Church and State: Till death do they part

Nothing is written in stone. Even Rome, in whose interest Jesus was tried and crucified, would become the capital of Christianity. And while the Philippines may be the only sovereign nation in the world today where divorce is illegal in its lex generalis, that, too, may soon change.

But not all divorces are made equal. Pending before Congress are House Bills No. 78, 1021, 1593, 2593, 3843, 3885, 4957, and 4998—all recently approved by the House committee on population and family relations—and all of which seek to incorporate divorce “proper” in Philippine “general” law.

The reasons for the qualifications “proper” and “general” is by the fact that the Philippines does have iterations of legal divorce hidden within the legal medley. Executive Order No. 209, s. 1987 (the Family Code)—the general law that regulates persons and family relations—incorporates two kinds. The first is “relative divorce,” which is codified through Article 55 on legal separation. Here, spouses may obtain a judicial decree for a disunion a mensa et thoro, where the marital bond subsists notwithstanding the suspension of common marital life. This “involves nothing more than the bed and board separation of the spouses. (Sy v. Eufemio, G.R. No L-30977)

The second is a “de facto divorce“ law through Article 36. Due to pressures from the Catholic Church, then President Cory Aquino incorporated Article 36 into the Family Code as a substitute for divorce. Here, spouses may declare the marital bond void ab initio on the obscure and sweeping basis of “psychological incapacit[y] … to comply with essential obligations of marriage.” The Supreme Court itself has, on numerous occasions, recognized the scriptural bases of this proviso. In Republic v. Molina (G.R. No. 108763), the court ruled that “what is decreed as canonically invalid should also be decreed civilly void.”

Thus far, I’ve shown how Philippine legal order incorporates “divorce in sheep’s clothing.” Yet, in the Code of Muslim Personal Laws of the Philippines (CMPL), it is made explicit.

The CMPL was enacted by President Marcos Sr., in 1977, via Presidential Decree No. 1083 to extend a proverbial olive branch to the secessionist movement southside. Unlike the Family Code, the CMPL allows for divorce as a right of both husband and wife under Title II of the CMPL. Article 13 therein reads: “The provisions of this Title shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines.”

Interestingly, Article 13 has been interpreted by the Supreme Court to mean that the CMPL only applies to marriages under Muslim rites. (Tamano v. Ortiz, G.R. No. 126603). I disagree. Notice the comma placement: Divorce may be obtained under two separate scenarios: (i) where both parties are Muslims, or (ii) in interfaith marriages where the husband is Muslim and the couple was married under Islamic rites. Statutorily, the “Islamic rights” requirement should only apply to the latter scene.

History shows that the institution of divorce in the Philippines is largely a story of compromise. Now, the sponsors of the pending divorce bills would like to make it appear as if they are progressives who are stepping away from traditionalist religious views. Alas, that is not always the case.

The divorce bills may be respectively placed under one of three categories: (i) civil divorce (HBs 3885, 4957, and 4998), (ii) church nullity (HBs 1021 and 1593), (iii) hybrid model (HBs 78, 2593, and 3843). Categories II and III, in seeking to give civil effect to church annulments, ignores Article II, Section 6 and Article III, Section 5 of the 1987 Constitution and breaches the Jeffersonian wall of separation between church and state.

To err is indeed human. From the perspective of nonestablishment, only HBs 3885, 4957, and 4998 would pass constitutional muster. Church nullities and hybrid models are a divine mess.

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