Position Paper on Fault-based Divorce

SHOULD FAULT-BASED DIVORCE BE ALLOWED IN THE PHILIPPINES?
By Anna Alexa F. Nacional, 2010 – 42064
In partial fulfillment of English 10 Requirements
January 3, 2014

Many of our present critiques on this issue would belong either to the conservatives and the Catholic Church, or the Women’s right protectors. But from a 19-year old college student’s perspective, I ask myself “Why shouldn’t it be?”. This may sound presumptive to hear for adults who will be more concerned on what will the future of Filipino families be like if the youngsters nowadays even support the passing of the divorce bill. What most people miss out .is the fact that what’s being filed is a FAULT-BASED divorce. Being a student in UP really opens up a lot of eyes, ears and minds which, I think, honed most of my stand in this issue. I am part of the University Student Council which we all know, functions as a microcosm of the Philippine politics, making issues of the country, its citizens, particularly Human Rights, not new to me. Moreover, I am enrolled under a course belonging to the College of Home Economics which sees the Filipino Family not just as the “most basic unit of the society”, but rather the roots, of which the society’s strength and power depends on. It is with these factors that I based my support for the passing of the Fault-Based Divorce Law in the Philippines.

First of all, the reader should understand that I will be looking at marriage as a “legal contract” rather than a “holy union” as the Catholic Church may say. This is because we should also keep in mind that the Philippines, as an archipelago, have a rich diversity in cultures and tradition, in religion, and in practice, which all shouldn’t be disregarded and disrespected in the discussion of divorce in our country. Moreover, we should also raise awareness to layman that our country is not an absolute divorce-free nation as Filipino Muslims, under the Sharia Law, are allowed to divorce. This is constitutional under the Presidential Decree No. 1083, also known as the “Code of Muslim Personal Laws of the Philippines” which allows divorce between Filipinos if, and only if, they are both Muslims, or at least the Male party is Muslim, and the marriage was solemnized in Muslim law and practice, in any part of the Philippines. This, I presume, is a result of respect for the Muslim law and traditions.

We all know that Marriage is “ the joining of a male and female in matrimony by a person qualified by law to perform the ceremony (a minister, priest, judge, justice of the peace or some similar official), after having obtained a valid marriage license”. As practiced, the married couple is expected to protect the sanctity of this marriage, by overcoming all possible forms of trouble and problems at all cost. However, this case is not the same if physical and/or mental health is being put to risks, moreover, lives.

According to Attorney Jaromay Laurente Pamaos (2007) In the Family Code of the Philippines, only annulment and legal separation are the two allowed forms of remedies for marriage that doesn’t work anymore. By definition, annulment is the formal termination of a marriage if proven that it is invalid in the first place. And in the Philippine context, the grounds for annulment are the following:

1. Lack of parental consent. (in certain cases)
2. Insanity.
3. Fraud.
4. Force, intimidation, or undue influence.
5. Impotence.
6. Sexually transmitted disease.

On the other hand, legal separation is a decree which permits the married couple to live separately, however, does not dismiss their marriage. In the Philippines, the grounds for legal separation include those which took place during the marriage, of which are the following:

1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
5. Drug addiction or habitual alcoholism of the respondent;
6. Lesbianism or homosexuality of the respondent;
7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
8. Sexual infidelity or perversion;
9. Attempt by the respondent against the life of the petitioner; or
10. Abandonment of petitioner by respondent without justifiable cause for more than one year.

Given these, we can contrast the importance of adding divorce as another remedy and not as the only option that couples having an irreparable marriage. By irreparable marriage, I hereby define it as the result of life-endangering reasons, and not by mere problems that couples could still resolve; that this fault-based divorce will only be granted if it is deemed imperative for the complainant’s and his or her children’s survival.

According to Miller, “Marriage is a contract that cannot be terminated without the intervention of a court. In its most basic sense, divorce is the legal process that ends the institution of marriage between two people.” But what makes divorce different from annulment or legal separation, given that the latter also allows the couple to live separately? It all boils down to the grounds for achieving the “separation” laws, the “status” of the marriage, and what happens “next”.

