## Wednesday, April 15, 2015

### 20-point critique of Explanatory Note in Philippine Divorce Bill HB 4408

House Bill 4408 seeks to introduce divorce in the Philippines by repealing several articles in the Family Code. In this blog post, I shall not give a critique the bill itself (that will be for another article).  Rather, I propose that we read through the explanatory note of the bill and discuss whether the assumptions behind the bill makes sense or not. If the assumptions are wrong, then the bill must be trashed.

Let's now look at 20 statements in the Explanatory note:

1.   Underpinning this proposal is a commitment to the policy of the State to protect and strengthen marriage and the family as basic [a]social institutions, to value the dignity of every human person, to guarantee full respect for human rights, and to ensure the fundamental equality before the law of women and men. (HB 4408, p. 1)

(Note: I think there is a typo here: "asocial" should really be "social".)

This paragraph refers refers to some sections of the Art. II of the Philippine Constitution on the Declaration of Principles and State Policies, which we shall highlight for our reference:
• Section 11. The State values the dignity of every human person and guarantees full respect for human rights.
•  Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.
•  Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.
•  Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.
The insertion of “marriage” in “strengthen the family” to arrive at “strengthen marriage and the family” is within the spirit of the Section 12 of Art. II of the Constitution, because marriage is protected by the State in Art. XV The Family:
• Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

2. Women are traditionally regarded as primarily responsible for making the marriage work and are expected to sacrifice everything to preserve the marriage and the solidarity of the family. While absolute fidelity is demanded of wives, men are granted sexual license to have affairs outside marriage. Yet when marriage fails, the woman is blamed for its failure. (HB 4408, p. 1)

With the advent of artificial contraceptives, such as condoms for men and pills for women, both wives and husbands are already at liberty to have affairs outside marriage, because contraceptives make the chance of getting a woman pregnant small enough to warrant the risk of extramarital affairs. And with the State-sponsored distribution of artificial contraceptives due to the passage of the Reproductive Health Law, we would see greater incentives for both husband and wife for marital infidelity.

3.  Reality tells us that there are many failed, unhappy marriages across all Filipino classes. Many couples especially from the marginalized sectors, who have no access to the courts simply end up separating without the benefit of legal process. The sheer number of petitions that have been filed since 1988 for the declaration of nullity of the marriage under Article 36 of the Family Code (commonly known as “annulment”) shows that there are just too many couples who are desperate to get out of failed marriages. (HB 4408, p. 1)

Legal separation is an option, but in this case the couple remains married. If the couples cannot afford to pay the courts to formalize this process, then the government should find ways to make this process simpler. Otherwise, the couples simply decides to live separately, yet still remains married in the eyes of the law. This de facto separation is the cheaper option.

The only way for the husband or the wife in a failed marriage to marry again is to have the court declare the marriage to be null and void through the annulment process. The Family Code has listed all possible instances where the marriage can be annulled, such as the one of the party is below 18 years of age or the marriage was incestous. But the proponents of the HB 4408 never mentioned these, because the Court can easily decide on these based on known facts. Instead, the proponents focused on Article 36 of the Family Code:
Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (as amended by E.O. No. 227).
Now, unlike the other instances where the marriage can be annulled, psychological incapacity is very difficult to prove. To do this, you have to hire a psychiatrist or psychologist to test you or your partner and testify regarding your psychological incapacity. Hiring these experts is expensive. Also, you can also lie about your psychological incapacity. If Congress decides to remove Art. 36 from grounds for annulment, the annulment process would be much simpler and the “sheer number of petitions filed since 1988 for the declaration of marriage under Article 36 of the Family Code” would vanish.

4.  Even when couples start out well in their marriage, political, economic and social realities take their toll on their relationship. Some are not even prepared to handle the intricacies of married life. For a large number of women the inequalities and violence in marriage negates its ideals as the embodiment of love, care and safety and erode the bases upon which marriage is founded. The marital relations facilitate the commission of violence and perpetuate their oppression.  (HB 4408, p. 1)

There are many forces that take their toll on the relationship between the husband and wife. And that is why marriage should be founded not on shifting sands of emotions, but on a rock: the marriage vow of couple to love each other for better or for worse, for sickness or for health, until death separates them. Those who cannot make this vow should not get married. If the couple cannot live together under one roof, then they should separate, while still retaining their marital status. The possibility of future divorce will do nothing but make the marriage vow meaningless.

