Monday, 13 August 2012

Independent: Go ahead, Franco. Vote against it
12 August 2012  by Daphne Caruana Galizia

Franco Debono says he will vote against the Cohabitation Bill if the Nationalist Party does not allow him to stand on its ticket in the upcoming general election.

Good. I am totally against this bill and have been since the start. Of course, I would have preferred it had Debono decided to vote against it on principle or because he disagrees with its provisions, and not because he has the mentality of somebody raised in a hamlet in the Sicilian hinterland and who considers threats and blackmail to be so normal and acceptable that he uses them openly. And we would all have been happier if we didn’t have members of parliament who say, as Debono did, that he is thinking of voting against the Bill “without even knowing what is in it”, which is frightening especially when it comes from somebody who bangs on relentlessly about the deficiencies in other people’s democratic thinking.

But it’s not an ideal world and it’s far from an ideal Malta, so if Debono scuppers this very unsatisfactory bill for his own personal reasons that have nothing to do with it, so be it. At least it will be scuppered, and then with luck, revised to leave people who can marry but don’t want to right out of the equation.

My objections to it – or rather, to a significant part of it – hinge on the fact that when two people of the opposite sex, who are neither family nor mere friends or flat-mates, live together without being married, it’s because they don’t want to be married. If they want to be married, then they should be allowed to marry (introduction of divorce legislation) or left in peace without regulation (if they can marry but don’t).

There exists a perfectly good instrument already for the legal regulation of financial and other affairs in a relationship between two people of different genders. It was devised rather long ago for that express purpose, it continues to survive because nobody has been able to reinvent the wheel, and it’s called marriage. People who don’t want that kind of bind or responsibility don’t get married through choice, so it is wrong to impose on them a sort of ‘second tier marriage’ against their will, when they have expressly avoided it, having them incur duties and obligations at law simply by virtue of living with somebody else.

This is not liberal. It is the opposite of liberal. The liberal view is that if people actually choose, as grown adults, to live in a relationship without legal ties or obligations then it’s nobody’s business but their own and the state should not enter the equation and impose burdens on them which they expressly chose to avoid.

Even if a provision is included in which people who live together have to sign some kind of register before benefitting from rights and incurring responsibilities, it absolutely does not make sense. What this is, in effect, is a second-class civil marriage. If you remove the religion from marriage, it is a legal contract.

Back when the Cohabitation Bill was still a white paper and under discussion, I brought all of this up and more. I found the very idea offensive because it struck me in the main as a way of circumventing, very ineffectually, the pressing need for divorce legislation.

People who were still married in the eyes of the law but in a relationship, even with children, with somebody else had no way of regulating their relationship, or so the argument went. In reality, there are plenty of ways – through donations, shares, transfer of property and last wills and testaments – of providing for a companion in the absence of marriage that are safer and more reliable than the legal instruments that come with marriage and which can so easily be undermined by an untrustworthy spouse. And so the Cohabitation Law, we were told, was necessary to protect adults from the consequences of their own disastrous choices or failure to provide for or to protect themselves.

But back when the Cohabitation Bill was still a white paper, Malta had no divorce. This was the legal and social scenario in which it was conceived, written and presented to the electorate. In fact, my main objection was that it would be impossible to achieve the objective of giving legal rights to people in second relationships, who were still married to somebody else, without creating an anomalous situation of quasi-bigamy or concubinage. I believe this was also the main objection of those who formally advised on the white paper’s contents.

My argument in those days was that instead of voting on a Cohabitation Bill which regulates the subsequent relationships of those unable to marry because they were married already, parliament should legislate for divorce, so that those who wished to marry could do so. Meanwhile, those who did not wish to marry should be left alone as this, in a liberal democracy, is a choice that adults are free to make. The greatest liberal democracy in the world – Britain – does not give default rights to people in relationships unless they actually and actively choose to take on any such rights through the vehicle that exists for that purpose: marriage. The idea of a ‘common law’ relationship is an urban legend. There is no such thing at law, even if many people – especially in Britain itself – believe there is, finding out to their cost that there isn’t only when the relationship breaks up and they are forced to leave the house they shared.

Since then, the context of the Cohabitation Bill has been changed completely by the advent of divorce legislation. Divorce legislation does not make the Cohabitation Bill less illiberal or invasive or pointless, but more so. Now that we are able to divorce and remarry, it is infinitely more ridiculous to give or impose default rights and obligations on people who choose to live together.

If they want rights and obligations, they can now get them through marriage. This point cannot be made more clearly. If they don’t want to marry, then they don’t want to marry, full stop. And if one of them wants to marry and the other does not, it is none of the state’s business, and the state should not be intervening to protect the interests of the one who wishes to marry while trampling over the rights and interests of the one who does not wish to marry. These are choices adults make for themselves, and if they cannot make them with their eyes wide open, that’s their problem.

Yes, there are aspects of the Cohabitation Bill which are good and necessary, like the regulation of situations in which, say, two unmarried siblings continue to live together through adulthood in what used to be the family home. This is important, even groundbreaking, legislation. I clearly remember some concern in news reports in the London broadsheets a few years back because of the immense hardship caused by the absence of protection, in British law, for people living in such anomalous situations. The result was that siblings who lived together in their family home were forced, on the death of one, to sell that home so as to pay inheritance tax, when if they were a married couple living in the same situation, they would not have to do so.

The Cohabitation Bill is good insofar as it covers such very specific and unusual situations. It is undesirable where it seeks to regulate the relationships of those who specifically choose to avoid regulation by staying away from the altar or the registrar.

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