Leave Malta divorce law as is, former MP says after Irish referendum

Malta’s compromise on allowing a four-year ‘waiting period’ on divorce was crucial to winning conservatives votes, the former MP who drafted the watershed law has said.

Jeffrey Pullicino Orlando had based his explosive private members bill on the law introduced in Catholic Ireland, after a divisive referendum in 1995.

But a few weeks ago, a majority of Irish voters voted to remove the four-year separation requirement.

“I no longer have any say in the matter… but I would still propose the same law if I had to present it today,” Pullicino Orlando says, insisting he is of the same opinion as in 2011 when he filed the bill that went on to become the subject of a referendum.

“Not only had the wording of the law ensured support among more conservative Maltese, but it was the right thing to do. I did not want to have it on my conscience to have encouraged marital breakdown in cases where the marriage was not irremediably broken. The four-year clause ensures people have time to reflect before taking a definitive decision on their marriage.”

The passage of the law in 2012 ensured that couples who had already been separated or living apart for more than four years before the referendum had an immediate chance to remarry. But eight years later, couples who separate now still have to wait four years before having a chance to remarry.

But former Labour MP Deborah Schembri, who led the ‘yes to divorce’ campaign, is more nuanced in her views.

“I have always believed that once a couple has been legally separated they should be free to file for divorce immediately. From experience, it is in extremely exceptional cases that people get back together after they separate, however, if and when they do it is more likely to happen in the first two years post-separation than at any other point.”

Even Schembri says the four-year waiting period was a “compromise” reached in order to put the conservatives’ minds at rest that this was not going to be a decision taken lightly or on the spur of the moment by people during a difficult period of their lives. “If one had to look at it from the right perspective, it is not the decision to get divorced right after separation that should be of concern, since if a marriage is over, it is useless procrastinating in declaring it so.”

But of greater concern is the legal capacity to contract another marriage right after getting out of a previous one. “I personally believe that it would be more intelligent to let things settle down before contracting another marriage,” Schembri, a lawyer who has handled many divorce cases, says.

But Schembri believes it is patronising to decide for people how long is long enough for them to be in the right frame of mind to divorce. “People have different circumstances and different realities and the state would do well to stay out of that kind of decision.”

Ireland voted overwhelmingly in favour of liberalising divorce laws on the same day of the European elections.

The proposal passed with 82.1% of voters backing a change to the law. A referendum had to be held because the clause limiting divorce to spouses separated for four of the previous five years, was enshrined in the Constitution.

But that clause will now be removed, allowing parliament to decide a new separation period before divorce is allowed.

Divorce was legalised in Ireland in 1995, after a referendum that approved the measure by 50.3% to 49.7%. In Malta divorce was approved in 2011 by 53%.

In both countries the watershed referendum inaugurated a series of liberal reforms, which saw both countries introducing gay marriage. Ireland is now led by Leo Varadkar, a centre-right PM who went a step further by liberalising its abortion laws after a constitutional ban was overturned in a referendum held last year. Prime Minister Joseph Muscat has excluded the introduction of abortion.