My dear friend and colleague, Judge Selma Alaras, recently posted on Facebook, an article by an American immigration lawyer that is certainly of interest to the many Filipinos looking forward to crossing over to “the land of promise,” leaving behind troubled lives and dysfunctional marriages. The article rightly assured the migrating Filipina that she need not worry about applying for and obtaining a decree of nullity before our Philippine courts. Once in the US, he wrote, she could divorce her Filipino husband and wed her American boyfriend—and by contrast to nullity proceedings in the Philippines that could take forever, American divorces on such a common ground as “irreconcilable differences” can be favorably resolved in a matter of months. What the article’s author failed to mention, however, are the complications attending this route. If she files for divorce from her husband before a US court before she becomes a naturalized American, that divorce will have utterly no currency in the Philippines. The result is that her spouse may very well charge her with the crime of bigamy. Worse, it will not deprive her spouse, left in the Philippines, of the rights of administration and co-ownership over the community property—because insofar as this jurisdiction is concerned, they would still be married. Should she subsequently obtain naturalization as an American, then, by a jurisprudential interpretation of the Family Code, the divorce would have the effect of freeing her own spouse here from the matrimonial bond, leaving him free in turn to remarry. Should there be children by the first marriage, that would put in an added complication!
While, often, law professors in the Philippines will point to the difference between a US divorce at the instance of an American spouse and one petitioned by the Filipino spouse, there is one matter that does not receive sufficient attention. It is blackletter law that when the American petitions for and obtains a divorce against a Filipino spouse, the decree of divorce, once recognized in this jurisdiction, enables the Filipino spouse to re-marry. By contrast, when it is the Filipino spouse who applies for the divorce, the decree will not have any effect in this jurisdiction insofar as the marriage is concerned. There is however the principle of private international law that status is determined by national law, a principle the Supreme Court applied in the landmark case of Van Dorn v. Romillo. And so, if a Filipino obtains a US divorce against an American spouse, while that divorce may not be recognized in the Philippines it will have the effect of changing the status of the American, because his or her status will not be reckoned by Philippine law but by US law. One will then reach the curious result that while the divorce obtained by the Filipino against an American spouse is not recognized in the Philippines, the American spouse will, by the laws of the US, no longer have the status of spouse to the Filipino!
There is very strong legislative support for the bill that introduces divorce to the Philippine legal system—after decades of being kept at bay! I have, in fact, very little doubt that Congress will pass the divorce law. Not that I approve of it but the argument—actually fallacious—that we are the only state, besides the Vatican (quite obviously!) that does not allow for divorce seems very persuasive to many of our people who have quite regrettably been habituated to sophistry! The argument is often advanced that it is pointless, if not heartless, to force persons into a union that has become hurtful, dysfunctional if not destructive. If this is the argument, it clearly will not do because we have ample provisions on the nullity of marriage, its annulment or legal separation, not to mention the protective provisions of the Violence Against Women and Their Children Act that more than sufficiently take care of these hurtful and pernicious cases. The real point seems to be that is the prevailing, underlying ethos of the age that no one should be enslaved by life-long promises or vows. It is in the same spirit that the Catholic Church’s insistence on the life-long celibacy of its priests has been characterized as obsolescent if not ‘unnatural’.
Paradoxically however the very same freedom that the advocates of divorce and the opponents of life-long vows and promises so strenuously champion is what is compromised by this advocacy! The promises made in marriage—as in the Sacrament of Order—are acts of supreme freedom. They are the deliberate and free determination of an otherwise indeterminate future. The choice of a possibility always entails the rejection of others. Whether at the table or at life, one cannot have his cake and eat it too! Similarly, one when enters into a marital union, one chooses a spouse and foreswears all other unions and liaisons. It is the same thing with the promise to give one’s life in the service of God’s people and the Church. It is an extremely difficult promise, but it is certainly not impossible, failings and failures notwithstanding! Allowing for divorce is allowing one to go back on one’s promises and to negate the power and efficacy of a supreme act of human freedom!
Yet, human society and its flourishing depend on certain promises being kept in perpetuity: such as the promise of parents to care for their children, and the promise of citizens to abide by law, and the promise of humankind to respect and hold sacred human life.
In the end, it is not only the expediency by which one can dump a spouse and pick up another that is at stake in the divorce debate, but the human capacity of make binding decisions and free choices that determine an otherwise open-ended future, and to make of it a future shaped by human intellect and will!