Why the Philippines should have a divorce law
The bill seeking to legalize divorce has been approved in the House of Representatives on the third and final reading while its Senate counterpart remains in limbo.
The Philippines remains the only state in the world today without a divorce law because of the strong Christian belief that marriage is an inviolable social contract between a couple. In recognition of this principle, the Philippine Constitution recognizes the family as the basic social foundation of the state.
Catholic Church recognition of marital separation is limited to annulment. But principles of annulment appear diametrically opposed to divorce.
Divorce recognizes and ends a legally valid marriage while an annulment treats the marriage as if it never existed between the spouses. Annulment is also contestable in court while divorce may be consensual and go unhampered without any contest.
In divorce, aside from settling the issues of child custody and division of conjugal or family assets, one of the spouses may be entitled to alimony or spousal support. While there is no conjugal property to speak of in an annulment, conjugal assets are settled through partition while there is absolutely no entitlement from any of the spouses to alimony.
Unfortunately, in annulment, the attribution of fault in cases involving “psychological incapacity” has become extremely adversarial and expensive that only those with finances are able to secure a decree therein.
Divorce law in England and Nevada
In England, the British Parliament passed the Matrimonial Causes Act 1857, which legally recognized divorce on grounds of adultery, cruelty, desertion for three years, or supervening incurable insanity.
The British Law Commission answered the Archbishop of Canterbury by stating that the aims of good divorce law are “to buttress, rather than undermine, the stability of marriage, and when regrettably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.”
For British Catholics, annulment always remained a legal option when the marriage has not been functional or properly consummated for specific reasons.
In addition, British courts do not entertain petitions for divorce within one year from the date of the marriage to prevent divorce from becoming such an easy way out when it should be regarded only as a last resort after all options have been exhausted.
In contrast, the divorce law of Nevada recognizes mutual agreement in the quickest and least expensive divorce process.
Any party can request a divorce without providing a specific reason, even on just incompatibility, lack of cohabitation or consortium for more than one year, or insanity for at least two years prior to the divorce petition. There are no waiting periods nor any need for a court hearing.
Why does the Philippines need its own divorce law?
As a lawyer handling annulment and domestic abuse cases, I have witnessed various cases which necessitated divorce. I once met a nine-year-old child with severe burns from her face down to the lower torso of her body. The perpetrator was her father.
The mother asked her daughter to desist from her complaint of incest rape against her father. Once released, her father came home and doused his daughter with oil and lighted her with a matchstick.
It was a case of a woman wanting to keep her marriage and family together, and avoid financial difficulties with her unemployment, but without any moral capabilities of protecting her child from her husband’s evil depredations.
Divorce should have been an option under such extreme circumstances. The court's function is to protect the children affected by the marriage breakdown, adjust financial and property rights in view of the possibility of remarriage, and provide machinery to facilitate reconciliation if possible.
Truth be told, annulment is just a euphemism for Philippine divorce, which is made available only to those who can financially afford the expensive judicial process.
Legislators must recognize that the true social function of divorce is to enable parties to enter into a fresh legal union if they wish to do so, unhampered by possibly unfair accusations of matrimonial wrongs committed in past relations.
In divorce, the point is to reduce the number of stable illicit unions after spouses leave their broken marriages without divorce. Also, children borne from these stable illicit unions must be legitimized.
What should the Senate do?
If ever a divorce law will succeed Church scrutiny in the Philippines, its propositions favoring divorce must be comprehensive, sensible, and must reasonably answer conscientious objections of Catholic officials. The following should be seriously considered:
First, a divorce law must be based on serious grounds or extreme situations that certainly warrant a marital separation, including marital rape, incest, continued adulterous relations, abandonment, lack of consortium for a lengthy period, or insanity.
Trivial grounds such as mere incompatibility should never be a cause for separation. Snoring, sleepwalking, forgetfulness, and other peculiar behaviors can be worked out within a working and healthy marital relationship.
Second, a divorce law should provide for counselling and therapeutic options during periods of relief, retreat or restrictions to give the couple an opportunity to rethink, re-evaluate, and to seek assistance regarding their life directions.
Third, a divorce law should spare the couple from any bitter recriminations, which could impede amicable discussions on child custody and possible reconciliations in the future.
The court's function is to protect the children affected by the marriage breakdown, adjust financial and property rights in view of the possibility of remarriage, and provide machinery to facilitate reconciliation if possible.
Consensual agreements should be acceptable. There must be a seamless procedure eradicating “blame” should the couple wish to reconcile, thus opening possibilities for subsequent healing and reconciliation.
In the Philippines, annulment is generally a tedious exercise that leaves parties bitter, even angry, after all adversarial accusations hurled during trial. Divorce should be available for Catholic faithful so as to accommodate new legal unions and the legitimacy of their children after a prior marriage has broken down.
However, if the Church refuses a divorce law with absolute conviction, then it has to yield to at least an annulment law that is less tedious, less restrictive, less expensive, and more convenient to the spouse whose situation demands a speedy disposition of her marital situation. Truth be told, annulment is just a euphemism for Philippine divorce, which is made available only to those who can financially afford the expensive judicial process.
Ultimately, it would be unfair for the Catholic Church to continue advocating absolute inviolability of marriage without even considering possible exceptional cases, especially cases involving child and spousal abuse, which call for a resolution from the high heavens.
It would be equally unfair for senators to continue advocating for divorce in total disregard of the stand of the Catholic Church without reconciling a divorce law as proximate as possible to the Christian doctrine of inviolability of marriages, without counterbalancing restrictions, without cautions that divorce should only be a measure of last resort, and without consideration of the best interests of children involved.