INTRODUCTORY VIEWS
The ethical issue of the pros and cons of divorce had shared center stage with other debatable subjects such as euthanasia, abortion, and artificial birth control methods in the eighties up to the early nineties. But recently the topic has been overtaken by the “Reproductive Health Bill” and the concern on same-sex marriage as lesbians and gays have been persistent on their “rights”.
The lobby for the passage of an absolute divorce law had elicited from its opposition eloquent writings by the “moralists” or “purists” that included the like of former Senator Francisco S. Tatad that there were more published discourses on the indissolubility of marriage than on the contrary.
The Philippines is but one of the few countries which do not have an absolute divorce law, and it seems that these few states have been largely influenced by the Catholic church on the passage of divorce law.
The debates on divorce have more or less waned after the passage of Executive Order No. 209, as amended by Executive Order No. 227, or the Family Code of the Philippines which took effect on August 4, 1998. The new Code had amplified and widened the scope of the grounds for legal separation and relaxed the Civil Code’s grounds for annulment. This in effect had provided slits in the no absolute divorce policies of the state that “to assert that marriage was given ample protection is more fiction than real because of the liberalized provisions on annulment (Prof. Jose N. Nolledo, The Family Code of the Philippines, Annotated, 1988 Edition).”
MARRIAGE AND DIVORCE, A CHRONOLOGY IN HISTORY
Under Spanish rule “only the religious or canonical marriages were recognized in the Philippines. ‘By a Decree under date of December 2, 1889, of the Spanish Governor-General, the civil marriage in the Spanish Civil Code of 1889 (Article Numbers 42 to 107) was never extended to the Philippines (Benedicto versus De La Rama, 3 Philippine Reports 341; Garcia versus David, 67 Philippine Reports 279, Edgardo Ll. Paras, Civil Code of the Philippines Annotated, 1975 Edition).”
More so, the Siete Partidas (promulgated through the Ordenamiento de Alcala of 1384) which was in force until the adoption of Act No. 2710 on March 11, 1917, “provided for legal separation, not absolute divorce. ‘The Siete Partidas, among other Spanish laws and ordinances, supplements the Recopilacion de la Leyes de las Indias which is basically the civil law in force in the archipelago prior to the adoption of the Spanish Civil Code of 1889 from where Philippine civil law was principally premised prior to the present Civil Code (Edgardo Ll. Paras, Civil Code of the Philippines Annotated, 1975 Edition).”
The Americans introduced “civil marriage in General Orders No. 68, promulgated on December 18, 1899, as modified by Acts Numbers 1451 and 3412 (General Orders No. 68) ‘were repealed by Act No. 3613 (effective December 4, 1929), as amended by Act No. 3848, Commonwealth Acts Nos. 62 and 114 and Republic Act No. 241.
‘In turn, Act No. 3613 has been repealed by the New Civil Code except insofar as the former’s penal provisions are concerned (Edgardo Ll. Paras, New Civil Code of the Philippines Annotated, 1975 Edition)”, and by virtue of Act No. 2710 of March 11, 1917, or the Old Divorce Law, has allowed “only absolute divorce and implicitly ruled out relative divorce (Garcia Valdez versus Tuazon, 40 Philippine Reports 943, Edgardo ll. Paras, Civil Code of the Philippines Annotated, 1975 Edition).”
Executive Order No. 141 of the Japanese provisional government has widened the grounds for divorce provided for under Act 2710, from two instances such as adultery on the part of the wife and concubinage on the part of the husband, to ten circumstances from which a civil action for divorce may be brought by either spouse.
The absolute divorce law during the Japanese occupation was effective until October 23, 1944, when General Douglas MacArthur by proclamation re-established the Commonwealth, which in effect revived Act 2710.
Act 2710 or “the old Divorce Law was repealed by the New Civil Code (Raymundo versus Penas, 96 Philippine Reports 311, Edgardo ll. Paras, New Civil Code Annotated, 1975 Edition)” which provided for a relative divorce or legal separation, with the exception of Muslim divorces under Republic Act No. 394, and subsequently under Presidential Decree 1083.
