Till Death Do Us Part or Depart?

Graphics: Dan Henly Sales

More than a decade ago, our parish priest lashed in the pulpit those who supported the Reproductive Health Act, warning the faithful on the underhanded deception of the devil. The controversial measure was enacted but not without earning the ire of the Catholic Church which even considered then to mete excommunication against President Benigno Aquino III. In the history of our nation’s drama, when a subsequent change in the Family Code was introduced to allow remarriage for Filipinos who divorced foreign spouses abroad, a Church leader admonished the people, saying: “The devil is at work… Those who pass this law will face the judgment of God.” The framing has been clear: supporting policies that the Church opposes is abetting the work of the devil. There is no compromise, no alternative, no middle ground; it’s either you are for darkness or light.

Recently, the country has reached a milestone never reached before by any divorce bill as a Senate committee approved a consolidated measure that brings divorce closer into law. This development is coupled with a shift in public opinion favorable to divorce that developed over time. Surveys on public support for the legalization of divorce while standing at 44 percent in 2005, rose to 50 percent in 2011 and 60 percent in 2014. But the opponents are unmoved, often taking the high moral ground. This shift is caused by the forces of globalization, we must protect traditional Filipino values.

Divorce legislation is easier said than done. The Catholic hierarchy considers it as a badge of honor to be one of the last holdouts against divorce aside from Vatican City, the smallest state and seat of the Catholic power that does not even need it. A brief reading of history shows us that the prohibition of divorce was institutionalized under the temper of Catholicism. Pre-colonial Filipinos practiced divorce but this was prohibited during Spanish rule which only allowed legal separation. Divorce was legalized during American rule under Act No. 2710, although the ground is limited only to adultery or concubinage. However, this legalization was revoked by the Civil Code that was instituted in 1950 due to the resurging influence of the Catholic Church. The prohibition was further cemented under the present Family Code.

Several attempts to enact divorce have since then failed under the vehement opposition of the Catholic Church. The influence of the Church has proved significant in the political development of the country with a population of 78 percent Catholics; and just as it previously opposed the Reproductive Health Act, also staked its power to wield its influence against politicians who will support divorce. However, with the recent development and shift in public opinion, the question looms clear, will the Philippines finally legalize divorce?

More than Darkness or Light

First, it is crucial to refuse a bigoted and myopic framing of divorce as an exclusive choice between morality and immorality. The Church buttressed its arguments against divorce on the line of its inherent immorality and as an ignominy to the sanctity of marriage: as so declared, what God put together, let no man tear asunder. However, this easily crumbles in the weight of the Constitution’s non-establishment clause providing the separation of Church and State. The Nobel laureate Mario Vargas Llosa put it succinctly in emphasizing the need to ensure that in a democratic society, the Church or any religion, must not transgress its proper sphere which is the private, and must be kept from imposing convictions for the whole society that “can only be done by violating the freedom of nonbelievers”. In a diverse society, one religion cannot impose its standard of morality nor claim ascendancy for the whole population. Rather, public policy must be dictated by secular values.

Second, the two-pronged arguments made by the Commission on Human Rights (CHR) in 1999 against divorce are also worthy of consideration. On one hand, it argued that any legislation legalizing absolute divorce will tend to destroy the family as a social institution like opening a Pandora’s box, further reminding the State of the protection and preservation of the family provided in the Constitution and international human rights instruments. On the other hand, it further construed that the divorce of parents will have adverse effects on their children and is a violation of the latter's human rights.

Quite the contrary, it is not divorce that destroys the family but dysfunctional marriages. Proposed ground for divorce under the filed Senate bill includes physical violence, grossly abusive conduct, drug addiction, habitual alcoholism, chronic gambling, homosexuality, bigamous marriage, and marital infidelity; nowhere in the measure can we find that divorce can be instituted out of one’s whim and caprice. Moreso, even if we accept the argument that divorce has adverse effects on children, isn't staying in a household marred by abuse and violence that no longer nurtures, an even greater harm?

