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MONDAYS WITH PATMEI | Reinstate Absolute Divorce now

I do not understand why we are still debating divorce in the Philippines in the year 2024. Divorce has always been part of human history at the same time the concept of marriage existed.

Historian, author, and educator Stephanie Coontz, who wrote the book “Marriage, A History: How Love Conquered Marriage,” said that contrary to conventional wisdom, the frequency of divorce is not entirely unprecedented nor has divorce always been an arduous process.

“Anthropologists report rates of separation and remarriage among many hunting and gathering societies, and in several horticultural groups as well, that are just as high as in modern industrial societies,” Coontz wrote.

Divorce was simple and uncomplicated in some societies as well. She shared that among Shoshone Indians, a wife who wanted a divorce simply placed her husband’s possessions outside the dwelling, which belonged to her. Among the Cewa of East Africa, the husband takes his hoe, axe, and sleeping mat when he leaves his wife’s village and the divorce is complete. And in traditional Japanese society, a letter of three and a half lines was all a man needed to divorce his wife.

“Contrary to later practice, the early Christian church in medieval Europe allowed divorce for several reasons,” Coontz noted. “Some local Church councils even had the equivalent of no-fault divorce, in which a couple was allowed to part after swearing that ‘communal life has become impossible between us’ or that ‘there is no charity according to God’ in the marriage,” she added.

Today, and through most of history, the reasons for divorce constantly change because the reasons for marriage also differ according to time and place.

Based on Coontz’s research, for thousands of years, marriage was “not contracted for individual fulfillment and mutual benefit of the man and woman and their children.” People then married “to acquire influential in-laws, effect business mergers, raise capital, improve their social status, seal military alliances, or expand their family labor force.”

Although romantic love did exist in the past, it was not closely linked to marriage. In fact, most societies throughout history discouraged people from marrying for “such a fragile and self-indulgent reason as love.” In short, a marriage based on love was considered an unstable and unreliable one.

It was only during the Age of the Enlightenment (17th to 18th century) when the individualistic doctrines of the French and American Revolutions promoted the concept of marriage as based on love and companionship. Along with the concept of individual liberty was the idea that people should enter into marriage only for personal happiness and fulfillment. If that were the case, they should also be free to get out of it when they become unhappy and unfulfilled, right?

The conservatives of the 18th century disagreed. They warned that “love would be the death of marriage.” They reasoned that society required some people to marry, and “to marry only appropriate mates.” How would they compel them to do so if they could refuse on the grounds that they did not love the required partner? And how would they also stop them from claiming their right to leave a marriage when love is gone?

The powers that be at that time worried that the poor people could claim their right to marry the rich just because they were in love. All may be fair in love but not in marriage.

Whether you married for love or for money and power, there are no guarantees that your marriage will survive or even keep you alive (as demonstrated by Anne Boleyn’s marriage to Henry VIII, which, incidentally, was made possible by the most celebrated divorce case in history).

Marriage and divorce — and access to them — especially in complex, stratified societies were often unequal. In many patriarchal societies, divorce is primarily a male prerogative. In ancient Rome as in modern America, only the affluent classes can afford to divorce. In medieval Europe, a man can divorce his wife if she failed to give him a male heir. In China, the word for divorce literally means “cast out wife.”

That is why access to divorce is primarily a women’s issue. And here in Davao City, the Davao Women Leaders Forum (DaWoLF), led by Dr. Luzviminda C. Ilagan, is leading the advocacy to reinstate Absolute Divorce in the Philippines.

Yes, the term is reinstate — to put back or establish again — because Absolute Divorce has been present in the Philippines at various points in our history.

Dr. Ilagan, or Ma’am Luz to most of us, led the discussion to reinstate Absolute Divorce in the country during a forum on the Divorce Bill last Friday, June 28, at the Ateneo de Davao University. The jam-packed forum was organized by the Ateneo Public Interest and Legal Advocacy (APILA) Center, the Integrated Gender and Development Division (IGDD) of the Davao City Mayor’s Office, and Talikala, Inc.

Ma’am Luz gave a history of divorce in the Philippines to put in the proper context the call of women to reinstate Absolute Divorce now.

