Let's talk about divorce—and the lack of in the Philippines
We are the last country in the world without a divorce law—which is curious, because there is, and there has always been, divorce in the Philippines. The Filipinas Heritage Library, which houses a wealth of historical documents in a fireproof vault under the Nielsen Tower, counts among its most valuable treasures a handwritten letter from early Hispanic times, one of the oldest samples of writing found in the Philippines. It is a legal document, written by a woman demanding divorce from her abusive, alcoholic husband. Divorce was, in fact, legal all throughout the American colonial era, through the Japanese Occupation, and after World War II; it was legal, in fact, until the 1949 Civil Code reversed any enlightenment in that direction.
Today, of course, the spirit and the practice of divorce exists in fact but not in the letter of the law. Marriages fail, more often than we’d care to admit, and what the lawyers call “remedies” available to unhappy couples are the wan, ineffectual cousins to divorce: a declaration of nullity (where the Court looks at your marriage and effectively says, Well, you got married and it was a big mistake, so your marriage is no longer valid); or an annulment (where couples look for loopholes so that the Court will be forced to say that the marriage never took place). There’s also legal separation, which means that you are, for all legal intents and purposes, still married, but aren’t really kidding anybody.
In a country where the general public's trust in government is low, and only getting lower, and where trust in the legal system is lukewarm at best, why are we so willing to cede control of this most personal of decisions to a court?
Our laws make it extremely painful and expensive to seek any of these so-called remedies, but even then, the Office of the Solicitor General tells us that the number of couples seeking an annulment have only been rising over the past decade: An average of 28 couples filed for annulment every day in 2012. Add to that the failed marriages that aren’t on the record, because the couples simply cannot afford to go through the entire process, and there you have a number for what we all know to be true: That marriages—despite our best intentions, despite our laws, despite religion—can fail so completely that people will want out of them, no matter what. But, as of 2011, we have remained the only country other than the Vatican City without a divorce law.
Divorce is legal for some of us, including Muslim Filipinos who are governed by the Code of Muslim Personal Laws. It is legal for Filipinos who are married to foreigners, under foreign law, and who were divorced under foreign law. People have been known to just disappear and remarry, dodging the process entirely—not legal, but it works. What’s also worked, according to various stories I’ve heard over the years: Hiring petty thieves to physically remove legal documents from the civil registries, not getting married in the first place, or simply working around the legal system and hoping for the best.
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Now let me tell you a story. One of my closest friends was married for almost a decade, to a man that she had dated all throughout college and through most of her adult life. It was a safe marriage, with the usual bumps here and there, a few big fights, but no big tragedy to split them apart. It could have been the kind of unremarkable relationship that would’ve seen them together till death do they part.
But the marriage made my friend unhappy, for reasons that went, admittedly, largely unarticulated. Was it depression? Sadness? Was it all just a big mistake? None of us knew, nor did she. My friend only knew, deep in her bones, that she wasn’t going to survive being married. If she stayed, she would die.
He’s not a bad guy, her husband. Not my favorite person, but to both their credit, he stayed long enough to try and work past it. But more than a year later, he agreed that the marriage had failed, and that they should both move on.
They were both sad, as were their families and friends, but they moved on. My friend found great joy in a new career that had her setting up two companies; her ex met someone else and made plans to start a new family. They remain civil, though distant. They wish each other well.
This would be a great example of a mature way to handle the end of a marriage, except Philippine law does not allow for an amicable ending. The law puts high hurdles before the petitioners before they are granted a divorce, and to say that both of you just want out doesn’t cut it. Infidelity, spousal abuse aren’t even grounds for an annulment, to be strict about it; one must prove that these are symptomatic of a larger, chronic problem. The infamous Article 36 of the Family Code, which has become the most commonly used haven when seeking an annulment, says that the marriage can be declared void if one of the spouses is “psychologically incapacitated,” and that this problem has always existed, and that there is no hope that this will change.
This isn’t the case for my friend and her future ex-husband, but they did what any sane, intelligent Filipino with access to a lawyer is forced to do in their position: They had to manufacture their grievances. One of them has to prove that the other is psychologically unsound, citing any number of made-up incidents. The ex-couple also had to find a “friendly” court, which means taking up fake residence in another district.
It’s a long, laborious process in which any remaining ounce of joy in the past relationship is utterly wiped out. My friend had to read the lies written about her in the legal documents and essentially agree to them—though not too much, because then they might be accused of collusion, which would be grounds for dismissal of the case.
I’ll spare you the details, but today the case is still held up in court. “I feel disenfranchised. I’m a productive citizen who pays taxes and who contributes to society, and yet I feel like I’m not being helped,” my friend said.
