[Just Saying] Let there be divorce

We are so focused on the momentary violence of separation that we are blinded to the life-giving potential of new beginnings. Divorce is a remedy for people who live in  a loveless marriage.

“Majority of Filipinos, being Catholics, do not believe in divorce.” This is a  repeated objection against divorce. One survey, publicized last December 2023, shows a tight divide, with 51% against legalizing divorce, and 41% in favor.

But a question of majority sentiment must not be the determining factor for making a law. What the majority has desired has not always been  right. A study of any of the many civil rights struggles around the world  certainly drives home that point.

How about relevance? It is possible that a divorce bill will not be useful for majority of Filipinos. We like to imagine a Philippines where very few spouses desire to separate. This, however, is no reason to deny it to those few.

Not many of us, for example, will ever fall victim to cattle rustling or undertake money laundering, and yet we have laws against both. Most children will never disinherit their parents, yet there are grounds for the same under our Civil Code for the rare occasions which actually call for it.

The law’s purpose is to make available a  remedy regardless of how many are for it or will use it. Laws intending to give very specific relief do not exist simply because the populace wants them. They are legislated because they are supposed to serve a greater good, a public purpose existing independently of popular sentiment or general need.

Marriage must be built on and driven by a healthy loving relationship. Thus, if this relationship is absent, what is left is a plain piece of paper evidencing an empty legal bond. There is no authentic interpersonal marital life worth nurturing. Couples live together just like boarders or roommates and with deep animosity. The so-called matrimonial relationship becomes devoid of meaning, joy, and fruitful consequences.

In fact, nothing in Philippine law expressly prohibits absolute divorce. The only reason why it cannot be locally availed of is because the Family Code provides only three judicial ways to terminate a marriage, namely: 1) by declaration of nullity of marriage from the beginning , 2) by annulment, and 3) by foreign absolute divorce decree approved by local regional trial courts. It is time to add divorce to these remedies.

Moreover, absolute divorce is not unconstitutional. When the constitutional provision stating that “marriage as an inviolable social institution” was being deliberated, the late Fr. Joaquin Bernas SJ, one of our greatest constitutionalists, directly asked Commissioner Chito Gascon, the sponsor of the said provision, if it prohibits or discourages absolute divorce. The categorical answer was “No.”

Likewise, the Supreme Court has said that “there is a corresponding interest of the State to defend against marriages ill-equipped to promote family life.” (Antonio vs. Reyes G.R. No. 155880 March 10, 2006.) While not a direct reference to divorce, it gives reason to believe that Filipinos should have accessible remedies against failed marriages.

Divorce is not against public policy. Marriage is a legal contract. The Supreme Court said that, for a contract to be against public policy sans any constitutional or statutory prohibition, it must have “a tendency to injure the public, is against the public good, or contravene some established interest of society, or is inconsistent with good morals.” (Ocampo et. al., vs. Enriquez et. al., G.R. No. 225973. November 8, 2016.)

Allowing divorce will not produce public injury. Its objective is to release spouses from a legally created situation no longer serving its purpose due to it being devoid of the considerations forming  its basis: mutual love, respect, fidelity, and care. It seeks to prevent the negative effects troubled marriages engender: abuse, anguish, poverty, and tumultuous environments for the couple and for the children who deserve better.

In fact, the Philippines permits Filipinos married to foreigners to get a divorce abroad recognizable by local courts. There is simply no reason denying this right to couples where both are Filipinos. The possibilities of failed marriages – of abuse, infidelity, abandonment – is not determined by citizenship. Why deny this remedy, and indirectly disincentivize marriage among our own citizens?

Of course, the elephant in the room is religion. For many Catholics, the oft quoted verse is Matthew 19:3-9:  “what therefore God has joined together, let no man separate.” Not even including the fact that agents of God are not the only solemnizers of marriage (mayors, judges, justices, ship captains, we have a variety of non-religious solemnizing officers), this argument truly should hold no water.

Our Constitution provides for the separation of Church and State. For all this talk of public policy and what is in the public interest, this itself is a constitutional command. A State cannot adopt the religious precepts of one sect and justify state policies on the basis of those precepts. There is of course some nuance to this discussion, something I will leave for another time. Suffice it to say, however, that bible verses are not good reasons, and are in fact, unconstitutional reasons, for not providing divorce. Reasons for enacting a law must be rooted in purely secular interests, free from the specific persuasions of any one religion.

Surely, religions in the Philippines remain free to not acknowledge divorce. The State does not meddle in ecclesiastical affairs or the “content” of religion. When a priest or other religious figure solemnizes a marriage, he does so in two capacities: as an authority of their faith, and as an agent of the State.

After a civil divorce decree is issued, religions are within their rights to consider valid and binding the marriage’s religious aspect. They can refuse to acknowledge a subsequent marriage, consider even the divorced persons as living in sin. This is not the State’s business. Any law will only affect the civil or criminal aspects of the marriage, such as obligations for support or liability for adultery.

Will enacting a divorce law give rise to a slew of broken families, debauchery and hedonism? I doubt it. Having practiced family law for a very long time, I can confidently say people do not enter into a marriage generally with an eye to terminate it. All marriages are done with hopes of a loving and nurturing future. But we are only human, and sometimes we make mistakes.

There is no reason to let exaggerated and hypothetical fears prevent us from affording our citizens relief from their very horrible situations.

Besides, thinking of the alternative – people who cannot escape abusive and violent spouses, couples who spend their days resenting each other, children growing up in turbulent households – can we really say that divorce is such a bad thing?

For us spectators, divorce is a concept to argue over for a few hours or days. But to those who need it, it is the key to the rest of their lives.

Let us not be so short-sighted hanging on to the preservation of what is already gone. I say, let failed marriages die. Let rancor and traumatic childhoods end. Let new hope and freedom live. Let there be divorce. – Rappler.com

Mel Sta. Maria is former dean of the Far Eastern University (FEU) Institute of Law. He teaches law at FEU and the Ateneo School of Law, hosts shows on both radio and Youtube, and has authored several books on law, politics, and current events.