Thursday, January 12, 2006

Are You In Favor Of Divorce?


Divorce is dissolution of bonds of marriage. It is not a punishment for a wrong done by one spouse to the other, but it is the result of the determination by the state of domicile that the continuation of the marital relationship between the parties concerned will be contrary to the policy of law. While a divorce puts an end to the marital relation, it does not relate back to the act of marriage and render it null and void. It is based upon the theory of invalid marriage for some cause arising after the marriage ceremony.

At present, our country do not practice absolute divorce, we only have legal separation and annulment of marriage. In legal separation, the marriage bond is not dissolved and the parties are not entitled to remarry, the parties are merely separated from bed and board. Annulment of marriage on the other hand, relates back and erases the marriage and all its implications from the outset on the theory that for some reasons existing at the time of marriage no valid marriage existed. Annulment dissolves the marriage bond and the parties are allowed to remarry again.

In the United States and other countries that practice divorce, a pure no-fault divorce concept is followed. This means that a divorce is granted without the necessity of finding a spouse to have been guilty of some marital misconduct. The most common “no-fault” ground is voluntary separation for a period of time The Uniform Marriage and Divorce Act of the United States allows for divorce unilaterally upon the application by either spouse without proof of marital misconduct and without a mandatory waiting period either before or after the divorce is decreed.

In Philippine law, whether it is an annulment of marriage or legal separation, there had to be a specified fault, a wholly innocent plaintiff spouse and a wholly guilty or aggressor defendant spouse. There must be a proof of marital misconduct as a prerequisite for the case.

The Family Code of the Philippines lists seven grounds for the annulment of marriage. These grounds must exist at the time of the celebration of the marriage. Article 45 of the Family Code lists them as non-age unsoundness of mind, fraud, impotence, incurable sexually transmitted disease and the use of force, intimidation or undue influence. Another ground for annulment is stated in Article 44 of the same Code which states that if both spouses of a subsequent marriage acted in bad faith, the said marriage shall be void ab initio.

Non-age refers to a contracting party who is below eighteen years of age, or if the party is eighteen years of age or over but below twenty one, the marriage was solemnized without the consent of the parents, guardian or persons having substitute parental authority over the party. Unsoundness of mind refers to lack of mental capacity the law requires for making of a will. Fraud refers to concealment of a guilty party of his or her previous conviction of a crime involving moral turpitude, pregnancy by another man, sexually-transmitted disease, drug addiction, habitual alcoholism, homosexuality or lesbianism, existing at the time of marriage. Force, Intimidation or Undue Influence refers to violence, threat or control over one’s will. Impotency refers to lack of power of copulation and not to mere sterility. Incurable sexually transmitted disease includes AIDS, herpes, syphilis, gonorrhea, hepatitis and the like.

There are ten grounds for legal separation under article 55 of the family Code. These are repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of a petitioner, to engage in prostitution, or connivance in such corruption or inducement; Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; Drug addiction or habitual alcoholism of the respondent; Lesbianism or homosexuality of the respondent; Contracting by the respondent of a bigamous marriage, whether in the Philippines or abroad; Sexual infidelity or perversion; Attempt by the respondent against the life of the petitioner; And abandonment of petitioner by respondent without justifiable cause for more that one year.

Conjugal properties of the spouse are always in question when we deal with annulment or legal separation and/or divorce. What will happen to the properties that a husband or wife acquired by their joint efforts during the marriage. Some refers to it as a question of who gets what? Sensational divorce cases in the United States involve multi-million dollar rewards for damages of the aggrieved party.

The effects of annulment on properties is laid down in Article 50 to 52 of the Family Code which states that final judgment on the nullity of the marriage shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children and the delivery of the children’s presumptive legitimes computed as of the date of the final judgment of the court.

The effects of legal separation on properties is embodied in Article 63 of the Family Code which states that the absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership. Further, the offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession.

The effects of divorce on properties is embodied in United State’s Civil Law and in American Law of Property which states that all properties owned at the time of marriage, or that acquired by gift, devise, bequest, or descent, and the rents and profits therefore is considered separate property. All other acquisitions arising from the earnings of either husband or wife during marriage constitute community property. Community property shall be distributed upon dissolution of marriage. In equitable distribution of properties, the court does not necessarily divide the property equally, but attempts to make a fair and just allocation taking into account such factors as length of marriage, ages of participants, earning capacities, etc.

Although divorce is not practiced here in the Philippines, with respect to properties however, a divorce obtained by a foreign husband against a Filipina wife, which is valid in the country of the husband, is valid and binding against the latter and he is estopped from asserting his rights over property held in the Philippines as a conjugal property by him and his former wife.