RELIGION AND DIVORCE
Every major political event that transpired in the archipelago elicited significant changes in the civil laws governing marriage. The Spanish civil laws had allowed legal separation or divorce a mensa et thoro, where the parties are merely separated by bed and board without the dissolution of the marriage ties; the absolute divorce, divorce a vinculo matrimonii, of the American regime; and the expanded grounds for divorce during the Japanese occupation.
It may be concluded then that the broad characteristics of the government that assumed power determine persons and family relations laws and not necessarily the practical social needs of the people. These characteristics to some extent may be largely influenced by the dominant religion as in the case of Spain, the Philippines, and many Latin American countries (For clarifications, this critic is a Roman Catholic with faith enhanced by family traditions, active participation in church activities, and by long education in SVD, Dominican, and other Catholic clergy run schools. The views contained in this paper are not intended to create bias nor be anti-Catholic or anti-religion, but merely a perception of social cultures or social needs in the context of lay religious practices and are independent of the basic teachings of the Catholic faith).
The Catholic influence in these former colonies of Spain is evident when compared to countries of non-Catholic predominant religion or where there are several major religions as in America and in many European countries.
Undeniably, the Catholic faith embraced in a large area of the archipelago for over four centuries had a great influence on the customs and traditions of the Filipinos, which seeped through state policies on persons and family relations. These cultures as the Filipino reverence for family ties cultivated by the Spanish-introduced faith and traditions had been overshadowed by foreign cultures when the Americans and Japanese introduced their respective versions of divorce laws which were unheard of, if not unthinkable or unacceptable, for colonial Filipinos who were under Spanish rule for over four hundred years.
Conservative concepts on family relations are carried over from religious practices Filipinos have known since Spanish times and handed down through family traditions that forged social norms of morality.
Muslim divorce sanctioned by Presidential Decree 1083 was likewise elicited by religion, or perhaps political. Presidential Decree 1083 or the Code of Muslim Personal Laws is said to be the triumphant culmination of the long struggle of Filipino Muslims to have their systems of laws enforced in their communities, and be able to interrelate with each other “by the most sacred book by which they live (spiritually, socially, and politically), the Koran (Esteban B. Bautista, An Introduction to the Code of Muslim Personal Laws, 1977 Edition).”
The no-divorce and other general policies governing marriage that the Philippines has copied from Spain have their roots in dogmatic precepts of the dominant religion introduced by the Spanish colonizers in 1521. These rooted doctrines have been maintained in the post-Vatican Council II era, “that the Church’s teachings on the indissolubility of marriage are the doctrine of Christ Himself as revealed to us in the Gospel: ‘What God has joined together, let no man put asunder.’ This doctrine was followed regularly in the early Church (Charles Cardinal Journet, Fribourge (Switzerland), in Gaudium et Spes’).”
The interaction or union of the church and state in modern times may in some instances be more of a political strategy of the government in power. Those in power may not want to openly oppose church views and in the process antagonize public opinion, while on the part of the Catholic Church, it is for the preservation of the human person and renewal of human society (“Gaudium et Spes”, Pastoral Constitution on the Church in the Modern World, Vatican Council II).”
To my view, this “liberation theology” that emerged after the Second Vatican Council is often confused by critics as the undue intervention of the Church in what is purely political affairs.
But what happens after a marriage’s civil annulment, particularly from the theological perspective? Conversely in a solely canonical dissolution of marriage, what are its civil implications on re-marriage?
Similarly, what also happens after a decree of legal separation? It may only treat issues on the administration of assets, but what about the opportunity to start another family?
These blank walls or dead ends are but a few of the social realities that the State and the Church have to address.
DISCUSSIONS ON THE CONTEMPORARY
RELEVANCE OF DIVORCE
Both the Church and the State uphold the inviolability of marriage as a social institution (Article 52, Title III, Civil Code of the Philippines), in the same manner, that the Church and state, at least prior to the enactment of the New Family Code, have similar grounds for the separation of spouses and annulment of marriage.
To fully appreciate the very foundation of the present policies governing marriage and divorce in particular, it is important to make brief references to the civil laws that governed the Philippines in different phases of history. From the chronology of historical developments, the social and cultural acceptance of the concept of divorce may be assessed.