Physical violence experienced in married life can be remedied by legal separation. We must also note that the violence is not only perpetrated on women, but also on men as well: aside from physical abuse, there is also verbal abuse. That is why, in Filipino culture, there is a term for such men: “under the saya,” which literally means “under the skirts”. These things are not recorded in police stations because it is shameful for Filipino husbands to report such cases.

5.  Since the ratification of the Philippine Constitution in 1987, many things beyond the control of spouses did happen to our society that put tremendous pressure on the stability of Filipino families. Our government has intensified its labor export program, tearing hundreds of thousands of families apart and forcing couples to make-do with long-distance relationships, aggravating their vulnerabilites to extra-marital indiscretions and resulting in rising incidences of OFWs seeking annulment of their marriages. (HB 4408, p. 1-2)

Unless the Philippine economy can provide sufficient jobs, then Filipinos will choose to go abroad where their services are paid more. If the marriage is strong, the family can survive separation of the husband and wife for months or even years. If the government desires to protect the family, then the government can provide subsidies for OFWs to go home several times in a year as a percentage of the OFWs salary. Extra-marital indiscretions happen because of the widespread availability of artificial contraceptives. Without these contraceptives, marital indiscretions would be more knowable because of pregnancy—a new child is born out of wedlock. The non-availability of artificial contraceptives in the country, which can arise from the removal of funding for the purchase of contraceptives in the RH Law, can make the husband and wife pause and think before committing marital indiscretions. Lesser marital indiscretions means lesser number of couples seeking for annulment of their marriages.

6.  Moreover, as a result of one economic crisis after another, with endless increases in the prices of basic commodities and attended by the government's abandonment of the state responsibility to provide essential social services, husbands and wives are both forced to hook on to multiple odd-jobs and do extra work hours for augmenting their devalued income, thereby reducing the quality time necessary to nourish family relationships. (HB 4408, p. 2)

It is indeed true that quality time is necessary to nourish family relationships. The government should invest more in education, so that Filipinos can get high paying jobs. In this way only one spouse goes to work, while the other stays at home to take care of the children.

7.  The interconnectivity brought about by advances in modern transportation and information technology has also increased the number of mixed marriages among Filipinos, exposing them to foreign family cultures that often grate against their marriages. (HB 4408, p. 2)

The Filipino spirit rises against all odds—against all calamities physical, emotional, or spiritual. Indeed, there are many forces stacked against the Filipino marriage today, such as cohabitation, same-sex unions, and divorce. But it is a mark of a living organism to use the forces of the environment—land, water, air, and sun—to grow and reproduce; it is a mark of dead things to succumb to the forces of the environment and rot. In marriage, a new organism is formed: the husband and wife. They are considered as one flesh or organism under the law that is why they have conjugal rights, such as regarding ownership of property. To separate the husband and wife in divorce is to severe the limbs of the organism which was formed under the law, and the result is death—death of marriage, which results to the death of the family. Isn't it the State's policy to make marriage an inviolable social institution and strengthen the family as stated in Art XV Section 2 of the Constitution?

8. These social forces constitute a veritable assault on the Filipino family, shoving upwards the number of couples looking for an 'escape hatch' from their troubled marriages other than those already provided by our marriage laws. Thus, according to the Department of Justice, petitions for nullity and annulment have significantly risen--more than doubled--in the last ten years, from 4,520 in 2001 to 10,528 in 2011.  If the 2011 figure is to broken down, this means 29.6 petitions a day.  Interestingly, the figure refers to only to annulment and declaration of nullity cases invoking the grounds of psychological incapacity and inherent defects in the validity of the marriage. (HB 4408, p. 2)

According to the Philippine Statistics Authority, the population grew from 77,000 in year 2000 to 94,000 in year 2010.  The percentage increase is about (94000-77000)/77000 = 22%.  On the other hand, the annulment petitions grew from 4,520 in year 2000 to 10,528 in year 2011.  The percentage increase is about (10,528-4,520)/4,520 = 133%.  If we remove the percentage due to population increase, then the annulment petitions grew effectively only about 133%-22% = 111%, which is still more than double the original value.  Nevertheless, it would be interesting to determine the actual numbers of those petitioning on the grounds of psychological incapacity and those for inherent defects on the validity of the marriage.  The former is more difficult to establish, while the latter can easily determined, as we wrote in our comment to Statement 3.

