Copying other's mistake - A Law Each Day (Keeps Trouble Away)

One salutary effect coming out of the proposed bill legalizing divorce is the continuous debate and seemingly unending discussion about its pros and cons. At least people are now taking time to have a closer look at this device being foisted on our society as a panacea for the problems of individuals who, by their own subjective evaluation, believes that they could no longer endure the plight of their rocky marital relationships.

And so, according to the proposed bill, if one of the spouses to a validly existing marriage (1) commits repeated physical violence or grossly abusive conduct against the other spouse or their common child, or the separate adopted or natural child of the other spouse; (2) attempts to corrupt or induce the other spouse or their common child or the separate natural or adopted child of the other spouse to engage in prostitution or connives in such corruption or inducement; (3) exerts physical violence or moral pressure to compel the other spouse to change religious or political affiliation; or (4) has been convicted by final judgment to imprisonment of more than six years, even if pardoned; (5) is a drug addict or alcoholic; (6) or a lesbian or homosexual; (7) has contracted a subsequent bigamous marriage whether in the Philippines or abroad; or (8) has committed sexual infidelity or perversion; or (9) attempts to kill other spouse; or (10) abandons the other spouse without justifiable cause for more than one year, the other spouse to such marriage can ask for the dissolution of said marriage, thru absolute divorce.

Under existing laws, the above enumerated acts or conditions only constitute grounds for the innocent spouse to file a petition for legal separation. In legal separation, the spouses are no longer required to live together, observe mutual love and respect nor are they obliged to give mutual support except that the court may order the guilty spouse to support the innocent one if the latter needs such support. Legal separation also dissolves the absolute community or conjugal partnership of property but the guilty spouse shall have no right to any share in the partnership or community property which shall be forfeited in favor or the common children of the spouses, if any; if none to the children of the guilty spouse by previous marriage; or there being no other children, to the innocent spouse. Moreover the offending spouse is disqualified from inheriting from the innocent spouse and if there are provisions in the will of the innocent spouse in favor of the guilty spouse, such provisions are revoked by operation of law. The innocent spouse is not even entitled to the legitimate. Custody of the minor children and parental authority shall be awarded to the innocent spouse but no child under seven years shall be separated from the mother unless the court finds compelling reasons to order otherwise. The choice of the child over seven years of age shall be taken into account by the court unless the parent chosen is unfit. In any case, the question of custody of children shall be resolved by the court by giving paramount consideration to the moral and maternal well-being of the child with appropriate visitation rights of the other parent.

Legal separation therefore already gives the wronged spouse a way out as it effectively severs all attachments with the offending spouse, while at the same time providing for the much needed support or alimony that extends to the children if any. In fact even upon the filing of the petition for legal separation, the innocent spouse can already have a domicile or residence independently and separately of the guilty spouse so that the latter has no more right to sexual intercourse with the innocent spouse giving rise to criminal liability for rape if the offending spouse forces the innocent spouse to have sex. It is basically similar to absolute divorce except that in legal separation the marriage bond is not dissolved so the obligation of mutual fidelity remains. That is why it is also called relative divorce. This means either of the legally separated spouses may still be convicted of the crimes of adultery, concubinage or bigamy.

And it is precisely because legal separation does not dissolve the marriage bond that makes it an alternative better than absolute divorce which dissolves the marriage. Legal separation gives a solution to the problems of individuals entangled in messy conjugal union without wrecking havoc on a social institution which the state considers as an inviolable social institution. It concentrates on the individuals and not on the institution of which some individuals with problem marriages are but a small fraction.

Absolute divorce on the other hand destroys that institution itself by dissolving the marriage and allowing the innocent and guilty spouses to remarry. Dissolving the marriage bond sets not only the innocent spouse but also the offending spouse free from his or her commitment of fidelity which would bigamy or polygamy for having illicit affairs or for contracting subsequent marriages. It is in effect rewarding the offending spouse who commit acts in violation of a solemn pledge thus encouraging instead of dissuading said spouse to commit these acts. A husband for example, who wants to renege on his commitment or who is already fed up with his wife can simply cause repeated physical harm on her or abandon her as to create a divorceable situation. At the very least, absolute divorce provides an easy way out of the marital commitment so that couples will no longer exert any effort or strive to make the relationship work. In America where absolute divorce is allowed almost 50 percent of marriages end up in divorce.

The more devastating effects of divorce are the resulting remarriages that also generally end up in divorce. Remarriage exposes even the innocent spouse to mistakes that compounds the emotional and psychological scars. Remarried couples divorce, remarry and divorce again in a continuous search for success elsewhere which becomes more elusive next time. This redundant process leaves many broken marriages and families in its wake. This runs counter to the constitutional mandate that marriage as an inviolable social institution shall be protected by the state and that family solidarity shall be strengthened and its total development, actively promoted.

So let's just stick to legal separation or relative divorce. Introducing absolute divorce leads to dire consequences as shown by the experiences in other countries. They are now painfully realizing their mistakes. Let us not duplicate that mistake here.

Atty. Sison's e-mail address is: [email protected]