The welfare and status of children also imposes a lot of concerns. What will happen to the children and what will be their status under annulment, legal separation and or divorce?

In an annulment case, Article 49 to 54 of the Family Code states that in the absence of adequate provisions in a written agreement between the spouses, the court shall provide for the custody and support of the common children. The court shall give paramount consideration to the moral and material welfare of the said children and their choice of the parent with whom they wish to remain. Visitation rights shall also be granted to the other parent. Upon final judgment, the custody and support of the common children and the delivery of the children’s presumptive legitimes are computed as of the date of the final judgment of the court. The children or their guardian, or the trustee of their property my ask the court for the enforcement of judgment. Children conceived or born before the judgment of annulment or absolute nullity of the marriage has become final and executory, shall be considered legitimate. Children conceived or born of the subsequent marriage shall likewise be legitimate.

In a legal separation, Article 63 of the Family Code states that the custody of the minor children shall be awarded to the innocent spouse. And since the marriage is not dissolved in legal separation, the common children shall still be legitimate.

In divorce, custody of children and child support always accompanies divorce. Custody of children is the care and control of minor children awarded by the court to one parent in a divorce proceeding. Where parents both make application for joint custody, and circumstances render the arrangement feasible, some courts have awarded custody to both parents so that responsibility for the children is shared. Under a joint custody order, each parent assumes custody of the children for a fixed period, such as for six months or for the school year or for the summer vacation. Custody must be so awarded as to promote the child’s best interest. Child support is a distinct obligation that may be imposed by the court upon the spouse with or without an award of alimony and is an amount of money which the court requires one spouse to pay to the other who has custody of the children born of the marriage. The amount of child support may be altered as changed circumstances may warrant. A spouse who fails to pay child support may be held in contempt by the court and jailed until past due amounts are satisfied.

A question of divorce in the Philippines is always a moral issue. It has been the firm stand of our Church that they are against any law that will violate the sanctity of marriage. The Church strongly believes that what God has put together, no man should separate. Marriage is a solemn activity, thus inviolable. When the contracting parties exchanged matrimonial vows, they agreed that they would live together as husband and wife, in sickness and health, through trials and success, through better and worse, till death part them. Most of marital problems encountered today are that they do not lift their marriage to the grace and mercy of the Lord, and they do not seek the religious guidance in the conduct of their affairs. Some of them even do not attend mass. The church believes that with their guidance, the husband and wife can live together happily, observe mutual respect and fidelity to each other and render mutual help and support each other, the very bonds and duties enunciated in their marriage vows.

The Church believes that divorce is not the solution to marital problems. Further, divorce will be a threat to its sanctity because if a divorce law shall be enforced, then marriage will lose its sacredness and a contract of marriage will then just be an ordinary agreement similar to that of buying and selling a property, always negotiable and always discretionary.

But how does the Church react to marital violence and abuse? The Church believes in reconciliation and saving the marriage, outreach programs for the revitalization of marriage is always conducted by the church and other religious affiliations such as Couples for Christ, Love Flock, Charismatic Groups and the likes. The Church believes that if only a married couple adheres to the principles of the Church, adheres to a married life devoted to Christ, and live together in peace, respect and harmony, then, marital violence can be prevented. But in serious cases however, when a spouse, despite all his or her Godly effort prove to be futile, and still, violence and abuse reigns in the family, then, the Church advices the aggrieved party to temporarily not to cohabitate with his or her partner until such time that the aggressor is rehabilitated.

Majority of Feminist Groups in our country however, lobbies for the adoption of divorce law. Their contention is that the protection of woman involved in domestic violence or abuse in marriage should be the primary consideration. They claim that there is no satisfactory law that protects these women victims and that divorce will greatly help their cause in minimizing, if not stopping, the plight of these victims.

But why do we need divorce? Is the annulment of marriage and the legal separation laws not enough? Feminists groups such as Gabriela, Kalakasan Foundation and Women’s Crisis Center believe that these laws are not satisfactory enough to protect the victim. The annulment proceeding is very costly and we even have a law that suspend and/or delay the hearings. Further, a period of five years is required for the annulment of marriage. On the other hand, legal separation is disadvantageous to women because it prohibits them to remarry again, thus preventing them to have a new lease of life and to pursue a dream of having another loving family life.

The Church and majority of the feminists groups seem to have a contrasting view on divorce. But how does our society perceived divorce? Are they in favor of it? When asked about this question, most of the persons seem to have varying outlook and tend to answer this by what is convenient in their case. Most married respondents seem to be not in favor of divorce contending that most marital problems can be solved, and permanent separations such as divorce will only have detrimental effect to the family in the long run. If there is a slightest problem or disagreement, the parties might resort against reconciliation and go with divorce - an action that both of them might regret in the future.

