A DIVORCE LAW FOR THE PHILIPPINES?
with Archbishop Oscar V. Cruz, D.D., J.C.D. Archbishop Oscar V. Cruz is the head of the Matrimonial Tribunal of the Catholic Bishops' Conference of the Philippines. He has worked and written extensively on marriage and the family. This interview is based on an article, "Divorce and Question Marks," updated with recent Philippine legislation. Q--Would an absolute divorce legislation be consistent with the text, context and spirit of the constitution and of the Family Code of the Philippines? A--Article II, Section 12 of the Constitution, in no less than its Declaration of Principles, expressly and categorically pronounces that the State shall strengthen the family as a basic autonomous social entity, and the very first Article of the Family Code of the Philippines provides that marriage is an "inviolable social institution," "a special contract of permanent union between a man and a woman." Would absolute divorce truly strengthen the filipino family? Would absolute divorce really make the Filipino family an inviolable social institution? How can marriage be a permanent union if absolute divorce can break that union? To answer in the affirmative would be pure sophism and unwarranted rationalization. Or would the Constitution be amended and the Civil Code revised in order to accommodate absolute divorce? Q--Some people say that civil absolute divorce is the same as ecclesiastical declarations of nullity, so that while the Church grants nullity declarations, the State should be able to grant absolute divorce decrees. Is this observation reasonable? A--The present Family Code has in fact provisions on Declaration of Absolute Nullity, Annulment and Legal Separation. The Family Code provisions on Nullity and Annulment are substantially the same as the Church or Canon Law provisions on Nullity, and the Family Code provisions on Legal Separation are likewise essentially the same as the Church or Canon Law provisions on Canonical Separation. The confusion arises from the use of the term annulment. Strictly speaking annulment means rendering something--hitherto valid and existent--invalid (void) and null. The Code of Canon Law is very careful in avoiding the term annulment, precisely because to apply this concept to marriage is tantamount to divorce, this latter understood as the breaking asunder of an existing and valid marriage bond. Nevertheless, a careful reading of the Family Code reveals that when the legislator speaks of annulment of a marriage, he is actually referring to the declaration of absolute nullity of that marriage--i.e. the judicial declaration (i.e. after due process) that a given situation which up to then has been considered as a marriage was actually void ab initio. In other words, we are before a non-marriage, a marriage which never existed. Strictly speaking, therefore, this is not an annulment, because there is no marriage to be annulled. Just like in Canon Law, what the Family Code contemplates is a declaration of nullity. Another source of confusion in the Family Code is the use of the terms void and voidable marriages. Looking at the articles (Art. 35 to Art. 38 and Art. 45) under it, however, reveals that they all deal with marriages which are "void from the beginning." Again, like the equivocal use of the term annulment, here we have an equivocal use of the word "voidable." So going back to your question, if absolute divorce is really the same as nullity declarations or annulments which are already provided for in the Family Code, then why propose and have it at all if they are really one and the same thing?
Is it really the same to declare a marriage null and void from the beginning when it is really such, (Declaration of absolute nullity) and to dissolve a marriage which is valid from the beginning (divorce)? It is argued that the effects are the same. This would be equivalent to saying that dying by sickness, by accident, by gas chamber, by firing squad, by guillotine are all the same: after all he is dead! If so, why are there markedly different ways of administering a death sentence? The truth of the matter is that there is an attempt to dissolve and break marriage and family life by all possible means and at all cost: if you cannot obtain nullity before the State, try for annulment. If you cannot have an annulment, settle for legal separation! If you cannot settle for legal separation, secure a divorce! With this posture, why have marriage at all? Why not just legalize plain cohabitations--and this way avoid all litigations, legal complications, court burden and the like? Q--The proponents of absolute divorce propose it on the grounds of a serious crime of one of the spouses. Isn't this a just and reasonable ground? A--An absolute divorce plea--it is said--may be instituted on the ground of a given crime, the proven presence of a certain guilt especially on the part of the Respondent. Once the plea is granted on such a ground, the guilty party or spouse is in fact and in truth also awarded the bill of freedom to remarry. Is this not in fact rewarding crime, rewarding the spouse guilty of a crime? And is it really enough to "penalize" the guilty spouse in terms of "alimony" or monetary considerations? If it's simply a matter of money considerations, then the rich and the affluent are again favored since they are capable of giving as much alimonies to as many "ex-wives" and ex-families" they choose. And if the guilty spouse cannot pay alimony, could he be brought to prison, or could he still remarry and again leave wives without alimony and children without support? If