Divorce will just make unhappy couples (and everyone else) more miserable

There is a quite obnoxiously loud, albeit very misguided, claim that a divorce law would be good for the Philippines. A number of surveys even assert that many Filipinos favor a divorce law. The Philippines, after all, is one of only two countries in the world that still do not allow for divorce. But even unanimity does not make right. There was a time when everyone thought the world was flat.

The arguments for divorce are varied and multi-layered. But many, to be frank, are stupid. Some want divorce simply because the Catholic Church is against it. Others’ motivation is hatred for the so-called “patriarchy.” Which is silly.

The Philippines ranks amongst the world’s best countries for a woman to live in, the 4th in the world with most women managers (including the media), it has had two women presidents, a former Supreme Court chief justice (with associate justices), and numerous members of Congress.

Instead, this article seeks to put forth preliminary thoughts on one argument that relatively worthy of consideration: the idea of divorce as embodying people’s “freedom to choose.”

On “freedom,” so the argument goes, people should have the right to decide how to go about their lives. By not having a divorce law, unhappy married couples are forced to be stuck together or have to go through the more difficult, more expensive “annulment” process. A divorce law, so it is said, makes it easier for people to get out of the married state, faster and cheaper, and to get on with their lives as quickly as possible.

Only, that’s not how reality works.

There are two avenues for divorce currently being proposed: the “fault” divorce (e.g., those related to legal separation or psychological incapacity) and “no-fault” divorce (i.e., “irreconcilable differences”). Both require they be proven in court, without collusion between the parties as certified by the State. These require expenses related to gathering evidence and legal representation, all quite similar to the annulment process.

But even assuming the proposed “no-fault” form of divorce does result in the quicker grant of divorce decrees, every divorce inevitably results in the need to give alimony or support, as well as (if there are children) the matter of visitation rights.

And this is where the “freedom” argument goes awry: whereas ordinary married couples are generally free in any way they want to privately pool their resources, bring up their children, utilize their assets, and live and work where and how they please without State interference, every divorce decree essentially stems from a public conflict that draws the State in to interfere and control the family’s future: from tracking (and even prosecuting) errant parents, determining the children’s upbringing, regulating visitation, enforcing support, and monitoring the wealth size of the estranged couple.

Furthermore, the “freedom” argument presupposes that both couples agree to the divorce. Anecdotally, the majority of the annulment cases filed were opposed or not agreed to by the non-petitioning party.

Think about that in relation to the proposed no-fault “irreconcilable differences” divorce scenario: if marriage is indeed a contract (albeit, “special” but let’s forget that for now) which both parties freely decided to enter into “until death do they part,” what then is the justification to allow one party to unilaterally terminate that contract?

In other words, where is the freedom of choice for that other “no-fault” party who wants to go on and make the marriage work?

How can one logically create a stable prosperous society whose foundation is built on a multitude of contracts designed to be permanent but suddenly can be unilaterally terminated anytime for any reason?

The final “freedom” argument boils down to this: the government must remain neutral and give couples the individual freedom to divorce.

This is utterly misguided.

The government is never neutral. And when it inescapably chooses a side, such will inevitably affect all Filipinos – whether they be for divorce or not.

If it legislates for divorce, the government essentially chooses a side that overturns centuries of established Philippine marriage tradition.

Furthermore, a divorce law with absolute certainty encourages more marriages to break up. There’s a reason why divorced individuals end up suffering second, third, and more marriages. Divorce is a drug for easy escape.

And divorce is a drug that the government will need to monitor, regulate, and enforce for years (even decades) – the costs charged not to the divorced couple but through tax money paid by the greater majority of married Filipinos.

The foregoing is within the context of a country that already has 58% of its babies born illegitimate, and alongside numerous studies tying divorce rates with depreciated child learning and psychological health, lowered adult productivity, and significant damage to overall economic and social development.

Three other things to note: One, no religious arguments were made here. Second, there is a need for people to appreciate a better meaning of “freedom.” And third: despite people’s strong denial of it, marriage is more permanent than is realized.n

The views expressed here are his own and not necessarily those of the institutions to which he belongs.

Jemy Gatdula is the dean of the Institute of Law of the University of Asia and the Pacific and is a Philippine Judicial Academy lecturer for constitutional philosophy and jurisprudence. He read international law at the University of Cambridge.