Other respondents, who are separated from their spouse, either legally or not, seem to agree with divorce. However, most are unaware between the distinctions of divorce against legal separation and annulment. They perceive divorce as a legal way for them to be permanently separated from their partner, whether they have an intention of marrying another or not.

Single, unmarried respondents seem to give diverse answers. Some of them agree with divorce contending that the law of the land should move with the advancement of society. Since we are moving in a fast-paced society, what we perceived to be old-fashioned concept of a family must evolved. Most of them relates divorce with equality of sexes and that a woman should have the right to seek divorce if couples have irreconcilable differences. Some of them however are still not in favor of divorce citing that the sanctity of marriage is what makes the family closely-knitted. And that a person should be careful of who to marry and who to spend the rest of their lives with.

Based on the facts and opinions I have gathered above, I am now ready to give my opinion of whether I am in favor of divorce? I am not in favor of divorce. Marriage to me is sacred. Marriage is not supposed to be a business deal where we can say, “I don’t like the way things are going and so I am not doing business with you.” It is supposed to be a commitment – in sickness and in health. It is not always “for the better”. There are days when it is going to be “for the worse”. There could come a day when the person you married because he was wonderful, tall, dark and handsome develops prostate cancer and all the physical and mental things you like about him disintegrates before your very eyes. The real challenge with marriage is to be prepared to love and walk through life with someone as imperfect as you are.

But how about if marriage is filled with violence and abuse? Are you still not in favor of divorce? News about women beaten-up and abused by her husband is rampant today. Almost everyday, we read or saw in news a woman killed or injured by somebody who says he loves her. So I am against that, I would never encourage a woman to stay committed to a relationship where she is being physically abused. Even if the abuse is emotional, you may have to distance yourself from the relationship and urge your spouse to get counseling or go to the rehab. Abuse is literally abnormal use and you should not set yourself up for that. I believe in this case that a spouse abused should resort to legal separation because legal separation is reversible, that is, if your spouse has been counseled, changed, corrected or rehabilitated, then you can live again as husband and wife. You have married him or her once, so I believe that you have loved him or her. But if the erring spouse in incorrigible, then you can devote your time in rearing of your children or helping other victims of the community.

All these things considered, the passing of the bill on divorce rests primarily on our legislators. If divorce is to be adopted in the Philippines, the legislature must see to it that the sanctity of marriage will not be violated and the caprices of contracting parties to treat marriage as an ordinary contract must be specifically prohibited. The United States concept of divorce, a pure no-fault concept, should be carefully deliberated and studied if our divorce law shall be patterned into it. And most importantly, the welfare of women and children must be the primary consideration of the state in enacting such law.

If divorce however is not to be adopted here in the Philippines, our present laws on annulment and legal separation must be improved. A lot of victims of marital abuses claim that there is no satisfactory law that protects them. If the preservation of the sanctity of marriage is the sole reason why divorce should not be adopted here, then considerations must also be made by the State to protect the life of the abused in marital violence. The state must not only adopt or introduce new laws for those who wanted to get out of incorrigible marriages but must create new programs that will help the cause of the victims of marital violence and abuses.

6 comments:

  1. whew! that's alot on divorce. I can't even imagine the US without divorce. What will the gossip rags write about?

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  2. In the Philippines, there will always be the stupidity of politicians to rag about. Lolz.

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  3. those who are abusive are generally not able to ever change. its been a proven fact for ages. i was in an abusive marraige for over 21 years. he was so sick in the head that he did not know what he was doing. he refused help in any manner. i was sad all the time and my health was deteriorating. devorce is freedom from dieing inside. a chance for happiness or is the philippine government saying fillipio's dont deserve happiness.

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  5. Amazing as always

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  6. All of us have different happiness.I will not let my self to remarry again, just because I like to be happy. Not only a partner can give you happiness and satisfaction. If you can't stand the heat, then go! Kung inaabuso tayo, tumayo tayo at lumaban. Ang sarili mong "tapang" ang kakampi mo, hindi ang divorce. If divorce become legal in the Philippines, mas lalo lang dadami ang "kabet" sa Pinas, dahil alam nila na makukuha nila ang asawa mo anytime. Kung may divorce na dito, at ikasal kang "muli" sa taong mahal mo, ano naman kaya ang gagawin mo kung siya naman ang humingi sayo ng divorce at sabihin niya sayong hindi kana nya mahal at gusto nya ulit magpakasal sa iba? Kalalabasan lang nyan na... dadami ang magiging babae o lalaking "ukay-ukay".

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