Divorce: An exit from a dystopia
(Second Part)
(Author’s note: This article is a report presented by the author in his Regulative Love, Sex, and Marriage class. It is intended to present a factual account of a situation in the Philippines where no absolute divorce is allowed. This article does not necessarily represent the author’s belief on the issue.)
In the previous article, it was pointed out that the Family Code provides for three possible remedies in case of dysfunctional marriages: declaration of nullity, annulment, and legal separation. These remedies are limited options for spouses.
Limitations of the available remedies in the Family Code
Each of the remedies are applicable to the situations contemplated under the Family Code. Moreover, the grounds as well as the reliefs that can be granted by the courts under each remedy are limited to those allowed under the law.
Annulment and declaration of nullity involve issues on validity of marriage that existed prior to or at the time of the celebration of the marriage. Marital issues that developed after the couple exchanged vows are beyond the scope of the two remedies. Courts are powerless to declare marriage as void for causes of marital discord after the wedding ceremony. In relation to problems in dysfunctional marriages such as marital abuse, child abuses, domestic violence, incestuous rape, etc., courts are powerless to allow these remedies within the parameters set by law.
Divorce: The Philippine Style
Currently, some authorities say that there is one remedy under the Family Code that is akin to a divorce and this is legal separation which is a Philippine style of a relative divorce. In reality, however, this is only a remedy allowing physical separation of the spouses from bed and board but marital bonds are kept intact. Remarriage is not possible without the possibility of prosecution since in the Philippines, breach of marital vows is not just a private wrong but an offense against the State.
Article 36 of the Family Code on the declaration of nullity of marriage based on psychological incapacity is a remedy to sever marital bonds but experience and jurisprudence shows that this is an expensive remedy and the path leading to the exit from a turbulent marriage is long and arduous.
The gaping hole in the remedies
In Kalaw vs. Fernandez, the Supreme Court observes that the guidelines have turned out to be rigid, such that their application to every instance practically condemned the petitions for declaration of nullity to the fate of certain rejection.
In the task of ascertaining the presence of psychological incapacity as a ground for the nullity of marriage, the courts, which are concededly not endowed with expertise in the field of psychology, must of necessity rely on the opinions of experts in order to inform themselves on the matter, and thus enable themselves to arrive at an intelligent and judicious judgment. Indeed, the conditions for the malady of being grave, antecedent and incurable demand the in-depth diagnosis by experts.
Calls for instituting divorce as an exit from a dystopian marriage
Women’s rights advocates argue that the absence of divorce ultimately operates against women who are most often the victims in abusive marital unions in a society where marriage is still regarded as a patriarchal institution that subordinates wives to husbands, notwithstanding the facially gender-neutral provisions of family laws.
The absence of divorce law does not preserve the institution of marriage. The current legal framework desecrates the institution by holding people captives in marital unions where expectations of love, respect, and protection are no longer met or substituted by routine abuse. Protecting the institution requires the dissolution of marital unions where vows of love and fidelity are cavalierly breached or dishonored because they debauch what the institution stands for.