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Another controversial issue, wherein the Philippine Catholic Church
again appears to be on the wrong side of the fence, is that of
divorce. Divorce is legally allowed in all countries, including
Catholic ones, except for the Philippines and Malta.
The justification for the prohibition of divorce
is based on the claim that marriage is, under Article 1 of the
Family Code, a “special contract of permanent union between a man
and a woman,” “the foundation of the family and an inviolable
social institution.”
That marriage deserves special protection is not
denied. That it has important social consequences is also conceded.
But it does not then follow that its dissolution should be forever
prohibited.
Admittedly, the Philippines allows dissolution
in the form of annulment. For a marriage to be void, the
psychological incapacity of one of the parties must be established.
There are three requisites: (i.) the incurability of the incapacity,
which means that it cannot be cured by the party on his own without
the need for professional medical help; (ii.) gravity, which entails
that he is rendered unable to perform any of the essential marital
obligations owing to the incapacity; and (iii.) priority in time,
which insists that he acquired the incapacity prior to the time of
the marriage ceremony, even if it surfaced thereafter.
This kind of dissolution, which is the main form
of annulment, goes some way towards alleviating the social problem
but it is not enough. Many other occasions exist wherein a divorce
is warranted, if the institution of marriage is to maintain its
meaning and if the children’s interests are to be adequately
protected. For couples, with incompatibilities or irreconcilable
differences, proliferate, who can no longer live with each other and
whose continued union would therefore be contrary to the
children’s interests. To deprive these couples the opportunity to
live a normal life would be uncaring of the state.
Such individuals must be afforded the
opportunity to continue their lives in accordance with their
perceived interests. They may, in the end, choose simply to live in
solitary bliss or with another lifelong partner. In any case, their
freedom ought not to be denied them.
At the heart once again of this issue is the
value of individual freedom and autonomy. A state which allows
divorce affords the individual the respect, dignity and recognition
he deserves as God’s creation to fashion his life. It allows him
the option to admit a mistake and not to be burdened with such a
mistake for the rest of his life.
Central to this issue is the separation of
Church and state, and of religious and civil matters. The state may
be concerned about the family and enact laws for its protection, but
may do so only from a purely social or secular, not religious,
perspective. Its interest must not stem from a preservation of a
religious ideal or sacrament which other religions do not
necessarily share. In other words, the state should strive only to
save society and its institutions, and not the religion or its
tenets.
To allow the doctrines of one religion to
dominate the law is to violate the principle of separation of Church
and state. The state no longer stays neutral but has played
favorites. It has favored the Catholic religion over others.
Nearly 10 years ago, I was requested by some
representatives of a Christian sect to draft a bill legalizing
divorce. They felt that without such a bill, the state unduly
discriminated against them in favor of Catholics. For some Christian
sects allow divorce, adultery being one of the grounds.
If the sect did not allow divorce, its
parishioners would be living in sin. Hence, a religious divorce, not
civilly recognized, is provided them. Although their conscience is
now clear, such parishioners who remarry still incur criminal
liability for either bigamy or adultery. They may have avoided moral
wrong, but they have not escaped criminal liability.
This form of discrimination should no longer be
allowed to exist. We live or should learn to live in tolerance,
where cultures, religions, ways of life vary and fuse, and where
each individual should be given the freedom to choose his religion
and his way of life. The state has been insensitive to these
individuals.
It was not always so. The Philippine government,
to the consternation of the Catholic Church, once realized the
importance of being the government of all who live within its
borders, and not only of its dominant majority. Consequently, the
interests of the Muslim faith were recognized. Sharia tenets were
incorporated in civil and criminal law; Muslims were allowed to have
as many as four wives; and mosques and other religious institutions
were built throughout the Philippines.
We are not only a nation of Catholics; we are a
nation of Christians, Muslims, Buddhists, Hindus, cultural
minorities and the like. It is time that we learn to live together
in harmony, and not let one institution dominate and stultify the
entire nation.
eqfernando@hotmail.com
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