9. Given these realities, couples must have the option to avail of remedies that will pave the way for the attainment of their full human development and self-fulfillment and the protection of their human rights. Existing laws are not enough to guarantee and protect these rights. (HB 4408, p. 2)

The phrase human development is vague. Does this refer to human development from conception to natural death? Self-fulfillment is also vague. For many people, to be a self-fulfilled man or woman is to get married and have children. That is why there is a Filipino phrase for marriage as "malagay sa tahimik", which means to be at peace--there is nothing more to ask for.  Divorce will do nothing but put chaos on an otherwise peaceful life--there are difficulties to be sure, but children know that they still have a father and mother, even if they are legally separated.  The wounds of separation can be healed by time, and who knows--perhaps the couple would return into each other's arms again someday.  On the other hand, the severance of the marriage bond through divorce is tragic and the whole family grieve as if someone died.  Couples who experienced divorce would have many baggage in life which they would bring into their new marriage, and the vicious cycle repeats itself.

According to Psychology Today, divorce affects children and adolescents. If they are young, "there can be separation anxieties, crying at bed times, breaking toilet training, bed-wetting, clinging, whining, tantrums, and temporary loss of established self-care skills."  If they are adolescents, then the adolescent may try to get back at their parents:
Now the adolescent can act aggressively to take control of his life by behaving even more distantly and defiantly, more determined to live his life his way, more dedicated to his self-interest than before. He feels increasingly autonomous in a family situation that feels disconnected. He now feels more impelled and entitled to act on his own. (Psychology Today)
The husband or wife who wishes for divorce as their human rights may fail to recognize that their children also have human rights to live in a stable family. As one advertisement on the rights of the child shown about two decades ago, one child says: "Magkaroon ng pamilya na mag-aalaga sa akin" or "To have a family that shall take care of me." As the UN Convention on the Rights of the Child states:

• Article 18. Both parents share responsibility for bringing up their children and should always consider what is best for each child. Governments should help parents by providing services to support them, especially if both parents work.
• Article 19 Governments should ensure that children are properly cared for and protect them from violence, abuse and neglect by their parents, or anyone else who looks after them.

10. In practice, Article 36 has become a form of divorce, as valid marriages are declared void every day in the guise of 'psychological incapacity'. The innumerable Article 36 cases brought to trial courts are an indication of the elasticity of Article 36 to accommodate the needs of many couples desiring to terminate their marriages.  It is proof that divorce is needed in the Philippines.--Women's Legal Bureau (HB4408, p. 2)

The proponents of the bill agree with the opinion of the Women's Legal Bureau that psychological incapacity is too elastic to accommodate the need of couples to terminate their marriages. So one solution as proposed in our comment to Statement 3 is simply to remove psychological incapacity as a ground for annulment. In this way the courts can focus only on objectively verifiable grounds for annulment of marriages.  This will speed up the annulment of many marriages.

Instead of arguing in courts regarding psychological incapacity after marriage, the government should provide programs where psychologists can test potential marriage couples for psychological incapacity and other defects in the possible marriage, and advise them whether to push through with the marriage or not given the high potentials of marital failure.  If the couples would still insist, the government may prescribe a period of several months to test the resolve of the couple.  If the couple still decide to get married, then their marriage cannot anymore be dissolved through divorce.

In other words, what we propose here are preemptive safeguards to make marriage more stable.  What the divorce bill, on the other hand, wishes is to work after the fact of marital failure by dangling divorce as an option.

11.  Thus, this bill seeks to introduce divorce as another option for couples in failed and irreparable marriages. (HB4408, p. 3)

In his poem The Road Not Taken, Robert Frost wrote: "Yet knowing how way leads on to way, I doubted if I should ever come back." Once we give couples divorce as an option, the break-up would become permanent if one of them marries again.

Marriage is like an egg. Inside the egg is the egg yolk and the egg white--both united to each other by a thread-like chalaza and enclosed by a hard shell. In the same way, marriage bounds a man and a woman into one flesh. If you wish to separate the egg yolk and the egg white, you must first break the shell. Then there's a process for separating the egg yolk and the egg white. But doing is an irreversible process, especially if chicken embryo was already forming. And also, there is no way to put the broken egg shells back again.  As the story of Humpty Dumpty tells us:
Humpty Dumpty sat on a wall,
Humpty Dumpty had a great fall.
All the king's horses and all the king's men
Couldn't put Humpty together again

12. In recognition of the history of divorce in the Philippines, the framers of the 1987 Constitution left the wisdom of legalizing divorce to Congress. Thus, the 1987 Constitution does not prohibit the legalization of divorce. (HB 4408, p. 3)

The Philippine Constitution is clear in Art. XV The Family:
• Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
What is the meaning of inviolable? According to the Merriam Webster's dictionary, something is inviolable if it is "too important to be ignored or treated with disrespect." The other two meanings are "secure from violation or profanation, e.g. inviolable law" and "secure from assault or trespass: unassailable, e.g. inviolable borders".

