In the child’s best interest | Ramona Frendo

With Malta now poised for the long overdue introduction of divorce legislation – which finally comes into force tomorrow, after a hotly contested and bruising referendum campaign last May – some people are naturally more enthusiastic about the change than others.

I meet Family lawyer Dr Ramona Frendo in her firm’s office in Old Theatre Street, Valletta… and above the hubbub of deafening street-paving works below, she informs me that she is looking forward to the introduction of divorce.

This is perhaps unsurprising, given that she has a clear professional stake in the matter. I am taken aback, however, by her declared reason: which concerns the one issue most people traditionally associate with an anti-divorce position – the so-called “best interests of the child”.

Dr Frendo explains: “Until May, there was an absurd situation whereby children of separated parents would be shielded from any new relationships their parents may be in. Take the case of a separated husband who forms a new relationship with another woman – a perfectly normal situation, in this day and age. His ex-wife could kick up a fuss if the children were exposed to the new girlfriend… or as the court would traditionally describe them, ‘third parties of the opposite sex’. The same naturally applies to ex-wives and their new boyfriends…”

She stresses that contrary to widespread perception, this was only a convention, and as such was not written anywhere at law. “The situation arose primarily from conservative interpretations of the ‘best interests of the child’, as established by judges in a number of previous cases. In time, it had become so ingrained it was considered practically standard…”

But Frendo openly doubts whether this situation really constitutes the child’s ‘best interest’. She also suggests that it may be discriminatory, given that the same situation inevitably exists regarding children of parents who were never married in the first place, and to whom no such convention, legal or otherwise, can possibly be applied.

“If the parents are unmarried, and have no legal obligations towards one another, how can you stop their children from meeting mummy or daddy’s new partner?  It can’t really be done…”

Back to married couples, Frendo reasons that in an ideal world, the court should (and in many cases already does) also take the stability or otherwise of the new relationship into account.

“Today, judges tend to be less stringent in applying this particular rule… provided that the ‘new relationship’ is stable, and not a case of changing partners like you’d just change your socks or underwear…”

She also argues that the previous situation – often as not provoked by individual parents motivated more by jealousy or animosity than genuine concern for their offspring – was not at all conducive to the healthy upbringing of children.

“As a family lawyer you get to see case after case in which children are raised in a single-parent family – not because the parent is in fact single, but because of this tendency to keep children and new partners studiously apart.”

Apart from the psychological effect this situation may have on children, Frendo fears it may also colour their future views on relationships in general.

“Children caught up in this scenario will know only dysfunctional marriages. They are not given the opportunity to see that second marriages can, in fact, succeed. And yes, it’s true that second marriages sometimes also fail. But this is not always the case.”

Matters became more complicated still in case of annulment – which, if successful, would effectively nullify the previous marriage altogether, thereby ‘regularising’ the new relationship that had previously been off limits to the child.

“This means that suddenly, children who had been kept from meeting or spending any time with their father’s new girlfriend or mother’s new boyfriend, would find themselves living with a ‘parent’ they had never even met. Surely, it would be healthier for the child to be allowed to gradually get to know this person, seeing as they will later be living together as a family…”

It is partly for this reason that Frendo admits to being “excited” by the imminent introduction of divorce. The existing anomaly, she argues, arises from the fact that separated couples are still technically married in the eyes of the law. With divorce, all this looks set to become history.

“This is why I consider the Yes victory in the referendum to have been a humungous victory for liberal Malta.”

And yet, up until a few months ago efforts were made to project this same eventuality as a veritable ‘disaster’ for the country’s social and moral fabric. Just yesterday, the Bishops alluded to divorce in their pastoral letter: claiming that, on account of its introduction, “we now have a society that can be more vulnerable in the context of marriage and family.”

But what practical effect has the imminent availability of divorce actually had on the context of marriage and the family?

“It’s hard to say. For one thing, we haven’t yet seen a significant demand for divorce among couples who have long been separated. What we have seen, however, is more interest in the concept of divorce among couples approaching us with a view to ending their first marriage. For them, divorce is now just another option, alongside separation and annulment, so naturally they are interested to find out about it.”

But in statistical terms, these do not appear more numerous today that any other time in recent history.

“We haven’t seen any noticeable increase in people seeking to end their marriages, no. In fact we haven’t even seen very much interest among clients enquiring about divorce at all…”

Frendo admits this was not at all surprising to herself “or anyone else who works in family law.”

Part of the reason, she surmises, is that the previous marriage regime had resulted in a large number of couples cohabiting for lack of any legitimate alternative… and as these people often find themselves comfortable in that situation, they might feel no pressing need to change it. 

However, a question mark still hovers over the issue of annulment, and in particular the celebrated 1995 Church-State agreement – and its proviso concerning marriage law.

Soon after the referendum, divorce campaigner Dr Deborah Schembri triumphantly claimed that the concordat’s “days were numbered”… and that the situation in Malta would in time come to reflect that of other countries, where the Church authorities themselves require a divorce decree before proceeding with ecclesiastical annulment procedures.

Frendo agrees that this is a possibility, but stops short of making any predictions of her own. “How will divorce affect the Church-State agreement? There is already a rumour going around that Malta will follow the example of other countries. But to be honest nobody knows exactly what’s going to happen…”

Asked for her own view, Frendo makes no secret of her distaste for the agreement, which she describes as “unacceptable”. And apart from reservations over the jurisdiction of Canon Law over civil (which forms the main objection to the concordat) she adds another dimension to the argument: the little-known fact that, with the law as it stands today, annulment is considerably more acrimonious than separation, and even more so than divorce.