Moreover, Marulies (2008) said that “Divorce is about change”. In fact, it’s about the change in one’s housing, in his or her economic status, in his or her social status, or change in the way of managing the children’s lives, all of which none is easy and comfortable. However, why would the “defendant”, in this situation, would still choose to divorce? This is because in our country, most of the people who need this law speak in hushed voices. Most of them waiting for the precise timing and way of ending their marriage, mostly for the reasons: domestic or physical abuse, sexual infidelity, gross irresponsibility, and the likes. And on top of all these, “couples who belong to the marginalized sector, who do not have access to the courts, simply end up separating without the benefits of legal processes”, said Representative Ilagan. She also added that unlike the two existing laws, a fault-based divorce law may serve as the key in protecting the human rights of the couple, attaining both their human development and self-fulfillment. This is due to the fact that the existing laws in the Philippines are not adequate enough to resolve the cases of these irreparable marriages.

As mentioned in the House Bill No. 1799, for a fault-based divorce to be granted, at least one of the following grounds should be presented with corresponding facts and proof:

1. When the petitioner has been separated de facto from his or her spouse for at least 5 years at the time of the filing of the petition and reconciliation is highly improbable.
2. When the petitioner has been legally separated from his or her spouse for at least 2 years at the time of the filing of the petition and reconciliation is highly improbable.
3. When any of the grounds of legal separation has caused the irreparable breakdown of marriage.
4. When one or both spouses are psychologically incapacitated to comply with the essential marital obligations.
5. When the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage.
Given this, we can contrast that couples suffering from the said grounds may opt to terminate their marriage through divorce. It’s because with this legal process can they have the following cons or benefits:

1. The marriage bonds shall be severed.
2. The absolute community or conjugal partnership of gains shall be dissolved and liquidated and the assets shall be divided equally between the spouses.
3. The spouse who is not gainfully employed shall be entitled to support from the other spouse until he or she finds an adequate employment, provided however, that the support shall only be for one year from the finality of the decree of the divorce.
4. Actual, moral and exemplary damages shall be awarded to the aggrieved spouse in accordance to with the provisions of the civil code on damages.
5. The custody of any minor child shall be decided by the court in accordance with the best interest of the child.
6. The child shall be entitled to support.
7. Children born or conceived before the decree of divorce has been final and executory shall be considered legitimate.
8. The parties shall be disqualified from inheriting each other by intestate succession.

Having said all these, Filipino couples (or families) are expected to file for a fault-based divorce law responsibly as it would also cost both parties a lot of trouble, filed irresponsibly.

Upon my research and consultation, however, the following arguments were being repeatedly raised by people and parties who are not in favor of the passing of a fault-based divorce in the Philippines:

1. Divorce will open the Philippines to hasty marriages which will weaken family bonds.
2. Divorce will be an easy way out for conflicts.
3. The sanctity of marriage will be disrespected.
4. Passing a divorce law will not resolve and end the issues of abuse and violence. Why not penalize the wrong actions?
5. Divorce will ruin the future of kids.
6. If annulment is more expensive than divorce, people will be more inclined to avail of divorce as an easy way out.

The first argument speaks of the “family” as the most basic unit of the society, and that divorce will weaken this bond as an institution. Cavite Congressman Elpidio Barzaga even added that “a strong family is essential for a strong nation”, adding a sense that a family which can be disbanded easily will reflect upon the nation’s strength and unity. The second argument emphasizes that rather than having married couples resolve and figure things out together as a family at all cost, they may opt to divorce as an easy way out. People also believe that the passing of the said law will void the chances of reconciliation.

The sanctity of marriage as an oath made by the law and before the law will be broken. I have also read insights that aside from the law and the person who officially headed a marriage, the couple also makes an oath to the people who witnessed their union to stay together through thick and thin, through sickness and in health, ‘til death do them apart.

People also criticize the effectiveness of divorce as a law which will end the abuse and violence between married couples as it would not be as effective as penalizing the spouse who committed the wrong action.

