Family Code provides recourse for troubled marriages
We are talking about divorce again. To begin, let us be clear about what we mean by divorce. By it we understand the dissolution of the marriage bond that is brought about by the decree of a civil court or judge following the conditions and procedures stipulated by civil law.
The principal idea behind divorce is that the civil authority has the power to dissolve the marriage bond which was created by the matrimonial consent of the spouses.
Very frequently in the news reports about this issue we can read the comment that only the Philippines and the Vatican have no laws legalizing divorce.
One can almost sense undertones of derision and sarcasm in such statements.
Or else they are saying: Hey Philippines, wake up! You’re still in the dark ages! Catch up with the present times! You’re left behind!
But are we?
I just wonder why these people have such a penchant for imitating other countries that have a divorce law. I think it is all right to imitate best practices, but not this one.
We should rather be proud because we are unique. Our present laws already reflect an advancement in the way we think about marriage and divorce.
Our present Family Code does not allow divorce, but it provides recourse for marriages that are irreparably destroyed. It is well known that it provides for declaration of nullity (DON) and separation. DONs are not the same as divorce. Our Family Code reflects the law of the Catholic Church or Canon Law.
DONs express the fact and truth that a certain purported marriage bond did not exist from the beginning because of certain defects in the persons contracting marriage and/or in their consent; in effect, the bond was not created.
The result is that there was really no marriage between them and should they wish, they are free to marry others once they receive the declaration. Separation just means the spouses do not live together but the marriage bond remains.
What our present law presupposes is the idea that the civil authority does not have the power to dissolve the marriage bond. In this way it respects the sanctity of marriage and protects it.
Marriage is, thus, regarded as a natural institution that transcends and exists before any civil authority. I find the people who claim they have the power to dissolve a marriage rather arrogant. Who do they think they are? Did they create the institution of marriage? Do they have the right and the power to tamper with it?
We should be proud of our present laws about marriage and the family. They effectively protect the interest of the spouses and children. They are realistic in realizing that the civil authority does not have the power to dissolve a marriage.
Another argument to favor the divorce bill is that DONs are so tedious and expensive and only the rich can afford this; divorce is propoor. This is a fallacy because DONs need not be long and expensive and also we do not know if divorce proceedings will be fast and cheap.
As we all know everything depends on the judge and the lawyers. Pope Francis wants processes of DONs in the Church to be speedy and free of charge.
Let’s see when the Church implements that directive. One thing that civil law can do is to recognize the civil effects of DONs pronounced by the Church just in the same way the civil law recognizes the civil effects of marriages solemnized in the Church.
In this way, there is no need for a double process: civil and ecclesiastical. The poor will benefit and we eliminate one more channel for corruption.
FR. CECILIO L. MAGSINO, [email protected]