a proposed absolute divorce legislation really wants, as it claims, to prevent crimes like marital infidelity, abandonment, attempt at the life of a spouse, is it prepared to truly punish these crimes--and thus not reward them--by punishing the guilty spouse with a clear penal clause of disbarment from any other subsequent marriage? Q--Statistics from many countries and notorious cases of divorcees show that "one divorce tends to lead to another." What do you think is the reason for this? A--This brings up the question, "How many successive marriages may one enter into by strength of successive divorce grants, precisely for having been proven an unfit spouse?" A spouse proven guilty of marital infidelity, conjugal violence, family abandonment or the like, does not have the best credentials or potentials for marriage after a divorce grant. On the other hand, an innocent spouse who prosecutes an erring partner with the full force of the law, can neither claim the best personality traits for remarriage, also after a divorce grant. And spouses who mutually consented, if not truly colluded, in establishing a divorce cause, are neither in possession of the best preparation for remarriage, after a divorce grant. This is sad but true! Q--Proponents of an absolute divorce legislation claim that it could curtail the marriage maladies of infidelity, physical violence/attempted parricide, and abandonment and the like. A--While that may hopefully be envisioned and entertained by its proponents, the same absolute divorce legislation may also inspire what it aims to deter and curtail--like a knife that may serve as an instrument to operate and cure or a means to maim and to kill! It is very possible that when a couple is tired of each other, one would deliberately commit infidelity, attempt at the life of the other, or simply abandon
the no longer desirable spouse and the like, precisely to have and enjoy the blessings of an absolute divorce decree. If the absolute divorce proponents really want to deter present marriage maladies, why don't they instead propose very realistic and severe penalties for the crime of infidelity, abandonment, parricide attempt and the like,--and not still reward these criminal offenses with a bill of freedom to remarry? Q--Would it be justified to accept the absolute divorce proposal on the premise that even if it exists, it would be hard to obtain it, or that it would be difficult to establish and prove a divorce ground? A--Has the issue been relegated simply to what is hard or easy to obtain? What is wrong may be hard to obtain, but this does not make it right! And if what is right is easy to obtain, this does not make it wrong! On the contrary: What is wrong should not at all be obtained, much less offered. And what is right should be made easy to obtain. If a given marriage is void, why make it hard to obtain a civil nullity declaration? And if a given marriage is valid, why make divorce even obtainable? Why propose even a single ground for its dissolution? Instead of an absolute divorce legislation, what the State needs is to be more realistic in the application of its present Family Code provisions on marriage nullity suits. There is no denying that some marriages are simply impossible right from the beginning, simply non-viable right from the start: there are some people who are not, in plain and objective reality, meant for married life because their personality structure, their orientation, their behavioral pattern and attitudinal postures are definitely and manifestly unfit for married life. The sadists, the psychopaths, the sociopaths, the homosexuals, the sex maniacs, the drug addicts, the emotionally unstable, the incorrigible alcoholics, the psychotics, are some concrete examples of people, who if they are proven such when they enter into marriage or are established as such at the time of their wedding, must be adjudged incapable of valid marriage, their fiction of marriage, after due process, must be declared null and void from the beginning. The above-mentioned and so-diagnosed people may be well qualified for other pursuits of life, but not marriage. They may be experts in other fields of human endeavor, but not conjugal life. They could be the best in other lines and aspects of society, but not in the marital state which is the issue in question. What I'm saying is that we do not need divorce to remedy these situations. If these situations really existed at the time of the celebration of the marriage, then the same grounds for a declaration of nullity can be invoked, thereby juridically declaring the non-existence of the marriage. Some clarifications are in order. The first has to do with competence and jurisdiction. While it is to the credit of the Family Code framers to have been inspired by Canon Law in what pertains to the essence of marriage as a natural institution, the fact still remains that as far as the canonical marriage is concerned, only the competent ecclesiastical tribunal has jurisdiction over the nullity case. This is especially important since the declaration of the validity/invalidity of a sacrament is at stake. Secondly, we must clarify that it is not so much the psychic disturbances cited as grounds for a declaration of absolute nullity which invalidate a marriage ab initio; but rather the juridical incapacity to assume the obligations of marriage from the very beginning when consent was given. In practical terms, I would interpret this to mean an impairment in the use of reason (not so much the will, nor much less a defect in affectivity) rendering the contracting party in a marriage incapable of understanding the obligations he or she is assuming by giving consent. Finally, we must point out that such declaration of nullity has an important consequence which the proponents of divorce seem to gloss over: by declaring the nullity of such a marriage due to some personal condition of either or both spouses
