The Contribution of the National Council of Women on the Divorce Bill in Committee stage (13 .07.2011)
NCW calls for careful study of implications in current divorce bill
The divorce bill is in a very sensitive phase and a number of issues need to be addressed to reduce difficulties and hardship for all parties, including children that will otherwise arise when it is enacted and implemented. The National Council of Women calls on the members of the Committee that is currently studying the bill to look into these issues and others and address them, before the final law is enacted, when it goes before Parliament in the coming days.
Divorce is the dissolution of a civil marriage with the consequential right of the parties to enter into a new, civil marriage. According to the current divorce bill, divorce can be obtained if the parties to the marriage have been legally separated for at least four years or have been living apart for a cumulative period of four years in the preceding five years.
Divorce can be obtained in one of two ways. Consensual divorce can be obtained by means of mutual agreement of the parties concerned. The parties in such cases would agree to all the terms and conditions, these would be vetted by the competent Court and upon the latter's approval, these can be published in a public deed by a notary.
Problems can arise in situations where either of the parties does not want to obtain a divorce or if the parties do not agree to the terms and conditions. In such cases, whether or not the other party wants to apply for a divorce, one party can still apply for a divorce and obtain it after all the evidence of both parties is produced. In such cases, while one party would have liked the marriage to persist, since the other party wanted to obtain the divorce, he or she can still go ahead and obtain it if the requirements in the law are satisfied. Once divorce is obtained, one can remarry.
This can in practice, however lead to a number of problems, which in the majority of circumstances are faced by the persons who are most vulnerable, in most cases these are women and children. Firstly, if the parties have minor children, one of the parties is given the care and custody of the minors and the other is ordered to pay maintenance. This is the same situation with regard to personal separation. In reality, however, there are a number of problems faced in situations where the party ordered to pay maintenance defaults in paying. The situation becomes more serious in circumstances where the party who is in duty-bound to pay maintenance remarries. This is due to the fact that once this person remarries, his or her salary has to be used for paying maintenance as well as for supporting the new spouse and children.
How can such a person maintain himself, the family members of the previous marriage and the family members of the subsequent marriage? It is true that there are criminal sanctions for persons who default in paying the maintenance but effectively the persons who are owed maintenance could still end up without maintenance if for example such person is imprisoned. Moreover, if such person ends up jobless due to imprisonment or has more children from another marriage, this could lead to a change in circumstances and therefore the parties to whom the maintenance could end up getting less maintenance than what they require.
The same applies on the other side of the coin. The spouse of the subsequent marriage would have to "share" the spouse's income with the members of the previous marriage, with the consequence that the spouses of the subsequent marriage could have more financial burdens which could greatly affect quality of life of the family, choice of schooling of the children and ensuing factors. For example, if the wife of the subsequent marriage would have liked to stay at home for raising the young children, this might not be possible due to their financial situation or the father would have to work extra hours with the consequence that he would have very little time to spend with the family.
Another problem which ensues is with regard to the matrimonial home. The bill provides that if the matrimonial home belongs solely to one party, the other spouse is allowed to live in it. However, the person who owns the matrimonial home can file an application in court asking for the other spouse to be ordered to leave the matrimonial home and to live in another property provided by the spouse who owned the matrimonial home. If the court rejects such a request the person who owns the said matrimonial home can file another application after the lapse of eighteen months.
This could lead to various issues: firstly, there is a feeling of uncertainty in the sense, that the party living in the matrimonial home cannot put his or her mind at rest that he or she is going to be staying there for a substantial period of time. Moreover, this could lead to a feeling of instability if the children are living in the matrimonial home but might be ordered to vacate it. This would be another trauma particularly at a tender age when they would have just been through the trauma of having their parents living apart and potentially forming new families, and then being ordered to live in a different house, perhaps in a different town with the consequence that they might also have to change schools and friends. What about a person who is not in paid employment? Will he/she be forced to register for work, seek training and childcare facilities to be able to cope with the new situation? What about a person who does not drive and is used to work in the vicinity of his or her household and is then made to go and live elsewhere? This could also lead to difficulties for that person to keep his or her employment.
Another issue to be addressed is the fact that once a divorce decree is pronounced, the parties cannot inherit each other. This is rather unfair as the "innocent party" might have done his or her best to make the marriage work, might have never wanted to obtain the divorce, and then, to add insult to injury he or she would also lose the right to inherit from the previous spouse.
These are just a few points being raised before the law is finally enacted and therefore the Council urges the members of the Committee to ensure changes are made in the current bill to adequately address these issues before the law is finally enacted.
Grace Attard
President
National Council of Women