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Divorce means freedom? Not really. Nor is it free.

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Posted on April 23, 2015 11:23:00 PM

There is a near universal consensus that divorce is a good thing to be had in the Philippines. Many surveys claim that a majority of Filipinos are in favor of divorce laws. And the Philippines, after all, is one of only two countries in the world that still do not allow for divorce. But near 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 not serious. 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 among the world’s best for a woman to live in, fourth in the world with most women managers (including the media), had two women presidents, a presiding Chief Justice (with associate justices), and numerous members of Congress.

Instead, this article seeks to put forth preliminary thoughts on one argument 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 that 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 any way they want to privately pool their resources, bring up their children, use 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, a 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?

Now relate that in economic and development policy terms: can one logically create a stable, prosperous society (i.e., necessitating planning, assembling assets, collecting wealth, training youth) whose foundation is built on a multitude of contracts designed (and at the time of entry, agreed) to be permanent but in actuality 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 position is misguided.

The government never is neutral. And when it inescapably chooses a side, it 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, the government’s divorce stand (advertently or not) supports the probability of increasing divorce cases (by one account, as much as 88%), divorce cases that the government will need to enforce, monitor and regulate for years (even decades) — the costs to be charged not to the divorced couple but through taxes paid by the greater majority of married Filipinos.

The foregoing treads alongside the context of 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. Two, there is a need for people to appreciate a better meaning of “freedom.” And three, despite people’s strong denial of it, marriage is more permanent than is realized.

Jemy Gatdula specializes in international economic law (WTO and ASEAN), and teaches international law and legal philosophy at the UA&P School of Law and Governance.

jemygatdula@yahoo.com

www.jemygatdula.blogspot.com

Mr Gatdula is also on Facebook and Twitter.

 

Source: Business World Online:

http://www.m.bworldonline.com/m_content.php?section=Opinion&id=106727

 

 

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