wanderer's tales: June 2011

The Reproductive Health Bill is still far from reaching its conclusion; yet, a new controversial bill is already brought to the table, the Divorce Bill. The bill was introduced by Gabriela Women’s Party which seeks to amend Executive Order 209 otherwise known as the Family Code of the Philippines to include Divorce as one of the legal remedy for couples with irreconcilable differences who may want to get out of their marriage.

Currently, the Family Code only allows declaration of nullity, annulment and legal separation as an option for married couple who can no longer live together. Let us first understand how declaration of nullity, annulment, legal separation and divorce differ from one another.

Declaration of Nullity

In essence, declaration of nullity is different from annulment. Declaration of nullity considers that the marriage is void and invalid from the very beginning. Conditions for declaration of nullity are shown at the end of this blog.

Annulment

Annulment is a declaration that a marriage is valid but voidable if during at the time of marriage, exist the following conditions as provided in Article 45 of the Family Code (Refer at the end of this blog). Usually in courts “psychological incapacity” is used as a reason to file for annulment.

Legal Separation

Legal separation allows a couple to be physically apart but still is considered as legally married. It may be filed based on the following conditions as provided by in Article 55 of the Family Code (Refer at the end of the blog)

Divorce (As proposed under HB 1799)

Divorce is the dissolution of a valid marriage. It differs from annulment since it allows issues that may arise during the marriage as grounds to have the marriage terminated. A petition for divorce may be filed based on the following grounds.

(1) The petitioner has been separated de facto (in fact) 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 that has caused the irreparable breakdown of the marriage.

(4) When one or both spouses are psychologically incapacitated to comply with the essential marital obligations; and

(5) When the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage;

Among those presented above, only those who were legally separated are not allowed to remarry since union between the couple is still considered valid under the law. As it is right now, there are legal remedies that a couple may take should they agree it would be difficult for them to continue on with their marriage as such parting of ways is the only remedy. So the question is, why add divorce? The proponents presented their arguments on the Explanatory Note section of the proposed bill and are presented as follows:

“Reality tells us that there are many failed, unhappy marriages across all Filipino classes. Many couples especially from the marginalized sectors, who have no access to the courts, simply end up separating without the benefit of legal processes.”

And would divorce be able to address it? Would it make the courts accessible to the so-called marginalized sectors? Access to court is a totally different issue from failed and unhappy marriages, as such, needs to be addressed separately. Top of mind, I can identify two reasons why the marginalized sectors have no access to courts. First, education. Do they even know their rights? I am fortunate enough to finish college and in one of our subjects we studied the Philippine Constitution and even the Family Code of the Philippines. Unfortunately, most poor families could not afford college education for their kids. So how can a poor Filipino learn all these things? The first important step is to educate people of their rights because that’s the only time they would know how to fight for it. Lastly, financial capabilities. Can the marginalized sector pay a lawyer when they can’t even afford to put meals on their tables? Even if divorce is legalized, would they have the money to pay for it? It’s the same banana. Annulment, legal separation, and divorce would entail costs and still is not affordable to these marginalized sectors.

“Even when couples start out well in their marriage, political, economic and social realities take their toll on their relationship. Some are not prepared to handle the intricacies of married life.”

This statement takes away from us being responsible to decisions we make. We all make mistakes but we have to learn from it and live with it. What if after having two kids I suddenly realized I am not prepared to handle parenthood? Can I just abandon my children and my role as a parent like what they are saying in a divorce, my role as a husband? We need to own up the consequences of our actions. Providing a back door exit to marriage may even worsen this situation. Couple who should think a lot of times before getting married may need only to think once since an easy way out is always available. If a couple is not prepared to get married, then they should not marry. Period. As such, it is the responsibility of the state and the parents to ensure that before any couple enters the sanctity of marriage, they are indeed prepared for it, physically, mentally and financially. Aggressive and effective pre-marriage counseling/screening should be accorded to the couple. Divorce is not the solution to the inefficiency of the parents and the state to do its duty.

“For a large number of women, the inequalities and violence in marriage negate its ideals as the embodiment of love, care and safety and erode the bases upon which a marriage is founded. The marital relations facilitate the commission of violence and perpetuate their oppression. The 2003 report of the Philippine National Police shows that wife battering accounted for 53.6 percent of the total 8,011 cases of violence against women. About three of ten perpetrators were husbands of the victims. Husbands accounted for 28 per cent of the violence against women crimes. The Department of Social Welfare and Development reported that in 2003, of the 15,314 women in especially difficult circumstances that the agency serviced, 25.1 per cent or 5,353 were cases of physical abuse, maltreatment and battering.”

