According
to Christian teachings, God spelled out the importance of marriage for
mankind right at the beginning of human history when, after Eve was
created for Adam, the Bible records: "For this reason a man will leave
his father and mother and be united to his wife, and they will become
one flesh" (Genesis 2:24).
*****
Roman Catholics consider marriage a sacrament instituted by God and
Christ and is indissoluble by mere human action. Accordingly, God is the
author of marriage and blesses the union of man and woman (Gen. 2:
18-25, Heb. 13: 4). It is said that the sacrament of marriage produced
one person from two, inseparable from each other: "By marriage the
husband and wife are one person in law: that is, the very being of legal
existence of the woman is suspended during the marriage or at least
incorporated and consolidated into that of the husband: under whose
wing, protection and cover, she performs everything."
****
That is the loudest argument against divorce. And that is one of the
reasons why divorce is not allowed in the Philippines, being a
predominantly Catholic country. Divorce (or the dissolution of marriage)
is the final termination of a marital union, cancelling the legal
duties and responsibilities of marriage and dissolving the bonds of
matrimony between the parties
*****
Historically for centuries the tendency was for churches of all
denominations not to permit any divorce at all. They only allowed legal
separation (i.e. non-cohabitation) of spouses and even then only where
one spouse had committed a serious sin against the other, such as
adultery. Both parties remained legally married and therefore could not
remarry. Civil courts came to be regarded as having no power over
marriage or divorce. The grounds for annulment were determined by Church
authority and applied in ecclesiastical courts. Annulment was for
canonical causes of impediment existing at the time of the marriage.
"For in cases of total divorce, the marriage is declared null, as having
been absolutely unlawful ab initio."
*****
But marriage is not just a sacrament. It is also considered a civil
contract, and on that basis civil authorities gradually asserted their
power to decree a "divorce a vinculo matrimonii," or "divorce from all
the bonds of marriage." Since no precedents existed defining the
circumstances under which marriage could be dissolved, civil courts
heavily relied on the previous determinations of the ecclesiastic courts
and freely adopted the requirements set down by those courts. As the
civil courts assumed the power to dissolve marriages, courts still
strictly construed the circumstances under which they would grant a
divorce, and now considered divorce to be contrary to public policy.
Because divorce was considered to be against the public interest, civil
courts refused to grant a divorce if evidence revealed any hint of
complicity between the husband and wife to divorce, or if they attempted
to manufacture grounds for a divorce.
*****
Though divorce laws vary between jurisdiction, there are two basic
approaches to divorce: fault based and no-fault based. Under a no-fault
divorce system, the dissolution of a marriage does not require an
allegation or proof of fault of either party. The application can be
made by either party or by both parties jointly. Fault-based divorces
can be contested; evaluation of offenses may involve allegations of
collusion of the parties (working together to get the divorce), or
condonation (approving the offense), connivance (tricking someone into
committing an offense), or provocation by the other party.
*****
Prior to 1975, countries which permitted divorces also required proof
by one party that the other party had committed an act incompatible to
the marriage. This was termed "grounds" for divorce (popularly called
"fault") and was the only way to terminate a marriage. Most
jurisdictions around the world still require such proof of fault. In the
United States, no-fault divorce is now available in all 50 states and
the District of Columbia--New York, the last state to still require
fault-based divorce, passed a bill in 2010 permitting no-fault divorce.
*****
The Philippines is one of the few remaining countries which do not
allow absolute divorce. Marriage is supposed to be forever. From an
idealistic non-legal standpoint, the sole reason for marriage should be
love; the kind of love that transcends time and withstands any
impediments that life throws our way. From a legal perspective, on the
other hand, no less than the Philippine Constitution (Art. XV, Sec. 2)
and the Family Code (Art. 1) expressly characterize marriage as the
foundation of the family and an inviolable social institution. The law
states that it is a special contract of a permanent union between a man
and a woman. It is inviolable. It is permanent. In short, you don’t
think of divorce when you get married.
*****
Marriage is the right thing for the right reason, but marriage can
also be the wrong thing if it’s for the wrong reason. And, as it has
been opined that "marriage is a mistake which youth must commit", it
could simply have been a stupid mistake. But because it is a contract of
"permanent union", divorce is not allowed. So, if a man or woman
committed a mistake in his youth of marrying the wrong spouse, he/she is
supposed to take that mistake to his/her grave. That is a life sentence
of extreme pain, without any relief.
*****
It’s hardly surprising that there’s a lot of people just waiting for
the right opportunity to end their respective marriages. The reasons are
diverse – physical abuse (against the spouse and/or the children),
sexual infidelity, irreconcilable differences and conflicting
personalities, gross irresponsibility, loss (and transfer) of affection,
among others.
*****
Is it not about time the Philippines consider a more realistic
approach to divorce? I wonder what my good friend, Congressman Cesar
Sarmiento, has to say on this.
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