“If someone comes to me asking for advice to choose between annulment and divorce, depending on the circumstances I would generally say: wait four years and get a divorce…”

One of the reasons involves the sheer pain of separation, which Frendo argues is much far more keenly felt in annulment cases.

“Because of the ‘no fault’ model upon which the new divorce law is based, there is no need to convince the court of your reasons for wanting to end the marriage… which in any case would have ended, to all intents and purposes, four years earlier…”

This is markedly different in the case of annulment, where specific conditions have to be met – and proven in front of a judge – for the court (or ecclesiastical tribunal) to annul a marriage.

“Annulment is therefore much more painful because other people are invariably involved. Witnesses have to be summoned – parents, friends, etc – and everything that ever happened in that marriage will have to be dug up again and exposed. Families are forced to constantly relive the trauma of that failed marriage; it is never allowed to subside. To use the Maltese expression, it is almost literally a case of ‘tghawwar fil-gerha’… endlessly picking away at a scab, so the wound never has a chance to heal.”

Dr Frendo argues that this sort of situation is far better dealt with by professional psychologists than by lawyers. “Since when are lawyers given the training necessary to act as psychological counsellors? Lawyers deal with legal issues; they are not prepared or equipped to deal with psychological traumas.”

Some might argue that lawyers and the law-courts in general are not very well-equipped to deal even with legal issues. In recent weeks, the opposition has accused government of dragging its feet over making the necessary preparations for the introduction of divorce. And perhaps more cogently, the judiciary itself is currently embroiled in an unofficial boycott of national festivities, in protest against their conditions of work.

With specific regard to family law, the Justice Ministry’s response to earlier criticism was to institute the Family Court. I ask Frendo what practical difference, if any, this initiative has made.

“Really and truly, the changes were nominal. Before the establishment of the Family Court, all cases were heard in the First Hall of the Civil Court. They are now heard in the Family Court in Strada Stretta – a fact which often raises eyebrows among clients, by the way – but to tell the truth most of the old problems have remained…”

There was however one major policy shift: along with the Family Court, the ministry also introduced the concept of mediation: officially, to assist parties in reconciling, or at least reach an amicable separation settlement.

Frendo does not disguise her scepticism regarding this particular development. “Personally, I have never known mediation to help a couple reconcile. In my 15 years practising family law, I have seen only a handful of successful reconciliation attempts… and never through mediation.”

Part of the reason, she suggests, is that mediators are not professionally trained. Many are lawyers, some are former teachers, and often they would have completed a mediation course lasting just a few days.

In view of the sheer difficulties involved in reconciliation, Frendo argues that all such mediation efforts should really be left in the hands of professional psychologists.

“But there are no permanent therapists or psychologists assigned to the Family Court,” she says, adding that psychologists appointed on an ad hoc basis often prove reluctant to work at there at all.

Echoing the judges’ concern with the general paucity of pay and resources, Frendo claims that the conditions of work must improve if this situation is to be reversed.

“Most psychologists don’t like getting involved in family cases in Court. For one thing the pay is piddly, compared to what they can get in private practice… and for another they often dislike having to be cross-examined on the witness stand.”

To the mediators and psychologists must be added another ancillary group: social workers, and the problems here seem to be analogous.

Dr Frendo explains that the Family Court enjoys the back-up of the government’s social agency, Appogg; but points out that “its employees are poorly paid, the turnover is huge, and as a rule the court is left only with very young novice social workers: some of whom are very good, don’t get me wrong… but they lack experience, and tend not to last very long. The moment they find a job as, for instance, an LSA (Learning Support Assistant), they usually take it…”

On reflection, she adds: “And I don’t really blame them, either. After all at the Family Court they have to face some of the worst situations in the world…”

So does she agree with Labour Party spokesman Jose Herrera’s argument that the family courts need more resources to cope with the introduction of divorce?

“I agree that the court needs more resources, certainly, but not necessarily on account of divorce. What is needed is more investment in general. There should be full-time, in-house psychologists who are properly paid. You can’t pay peanuts, otherwise you’ll be left with novices. But this is something that neither Labour nor Nationalist party wants to hear…”

Having said that, Frendo admits the new divorce law may indeed exacerbate matters, at least in its initial stages. “Until we learn how to interpret the law, there are bound to be hiccups. In fact there are already disagreements between lawyers over the interpretation of some of the finer details. The law wasn’t written by practising Maltese family lawyers, but was mainly adopted from the Irish model, and to be frank it shows…”

On a final note, I draw her attention to certain noises being made with regard to possible future constitutional changes, in so far as they concern the justice system. Namely, the appointment of judges – which at present is the sole prerogative of the Justice Ministry.

Admitting that the present situation is not ideal – “for one thing, it often limits the choice of judges and magistrates mainly to those who lobby the most” – Frendo recommends a number of possible ways in which the system can be improved.

“I think there should be some sort of training, like there is in Italy where magistrates must complete specific courses. And I would definitely say that past court experience is a must. Merely having a lawyer’s warrant, without ever having practised in court, is clearly not ideal. It would be like having a driver’s licence, not driving at all for 12 years, and then being given a job as a taxi-driver…”

Other possible changes could be a recommendation by the Chamber of Advocates; maybe even the Commission for the Administration of Justice.

“Either way the final decision should be approved by a parliamentary sub-committee, so as to ensure full transparency”.