May divorce be with you

Collage by Jimbo Albano


So who doesn’t want divorce?  Happily married couples, that’s who.  They and religious zealots, but can anyone come up with a good reason why the conversation should be strangled just because happy people and those who took vows of celibacy say so?  Well?  I thought not.  Marriages fail—that is simply the human condition—and some people simply are not meant to be married to each other, so to withhold from them the means by which to correct a mistake seems an undue infringement on their right to be happy.  Happiness is not overrated, by the way, but an essential part of what it means to be a fulfilled human being.  Besides, a very learned group of people called the Romans did memorialize, in Latin no less, the cornerstone of the legal profession, that is, Ubi jus ibi remedium—for every wrong, the law provides a remedy.  It is therefore absurd that people trapped in an irretrievably broken marriage should have remedies denied them.

It’s not advisable to start talking about divorce without talking about marriage, at least as how the institution is regarded in the Philippines.  It’s “a special contract of permanent union” involving a man and a woman—the discrimination against couples of the same gender is rightfully reserved for discussion separately—to establish family and conjugal life.  The thing about contracts is that, while binding on the parties, they can be breached by the parties themselves, and should they do so, contract laws provide for modes for redress.  Not so for Philippine marriages because the Family Code characterizes marriage contracts as “special.”  This is one example of how a law can misuse an adjective to devastating effect.  Because marriage contracts are “special,” they are indissoluble (except only in the cases specified by law).

I disagree with the commutative nature of this argument.  Are marriages “special” because they are indissoluble, or are they indissoluble because they are “special?” It’s illogical.   In either case, whatever answer one comes up with will leave one unsatisfied because in the real world, there are a lot of people who, having experiencing otherwise, would argue that there is nothing special about marriage, and absolutely nothing special about being forced to stay married to a spouse who is the source of much rancor and misery.

From characterization, let’s proceed to the characters.  Illogically, the Family Code provides that the absolute minimum age for marriage is 18, which also happens to be the age when one attains legal maturity.  What this means is that when someone turns 18, under the law, one is fully capacitated to enter into all manner of legal relations with all the resulting legal consequences.  At 18, technically, one should be able to enter into a contract without need of anyone’s approval.  Not so with marriage:  under the law, if the parties are aged 18-21, they must secure parental consent before they can get married.  But does that not contradict the whole point of turning 18?  But that’s not all:  for parties between the ages of 21 and 25, they have to obtain parental advice first, failing which the marriage license will be issued only after a delay of three months.  Why on earth would full-fledged adults need Mommy’s and Daddy’s words of wisdom before?   Why should their parents’ advice be necessary before fully-capable adults are allowed to proceed with their own lives?

In order to understand the end, you have to comprehend the beginning, but when the beginning is fraught with logical fallacies, then the end can be just as confounding.  The law says that marriages wherein one party was psychologically incapacitated at the time of the celebration of the marriage can be declared void.  This—article 36 of the Family Code—has been described as a de facto pseudo-ground for divorce and that petitions for declaration of nullity based on psychological incapacity are practically no different from actions for divorce.  Psychological incapacity should be easy enough to prove, one would think, but no, the Church horned in on this action.

A 1997 Supreme Court decision set down the ground rules for relying on psychological incapacity as a ground for nullity.  There would have been no problem there except that the Court grafted ecclesiastical elements onto a secular law to make it more difficult for parties and courts to dissolve marriages based on this ground.  Thus, among other requirements, the plaintiff bears the burden of proving the defendant’s psychological incapacity; any doubt thereon should be resolved in favor of sustaining the validity of the marriage.  Also, the root cause of the incapacity must be medically or clinically identified, alleged in the complaint, sufficiently proven by experts and clearly explained in the decision.  On top of that, the incapacity must be incurable.  Lastly and most tellingly, interpretations by the Catholic Church on psychological incapacity must be given weight by the courts, and that’s only because article 6 was derived from Canon 1095 of the New Code of Canon Law.

Actually, nothing compels the State to adopt interpretations by religious authorities even if the secular law finds its origins in canon law.  In other words, the State is free to arrive at its own interpretation of its own secular law.  The Court did not do that even though Church and State are supposed to be separate, and inviolably at that, per the Constitution.

Surveys show that a growing number of Filipinos are in favor of divorce and Congress is deliberating on it.  The Church insists that divorce will destroy the fabric of society; well, miserable marriages do their fair share in destroying families and society, too.





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