Catholic Europe has some of the highest divorce rates in the world. In Spain, 61 percent of all marriages end in divorce. In Portugal it is 68 percent and in Belgium the figure is 71 percent. While these figures may point toward the social acceptability of divorce in these papal countries, to think that divorce is cheap, easy, and treated as trivial in Europe would be wrong. As one divorce lawyer put it, divorce is characterized by “the emotional pain of separation, incomprehension about the legal process, and conflict with regard to the division of property and assets.”
In the famously liberal and socially tolerant Protestant Netherlands, 1 in 3 marriages end in divorce, a ‘small-scale’ divorce can cost between 5,000 and 10,000 euros in legal fees, and every year a further 73,000 children are affected by divorce. But Dutch children are known to be some of the happiest people on earth and there is no social stigma attached to divorce.
Under a fair and equitable divorce law, with clear built-in legal measures that work to safeguard the right to a new life for the splitting partners and the well-being of their children, unhappiness need not be interminable. Divorce in the Philippines could and should mean, in Congressman Edcel Lagman’s words, “a merciful liberation.”
Two months ago, Lagman filed House Bill No. 116, a bill to legalize divorce. He wants to institute an absolute divorce measure, which would simplify the process of divorce. The Bill, which is based on irreconcilable differences, promises to empower poor women especially, and covers abuse, adultery, and psychological incapacity. Like the Reproductive Health Bill, which Lagman also spearheaded, this is revolutionary.
In our country the formal route to ending a marriage is purgatorial. It is a matter of legal fact that a marriage contracted in the Philippines in accordance with law can only be annulled or declared null and void if a judicial declaration is secured. This means diving into a legal morass that is financially bankrupting to all but a rich few, and bewildering and confusing to just about everyone.
For most unhappily married couples, filing a petition for an annulment in Philippine courts is practically impossible. The process is prohibitively costly, with some estimates pegging expenses of P200,000 and upward. Theoretically, a poor litigant can file a petition and be classified as a ‘pauper litigant.’ The Public Attorney’s Office or the Integrated Bar of the Philippines, theoretically, offer free legal aid. But even a cursory perusal of Philippine lawyers’ websites leads one to think that the chances of being awarded aid from these sources are extremely remote.
The annulment process is unbelievably lengthy, lasting between three and five years before a decision is reached. It is adversarial and fraught with legal requirements and complications. First and foremost, the services of a skilled and trustworthy lawyer specializing in family law needs to be engaged; second, the litigant is required to write a testimony detailing her or his marriage, including a description of the personality of the spouse; third, a psychological evaluation is required to be undertaken by the litigant. The petition is drafted and filed by the lawyer and the public prosecutor is instructed to conduct an investigation. Only once these conditions have been satisfied does the process move to trial, at which testimonies and witnesses are heard.
So, money, and a lot of it, is needed but also the ability to articulate one’s thoughts and experiences both orally and on paper. In other words, a certain level of education is needed. It’s hard to think up a system to end an unhappy marriage that is more intimidating, more financially and mentally punitive and more emotionally excruciating, than this.
The law seems to be a lot more straightforward with regard to non-Christian and “indigenous” couples. The 1987 Philippine Constitution recognizes the rights of indigenous peoples and cultural communities to “preserve and develop their cultures, traditions and institutions” (Art. XIV, sec.17). Classification of indigenous cultural communities (ICCs) and indigenous peoples (IPs) is problematic, but it is held that these groups encompass tribes of the highlands and Muslims who largely live in the southernmost island of Mindanao and the Sulu archipelago.
The supplementary Indigenous Peoples’ Rights Act 1997, No. 8377 applies to various questions related to indigenous customary law including family relations and Administrative Order No. 3 (A.O.3) Series of 2004 refers specifically to the termination of marriages. With some qualification, Philippine law recognizes Islamic law, shar’ia, and customary law, adat, observed by Filipino Muslims. Provisions are given under various promulgations including the Code of Muslim Personal Laws of the Philippines. Notably, there are legal provisions for polygyny and divorce among Muslims in the Philippines.
Given the absence of legal divorce and the inaccessibility of annulment for the majority of Filipinos, unhappily married couples unable to legally dissolve their marital ties just abandon their households or keep parallel relationships and families. There is enough scholarly and popular literature on Filipino attitudes toward ‘double’ social standards and conservative sexual mores within marriage to argue that the existing debacle – which guarantees nothing to the financially weaker spouse, nor gives adequate provisions for child support and its enforcement – is largely to the advantage of men.
Nobody in the Philippines needs to be told that practices of concubinage, popularly known as the ‘querida’ system, have become institutionalized. Or that cohabitation motivated by at least one partner being already married, and the concealment of a previous marriage, is rife. The present lack of a divorce law, and the whole system that permits philandering, abusive, adulterous men and, above all, feckless men who do not look after their children, is skewed to uphold misogyny and patriarchy.
We love weddings, long and happy marriages, and families. But we should also respect the decision to separate when things go wrong. Life is messy. We need a law that properly protects poorer spouses and children when things fall apart.