Couplings and Un-Couplings in a Land Without Divorce

By Marivic Raquiza - 10/16/2001
URL: http://www.legmanila.com//aa/article/1016.asp

It's funny, but in a land with no divorce, Aida has married three times.

The first time was when she was 16. It was 1936, and Aida's parents had agreed with Delfin's well-to-do parents to wed their children, especially since Delfin, madly in love, wouldn't have it any other way.

Fast-forward to around the outbreak of the Filipino-Japanese war. Aida and Delfin had a son, Rudy. Delfin had, by then, a habit of frequenting nightclubs and seeking the company of other women. After endless quarrels, Aida and Delfin agreed to divorce as this was allowed under the Japanese occupation.

Upon her lawyer's advice, Aida did not ask for alimony to improve her chances of getting sole custody of their son, which she was eventually granted. She moved to Manila with her baby and allowed Delfin to take him out on weekends. One weekend, Delfin kidnapped the 3-year old Rudy and took him to the province. The next time Aida saw Rudy again was when he was 15, and had gone to Manila in search of her.

Aida, however, already had three other children by Ricky, who she had met through friends and who courted her intently. One night, after a party, he offered to take her home. She agreed. He took her to a motel instead and forced himself on her. It took Andrea, Aida's mother, to get Aida out of that motel room. But Aida became pregnant.

In her mind, and apparently everyone else's around her, to live with Ricky was the next logical step. They had two other children but didn't marry because Ricky could not hold down a steady job and continued to have dalliances with other women. Aida eventually agreed to marriage after she realized that she was denying her three children legitimacy.

Tony -- the lawyer who had assisted Aida in her first divorce -- became Aida's and Ricky's close friend. From the beginning, Tony, who was also married, was in love with Aida and when he saw she had become thoroughly disenchanted with Ricky, he courted her. For the first time in her life, Aida fell in love. They left their spouses, flew to California, and were wed by a judge.

They returned to the Philippines, lived together for 17 years, and had five children. They, however, also had a stormy relationship. Tony continued to see other women, and they eventually separated.

In 1994, after 24 years of separation, Aida and Tony were married by a judge in Manila, with their children as witnesses. Right after a celebratory lunch, Tony and Aida went to their separate homes. They married not because they loved each other, but because their legal spouses had died and they wanted to legitimize their children under Philippine laws.

Aida and Tony are my parents.

Now that the Senate Bill filed by Rodolfo Biazon and its counterpart House Bill filed by Bellaflor Angara Castillo, which push for the legalization of divorce, are being debated in congress, I find it all rather academic. The reality is, with or without a law, a significant number of Filipinos are forging unions, separating and forming new unions. My mother's story is simply a case in point.

According to Evalyn Ursua, former Executive Director of the Women's Legal Bureau, feminist lawyer and advocate of women and children's rights, the separation of couples is so common that many lawyers, in fact, have built their practice and earn lucrative incomes simply from handling cases involving the declaration of nullity of marriages. "People will separate regardless of what the law says," she avers, "when a marriage is over, it is over and no law can make it otherwise."

Atty. Ursua goes on to say that we, in fact, have a de facto divorce law in Article 36 of the Family Code. This provision states that a marriage can be voided if one of the contracting parties is psychologically incapacitated to perform the essential marital obligations, even if this incapacity surfaces only after the marriage is contracted. The Supreme Court has come up with guidelines on the interpretation of Article 36, but the law is subject to abuse because of the broad concept of psychological incapacity.

Atty. Ursua shares that some members of the Philippine Psychiatric Association have, in fact, expressed concern about how the field of psychiatry has been corrupted by the forensic requirements in Article 36 cases. According to her, the concept of psychological incapacity, as interpreted by the Supreme Court, doesn't exist in psychiatry, but psychiatrists are made to, and do use it, to nullify marriages. Little wonder then that some psychiatrists refer to Article 36 as the cottage industry of their colleagues.

Yet, according to Atty. Ursua, Art.36 has given a lot of people another chance at happiness as it is the only way in the Philippines to legally get out of a marriage. Although not many people can afford to go through Art. 36 proceedings (payment for both a lawyer and the psychiatric evaluation cost quite a sum), it has provided couples, particularly abused women, a remedy.

One basis for divorce as spelled out in the pending House Bill is repeated physical violence directed against the petitioner or the common child -- a relatively common occurrence, according to existing data.

Two organizations working with abused women -- Lihok-Pilipina and Combat-VAW (Violence Against Women) -- estimate that domestic violence affects 6 out of 10 women in the Philippines. A 1994 nationwide survey reports that 10% of interviewees had been physically harmed by someone close to them, while 3% were physically harmed while pregnant.

President Arroyo and Cardinal Sin, however, have strongly called for the rejection of the divorce bills, claiming them to be "un-Filipino, immoral, unconstitutional and a danger to the Filipino family."

The good Cardinal adds, "The strength of the nation is in the family. Destroy the family by a bill like divorce and all other values will come crumbling down ... Divorce will bring more spiritually impoverished children because their spiritually impoverished parents do not like to keep their marital commitments."

Atty. Ursua has a different take. She says, "I believe the harm on children is even worse when two people are at each others' throats, obviously very unhappy, but stick together for the sake of the institution of marriage. I believe they can be better parents if they confront their issues -- especially if these seem to be irreconcilable. But good parenting should not stop with marital separation or divorce. In fact, it can even be enhanced."

On the charge that divorce is un-Filipino, Rep. Castillo has pointed out that divorce has historical precedence and has been practiced by various ancestral tribes in the Philippines such as the Tagbanwas of Palawan, the Gadangs of Nueva Vizcaya, the Sagadas and Igorots of the Cordilleras, the Manobos, Blaans, and Muslims of the Visayas and Mindanao. .

Atty. Ursua also pursues this point and argues, "In a position paper drafted on this issue, we talked about unequal protection before the law. Muslims have divorce under the Muslim Code of Personal Laws but we non-Muslims don't. If the Philippines is a secular, pluralist state, why is it that it recognizes and protects the beliefs of Muslims but imposes a single religious standard on non-Muslims?"

"I think the problem with the Philippine government is that it forgets that we are no longer under the reign of the Pope via the Spanish crown," she continues. "It insists that it remain the guardians of our souls although stated in political terms. The government should leave the moralizing to the church and objectively address the reality of marriages breaking up, of countless Filipinos having families outside of marriages, and all the social issues related to this phenomenon."

Toinette, daughter of my mother, seemed to have imbibed the reality of separation of couples only too well. Growing up in a tight network of families where brothers and sisters have different parents, Toinette decided that, in spite of the fact that she married a good man, marriage for her can only happen in a context where divorce is possible. Thus, she married in the United States.

Toinette and her husband, who have no children, have managed a cross-Atlantic marriage for the last ten years -- he based in the States, she in the Philippines -- with a lot of visits for each of them in between. But they are both proud of their marriage. "I think my marriage is one example that, despite the option of divorce, if two people love each other and are responsible enough to commit, they stay together, " she says.

Aida, who has raised ten children and has outlived all her three husbands, is now 79. A devout Catholic, she has this to say, "Divorce should be allowed in the Philippines because it gives all of us another chance at happiness without sacrificing the legitimacy of our children."

When asked how she reconciles this belief with the contrary stand of the Catholic Church, she says, "I believe that our God is a very understanding and loving one. He wouldn't wish unhappiness on any one of us. If you have been abused, why stay in a marriage?"

Knowing whereof she speaks, how can anyone argue with that?