The proponents of HB 4408 claims that the 1987 Constitution does not prohibit the legalization of divorce. But they are wrong: divorce violates marriage which the Constitution declares to be an inviolable social institution.  Only death can separate the couple from their marriage vows.  Because of this, divorce can never be an option under the Constitution. Legal separation is not divorce, because legal separation preserves the marriage bond, even though the couple live separately. Annulment is not divorce, because annulment only declares that the marriage never existed in the first place because of several defects. Divorce is an entirely different thing: it breaks the marriage bond.  This is against the Constitution.

13. Given the country's history, the bill seeks to restore divorce as a rights-based option for majority of Filipinos, an option based on the recognition that the right to enter into a marriage contract has the corresponding spousal right to end such contract when it has reached the point of irreparability. (HB 4408, p. 3)

Marriage is not just a contract which governs an exchange of goods, e.g. money for service or object.  In marriage, what is exchanged is not something separate from the husband or wife, but their very own selves: they give themselves to each other until death do them part.  This act of giving themselves to each other is consummated by intercourse, which facilitates the union of the man's sperm with the woman's egg to create a new human being whose DNA consists of the marriage of the DNA's of the man and his wife.

If divorce is allowed, then the marriage vows will become worthless:
I, ____, take you, ____, to be my lawfully wedded(husband/wife), to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.
If divorce is allowed, what happens to the children?  Can you separate all the DNA's of the father and the mother without killing the child?

14. Divorce could actually provide protection to battered women and their children from further violence and abuse. (HB 4408, p. 3)

Legal separation can provide this protection. There is no need for divorce.

15. With the predominance of the Catholic faith in the Philippines, the fear that divorce will erode personal values on marriage appears unfounded.  The experience of Italy, where Vatican is located, and Spain, two predominantly Catholic countries which practice divorce supports this.  Italy has a divorce rate of 181 per 1,000 married population while the divorce rate in space had experienced a decline since 2007. (HB 4408, p. 3)

The Vatican City-State is not part of Italian Republic, because they have separate sovereign governments. While it is true that the Catholic percentage of the population 76.7% for the Kingdom of Spain and 87.8% in the Italian Republic, the official religion in the two countries is not anymore Catholic. The Spanish Constitution of 1978 and the Lateran Treaty of 1984 abolished the official status of Catholicism.

• Marriage rate in Spain steadily dropped from 9.4% to 6.2%, while divorce steadily rose from (no data available) to 3.5%. The number of births to unmarried women rose from 3.9% to 31.7%--an increase by a factor of 10.
• Marriage rate in Italy steadily dropped from 8.7% to 6.3%, while divorce steadily rose from 0.3% to 1.3%.  The number of births to unmarried women rose from 4.3% in 1980 to 17.7% in 2007.
The statistics are clear: the availability of divorce brings down marriage rates and increases the number of births to unmarried women.

16. The bill also seeks to make Philippine law consistent with the way it treats religious beliefs with respect to termination of marriage.  Philippine law through the Code of Muslim Personal Laws of the Philippines (Presidential Decree No. 1983 [1977]) allows divorce among Filipino Muslims, in deference to the Islamic faith which recognizes divorce.  Non-Muslim Filipinos should have the same option under Philippine law, in accordance with their religious beliefs.

Since the proponents of the bill now plays the religion card, then we have to note first that Muslims are governed by Shariah law in marriage, while the rest of the citizens are governed by the Family Code. Since majority of the rest of the citizens are Catholic, then for the common good, the government must abide by the rules of the Catholic religion on marriage, and that means divorce must never be allowed.