Divorce cannot and will not prevent inequalities and violence in any marriage. With or without divorce, domestic violence will still exist. However, there is already an existing law that shall protect women from such inequalities and abuse as contained in the Republic Act 9710 also known as the Magna Carta for Women which was signed in 2009. What is required from the government is to have all women educated on their rights and how to protect themselves as provided by such law. If any form of violence should exist in the household, married women should know how to file cases as provided by the RA 9710 and consequently, if necessary, file for Legal Separation. I would like to stress my point, given this argument by the proponents of this bill, there exists already legal remedies to this issue.

Big numbers were presented above, so let’s further drill down those numbers. In that 2003 report, it was said that a total of 8,011 cases of violence against women were reported. In a population of 90M, that accounts for 0.000089% of the total population. Significant? You tell me. I am not saying that we should ignore these cases. As a matter of fact, I applaud the passing of the Magna Carta for Women. But what I am saying is that, people should be careful in using statistical numbers to defend their position. Those numbers will not ever reflect the true picture of our society.

“The present laws relating to separation of couples and termination of marriage are inadequate to respond to the myriad causes of failed marriages. Particularly, the remedies of declaration of nullity and annulment do not cover the problems that occur during the existence of marriage. Legal separation, on the other hand, while covering problems during marriage, does not put an end to marriage.”

They why don’t we get to the root of the problem? What causes marriage to fail? Have we done enough to understand this and provide solution to this issue? Separation and termination of marriage does not and will not address the causes of failed marriages, same goes with divorce. Fact of the matter is, divorce will even make marriages prone to breakdown since it provides an easy way out, a simple alternative, than to deal with the intricacies of solving marital problems and challenges.

“In practice, Article 36 has become a form of divorce, as valid marriages are declared void every day in the guise of “psychological incapacity.” The innumerable Article 36 cases brought to trial courts is an indication of the elasticity of Article 36 to accommodate the needs of many couples desiring to terminate their marriages. It is proof that divorce is needed in the Philippines. Article 36 provides a remedy only for spouses who can prove “psychological incapacity”. The concept certainly cannot accommodate all cases where divorce would have necessary. What we need is a divorce law that defines clearly and unequivocally the grounds and terms for terminating a marriage. That law will put an end to the creative efforts played daily in courtrooms across the country to accommodate a wide range of cases in order to prove “psychological incapacity.” (Women’s Legal Bureau, Inc., The Relevance of Divorce in the Philippines, 1998)”

I agree that such provision on the Family Code is abused my many to get out of marriage. It is as a matter of fact a milking cow by lawyers and by some corrupt judges. This practice must be put to stop and divorce is not the solution to it. To remedy this situation, I propose that once a petition for annulment has been granted, the one who admitted and proven in court as psychological incapacitated should not be allowed to remarry. Only the complainant should be allowed to do so. Let’s see if any of the couple would agree to admit they are the one with the problem. I think it’s stupid to allow anyone who is “proven” to be psychologically incapacitated to remarry when you know that such condition would only make that person’s second marriage void as stipulated in Article 36 and 45 of the Family Code.

“The bill seeks to introduce divorce in Philippine law with a strong sense of confidence that it will be used responsibly by Filipino couples. This confidence stems from the experiences of Filipino families that show 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 is an admission of fact that indeed divorce will never prevent domestic violence. They said that because Filipino women are very devoted to their marriage many would endure violence, and that fact alone should allay fears of many Filipinos that divorce will be abused by many couples. So what is the point of this statement? Divorce can only end the abuse but not prevent it, so as the legal separation as provided by the Family Code. An ounce of prevention is better than a pound of cure. Domestic violence should be addressed even before it is happens and not just provide a solution after crime has been committed.

“With the predominance of the Catholic faith in the Philippines, the fear that divorce will erode personal values on marriage appears unfounded. The experience of Italy, where the Vatican is located, and Spain, two predominantly Catholic countries which practice divorce, supports this. Those countries have a low rate of divorce. Italy registers a 7% rate while Spain registers 15%. The figures reflect the strong influence of religious beliefs and culture on individuals in deciding to terminate marital relations.”

