On HB 1799: Divorce Bill (Jay Andes)

On its Explanatory Note, HB 1799 (Divorce Bill) states in its opening paragraph that " Underpinning this
proposal is a commitment to the policy of the State to protect and strengthen marriage and the family as basic social institutions, to value the dignity of every human person, to guarantee full respect for human rights, and to ensure the fundamental equality before the law of women and men. The provisions of this bill are consistent with and in pursuit of those State policies."

The Note further tells us that although in Filipino culture, marriage has been regarded as not only a basic social institution but also as a sacred union between spouses, marriage being the "fount of love protection and care," the painful reality is that "there are many failed, unhappy marriages across all Filipino classes." It further states that the present laws relating to legal separation and nullity of marriages are inadequate to "respond to the myriad causes of failed marriages."

The Bill, then, seeks to provide another remedy for failed and irreparable marriages = Divorce. The Bill will actually be an amendment to certain Articles in the Family Code relating to Legal Separation by not only incorporating the term divorce within its present ambit but also providing for additional grounds for effecting Divorce. Section II of the proposed Divorce Bill provides:

SECTION 2. Articles 55, 56, 57, 58, 59, 60, 61, 62) 63, 64, 65 and 66 of Executive Order No. 209, as amended, otherwise known as The Family Code of the Philippines, are also hereby amended to read as follows:

"Art. 55 (A). A petition for legal separation may be filed on any of the following grounds:

(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 life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year.

For purposes of this Article, the term "child" shall include a child by nature or by adoption.

(B) A PETITION FOR DIVORCE MAY BE FILED ON ANY OF THE FOLLOWING GROUNDS:

(1) THE PETITIONER HAS BEEN SEPARATED DE FACTO FROM HIS OR HER SPOUSE FOR AT LEAST FIVE YEARS AT THE TIME OF THE FILING OF THE PETITION AND RECONCILIATION IS HIGHLY IMPROBABLE;

(2) THE PETITIONER HAS BEEN LEGALLY SEPARATED FROM HIS OR HER SPOUSE FOR AT LEAST TWO YEARS AT THE TIME OF THE FILING OF THE PETITION AND RECONCILIATION IS HIGHLY IMPROBABLE;

(3) WHEN ANY OF THE GROUNDS FOR LEGAL SEPARATION UNDER PARAGRAPH (A) OF THIS ARTICLE HAS CAUSED THE IRREPARABLE BREAKDOWN OF THE 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."

Note that paragraph B of the aforementioned provision is a totally new provision and is the additional provision setting the grounds for Divorce. What can be gleaned from this provision is that irreconcilable differences and irreparable breakdown of marriages are the overriding factors for allowing Divorce, severing the marriage ties, and allowing the spouses to remarry again. But the Bill itself fails to to tell is why or how divorce can be the remedy for failed marriages . What it does is only provide additional murky grounds for severing marriage ties (irreconcilable differences, irreparable breakdown of marriages), with the ultimate goal of restoring the spouses to their single status. It does say, in its Explanatory Note, that the present laws on Legal Separation and Nullity of Marriages are inadequate, and provides for the distinction between Nullity and Divorce, but still fails to enlighten us as to why they are inadequate, or that Divorce is the solution that shall fill the void created by our present laws.

In an effort to strengthen its argument, the Explanatory Note further cites that separation "is usually the last resort of many Filipino couples whose marriage has failed. Cases of battered women also support this. Battered women invariably seek separation only after many years of trying to make the marriage work; separation only becomes imperative for them when they realize that it is necessary for their and their children's survival. Divorce could actually provide protection to battered women and their children from further violence and abuse." This argument actually opens several pertinent issues that the Divorce Bill still cannot address. For one, if separation has been considered as merely a last resort after many years of trying to make the marriage work, what makes the proponents of this Bill so certain that Divorce will also not be considered as a last resort after many years of trying to make the marriage work? As we usually quote here in Legazpi, "it's the same banana-batag." It's the same thing (at least for this issue.) It doesn't actually provide a new remedy (for the remedy is already provided by law). It only allows couples to remarry again. Of course, proponents of this Bill are arguing that "divorce as a remedy need not be for the purpose of re-marriage; it may be resorted to by individuals to achieve peace of mind and facilitate their pursuit of full human development." But again, Divorce fails to tell us how this can help individuals achieve peace of mind and facilitate their pursuit of full human development, or that the present laws on Separation and Nullity of Marriages falls short of allowing individuals to achieve peace of mind.

