitment to each other or rights over each other or each other's property or home, then they are free to do so. If one person chooses to live with another person who does not wish to make a legal commitment, then that is his or her choice and the state has no right to decide that legal obligations/rights should be foisted on the unwilling person, who can avoid them only by leaving the home. If couples want the legal rights of couples, then they should make use of the law designed to serve this purpose: marriage law. If they don't wish to do so, that's their choice. The law should not allow for legal 'partial commitment' for those who don't wish to make a proper commitment. Just as there is no 'partial virginity', so there is no such thing as a partial commitment.

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