The figures are outright misleading. The proponents should have done their assignments well before again throwing these numbers. Currently in Italy, their government has recognized that there is a crisis in their marriage system. More and more Italians opt not to get married as such more than 80% of their men still stay home with their mothers until well into their thirties. In Spain, most couples opt to live in together, also known as “cohabitation”, than get married. As such in both countries, there has been a decrease in the number of “first time” marriages. Divorce paved the way for a new family structure which includes cohabitation, extramarital births, single parenthood, and one-person households. Is this the kind of family structure we would want for ourselves? The low rate registered by both countries does not at all reflect the strong influence of their religious belief but a cultural shift on how they look at marriage. True enough, why marry if it will end in divorce anyway?

One interesting aspect that we also need to look at is the mean age of people getting married in all three countries. Both in Spain and Italy, average age for men and women at first marriage is early thirties and late twenties respectively. And the Philippines? 25 for men and 19 for women! Given this disparity, this maybe explains why there are many failed marriages in the Philippines. So it’s pointless to compare the experience of Spain and Italy and assume that Philippines will also post a low number of divorce rate. This is like comparing apples with oranges. As they pointed out earlier in their argument, many Filipino married couple after few years into their marriage would realize they are not prepared to married life. Well, simply because they are too young and not mature enough to handle the challenges of a married life. This is common in the marginalized sectors as well as in the rural areas. As such this is where we should focus our attention, to ensure that couples who would want to get married are mature enough for such undertaking. Proper education is what’s needed.

“Historically, divorce had been part of our legal system. In the beginning of the 16th century, before the Spanish colonial rule, absolute divorce was widely practiced among ancestral tribes such as the Tagbanwas of Palawan, the Gadangs of Nueva Viscaya, the Sagadans and Igorots of the Cordilleras, and the Monobos, Bila-ans and Moslems of the Visayas and Mindanao islands.”

This may be true. Those were also the days when a captured enemy is beheaded and displayed as a trophy. Do you think such practice can also still apply to us, in our time? When the Spanish came, along with it the Christian faith, our religious beliefs and morals changed the norms of our society.

“Divorce was also available during the American period, starting from 1917 (under Act No. 2710 enacted by the Philippine Legislature), and during the Japanese occupation (under Executive Order No. 141) and after, until 1950. It was only on August 30, 1950, when the New Civil Code took effect, that divorce was disallowed under Philippine law.”

And those were the years we were occupied by the American and Japanese as such, if not all, most of their laws were applied to the Filipinos. And when in 1950, four years after we gained our full independence from the Americans, our fathers then brought back high morals standards in our society and as a consequence, divorce bill was repealed.

“This bill is respectful of and sensitive to differing religious beliefs in the Philippines. It recognizes that the plurality of religious beliefs and cultural sensibilities in the Philippines demand that different remedies for failed marriages should be made available. For this reason, the bill retains the existing remedies of legal separation, declaration of nullity of the marriage and annulment and only adds divorce as one more remedy. Couples may choose from these remedies depending on their situation, religious beliefs, cultural sensibilities, needs and emotional state."

There are indeed different denominations in our country, but majority are still considered as Christians. And it is a fact that divorce goes against Christian doctrines. So how can this be respectful and sensitive to their religious beliefs? This statement is totally wrong and irrelevant. Why don’t we legalize drugs as well and let our countrymen choose whether they want it or not “depending on their situation, cultural sensibilities, need and emotional state.” The danger with implementing something which you know is against someone’s moral belief is like dangling the forbidden fruit in their face.

"This bill also seeks to make Philippine law consistent in the way it treats religious beliefs with respect to termination of marriage. Philippine law through the Code of Muslim Personal Laws of the Philippines (Presidential Decree No. 1083 [1977]) allows divorce among Filipino Muslims, in deference to the Islamic faith which recognizes divorce. Non-Muslim Filipinos should have the same option under Philippine law, in accordance with their religious beliefs."

What??! Should we allow then every man in this country to have as many wives as he can keep? I cannot see any sense why they even mention this statement as an argument. The fact is, majority of those Non-Muslim are Catholics and we all know that the Catholic Church is vocal on its stand that it does not want it! So how can this be in accordance to the Non-Muslim Filipinos religious belief?

“The Philippines and Malta are the only two remaining countries in the world without a divorce law. This bill is being introduced based on indications that Philippine society is ready for the legalization of divorce.”

Just recently, Malta, through a consultative referendum allowed the legalization of divorce. As such, the Philippines is the only country left where divorce is not allowed. So what? Frankly speaking, that’s hardly an argument at all to push for the legalization of divorce in our country. Not because everyone is in it, we should jump on the bandwagon as well. Filipinos are Filipinos. We are not Maltese. We do not live and think like the rest of the world and vice versa. Our culture is different from the rest of the world so I find this argument really lame.