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Malta was the last legal holdout, along with the Philippines, until a referendum in 2011 showed that its citizens favored the legalization of divorce, by a somewhat narrow margin. Who is still against divorce here, I often wonder. “The strong influence of the Catholic Church” is the easy scapegoat, though an interesting article in Foreign Policy, written by Ana Santos and Tom Hundley, asserts that philandering (male) politicians are also to blame, quoting a lawyer who says that without a divorce law, “they know they can continue this lifestyle where they have their beautiful and loyal wife—and also the comfort and status of a mistress.”
It’s an inflammatory assertion, and one I’m going to leave for other people to engage. But that leaves the question: Who is still against legalizing divorce?
While the RH Bill was occasion for vociferous and lively debate from both sides, I cannot find similar passion for the divorce bill. There are a number of long articles that heavily favor the legalization of divorce in the Philippines, but none that make a reasoned argument against it. There are a number of politicians, including the president, on record saying that they oppose the passage of a divorce bill, but for the most part, their main argument seems to be that the current provisions for annulment should be enough.
In the meantime, a Google search turns up the No to Divorce (Anti-Divorce Bill) in the Philippines community page (451 likes, last post September 18, 2011), the Anti-Divorce Bill community page on Facebook (103 Likes, 9 posts, all on April 9, 2013). Casual inquiries among my circle revealed that somebody’s mother is against legalizing divorce because not having divorce as a recourse “builds character.” As of this writing, I believe she still wears a seatbelt, though I’ve also pointed out that, by the same logic, not having a seatbelt to rely on not only makes us better drivers, but it also makes us stronger people.
Other arguments against the legalization of divorce include: Kawawa the children (but what about the children who live in unhappy families, or who are witness to abuse? And what about childless couples—should they be allowed to get divorced?); Divorce is not a Filipino thing (yes it was, and it still is); a Divorce Bill will make people rush carelessly into marriage (so let’s also ban seatbelts and helmets); a Divorce Bill will encourage people to get divorced (nobody wants to get divorced). I found a couple of ultraconservative religious folk who also “reason” that domestic abuse shouldn’t be grounds for divorce because that just leaves the abuser to move on to the next victim. (WHAT.)
Seriously, who is still against legalizing divorce, in this day and age? And why? I really want to know.
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In January this year, the Court of Appeals reversed a ruling from the Pasay Regional Trial Court that had granted annulment to a couple. The story had made the tabloids because the wife had accused her husband of not wanting sex. It’s not the sensational bits that bear note: It’s the fact that the Court has the power to deny annulment.
Of the relatively few annulment cases the Philippines courts see, the vast majority are granted (about 95 percent, says another article by Ana P. Santos and Tom Hundley, this time in the Washington Post). But there is a five percent that includes this unfortunate woman in a sexless marriage and, famously, actress Amy Perez, whose petition for annulment was denied “with finality” by the Supreme Court. Perez’s case brought attention to the plight of the five-percenters—though she remarried, inexplicably, last November (ABS-CBN reported in October that her marriage was “finally annulled”, without explaining how this happened after the SC’s 2006 decision.)
This is, to me, the most puzzling thing of all about the entire debate. In a country where the general public’s trust in government is low, and only getting lower (at 11 percent in 2014, down from 15 percent in 2012, according to the Philippine Trust Index), and where trust in the legal system is lukewarm at best (41 percent saying they had “neither too much nor too little” trust in the trial courts in 2003, which is the date for the latest SWS survey on the topic), why are we so willing to cede control of this most personal of decisions to a court? Granted that we are a predominantly Catholic country that may find great comfort in the Church, it ultimately isn’t the Church’s decision to have us stay married or not—the power belongs to the Court. If one is willing to let the Courts have a say in this personal matter, because of religion, then he must also be willing to let the Court decide on all matters of conscience and practice. Why not let the Court decide whether my confession is valid or not? Why not let it mandate the number of times I should hear Mass?
There is House Bill 4408, which has been struck down and re-filed; the Pope’s visit in January 2015 allowed the bill’s proponents a window to call attention to it again. To wit: The bill, nicknamed “Divorce, Philippine-style,” proposes a divorce bill with many restrictions. Spouses must have been separated for at least five years, for example, and legally separated for at least two. In the meantime, to his credit, Pope Francis has also asked for a review of the harsh rules governing annulment, in an effort to make the Church more responsive to the realities of modern family life. This progress may not be a lot, but it’s more than we’ve got. We’ll take it.
This article originally appeared in our March 2015 issue.