Finally, anti-divorce advocates point out that there are alternatives provided in the Family Code i.e. declaration of nullity (Art. 36), annulment (Art. 45), and legal separation (Art. 55). It must be noted that this applies only to non-Muslim Filipinos since divorce for Muslims is legally sanctioned under PD 1083 s. 1977 or the Code of Muslim Personal Laws. In brief, Article 45 rules that a marriage can be declared null if there are technical errors in the legal requirements for marriage. Article 36 can cause the nullity of marriage if it can be pointed out that either spouse is psychologically incapacitated from the beginning of the marriage. Such a process is however stringent, costly, and forces a party to pathologize each other. Furthermore, Article 55 allows legal or formal separation if it can be shown that a spouse has committed physical abuse or infidelity; however, this does not allow one to remarry. While Arts. 36 and 45 allow remarriage, this is beyond the financial reach of most Filipinos and does not cover problems that arise only after the marriage which is often the case. Clearly, these alternatives are not viable.

Reality check, government data revealed that one in five women aged between 15 and 49 experienced some form of physical violence, and one in four encountered emotional, physical, or sexual abuse from their husbands. Research also found that despite the lack of a law on divorce, the number of separated couples has increased over time; despite low chances of success, courts have seen a dramatic increase in filed cases seeking a dissolution of marriage; and lastly, a growing number of cohabitations is reported attributed to heightened caution among couples due to the lack of divorce and the fact that legally separated couples can no longer remarry. Thus, while anti-divorce seeks to prevent evil, it fails to recognize that such evil and related pernicious evils already exist, and by denying a problem, it unwittingly contributes many things but never a solution.

A Case for Divorce

An article published in Foreign Policy captured an emblematic of what’s wrong with this country when it wrote, “Welcome to the Philippines, home to philandering politicians, millions of “illegitimate” children, and marital laws that make Italy look liberal.” We are indeed a nation of contradictions where divorce is primarily opposed by unmarried men, a position maintained by politicians who often flaunted machismo and of having only one wife but several girlfriends. The words of the late columnist Conrado de Quiros sears true, there is something magical-realist in this country; it “eats surrealism, bathes surrealism, and (sic) lives surrealism,” and this has been the crux of our own hundred years of solitude.

Nevertheless, a level-headed view on divorce was propounded by Justice Leonen in his concurring opinion in Republic vs. Mola Cruz, GR. No. 236629, July 23, 2018, where he penned: “I maintain that divorce is more consistent with our fundamental rights to liberty and autonomy… but as the laws stand now, former partners have to pathologize each other in order to separate. This is inconsistent with the reality that we are humans and that we make mistakes. There is no need to punish those who simply made the wrong choice of people to love.”

Family, more than a bond based on blood, and marriage, more than a contract, must be rooted in love. Before the vow of till death do us part is a promise of mutual nurture, even in sickness or health – it was never a one-sided affair. Thus, when love and respect are no longer served at the table, and when the expectation of a union ordained by heaven goes down into the bottom pits of hell, isn't it time to leave? Can we call a family a family of those who, though physically present, whose hearts are miles apart? There is indeed no need to punish those who made a mistake in the choice of a person to love. No need to make unnecessary and inglorious martyrs.

Divorce legislation is easier said than done. The Church has in its arsenal a powerful weapon enough to shake even the most progressive values – fear. The unknown, eternal damnation. But what is needed is not fear mongering but a healthy and receptive conversation. After all, beyond the differences between those for and against, lies the same interest – what’s best for Filipino families.

Finally, let us think of divorce as an emergency door. It doesn’t mean that because it is there, then we have to use it. But if one day we find ourselves trapped in our house burning beyond salvation, we will be glad that it is there.

Yet one thing remains to be seen, will enough policymakers be willing to play the role of “the devil’s advocate?”