We cannot deny the fact that a family experiencing divorce may be a very traumatizing and taunting experience for children, and may even cause serious problems that the children may bring until adulthood. As Stephen Joseph (2013) said in his work, “..we must not underestimate the effects of divorce on young people.” As I have mentioned before, divorce is all about “change”, and this is mostly felt by the children, which, if not favorable, may lead them into focusing more on the negative effects of the separation of their parents. This is importantly crucial as it may cause serious psychological problems, or traits which they might also encounter and be problematic about once they have families of their own.

Last on the list, being that the divorce law aims to cater even to married couples who belong to the marginalized sector, people may think that it is easier and cheaper to avail. This is something that most of the critiques are worried about as it may be the cause of hasty marriages which will choose to end a marriage rather than resolve it, since it’s an easier option.

I acknowledge and recognize these concerns true and valid. However, people should never forget to hear out both ends of the issue before closing their minds. That no matter how true these arguments are, there are still bigger issues that the divorce law focuses on, emphasizing its essence in our current time. Particularly, and I say it again, when it is deemed imperative for the defendant’s and their children’s safety and survival. With this ground, I will present my counterarguments for the cases stated above.

First, I would like to quote Liza Maza, Gabriela Party-list representative, when she said that “the bill is a culture-sensitive bill”, which means that it was designed to address present day realities, and in our case, domestic or physical violence, adultery and infidelity, gross irresponsibility, and the likes. Calibrating which of the following is more preferable for a nation: a family with weak bonds marked by abuse and violence, or a chance to recalibrate and re-establish life from an irreparable marriage dented by the said factors, which do we think do our fellow countrymen need?

Second, how can divorce ever be an easy way out of a marriage when aside from the muse of monetary resources, it shall also involve intensive investigation and heavy evidences? As a rule, divorce should be given to those who need it, not to those who want it. Moreover, one shouldn’t disregard the fact that each culture has different grounds and/or stipulations for divorce, therefore the same applies for the reason for filing one. This is very important to keep in mind given that the Filipino culture values the bonds and essence of a complete and happy family, atop everything else. According to Rep. Ilagan, the Filipino culture, itself, builds the confidence that this will be used responsibly by Filipino married couples. This is because in line with the value mentioned above, more of us Filipinos would still choose to resolve problems and will only turn to separation as the last resort. “This reflects upon the number of cases filed by battered spouses who only seek separation after many years of trying to make the marriage work”, she added.

Third, “a strong family marked by violence violates the sanctity of marriage, itself.” Rep. Liza Mazo once said. I think this statement already summarizes everything that one also has to bear in mind upon entering a marriage. That both of the couple took an oath to be together through thick and thin, through sickness and in health, ‘til death do them apart. The vow didn’t say one should shoulder all the suffering as the other relieves all his or her problems in the world, the vow doesn’t say that one of the couple can go enjoy his life committing adultery and infidelity while the other supports and provides for the children, neither did the vow say that it’s okay that one of the spouses can threaten his or her spouse’s and children’s lives if life didn’t turn out the way they initially planned to.

Fourth, do people honestly think that penalizing the wrong act, or the person who committed the wrong act, be enough to support and provide for the family left outside? People should also be more sensible and think of the welfare of the family that’s left by the convicted spouse. The divorce law provides legal aid and assistance to the aggrieved party, as mentioned in the “contents of divorce” above, as it secures the lives and fulfillment of the human development of the spouse and children after the “separation”.

Fifth, it is true that a divorce which happened irresponsibly may leave a traumatizing and taunting effect on the children. However, experts say this is not always the case. Dr. Marguilles said that divorce is a legal process, but is a psychological process, as well, as it determines the tone and nature of the divorce. Even psychiatrists say that with the aid of proper support and counseling, children from broken families may adjust and turn out well. Dr. Michael Saffran also added that there are times when a divorce is necessary, and even beneficial, even for children. He said that generally speaking, it is when one or both parents are violent and refuse any type of treatment or therapy. Moreover, “divorce is necessary when children are being exposed to violence, or receives physical, emotional or sexual abuse that cannot be resolved by individual or family therapies”, said Dr. Judith Wallerstein. It is now up to the parent to use his or her wisdom and common sense to take necessary actions whether a marital or familial situation is untenable or destructive, before the situation goes out of hand.

