Chris Said must not be too happy with the reception that has been afforded the Civil Cohabitation Partnerships Bill. The MGRM and AD as well as the Civil Rights group Aditus have all slammed one aspect or another of the bill. It must be said that the greatest hype has been around the expectations that had been instilled among the gay community with regards to a move that would finally constitute the adoption of a gay marriage law in Malta. Not being an infallible sentient being I am not sure whether I am getting all the signs right but I do have more than a modicum of suspicion that there is more than a strong tinge of confusion in the matter from all parties concerned – either wilfully and in line with particular agendas or unwittingly and underlined by a particular level of ignorance of what the law is about.
On PACS and othe civil partnerships
Let us begin with the abstract – away from the hustle and bustle of what is the current line of thought in Malta. The first point that must be clearly established is that a law on civil partnerships and a law on gay marriage are two very different pieces of legislation. The fact that the former (a civil union law) could facilitate the life of gay couples (and that is an understatement) does not in any way make the two any less different. The clearest and most straightforward example is France and French law where thankfully the confusion that may be brought about by the religion inspired forms of marriage is virtually non-existent.
Since the 15th November 1999 France has what is called a PACS -translated in English as a civil solidarity pact. By definition it is an agreement between two adults (see: no mention of gender or blood relation) who enter such an agreement with the purpose of jointly organising and administering their lives. It changes their situation in the eyes of the law: couples are said to be pacsé on their status description and they stand to be considered as a unit in different situations such as fiscal calculations and entitlements as well as presumptions in the case of inheritance. PACS was introduced in France when marriage was on the downturn and was definitely not exclusively considered as a marriage solution for gay couples (in 2012, 94% of PACS were between opposite sex couples). It goesd without saying though that the concept of a civil union or a recognised cohabitation includes the possibility of same-sex couples.
PACS was never intended to replace or come close to the concept of marriage – the civil concept mind you. Most civil unions are intended in this manner.
Same-sex Marriage
Very different from PACS is the legislation of gay marriages. If we look at our Wikipedia fact machine we will see the following verbal venn diagram:
Currently 22 of the 51 countries in Europe recognize some type of same-sex unions, among them a majority of members of the European Union. Eight European countries legally recognize same-sex marriage, namely Belgium, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain and Sweden. An additional fourteen have a form of civil union or unregistered cohabitation. San Marino only allows immigration and cohabitation of a citizen’s partner. Several countries are currently considering same-sex union recognition.
Do note the difference. 22 countries recognise some type of same-sex unions. Of these eight recognise same-sex marriage. The additional fourteen have a form of civil union or unregistered cohabitation. Malta’s Bill would add it to the latter fourteen. It has nothing to do with the formal recognition of gay marriages. Even after the Cohabitation Bill is passed we would still be aeons away from any form of legal sanction of marriage between same-sex couples.
So what’s happening in Malta?
I have it on quite a reliable source that on the eve of last election a deal was struck between a panicking Nationalist party and the MGRM. The deal was simple: MGRM would block vote for PN and PN would enact a cohabitation law. That got some uber necessary votes away from the PL (the hopeful vote) and the AD (the protest vote). Let’s call this the Xarabank deal for want of a better description. Now we know how the PN legislative agenda has been disrupted ever since the divorce surprise but the Bill had to be shoved through as promised otherwise the next election would find the PN with its pants down… and we don’t want any of that do we?
So we have a cohabitation bill being drafted at gunpoint so to speak and whatsmore – as Raphael Vassallo pointed out – being piloted by a former head honcho of the anti-divorce movement. What we end up with is a bill that seems to be blatantly discriminatory and fails to produce the goods insofar as the goal of a solid civil unions law is concerned. It’s the second (non-couple) part of the law that has drawn much attrition – mainly for what are being described as discriminatory conditions.
The bill fails to take into consideration the situation of siblings sharing the same household – failing to factor in recent ECJ case law in this regard. It also ignores completely the tax issues relating to the civil union – practically neutering one of the most important aspects of the law. These criticisms – and, if they are proven to be true, the criticisms aimed at the different time-frame for the recognition of civil unions depending on the type of union – are not only founded but very important if any bearing is to be had on the final version of the law.
There is though the issue of “family” and “gay marriage” that has been thrown into the discussion by most of the groups reacting to the bill. Such talk is highly misplaced. Fine tuning the Cohabitation Bill is not only good but imperative. The criticism and constructive suggestions should be confined to the declared aims and intentions of the bill. Same-sex marriages is definitely not one of them. Don’t get me wrong – it will never be too soon for a discussion and process to be opened in order to have a same-sex marriage law in Malta. It is important to recognise the difference though and not to be drawn into facile conclusions.
The Cohabitation Partnerships Bill does seem to need more than a bit of fine tuning. It would be unfair and very underhand of all parties concerned should the remit of such a bill be extended to the introduction of same-sex unions. Such an introduction does not deserve to be made surreptitiously. Rather. It should be made openly, consciously and following an open national consultation – possibly including a vote (unless all our parties include the proposal in their next manifesto – in which case we will just be voting in the government that would turn the proposal to legislation).
If the country was deemed mature enough to debate, vote upon and ultimately enact a divorce law then there should be no reason why the same should not hold true of same-sex marriages. I for one believe it’s inevitable.
Change. You want it? Vote for it.