(which make them unfit to contract valid marriage), the same declaration in fact disbars these persons from committing the same "mistake" (and victimizing another innocent party) of trying to again contract marriage--at least until those negative personal conditions disappear. Q--So much is being said and propagated to "remedy" broken marriages, while nothing really substantial is mentioned to prevent marriage failures. What do you think could be done to prevent such failures? A--There are some factors we should consider. For example: Age: Should teenagers be allowed to marry, and thus commit themselves to a truly adult endeavor when in fact they are minors, physiologically tender, psychologically unprepared, financially unstable, and most probably not truly capable to bear the responsibility of marriage? Livelihood: Should people, even if they be adults, be allowed to marry if they have no visible means of livelihood, no relatively stable job, no viable employment, unable even to support themselves? Health: Should physical and especially, psychological health, be left to mere presumption in favor of desiring to get married? Should there not be even a minimum of positive control on these vital matters, added to those standard and relatively unimportant requirements for securing a marriage license? One wonders how many marriages are bound to be doomed right from the start because they were held simply by strength of "We like to get married," "We are in love," "We must get married," and the like. Q--Some people propose absolute divorce on the principle of the right to seek happiness. Is this a valid reason? A--The right to happiness is universal and sacred. And it is true, that people get married as a basic source of happiness. But strange to say, happiness will always be elusive to some people who seek the most happiness by causing their own unhappiness, especially by eroding one of the fundamental causes of happiness which is a good marriage. Furthermore, to live and evaluate human life strictly and exclusively by how happy or unhappy one is, is to altogether miss the nature, significance and implication of human existence. If a given marriage becomes unhappy in time, are there guarantees that the subsequent marriage would be happy? If the spouses have the right to seek happiness by dissolving their marriage which has become unhappy, do not their children also have the right to happiness by having their parents stay validly married--and thus be spared of the trauma and disorientation of seeing and living with their divorced parents "legally" linked with other "spouses"? Q--But what if the majority favor an absolute divorce legislation? A--If the majority rule is the basis of all legislation, then a given country is in for a lot of trouble. There are matters which may not be legitimately submitted for majority rule because they would not be good for the people. Legalized prostitution, dope peddling, pornography, legalized abortion, etc., all these are matters that can be duly propagated and even obtain majority support. May they be legally sanctioned simply because the people, majority of them, vote in favor? Suicide, euthanasia, choice breeding, elimination of freaks, etc., etc.--all these are also issues that may be accordingly disseminated, and secure in their favor the majority of the people. But these are matters that transcend majority decisions and majority votes because they are in truth beyond man's free and honest option. And countries that have so opted for these practices, have not emerged the better for them. If the Philippines invokes God in its Fundamental Law, in the assumption of the Highest Offices in the Land, in the beginning of serious Assemblies and the like, then let the Philippines be consistent in her thinking and actuations. If the Country
would rather have laws contrary to God's Word, then, to be consistent, let it erase God from its Constitution, from the oath in filling vital Offices, from initiating key gatherings and the like. If this is not right, at least it is logical. Q--Proponents of a divorce legislation claim that it does not make divorce obligatory, but at least gives an option for those who desire to avail of it. A--Would it be justified to legalize prostitution, pornography, opium dens, and the like simply because only those who subscribe to these may benefit therefrom--and those who do not, are not obliged any way at all to patronize them? Freedom is a very precious element of human life. But this is only freedom to do what is right--there is no freedom to do what is wrong. Freedom to do what is wrong, as we know so well, is not freedom, but license. Q--What measures would you suggest to improve the situation of marriage in the country? A--Make more strict provisions for those desiring to contract marriage as a preventive to marriage failures--not provisions for divorce no matter how strict. Make the present civil legislation on Nullity, and Legal Separation more realistic and updated--not propose absolute divorce legislations no matter how real and relevant it appears. Make truly severe penal laws relative to infidelity, attempted parricide and abandonment, to stabilize marriages--not enact a law on absolute divorce that would incite to these crimes instead.