Lastly, one cannot just assume that people will take the divorce law for granted, and use it to their advantage just because it is less expensive compared to annulment. Divorce is never an easy way out as it is also a tedious process. People should also consider the consequences which are irrevocable, which people will want to consider first before terminating the marriage. Aside from financial, it may also jeopardize the lives of the children, rather than saving it, if filed irresponsibly.

It is with these cases that I defend my stand for supporting the passing of the bill. I believe in the essence of a “complete and happy family”, I believe in the Filipino values, and moreover, I believe in the wisdom and passion of my fellow Filipinos in valuing their children and their partners in lives, that they would exhaust all possible resolutions before even taking a look at “separation” as the last resort to solve their problem. I also believe that the passing of a fault-based divorce will save lives of the hushed voices in our society, who for the longest time, have been waiting to be saved from the irreparable marriages that they’ve been suffering from. It is also true that the passing of a divorce law does little in giving people the skills needed to work out some of the inevitable difficulties that arise in marriage, however, it also makes marriage stronger by rooting it more deeply than just another personal choice, especially if it would put lives at risk in the long run.

REFERENCES

Margulies, Sam. “The Psychology of Divorce”, Divorce for Grownups. 2008
Foulkes-Jamison, Lesley. “The Effects of Divorce on Children”, Gainesville Family Magazine. CPA of North Central Florida: January 2001
Saffron, Michael. “The Psychological Effects of Divorce on Children”.
Joseph, Stephen. “Trauma of Divorce and it’s Effect on Children”, What Doesn’t Kill Us. February 2013
Pamaos, Jaromay Laurente. “Annulment, Divorce and Legal Separation”, Annulment and Legal Separation. January 2007
Iladan, Luzviminda C. and De Jesus, Emerenciana A. “House Bill No. 1799”, Republic of the Philippines. House of Representatives: 15th Congress
Ursva, Evelyn G. “Why the Philippines Needs a Divorce Law”, Positively Filipino Magazine. 2011
Yankwich, Leon Rene. “Marriage and Divorce”. Los Angeles, California: Graphic Press, 1937
Waller, Williard Walter. “The Old Love and the New: Divorce & Readjustment”. Carbondale: Southern Illinois University Press, c1967
O’Neill, William L. “Divorce in the Progressive Era”. New Haven: Yale University Press, c1967
Dnes, Anthony and Rowthorn, Robert. “The Law and Economics of Marriage and Divorce”. Cambridge: U.K. Cambridge University Press, 2002
“The New Marriage Law (General Orders No. 68, as amended by Act No. 3412): The Divorce Law (Act No. 2927) and the Naturalization Law (Act No. 2710 as amended by Act No. 3448”. Manila: 1929
Women’s Legal Bureau for SIBOL. “The Relevance of Divorce in the Philippines”. Quezon City: The Bureau, 1998
Miyazaki, Koshiro. “A Comparison of Laws relating to Marriage and Divorce”. Tokyo: Kenso-Shoba, 1960
Lopez del Castillo, Jose. “The Marriage and Divorce Laws of the Philippines”. Manila: Oriental Commercial, c1933

References: Margulies, Sam. “The Psychology of Divorce”, Divorce for Grownups. 2008 Foulkes-Jamison, Lesley Iladan, Luzviminda C. and De Jesus, Emerenciana A. “House Bill No. 1799”, Republic of the Philippines. House of Representatives: 15th Congress Ursva, Evelyn G Yankwich, Leon Rene. “Marriage and Divorce”. Los Angeles, California: Graphic Press, 1937 Waller, Williard Walter “The New Marriage Law (General Orders No. 68, as amended by Act No. 3412): The Divorce Law (Act No. 2927) and the Naturalization Law (Act No. 2710 as amended by Act No. 3448”. Manila: 1929 Women’s Legal Bureau for SIBOL Miyazaki, Koshiro. “A Comparison of Laws relating to Marriage and Divorce”. Tokyo: Kenso-Shoba, 1960 Lopez del Castillo, Jose