Proponents of divorce as a solution to spousal abuse cite the difficulty of obtaining a civil declaration of nullity of marriage.
The process does need reform. Getting marriage nullity declarations from courts would be easier if the provisions of the Family Code (FC) on void and voidable marriages resembled their counterpart provisions in the Code of Canon Law (CCL) more.
Law students hear that the Catholic Church influenced the drafting of the FC, making its provisions “oppressive.” But the FC provisions on void and voidable marriages were, in fact, not influenced enough by the CCL. This is unfortunate for many who otherwise would have cases for obtaining marriage nullity declarations.
The CCL has more, not less, grounds for nullity of marriage. It recognizes “grave lack of discretion of judgment concerning the essential matrimonial rights and duties, which are to be mutually given and accepted” (often shortened as “lack of due discretion”) as a ground for nullity. By contrast, the FC does not.
Furthermore, under the CCL, marriages are either valid or void, never voidable. Marriages that are voidable under the FC are simply void under the CCL.
While a petition to annul a voidable marriage must be filed within five years from the discovery or disappearance of the ground or from the marriage, as the case may be, a petition to declare a marriage void may be filed any time.
For example, under Article 45 (4) of the FC, a marriage where the consent of either party was obtained by force, intimidation, or undue influence is voidable. The petition to have it annulled must be filed within five years from the disappearance or cessation of the force, intimidation, or undue influence. After five years, the only way to have the marriage declared void is the famous Article 36, with the need for the testimony of fee-charging experts to prove psychological incapacity.
If such marriages were void instead of voidable under the FC, the petition may be filed even more than five years. This happens in canon law, where the grounds for the declaration of nullity of marriage do not lapse with the passage of time, and can be alleged any time. And all that would be needed is proof that the marriage was obtained by force, intimidation, or undue influence.
More: While Article 45 (4) of the FC states “force, intimidation, or undue influence,” Canon 1103 of the CCL states “force or grave fear inflicted from outside the person, even when inflicted unintentionally, which is of such type that the person is compelled to choose marriage in order to be freed from it.” This is broad enough to encompass shotgun marriages, as well as marriages contracted because of threat of shame due to an out-of-wedlock pregnancy, or fear of displeasing one’s parents who arranged the marriage.
There are more reasons why the CCL is more flexible than the FC with regard to marriage nullities.
Indeed, the CCL is based on a holistic view of the person, and of marriage with its specific nature and telos. Thus, the CCL provisions on void marriages are internally consistent and “just right”—protecting marriage, while providing solutions to putative marriages that are marriages in name only.
Divorce inflicts heavy costs on society and is unnecessary. Most of the extreme cases cited by divorce proponents are cases of either void or voidable marriages (in FC terminology), which are invalid ab initio (in CCL terminology). The reason such unions appear irreparable is that often, there was no marriage to begin with: either because of an inherent lack of capacity for marriage on the part of one or both parties, or a defect in the consent that is at the heart of the marriage covenant.
It is said that “what God has put together, let no man put asunder.” The converse is also true: What God has not put together (the case of a marriage that is invalid ab initio), should also not be forced to remain in force purely on legalistic reasons—i.e., that the marriage contract is in force. What is needed is a more efficient way to have such a defective contract declared invalid ab initio, rather than legalizing divorce, which is nothing but the recension of a valid marriage contract to satisfy the minority cases of spouses who choose not to honor such a covenant.
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Fr. Jaime B. Achacoso, a canon lawyer and a Catholic priest, holds a doctorate in canon law from the University of Navarra in Spain. Cristina A. Montes holds law degrees from the University of the Philippines and the University of Navarra.