There’s a logical leap in Carmelo Mifsud Bonnici’s article in today’s Times (The burden of public interest on indissolubility of marriage) that has escaped the attention of the many anti-divorce campaigners who have been linking the article all over facebook. CMB is eager to explain the stake the state has within the boundaries of private marriage – he has to be clear why the state believes in the tool of indissolubility as being the best bet for civil society’s sanity. To get to the point of arguing on the importance of indissolubility of marriage for the public interest, CMB has to justify the interference of the state in the first place: why does the state care whether or not marriage can be dissolved or not?
Aha. And that is where the quick gloss by CMB is glaringly obvious. CMB tells us:
The state should not in any way be involved in the decision to enter into that union and in the choice of marriage partners. The state registers a marriage and recognises certain rights of the parties.
This is not to say that the state has no stake in the stability of marriage, because it is within stable marriages that its future citizens are nurtured and brought to maturity in the best possible way and because the spouses in a stable marriage are not distracted unduly from their normal civilian working life.
Q.E.D. right? Not really. If you really were to follow CMB’s logic to its conclusion then the first part of his statements is built on a deceitful assertion. The state cannot suddenly develop an interest in the success or otherwise of a marriage ONLY once it has been sealed. CMB feigns a passive role of the state until the marriage union is sealed – it recognises the union and certain rights of the parties. Then – only then – according to CMB does the state develop a stake in the stability of marriage. This stake is supposedly because the spouses should not be distracted unduly from their civilian working life.
Why not before the union then? What stops the state from ensuring that its stake in the civil union is safeguarded? How? Well by making sure that its citizens about to engage in the union are fully prepared to do so – that they can guarantee a stable marriage that “nurtures and produces the maturity that does not distract from their civilian working life”.
If CMB were serious about the role of the state as he describes it, then his kind of logic would lead to marriage permits and marriages being sanctioned by the state. The state would be able to tell you whether or not you are allowed to marry in the first place – based on suitability. If the state’s role is in trying to ensure the stable, mature etc marriage then it should do so in full. Imagine that. Imagine criteria for stable marriages – the certificate of a suitable wife and husband who will contribute to society.
It would not work would it? And maybe that’s the very same reason why the state has no business imposing indissolubility on the marriage contract. It cannot decide for the parties if they are willing to move on and try again. CMB’s logic is false because it is built on a false assertion about the motives of the state. The problem of CMB is that his logic is in a twist because no amount of legal philosophy will justify the denial of divorce rights. He cannot declare his ultimate motivation at the end of the day because it has nothing to do with laws and civic duty. It is a fettered discretion based on his private beliefs.
