JUST recently, the House Committee on Population and Family Relations “endorsed for plenary approval a bill reinstituting absolute divorce as an alternative mode for the dissolution of marriage in the Philippines.” The term “reinstitution” would surely capture the attention of those who think that this country never had a divorce law. While currently we are the only state that has remained not to have one, this was not the case prior to 1950.
Act No. 2710 of the Philippine Legislature under the American period legalized absolute divorce on the ground of “criminal conviction for adultery on the part of the wife or concubinage on the part of the husband.”
Under the current Civil Code, the country allows the declaration of nullity and annulment of marriage. Article 36 of the Civil Code provides that a marriage may be declared null and void due to psychological incapacity. The concept is not original as it is taken from canon 1095 of the Catholic Church’s Code of Canon Law. Observers and experts are of the opinion that the adoption of the canonical provision was thought of as a solution to the longstanding problem of Church annulments not being recognized by civil courts.
This is no longer the case however, as many spouses feel that absolute separation is not easy to get either through nullity or annulment. Not to mention that annulment as is the case with other legal processes is not only time-consuming but also “expensive.” Many are also not content with legal separation because it does not offer a fresh start for couples with irreconcilable differences. It only serves as a band-aid solution where the husband and wife legally remain connected and distanced only in bed and board.
Everyone knows that divorce is a contentious issue. We need not mention the details of King Henry VIII’s quarrel with Pope Clement VII. The fact that the proposal to legalize divorce has been delayed several times, even outlasting the controversial Reproductive Health Bill, is proof of the issue’s divisiveness.
Those who are in favor of divorce must put up a strong argument against those who believe that marriage is not just a “socially constructed” reality but one that has “ontological” foundations. Apparently, there are not many in the legal profession who still subscribe to the existence of a universal natural law. And if this is the case, then these lawyers and jurists simply believe that the law may have a non-material dimension -- its rationality if we may, but nonetheless still human and therefore subject to change by human decision makers.
It is difficult for a Church that still believes in the existence of an immutable moral law as the source of natural law to convince a Congress that operates under a secular constitution. The reconciliation of what is legal and what is moral may be an interesting and profound topic for philosophers – but sadly our lawmakers are more into “acting,” “boxing” or “enterprising.”
I do not have a stand for now on the issue. My belief in fact is this: whether divorce will be legalized or not, Filipinos will find a way to address their own marital problems. The Filipino values system is far broader than the prescriptions of formal religion. This is also one thing which lawmakers should keep in mind. What I am trying to say then is that granting the success of the divorce bill, still families matter a lot to Filipinos, and no divorce can undo those ties that bind people.
But neither am I sold out to the conviction that people should be forced to suffer due to marriage. If genuine marriage and family life are meaningful only because they expand the freedom of persons, then they must not be of absolute value if they are the reasons for a person’s unfreedom.
Marriage is an important social institution, but the human person has an autonomous dignity that must also be protected by the legal system. Surely, we shall have more debates on the issue. But what is important is for the Church and Congress to generate solid and well-grounded arguments that would clearly explain their side.
Both the Church and state have the moral duty to protect people’s rights to a healthy and harmonious society where they can grow maturely as individuals.*