Why not make marriages contractual? (Second of 2 parts)

BEHIND THE SCENES
Alfred P. Dizon

While there exist three other alternatives to divorce under current Filipino law, they are time-consuming, costly, or arcane. A legal separation is resorted to when there exists repeated violence, infidelity, or abandonment. However, it does not allow for remarriage or sexual relations with another or other partners.

In a declaration of nullity, there should be some condition existing prior to the marriage which renders the marriage void.

For example, if one of the parties was a minor or already married at the time of marriage, remarrying is permitted. Annulment may be the recourse if one of the parties is mentally unfit for marriage, the marriage was held under deceitful circumstances, or if one of the parties is impotent or insane.
Some 85 percent of couples in troubled marriages choose the last option but it requires a comprehensive psychiatric evaluation which can cost up to P100,000.

In 2007, there were almost 8,000 cases of annulment filed nationwide, mostly by couples with resources. Ilagan says social inequity allows husbands to treat their wives poorly with no fear of repercussion. She envisions a divorce law in which battered and abused women would be the main beneficiaries. “There are many women who would not get a legal separation either because they do not have the financial capacity and because they are embarrassed,” she says.

To counter the financial worries that may prevent some women from breaking free of unhealthy relationships, the Divorce Bill requires equal division of conjugal property and for the ex-husband to financially support his wife for a year.
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“Women suffer in silence here, especially women who do not have the economic capacity to separate and women who have been suffering under the (belief) of society that if you get separated, you’re at fault,” she says.

Because of this, women bear philandering husbands who wear their mistresses as status symbols, she says. “There’s a big number of men who are unfaithful but for them it is part of their rights to be macho. The richer men can have a number two or even a third wife,” she points out.

Any man contemplating infidelity, she says, may think twice if they know divorce is a recourse for a wronged wife.

For Cruz, an expert in marital and Canon laws, divorce can actually encourage infidelity. “Whatever the place for divorce process or case, I can manufacture that ground. For example, adultery as a ground for divorce, I can commit adultery to get a divorce. I can violate my wife and make her into a punching bag in order to get a divorce,” he says.

The proposed divorce law lists five valid grounds. These strict stipulations dubbed by Gabriela as the “Pinoy-style divorce” – vastly differed from the “Las Vegas divorce” recently decried by President Aquino.
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The five grounds are a de facto separation for at least five years with reconciliation “highly improbable,” legal separation for at least two years with reconciliation “highly improbable,” irreparable breakdown of the marriage on any grounds recognized under legal separation, psychological incapacity preventing fulfillment of “essential marital obligations,” or irreconcilable differences which have caused an irreparable breakdown.

“It’s not the divorce one can capriciously or whimsically file just because of the desire for remarriage,” Ilagan says.

She relishes the thought that President Aquino may be an ally in view of his declaration of support for remarriage after legal separation.

But Ilagan is aware of a much more formidable opponent than the President could ever prove. The Catholic Church outlawed divorce after the Spaniards discovered it among indigenous tribes when they arrived some five centuries ago. And once again in 1950, after divorce was made legal under the American and Japanese occupations.

“The Church says (to law-makers) if you vote for a controversial law such as this one, we’ll tell your constituents not to vote for you,” Ilagan says.

Ilagan says that while most congressmen may be personally in favor of divorce, they are too scared to cross the Church – the same reason, she says, why though the bill was filed in the last two congresses it never made it past the committee stage on account of procedural issues and delays.

“That was part of the plan, of course, especially because in the last congress we were in the minority so the majoritywere allies of Gloria (Arroyo) and they were afraid of not being re-elected.

“They say (to me) ‘of course I’m in favor of the bill, but I’ll just stay out of it’.”

But Ilagan is confident this time will be different, with five congressmen already volunteering to co-author the bill. “Some people, especially legislators, are expressing their support. However, the Catholic Church would still influence the outcome of the voting,” she maintains.
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Not even Archbishop Cruz denies the influence of the Church on politicians. “(Lawmakers) are not yet ready for a fistfight with the bishops, because they might not get votes,” according to Cruz. “How many divorces will be filed, that’s asking how many families do they break, how many children may lose parental care because of divorce?”

While bastions of the Catholic faith like Italy and Spain are comfortable with divorce, it’s unlikely to breeze through easily in the Philippines, where family unity is still highly regarded.

“It is not really a question of faith but more (about) culture and tradition.”
Cruz maintains that a divorce law is not only superfluous but unconstitutional as well. “With all those four vehicles of destroying marriage it could (contravene) our Constitution that says the State shall protect the family as a unit.”

While Cruz is not blind to the perils of a bad family life, he says they pale in comparison to divorce’s potential harm to children. “In both instances the children suffer but I think I will still go with the thesis the children suffer more if the parents are apart...when if they are together, at one time they’re at peace, at one time they’re at war. That would be a more bearable situation for children than the papa going to another woman, the mama going to another man.”

Giving couples such an easy way out could also amount to the premature demise of a relationship, according to Cruz. “Marriage is not a gamble, it is a test of human character,” he says. “Why get married at all, for heaven’s sake? Even now some Filipinos plan some divorces (with) pre-nuptial agreements...before you get together you are even separating your property. Is this the way we do it now?”

In a culture where marriage is still a commitment for life, it will be hard to change attitudes – even with the experiences of women such as Mandy staring us in the face.