What the proponents of the bill may propose is to allow divorce to non-Catholic Christians in the country in order to respect the plurality of religious beliefs.  This sounds easy to say, but difficult in practice. There are many Protestant sects, and many new sects are born each day, because each person can interpret the Bible on his own and make himself his own Pope.  Will the proponents of the bill list down all the Protestant denominations, identify their leaders, and ask them if they approve of divorce or not, and use these answers to define the law?  What if a person changes his mind today about his affiliation?  What will happen to the validity of his marriage or divorce?  These are tricky questions.  The courts already have their hands full trying to decipher psychological incapacity as ground for annulment.  How much more would changing religious affiliation would bring to the marriage and divorce question?

17. The bill proposes five grounds for divorce.

I won't comment on these for now. We already showed that the very philosophical ground for divorce is loose sand.  This is enough ground to junk the divorce bill.

18. The Philippines is the only remaining country in the world without a divorce law. This bill is being introduced based on indications that Philippine society is ready for the legalization of divorce.

In the movie, I am Legend, Will Smith's character believes that he is the only human alive who is not a zombie. If the argument of the proponents of the bill makes sense, then Will Smith's character should also be a zombie, too.

Divorce, like the virus that turned humans into zombies, is a plague in human society, which must be eliminated or cured. A country without divorce is a sign of health of the institution of the family.  Thus, there is no need to institute divorce in the Philippines.  Rather, Philippines should become a model on how to make marriage work among the neighboring nations and the rest of the world.

19. The sanctity of marriage is not based on the number of marriages existing but on the quality of marital relationships.

The proponents of the bill used a religious term: "sanctity".  Where did they get the definition of sanctity as quality of marital relationships? No, "sanctity" comes from the word "sanctus" or "holy", which reminds us of "Sanctus, sanctus, sanctus" or "Holy, holy, holy" in the Holy Mass in praise of the Most Holy Trinity. Marriage is holy because God made it so.  As Christ's discussion with the Pharisees illustrates:
Some Pharisees approached him, and tested him,* saying, “Is it lawful for a man to divorce his wife for any cause whatever?” 4 b He said in reply, “Have you not read that from the beginning the Creator ‘made them male and female’5c and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’?6 So they are no longer two, but one flesh. Therefore, what God has joined together, no human being must separate.” 7* d They said to him, “Then why did Moses command that the man give the woman a bill of divorce and dismiss [her]?”8 He said to them, “Because of the hardness of your hearts Moses allowed you to divorce your wives, but from the beginning it was not so. 9e I say to you,* whoever divorces his wife (unless the marriage is unlawful) and marries another commits adultery.” (Mt 19:3-9)
20. When marriage is no longer viable, divorce should be an option.

With this reasoning by the proponents of the bill, it won't be surprising if they would later say:
• If the fetus is not viable, abortion should be an option.
• If the sick or the aged is not viable, euthanasia should be an option.
Marriage is a union of a man and a woman to form one flesh, as we showed in a comment to Statement 14. Since God made the marriage bond holy and inviolable and the Philippine Constitution also declares marriage to be inviolable, therefore divorce should never be an option.

 When Divorce Is Not an Option: How to Heal Your Marriage and Nurture Lasting Love
 The Philippine Constitution and Government
 Basic Law on Persons & Family- According to the Civil Code of the Philippines
 Contraception and Catholicism: What the Church Teaches and Why
 Female Reproductive Health
 The American Rebellion Against Humanae Vitae
 Annulment: 100 Questions and Answers for Catholics
 Proofs in Marriage Nullity Process
 Preventing Partner Violence: Research and Evidence-Based Intervention Strategies
 Marketing Dreams, Manufacturing Heroes: The Transnational Labor Brokering of Filipino Workers
 Children of Divorce: Stories of Loss and Growth
 Not "Just Friends": Rebuilding Trust and Recovering Your Sanity After Infidelity
 The Unexpected Legacy of Divorce: A 25 Year Landmark Study
 Marriage, Divorce, Remarriage: Revised and Enlarged Edition (Social Trends in the United States)
 Litigating the Rights of the Child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence
 DNA Science: A First Course, Second Edition
 Saving Your Marriage Before It Starts: Seven Questions to Ask Before and After You Marry
 Debating Divorce in Italy: Marriage and the Making of Modern Italians, 1860-1974 (Italian and Italian American Studies)
 Psychosocial and Legal Perspectives of Marital Breakdown: With Special Emphasis on Spain
 Family Law in Islam: Divorce, Marriage and Women in the Muslim World (Library of Islamic Law)
 Remaining in the Truth of Christ: Marriage and Communion in the Catholic Church