Saturday, August 24, 2019

Divorce: "Before Spain, we had divorce. After Spain, we had divorce for 32 years. Muslims never stopped having the option and some of our indigenous peoples still practice it. Indeed, divorce is NOT alien to Filipinos as claimed by some...."

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Divorce in the Philippines: Then and now

by Elizabeth Angsiocoposted August 17, 2019 at 12:40 am 

"It is most definitely not a foreign concept to Filipinos."

Divorce, is again a hot topic these days with the filing in both Houses of Congress of bills that will bring divorce back to the country. Yes, you read it right. We had divorce laws before despite not having it now.

We have heard senators express views against divorce on the basis of Filipino culture. They say that divorce is a foreign concept, it is not Filipino.

Yet, we had divorce-like practices before the Spaniards colonized us. These practices are mentioned in several pieces of literature on pre-colonial Philippines. In fact, such are still being practiced by some of our indigenous peoples.

Also, Filipino Muslims did not lose this option under the law unlike their Christian counterparts. On June 18, 1949, the divorce law was repealed by The Civil Code of the Philippines. However, RA 349 was enacted in the same month allowing absolute divorce for Muslims in non-Christian provinces. In 1977, Ferdinand Marcos, incorporated this in PD No. 1083, “A Decree to Ordain and Promulgate a Code Recognizing the System of Filipino Muslim Laws, Codifying Muslim Personal Laws ...” Thus, Muslim Filipinos have continuously had divorce as an option to dissolve marriages.

The Spaniards must have been shocked at the “liberal” practices of the people they found here when they arrived. So they instituted Las Siete Partidas, the law that only allowed relative divorce, or legal separation. This is the same law we now under which couples may be allowed to separate in terms of abode and properties WITHOUT invalidating their marriage. This means that neither party can legally remarry.

After the Philippine-American War, Siete Partidas was supplanted by Act. No. 2710, or the “Divorce Law” by the Americans on March 11, 1917. Absolute divorce, the law that nullified valid marriages, was allowed on grounds of adultery on the part of the wife, and concubinage by the husband.

Even at that time there were already those advocating for a more liberal divorce law. Governor General Francis Burton asserted that the grounds were too restricted and impractical. Associate Justice Fisher of the Supreme Court wrote a series of Articles in Manila Daily Bulletin saying that the law was inconsistent with the modern problems of Filipino families. They wanted a more relaxed law on divorce.

Eventually, a movement for easier divorce law composed of Filipinos emerged. Senators Camilo Osias and Benigno Aquino favored a more liberal law. They filed bills that were passed by both Houses of Congress only to be vetoed by the Governor General then. Since the bills were passed by a Congress of Filipinos, one can say that that Congress favored a liberal divorce law.

Then the Japanese came. Act. No. 2710 was supplanted by Executive Order No. 141 on March 25, 1943, through the Chair of the Philippine Executive Commission with the approval of the Imperial Japanese Forces in the Philippines. EO No. 141 allowed absolute divorce based on 11 grounds: adultery and concubinage; attempt on the life of one spouse by the other; a subsequent marriage by either party before the previous one was dissolved; loathsome contagious diseases contracted by either spouse; incurable insanity; impotency; repeated bodily violence by one against the other; intentional or unjustified desertion continuously for at least one year; unexplained absence from the last conjugal abode continuously for at least three years; and slander by deed or gross insult by one spouse against the other. Again, this liberal law came into effect in 1943, some 76 years ago.

After the Philippines was “liberated” by the Americans from Japan, General Douglas MacArthur as the Commander-in-Chief proclaimed that all laws shall revert to those that were valid during the Commonwealth era. This meant that on Oct. 23, 1944, EO 141 was again supplanted by Act. No. 2710. The divorce law was again more restrictive. Still, there was divorce.

Again, there were attempts at liberalizing the law. In 1946, bills were filed by Congresspersons Hermenegildo Atienza (uncle of Buhay Party-List Representative Lito Atienza, a most vocal opponent of the present divorce bills), and Marcos Calo for this purpose.

The subsequent drafting of the Civil Code of the Philippines in 1947 became the major arena for a more relaxed divorce law. Again, the fight was led by Rep. Atienza who was proposing amendments to the draft of the Civil Code that totally scrapped divorce up until the very last minutes before it was adopted.

The Catholic lobby was very strong then. They succeeded in having Title IV on Divorce totally deleted and again replced with Legal Separation. Interestingly also, the Chair of the Code Commission Jorge Bocobo, wrote in a newspaper that the divorce law was not liberalized despite the favorable sentiments of a good number of the Commission members because this was requested by the late President Manuel Roxas. Roxas passed away due to a heart attack in 1948.

Thus, June 18, 1949, the day when The Civil Code of the Philippines was adopted marked the demise of the divorce law in the Philippines for non-Muslims and those not practicing indigenous customs.

Still, soon after its adoption, Senator Vicente Y. Sotto (the grandfather of the present Senate President Tito Sotto, another staunchly anti-divorce legislator) introduced a bill that would allow absolute divorce with grounds that were more liberal than the American era Act. No. 2710. Unfortunately, Sen. Sotto passed away on May 28, 1950 at the age of 73.

In recent history, other legislators filed bills that could have legalized divorce. Former Rep. Manuel Ortega filed HB No. 6993 in 1999, Sen. Rodolfo Biazon filed SB No. 782 and Rep. Bellaflor Angara-Castillo filed HB No. 878 in 2001. Since then, divorce bills have been subsequently and repeatedly filed by other legislators.

Last Congress, the House of Representatives passed on Third and Final Reading a liberal bill on absolute divorce filed by Representative Edcel Lagman. However, the Senate did not move on this. This Congress, bills have again been filed in both Houses. One of the former champions in the House who is now back in the Senate, Sen. Pia Cayetano, filed her bill and is expected to work hard for its passage.

Before Spain, we had divorce. After Spain, we had divorce for 32 years. Muslims never stopped having the option and some of our indigenous peoples still practice it. Indeed, divorce is NOT alien to Filipinos as claimed by some. It is time to re-enact a progressive divorce law.

(Those interested may read “History of Divorce Legislation in the Philippines since 1900” by Deogracias T. Reyes, the main reference material for this piece.)

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