These different policies on marriage have been respectively reversed in the liberation of the Philippines from the Japanese, and in its eventual grant of independence from the United States when the Spanish Civil Code had been the principal basis of the Civil Code of the Philippines (Mijares versus Neri, 3 Philippine Reports 195, Edgardo Ll. Paras, Civil Code of the Philippines Annotated, 1975 Edition)”.
It may be argued against this, though, that there is no basis for the assumption nor to implicate religion in matters that are of the state. To some extent, yes. But the influence, traditionally for example, of the Catholic Church in state affairs, particularly in predominantly Catholic states, dates back to the era of the inquisition when doctrinal divergence could mean death.
It is this effort of the State to preserve the balance of moral-religious views and public opinion on the issue of divorce that prevents the latter from adopting a policy of absolute divorce. The moral pressure ‘exerted’ by the Church had prevented, for the moment, the State from going further than expanding the grounds for a marriage annulment in the latter’s attempt to address urgent family relations issues.
Church’s or religion’s influence on political issues is not confined to the Catholic Church alone. The Muslim faith had its influence too on state policies in the southern Philippines, and so with the “influence of the Iglesia Ni Cristo” and other religions, sects, and beliefs as in other countries.
In the previous discussions, it was said that the major opponent of divorce in the Philippines is the conscience of the Church. The Church had opposed the diversion of the state from the common doctrines that the two have shared since Spanish times.
While efforts were exerted to confine the discussions in this paper to the practical social perspectives of divorce rather than on theological discussions, it is worthy of scrutiny if in this age of social permissiveness relative divorce, to the exclusion of absolute divorce, still finds relevance.
Times do change and society had gone a long way from the time when unwed mothers and divorcees were viewed as social outcasts. Society has metamorphosed from the confines of neo-puritanism to sexual permissiveness, without necessarily abandoning doctrinal faith, customs, traditions, and values. Social permissiveness paved the way for reconciling the concept of morality with practicality, and value with necessity.
Perhaps we have come to the point in time that the state thoroughly reviews its policies affecting persons and family relations to keep up with the times, not only to “bring them closer to the Filipino customs, values, and ideals’ but to reflect contemporary trends and developments (Whereas clause, Executive Order No. 209 (The Family Code of the Philippines).”
A sample survey in the locality through questionnaires and interviews was conducted to come up with statistics that will somehow give a general public sentiment on absolute divorce. One hundred respondents were chosen comprising of unmarried males and females, with ages from 18 above; married, males and females; and de facto separated from spouses, males, and females.
This group of respondents was chosen to determine if status or personal circumstances affect one’s perception of divorce.
The results in percentage are tabulated as follows:
PRO DIVORCE | CONTRA DIVORCE | |||||
RESPONDENTS | MALE | FEMALE | TOTAL | MALE | FEMALE | TOTAL |
MARRIED | 23.0% | 1.2% | 24.2% | 5.8% | 70.0% | 75.8% |
UNMARRIED | 9.7% | 3.8% | 13.5% | 11.0% | 75.5% | 86.5 |
SEPARATED | 51.2% | 45.8% | 97.0% | 0% | 3.0% | 3.0% |
CONTRA DIVORCE - The highest incidence of those opposed to absolute divorce was among the married persons who placed importance on “the preservation of the family, not necessarily for themselves but for the children whom they want to save from trauma attendant to divorce and broken families.” This was noted more among married females who perhaps are more idealistic and emotional.
The idealism and emotional factors are also evident among the female respondents from the unmarried group, particularly among the eighteen and twenty-one-year-old bracket, but these sentiments are however not shared by a majority of males even in the unmarried and eighteen and twenty-one-year-old bracket. These are indications of a stronger personality and practical outlook in life dominant among males.
PRO DIVORCE - There was almost an equal distribution among males and females in the separated-in-fact group of those who favor absolute divorce. The other three percent among those separated merely wanted “an option for couples who wanted to start anew.” Married respondents, males, and females favor divorce not because they are unhappy in their married lives but “just in case” and “for the practicality of living separately and the possibility of starting anew with another.”
At this stage, the calling for absolute divorce is the unhappy state of one or both partners in the marital relationship.