When we were under the rule of Spain, the colonizers who brought Christianity to the Philippines, we had Relative Divorce based on the following grounds: desire of one spouse to enter a religious order; either spouse had become a heretic; and adultery.

During the colonization of America, the self-proclaimed leader of the free world, we had Absolute Divorce under Act No. 2710 passed in March 1917. Ground for divorce was adultery or concubinage.

Under the Japanese occupation, New Absolute Divorce under EO No. 141 issued on March 25, 1943 expanded the grounds for divorce aside from adultery or concubinage to include attempt on the life of either spouse; loathsome contagious disease; incurable insanity; impotency of either spouse; criminal conviction (with penalty of six years or more); repeated bodily violence; intentional or unjustified desertion; unexplained absence for three consecutive years; and slander by deed or gross insult by one spouse.

When we were “liberated” from the Japanese, the Absolute Divorce Law was abrogated, except for Muslims, effective March 1947. And in 1950, RA 386 under the Civil Code, Legal Separation has been allowed. Legal Separation is also referred to as Relative Divorce.

At present, the Philippines has no Absolute Divorce. The legal remedy in dissolving a marriage among Filipinos are the following: (1) Legal Separation wherein you can be legally separated but not legally remarry; (2) Declaration of Nullity which means the marriage is null and void from the beginning because it lacked at least one of the essential requirements provided under the Family Code; and (3) Annulment of Marriage which considers a marriage valid and existing until it is annulled based on specific grounds that must have been existing at the time of marriage like insanity, fraud, duress, impotence, and serious and incurable sexually transmissible disease.

Those who have experienced legally terminating a marriage in the Philippines would testify that the entire process is time-consuming, financially draining, and emotionally damaging. It is too difficult sometimes that murder or suicide would be easier.

The Absolute Divorce Act proposed under House Bill No. 9349 by Albay First District Representative Edcel Lagman, which already passed in the House of Representatives recently and is now pending in the Senate, aims to give Filipinos a fourth option to dissolve a marriage. The key word is option because you are not obliged to take it.

The grounds are the same for Legal Separation and Annulment and then some, which includes homosexuality of respondent; one spouse undergoes sex reassignment surgery; marital infidelity; having a child with another during the marriage; attempt on the life of the petitioner, on the common child or the child of the petitioner; abandonment without justifiable cause; separation of spouses for at least five years; physical violence; final judgment sentencing respondent to imprisonment for more than six years.

Obviously, this Absolute Divorce being proposed for Filipinos is not a no-fault one. Someone still has to be at fault and the one suing still has to prove it and the judge needs to be convinced.

There is a prescriptive period for the petition to be filed within 10 years from the occurrence or discovery of the cause of divorce. Beyond that, you lose your chance. Efforts must also be made to reunite or reconcile during a mandatory 60-day cooling off period. And when the couple agrees to reconcile, the petition is dismissed. The family court judge is given only one year to resolve the case. Unlike in annulment cases that take several years.

It is still cumbersome but this option is still better than Annulment where the petitioner needs to paint the respondent in the worst way possible to prove psychological incapacity and convince the judge that the erring spouse is really bad. However, psychological incapacity is only specific to that marriage because the “bad spouse” can still be good again to remarry another person. Or if the annulment’s not granted, the man can become Muslim to marry another. The woman can just wait for her reward in heaven when she dies.

If we do not see the ridiculousness of that then maybe we deserve to live in a country of hypocrites and double standards.

Absolute Divorce is obviously not created for “happily married” couples just like insurance is not created for the immortals and the indestructible. Most airplanes do not crash but life vests are there “in the unlikely event” of a disaster.

If you do not want or need Absolute Divorce for religious or whatever reason, then we are happy for you. Do not file that petition. But please do not deprive and withhold the right of those who want or need it. Also, invoking the Equal Protection Clause under the Philippine Constitution, if we allow Absolute Divorce for Muslim Filipinos, we must allow it for all Filipinos.

That is the essence of being in a democracy. Last I checked, the Philippines is still a free and secular country. So let us reinstate Absolute Divorce in 2024. ###


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