Divorce or no divorce: the raging debate

When the Gabriela Women’s Party filed House Bill No. 1799 (Divorce Bill, for brevity), the long dormant debate over the legalization of divorce in the Philippines was revived. Since the effectivity of the Family Code in the late 1980s with its provision for marriage annulment, the divorce issue has taken a back seat with most people thinking that annulment is just as good as divorce especially since one of the grounds for annulment, the psychological incapacity of one of the parties to fulfill marital obligations, can cover almost anything.

But annulment is not the equivalent of divorce.

Grounds for annulment must exist at the time of the marriage. And in cases of alcoholism, drug addiction, homosexuality or having a sexually transmissible disease, there must have been concealment at the time of the marriage, the concealment constituting fraud.

In other words, if one of the spouses turns into an alcoholic, drug addict or a homosexual, or acquires STD during the marriage, annulment is not available to the aggrieved spouse. Annulment is not even available in case of repeated violence or attempt on the life one spouse by the other. The only recourse is legal separation which does not allow remarriage because legal separation does not dissolve the marriage but only allows the couple to live separately and to have the community property (or conjugal property, where proper) dissolved.

Divorce, on the other hand, dissolves a valid marriage and the parties to the dissolved marriage acquire a new civil status — divorced. There is no declaration of nullity; the divorce judgment simply ends the marriage.

The Divorce Bill specifies the grounds for divorce. To make it simple, the grounds are the same as those for legal separation OR psychological incapacity to comply with essential marriage obligations OR irreconcilable differences. And it is that part about “irreconcilable differences” that make people think that the Divorce Bill is promoting whimsical divorces, Las Vegas style. But more on that later.

First let’s go deeper into the issue of divorce in its more generic sense and take on the “usual” arguments against it. Who are the usual antagonists?

There’s the Catholic Church, of course, and all other groups that follow its thinking that “what God has put together, let no man put asunder.” And that’s really saying that the law must bow down to the standards set down by the church which, of course, is ridiculous unless we accept that the principle of separation of church and state is merely lip service.

Marriage is many things. It is a social institution, it is a religious sacrament and it is a legal concept with a lot of legal ramifications. Although the law recognizes the authority of religious officials to validly officiate marriages, religious ceremony is not a requirement for valid marriages. There is a curious mindset among Catholic Filipinos that civil marriages are “not real” unless followed by a church wedding. Not so. A civil marriage is a valid marriage in all counts whether or not it is followed by a church wedding.

Divorce pertains to the legal dissolution of the marriage. Whether or not the church recognizes it is its own funeral. The important thing, for any aggrieved spouse at least, is that divorce grants him or her certain rights and deprives the other of certain rights too. For instance, it allows the aggrieved spouse to remarry and deprives the guilty spouse of the right to demand financial support. My goodness, if you were married to a drug addicted person, wouldn’t be a relief to know that he can’t touch your earnings anymore?

Now then, the most common argument of the “moralists” against divorce is how it leads to the breakdown of families. I will concede that strong family foundation is the backbone of a stable society. But what does a strong family foundation consist of? In a family where the husband repeatedly physically beats up his wife or children, or both, whether or not as a result of drunkenness or drug abuse, and the wife is obliged to stay with him because there is no law that allows her to get out of the marriage, are we looking at a strong family foundation? What kind of children grow up in families like that?

Is the physical togetherness, the image of being a “whole” family (which is really more apparent than real), the benchmark of a strong family foundation?

Then, the question that begs to be asked but rarely is. Does there have to be violence or neglect or some incurable status (like alcoholism or drug addiction or homosexuality) for a marriage to fail and the aggrieved spouse be entitled to relief (annulment, legal separation or divorce)? Married couples, in successful marriages at least, share common visions. Perhaps, not all, but they share common things. Like, how to be financially successful to provide for the children. Or how to treat the in-laws issue (are in-laws, for instance, entitled to financial support?). Or how savings ought to be invested.

Let’s say that in this serious times of economic depression (a persistent situation in the Philippines), the husband, in order to contribute more to the finances of the family, decides to sell drugs. Not use drugs himself, just sell them. The wife finds out, disagrees with his methods, and the issue grows more and more serious as the husband refuses to give up his lucrative sideline. The family, including the children, are exposed to a life of crime. Figures, right? You engage in criminal activities and your cohorts know who you are and where you live and you endanger your family. What’s the wife to do?

Unless the husband is convicted, the wife cannot file for legal separation. You know how long it takes to get a conviction? Years.

Worse, there is the question of whether the wife becomes an accessory to the husband’s crime. She accepts the profits from the crime, use them to feed the family, and that makes her an accessory and criminally liable. Actually, even if she does not use the profits, there will always be a presumption that she does.

Wouldn’t it be simpler, and better for the children, if she can just file for divorce citing “irreconcilable differences”?

I know instances where the couple simply outgrew each other, started going in different directions in life, set different priorities and goals, and the marriage just went stale. People don’t stop growing up after marriage. They may discover things about themselves, discover new capabilities and talents, during marriage. If the spouse cannot accept the change in his partner, what then?

If people think that legally recognizing “irreconcilable differences” as a ground for the dissolution of marriage will lead to whimsical divorces, I think that’s worth a deeper discussion. The moralists would say that even when the love and passion have gone, the commitment remains and that commitment should be enough to keep a couple together. Commitment to what? To vows they did not write but merely repeated in a ritual? Is that more important than being allowed to take and travel the path that can make a person whole and realize the best that he can be?

What about the children? Children don’t thrive in unhappy homes.

A fruitful marriage is an adventure, not a sacrifice. It isn’t a chain around one’s neck but a partnership that allows growth and fulfillment. Sadly, we live in a culture where mistakes are punished. Instead of encouraging second or even third chances, and allowing a person to rebuild his life, a person caught in a bad marriage is simply expected to endure. What crap.

As an obiter dictum, it’s tempting to say that the filing of the Divorce Bill appears too conveniently “timely”. Considering how devoutly Catholic the Aquino family is, perhaps, someone thought that the Divorce Bill might gain support from Malacañang if only to give Kris Aquino a chance to remarry and co-habit with another man in the future without any moral and social stigma. Just a passing thought, really.

But when President Aquino’s comments on the Divorce Bill were sought, that passing thought became a persistent thought. He was asked about this by the media, I saw the video on television, and he said that married couples who are legally separated should be allowed to remarry. Despite saying that divorce was a “no-no”, that doesn’t sound like an anti-divorce statement to me because one of the most significant legal implications of divorce is the ability of the divorced parties to remarry — something that is only available in cases of annulment of marriage which is an entirely different thing altogether.

So when President Aquino says legally separated couples should be allowed to remarry, he was actually introducing a new legal concept which is akin to divorce where a married couple dissolves a legally valid marriage and, after the dissolution, they are allowed to remarry. Of course, he won’t call it divorce — that’s risking the ire of the mighty Catholic Church but, in substance, there’s no other name for what he proposes albeit minus the “irreconcilable differences” part.