Generally, the above data shows a strong indication of emotionalism and idealist perceptions of the preservation of the marriage ties among the youth, particularly among females, but these idealist and emotionalist perceptions slowly diminished secondary to their exposure to the pressures of married life, and at its lowest when the realities of separating or actual separation is present. These changes of perceptions have been independent of religious beliefs (The respondents included Catholics, fundamentalists, and members of other sects), but rather shaped by practicality, the present state of the relationship, and physical or emotional needs, among others.
The present policy of the State for a relative divorce to the exclusion of absolute divorce for the strengthening of the very basic component of Philippine society, the family, “to which the State takes an active interest” may be too idealistic and obviously had become impractical in the present times as elicited by social acceptability and new social norms.
The logic of Executive Order No. 141, or the Divorce Law of the Japanese Provisional Government in the Philippines, still holds true and finds more relevance in this modern age. Executive Order No. 141 had been framed “as an answer to the cry of many victims of chronic matrimonial tragedies which under Act 2710 (the American regime’s law on divorce), practically only death could dissolve (Editorial of the “Tribune,” March 31, 1943, Edgardo Ll. Paras, “Philippine Civil Code Annotated, 1977 edition).”
The contra divorce proponents tend to equate ‘divorce’ with the divorce laws in most western and European states where the proceedings is an option at the whimsical or capricious disposal of any or both spouses or equate it with something of an option that one can easily avail of.
By analogy, many of those who oppose absolute divorce view the same as something that is irresistible, or like the proverbial Sword of Damocles that is a threat to family ties. To some extent this may hold true but the State should provide safeguards to assure that the option is not subject to abuse or indiscretion.
One condition may be a de facto separation for the last five years or so, insanity of either spouse, drug addiction, incapacity to carry on marital or family obligations, or attempt on the life of the other spouse.
Grounds could be endless for those perpetually bound by failed and irreconcilable unions.
Some oppositions are founded on religious considerations, that “what God has joined together, let no man put asunder.” An extensive discussion could be offered to place in proper context this biblical passage but it would not be possible without substantially deviating from this critique.
The Catholic Church itself is cognizant of cases wherein spouses may separate. “The Church acknowledges the fact that in some instances the separation of the spouses may be justified. In some cases, however, the bond can be dissolved by the Church and the parties declared free to marry (1.2 and 1.3, Regulation of Separation, Article I, Chapter IX, Fr. Wilfredo C. Paguio, “Notes on Sacraments & Sacramentals According to the Code of Canon Law”, Volume II, Marriage).” on almost similar grounds provided by the Philippine Civil Code and the Family Code.
The traditional conservative views on the indissolubility of marriage carried over in modern times had been elicited by the “severe penances imposed by the medieval councils and synods that enacted legislations forbidding Christians from remarrying after the divorce. These Councils did not deal with the issue of the validity of second marriages, which leads to the presumption that indissolubility was viewed largely in terms of a moral obligation attached to the marriage bond (2.5, Loc sit).”
From these precepts, it may be inferred that there is more than moral obligation attached to the marriage bond --- that it is a Holy Sacrament. Conversely, it may also be interpreted that if the moral obligation to preserve the marriage bond ceases by the deteriorated relationship of the spouses, then for all intent and purposes the marriage should be severed.
If morality is an issue of marriage indissolubility, then is it also moral for spouses to continue a strained relationship? Is it not that the essence of man is his intellect and free will, in accordance with which the morality of his act and choice will be guided by his conscience?
Both the State and the Church recognize instances when it is best for the family for the spouses to separate, which policies are enumerated in Title III, Book I of the Civil Code of the Philippines. The Church too recognizes instances when “ a spouse who occasions grave danger of soul or body to the other or to the children or otherwise makes a common life unduly difficult, provides the other spouse with the reason to leave. ‘In fact, not to live together may even constitute a duty for the spouses as when one contracts a highly contagious disease(4.2. C. 1153, Loc sit)”, without necessarily severing the marital bond.
While both the State and the Church recognize the separation of the spouses in instances where the marriage bonds cannot be severed under present policies, the public is more concerned with the implications of subsequent relations, and it is these irreversible family circumstances, socially accepted in present times, that the State is also duty bound to protect and clothe with legality.