Another, separation as a last resort actually, in a way, adheres to our constitutional principle that marriage is a solemn covenant between spouses> It does not mean that one has to endure to the point where one's human dignity has been so degraded and one's opportunity and right to full human

development has been so stunted before one can finally resort to this. It only tells us that, having entered into this solemn vow, we have to do the best that we can to make this marriage work. Proponents of the Divorce Bill, by arguing that separation has only been considered by many as a last resort after many years of trying to make the marriage work are subtly telling us that making marriage work is actually a useless burden. Why go through all that trouble and burden of trying to make this marriage work when we can quit while we are ahead? I don't know about you, but to me it sounds like this: "to hell with the sanctity of marriage!" What happened now to this Bills underpinning that it is committed to the policy of the State to protect and strengthen marriage?

But, for the sake of argument, let us assume that Divorce will not be a last resort. It actually becomes an easier resort, not to give spouses peace of mind and the chance for full human development, but merely to be declared single again and re-marry. This is not to say that they will not have peace of mind and the opportunity for full human growth if they get divorced. This is just to say that peace of mind and full human development are not effects of divorce, nor of legal separation, nor of nullity of marriage. These things are actually achieved based on one's human values, principles and disposition in life. The way I see it, the only difference between legal separation and divorce, on the one hand is that in the former, you cannot marry while in the latter you can; and nullity of marriage and divorce, on the other hand is that with the former, the grounds for nullity are stricter, while with divorce, the grounds are more lenient and easier by including "irreconcilable difference, irreparable breakdown of the marriage, and the grounds for legal separation under Art. 55 of the Family Code" as further grounds for divorce.

The bottom line is, the only thing divorce has to offer is the chance for the spouses to re-marry again. But this time, the grounds are easier for divorce. Proponents would argue that the process of getting a divorce would still be arduous (perhaps in a last ditch effort to justify its claim that divorce will not destroy marriage). And yet, the supposed remedy it offers is already in place through our laws. If the marriage has broken down to a point of irreconcilability, we have legal separation. If the marriage has not worked basically because of the failure of one or both spouses to comply with his/her basic marital obligations, we have psychological incapacity as a ground under Art. 36 of the Family Code. We also have Article 45 of the Family Code for other grounds for the Nullity of Marriage.

If Proponents argue that the reality of marriage in our Filipino setting is that there have been battered wives, abused and hurt, we also have recourse in law for these things. We have the VAWC in order to curtail and protect abuses done to women (and spouses). We also have the Revised Penal Code to address these abuses and violence. We have so many laws that actually already address the very things the Divorce Bill wants to address. It is futile to argue that divorce would give a new remedy. The remedies are in place. What the proponents of this bill do not realize is that they are just opening a can of worms, a pandora's Box, if you wish.

One last thing, if spouses are allowed to re-marry again under this Bill, this Bill actually does not resolve the very problems of marriage that pervade our culture. Although I have tried not to argue by example as this would only be met by "counter-examples" that would negate my examples, allow me to cite situations that would show us that the Divorce Bill would actually just perpetuate abuses and add to the number of failed marriages and irreconcilable differences. Say, for example, that a woman sought divorce because, for years, she has been a battered wife, abused physically, emotionally, psychologically, sexually by her husband. Or, say, for example, that the husband has been always involved in sexual infidelity or perversion. She now seeks for divorce and it is subsequently granted. Both spouses are declared single. The legal effect? They can re-marry again. What happens now to the subsequent marriage entered into by the former abuser-husband? Would it not be that he would, again commit the very same things he did during his first marriage? The cycle will not stop, essentially because divorce fails miserably to address this issue. If the abuser-spouse can re-marry again, we are actually just allocating the previous marital problems to another avenue the new marriage. And if this happens, it will be a slippery slope from there. Failed marriages after failed marriages shall snowball. The abuse will not stop. The irreconcilable differences and irreparable

damages to the marriage will not go away. They will still be there, albeit in another new marriage.

Proponents of this Bill argue that "(t)he bill seeks to introduce divorce in Philippine law with a strong sense of confidence that it will be used responsibly by Filipino couples. It fails to recognize the fact that the marriage would not have reached a point of "irreparability" if, in the first place, one or both spouses have been responsible.

What happens now to the sanctity of marriage? What happens now to the "peace of mind and opportunity for human development" the proponents so conveniently assert but miserably fail to establish? What happens now to this Bill's declaration that its underpinning is committed to the State's policy to protect and strengthen the marriage and the family as basic social institutions, to value the dignity of every human person, to guarantee full respect for human rights, and to ensure the fundamental equality before the law of women and men? If you would ask me, they only become punch lines rather than principles. Under this Bill, they don't become backbones of generations spent protecting the very sanctity of marriage. In the end, the Divorce Bill will fail on its purpose. In the end, the Divorce Bill will fail us all.