Ban on divorce is creating criminals, sinners (2) | Inquirer Opinion

Ban on divorce is creating criminals, sinners (2)

Opponents of divorce point out that there’s an existing remedy to dissolve marriages that don’t work, so they argue that there’s no need for a new law on divorce. They refer to the Family Code provision allowing the declaration of nullity of a marriage on the ground of “psychological incapacity” of one spouse.

It’s true that the remedy of marriage nullity based on “psychological incapacity” exists for a marriage made in hell. In fact, this remedy is, in reality, equivalent to divorce. For all intents and purposes, it looks, walks, and quacks like divorce because it has exactly the same features as divorce—the spouses can remarry, the rule on property division is the same, and the children are legitimate. The remedy of psychological incapacity was euphemistically termed as declaration of nullity of marriage (the marriage is declared to have never existed from the beginning), because Congress accommodated the strong lobby of religious conservatives who are allergic to the word “divorce.”

By doing so, however, Congress created a legal abomination that has been the cause of so much confusion, suffering, and societal mayhem. It’s a legal abomination because it turns upside down a very fundamental concept of the rule of law which is this—when a relationship or contract is declared null and void from the beginning, it produces no valid effect whatsoever. In the case of a marriage declared void because of psychological incapacity, however, it is void only in name but in all its consequential elements, it was a valid marriage prior to its dissolution by court decision.

It’s a legal abomination because the law is vague on what constitutes “psychological incapacity.” References to the law’s deliberations, canonical practice, and even Supreme Court decisions are of little help because the grounds and their required levels of gravity, are ambiguous. Supreme Court decisions have also shifted and changed. In fact, the Supreme Court has somersaulted several times because of the law’s vagueness. In the beginning, the Supreme Court was progressive and sympathetically open in affirming dissolutions of marriage. Then it turned ultra conservative by requiring the testimony of a psychologist/psychiatrist. And now the high court is back to being progressive by clarifying that the testimony of a mental health expert is not indispensable after all.


It is the vagueness of the remedy that has made it very expensive, and a long-winding and tedious process. Trial courts and lawyers grope in the dark because of the vagueness of the remedy, resulting in prolonged trials that are costly. Sen. Jinggoy Estrada proposes to make the remedy of psychological incapacity affordable and speedy. His proposal will never work unless the vagueness is removed and the requirements are spelled out with specific clarity.

The current divorce bill passed by the House of Representatives shows the way for him. The over-zealousness of anti-divorce personalities to cling to the concept of nullity of marriage (instead of calling it divorce), relies too much on mere terminology as a means of protecting the sanctity of marriage. In reality, however, such reliance on mere words weakens the institution of marriage, if the consequence is to make it difficult for failed marriages to be dissolved.

If we continue branding failed marriages as “nonexistent from the very beginning,” we sweepingly erase the love that blossomed between two imperfect people, the collection of happy memories they shared for years, and the family bonds they created and nurtured—all before everything went awry. The remedy of nullity of marriage is, therefore, even worse compared to divorce because, like a bomb, it is a concept that calls for the total obliteration of even the good things that grew out of marriages that eventually turned sour. Besides, if we say that a marriage is “nonexistent from the beginning,” what do we make of the actual marriage ceremony officiated by a priest, and the marriage counseling that transpired before church officials?

The fear expressed by Sen. Joel Villanueva that a divorce law will lead to a “drive-thru repeal of marriage” is an alarmist argument that trivializes the agony that couples go through before they arrive at the painful decision to dissolve their marriage. The argument imputes sweeping assumptions of bad faith and immaturity on all couples who want divorce. It generalizes divorcing couples as bereft of any capacity to be both rational and sentimental.


The institution of marriage will weaken if we don’t recognize that people commit mistakes. It will wither if we don’t accept that couples may belatedly discover the irreconcilability of their imperfections. As a foundation of society, marriage will be strengthened by a rational mechanism that allows the cleansing of rotten apples from the ranks of marital unions, and that gives unlucky couples a second chance at affirming their faith in the sanctity of marriage.



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