“The sanctity of marriage is not based on the number of marriages existing but on the quality of marital relationships.”

Sanctity of marriage is not based on the quality of marital relationship either. When you talk about sanctity of marriage, there is a religious implication attached to it. Sanctity is defined as holiness or sacredness. The term Sanctity of Marriage stems from the belief that it is a union derived from God as such, gains its state of holiness. It is not a unit of measurement in terms of quantity or quality, but merely states the inherent nature and character of such union, that is of being sacred or holy.

The proponents of the bill could have done a better job in justifying their position to push for the legalization of divorce. It’s funny because I’ve read more convincing arguments for divorce from other bloggers and news columnists. After I have refuted their arguments, now let me present my case why I stand against this bill.

First, I believe divorce is anti-women. As we all know, most women in this country particularly those from the marginalized sector and those from the provinces are very submissive to their husbands. It is sadly, part of our culture. They devote and dedicate their lives to the care and need of their husbands and children even to the point of neglecting their ownselves. In a patriarchal society such as ours, women are relegated to depend on the mercy of their husbands, should stay home, and tend to the needs of the household. And then after years of her devotion to her marriage, the husband suddenly decides to divorce her, what becomes of her? Wives who know nothing but serve their husbands? And then the husband decides to take another wife and after few years decides to divorce her too? How many women should suffer this fate? We all know the philandering nature of Filipino men. Divorce will give him the power to play around with women, change from one relationship to another as quickly as he changes his clothes. And how about the children born out of those marriages? What happens to them? Not every Filipina is as empowered as the proponents of the bill from Gabriela. Not every Filipina is aware of their basic rights. Not every Filipina had access to education to be able to empower them. And this is the basic issue that needs to be addressed first.

Second, it is unconstitutional. Our constitution recognizes the importance of family as such it further commits itself to protect and strengthen the family as a basic autonomous social institution. Can divorce be consistent to this basic commitment of the State? I think not, therefore to be able to allow divorce, the constitution would need to be amended first.

Lastly, it demeans the value and sanctity of marriage. Marriage is a lifetime partnership and the foundation of our society. It’s like when you build a house, if the foundation is weak, what happens to it? Divorce threatens this foundation as such can lead to the erosion of our society. Wit

h divorce, marriage is treated merely as a contract between two people with termination clause written all over it. It weakens the bond between couple. It lessens the threshold of a couple to bear the hardships of any normal married couple face. It makes any marriage volatile as such prone to dissolution.

Discussion on moral issue is a hard one to take so I would not want to go that path. But I leave you with this conversation I had with a friend few days ago.

Friend: How do feel about divorce?

Me: I’m actually against it.

Friend: Then how do you feel about couples separating but can’t go through the process of annulment, yet still, being as human as they are, eventually find new partners they could spend the rest of their lives with? Don’t you think it’s unfair that they can’t seal that partnership and worse, are being judged by the society as immoral merely because they are still technically married and can’t afford annulment?

Me: And you think divorce can change all that?

Friend: Yes. With divorce, their single status is reinstated and people will not think anymore it’s immoral for them to live with their new partners.

Me: In the eyes of men, probably yes, but how about in the eyes of God?

One of the challenges we face in our time is that everything around us changes so fast. We continue to create things to make life easier and convenient for all us. How far can we allow ourselves to make decisions merely based on practicality and convenience? Is morality a thing of the past? Does the law of man dictates what is moral and what is not? Ponder.

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For Eveyone’s Information (Source: The Family Code of the Philippines)

Declaration of Nullity

In essence, declaration of nullity is different from annulment. Declaration of nullity considers that the marriage is void and invalid from the very beginning. Conditions for declaration of nullity are provided in Articles 35-37 of the Family Code.

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without license;

(4) Those bigamous or polygamous marriages

(5) Those contracted through mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53 as shown below.

a. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void

(7) A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

(8) Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:

Annulment

Annulment is a declaration that a marriage is valid but voidable if during at the time of marriage, exist the following conditions as provided in Article 45 of the Family Code.

(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

(3) That the consent of either party was obtained by fraud (Enumerated below as provided by Article 46 of the Family Code), unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

• Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;
• Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;
• Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
• Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

(7) A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Legal Separation

Legal separation allows a couple to be physically apart but still is considered as legally married. It may be filed based on the following conditions as provided by in Article 55 of the Family Code.

(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.

wanderer's tales

Wednesday, June 29, 2011

Light of a Million Mornings

Wednesday, June 8, 2011

Why I Am Againts the Divorce Bill (HB1799)