The Philippine Civil Code and the New Family Code provide, among others, for the protection of children and the administration of conjugal properties subsequent to the decree of legal separation. But for the average Filipino, this does not have much relevance or gain. For spouses without any conjugal property to agree on and cannot re-marry, it is not worthy to incur expenses and undergo social embarrassments attendant to court proceedings to obtain a decree of legal separation.
Indeed, spouses who chose to separate or are “forced by circumstances” to separate, with or without an absolute divorce law, may live or cohabit with new partners. It is the desire of estranged spouses “to enhance the social acceptability of the subsequent relationship, especially in a society that is almost completely Catholic (Veloso, Gerardo Ty, Ph.D., J.C.D., S.T.L., M.T.S., “Marriage Break-up and Remarriage) that the State should address; and social acceptability could be enhanced by the State by giving the same recognition, protection, and legality.
A strong marital union need not be threatened nor has a need for divorce. A State policy on absolute divorce is not intended for those who maintain the marriage bond, but rather it is to address the issues attendant to marriage break-ups by providing remedial measures for failed marriages particularly safety nets for minors that need to be shielded from the stigma of broken families.
No “human power, civil or ecclesiastical, is capable of dissolving a ratified, consummated marriage (C. 1141, Fr. Wilfredo C. Paguio, “Notes on Sacraments & Sacramentals According to the Code of Canon Law”, Volume II, Marriage)” as the Church teaches, but no force on earth too could force spouses to live with each other, thereby rendering essentially ineffective the policy of the State to protect the family as a basic social institution through the indissolubility of marriage.
To some extent, the mere separation of spouses is more detrimental to the family, to the children, and to the children of a subsequent relationship as they will carry the dishonor of illegitimacy. Rather than confining the negative effects of a broken marriage to the children of the previous marriage, the impediment of the spouses to legally re-marry forces the children of the second relationship to share in the negative effects.
Society should take steps to reconcile the differences between conservative or dogmatic concepts and urgent social needs; and the State should take the initiative by reviewing its policies and adopt one that is responsive to the needs of all, beyond doctrines, religious affiliation, creed, or ideology.
POINT OF RECONCILIATION OF ARGUMENTS
Unlike the ethical complications confronting the artificial birth control methods as a major component of the “Reproductive Health Bill” under debate, a policy on absolute divorce could be successfully reconciled with traditional moral norms.
In gist, the opposition to artificial birth control is anchored on the context that artificially preventing birth would pre-empt God’s master plan for human destiny. A simple analogy of the interrelation of life and purpose is of a chain being drawn from the sea, that to cut a link would let all succeeding links slip back into the dark waters.
Science fiction writers on time travelers have come up with a similar concept. Nothing should be destroyed in travel back in time as it will disturb the future.
In divorce issues, the Church could relax its policies on marriage indissolubility. While the theological arguments for the dissolubility of marriage are based on the teachings of Jesus in the “ synoptic gospels, these sayings do not mention the degree of indissolubility, the nature of sacramentality, or the effect of consummation. It was left to the Church to determine the limits of dissolubility (Ibid).” Wherefore, canonically, the Church is not expressly precluded to rule in favor of divorce under any stringent conditions that it may impose.
The adoption of the State of absolute divorce will pose no significant conflict with the present stand of the Church against absolute divorce, which greatly influences the norms of social morality.
The reference point will be the distinction between canonical and civil marriages. If the Catholic Church does not recognize civil marriage, “for Catholics to have a valid marriage, they must exchange consent according to canonical form (5.4, C.1058 Loc sit.)” then Catholics who obtain a civil divorce, while cannot be canonically married, could resort to civil marriage.
The ‘independence’ of the Church in recognizing only canonical marriages, should also apply inversely. The State, while recognizing both canonical and civil marriages, could also, if it wishes, recognize absolute divorce independently from the doctrines of the Church.
More so, for the State to succumb to the Catholic Church’s, or any religious community’s stand against absolute divorce would be unfair to non-Catholics, non-members of those other churches, or to the atheists, and in effect contradicts itself when it guarantees fundamental rights in the Constitution, which include the rights to pursue one’s happiness, and the free exercise of religion without discrimination or preference.
If the State could allow absolute divorce among Filipino Muslims on religious considerations, then why should the same prerogative to severe marriage bonds be denied to the rest of the citizens of the nation?
To my mind, this borders on the sphere of class legislation.
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