Day in and day out, everyone is watching the operatic confrontation between Comelec Chairman Andy Bautista and his wife, Patricia Bautista. Setting aside the whole question of when domestic tragedy becomes a controversy involving official ethics, I’d like to focus on something else. Overlooked in the whole drama is the question of divorce.

Before the Spanish conquest, divorce existed in our various societies: “Among them were the Gaddang of Nueva Vizcaya, the Igorot and Sagada of the Cordilleras, the Manobos, Bila-ans and Moslems in Mindanao, and the Tagbanwas of Palawan.”

Writing in Philippine Studies in 1953, Deogracias T. Reyes described divorce under Spain. It was governed, he wrote, by Canon Law and the decrees of the Council of Trent, Catholic regulations which were accepted as part of the law of the land by the Spanish civil authorities. Three grounds were recognized:

1. If one spouse wanted to enter a religious order and the other spouse agreed;
2. Adultery on the part of either husband or wife;
3. If one spouse became heretic.

But the result of such a separation was neither the annulment of the marriage nor the marital bond dissolved. He categorized it as relative divorce, that is, legal separation.

With the arrival of the Americans came the separation of Church and State. On March 11, 1917, Act No. 2710 was passed by the Philippine Legislature allowing absolute divorce on two grounds:

1. Adultery on the part of the wife; or,
2. Concubinage on the part of the husband.

In either case, criminal conviction was required first. Governor-General Francis Burton Harrison went as far as publishing an article saying he believed the law was too restrictive. A former Associate Justice of the Philippine Supreme Court, Frederick Charles Fisher, also published an article saying the law was incompatible with the modern problems of the Filipino family –imagine that!—and said the law should be liberalized.

The most sweeping change took place during the Japanese Occupation. Jorge B. Vargas, who was then Chairman of the Philippine Executive Commission which exercised de facto power at the time, issued Executive Order No. 141 on March 25, 1943, which repealed Act No. 2710. It allowed absolute divorce on eleven grounds: aside from adultery and concubinage, it added attempted murder, contracting a marriage with someone else without dissolving the previous marriage, catching a “loathsome contagious disease,” impotence on the part of either spouse –imagine that!—incurable insanity, conviction for a crime with a penalty of at least six years imprisonment, repeated bodily violence to a spouse, desertion for at least one year, unexplained absence from the home for at least three years, and slander to the extent that living together was rendered impossible.

An interesting note is that in the 32 years the previous divorce law had existed, only 200 divorces had been allowed by the court. In the two years the new law was in place, the number rose to 600 divorces.

But with the return of the Americans and the restoration of the Commonwealth came a decree declaring all laws issued during the Japanese Occupation null and void. So, Act No. 2710 came back into force.

Still, some people kept pushing to liberalize the divorce law. Congressman Hermenegildo Atienza—father of Lito Atienza, who is now party-list representative essentially of the Catholic party—was the first proponent of the abolition of divorce. On June 24, 1946 he filed a bill to remove the requirement for a criminal conviction prior to a divorce. A Code Commission established by President Roxas to revise the even-then antique Civil Code, considered liberalizing divorce, but Roxas asked the commission not to go into it because, as former UP President Jorge Bocobo explained, the president didn’t feel the country was prepared for a great division on the issue. But the cat was out of the bag. Public hearings erupted in emotional debate. Catholics appealed to their representatives to abolish divorce.

In 1949, Teodoro M. Locsin, writing in the Philippines Free Press, chronicled how this happened. The proposed Civil Code reached Congress, and Catholic civic groups leaped into action. In April, 1949, telegrams flooded members of Congress. Bishops weighed in, “broadly hinting,” as Locsin reported it, that congressmen and senators who liberalized divorce would suffer defeat in the coming November elections. The bishops said they were okay with the divorce law as it existed, but under no circumstances would they consent to liberalizing its requirements.

Locsin wrote that the response of lawmakers to this was to be more popish than the Pope: not only would they not liberalize the divorce law, they would go further and repeal the divorce law altogether! The ball got rolling with Rep. Lorenzo Sumulong filing a bill in the House. Locsin’s description of how a bad law was going to be made worse by the new law, is worth quoting in full.

“Under the present law,” Locsin observed, “a man may secure a divorce from his wife only after sending her to prison for adultery. He must send her to prison; he must feel no pity, grant no mercy, if he is to be free of her, and free to marry again. In the case of the woman, she must send her husband to prison for concubinage if she would be free to remarry.”

Now “Under the proposed law,” Locsin added, “abolishing absolute divorce, a man must not only be without pity and send his adulterous wife to prison if he would be rid of her and be able to remarry. He must harden his heart, plot and plan; lay a trap for his wife, catch her in the act of adultery and shoot her to death. He must kill.”

Locsin added, “If the husband of an adulterous woman hesitates to kill, then he must condemn himself to a life of perfect celibacy for the next 20, 30, 40 years. He must suppress all natural desires, he must be perfectly chaste. He is expected to be, under the proposed law abolishing absolute divorce. For the alternative would be to get himself a querida, which it is certain neither the Catholic Church nor our congressmen would countenance, or to take his faithless wife to himself again, to be, in short, as the Spaniards put it, a pendejo consentido.”

Locsin closed by quoting scripture” “It was St. Paul who said,” (he wrote) “‘Better to marry than to burn.’ Under the proposed law abolishing absolute divorce, a man who is the husband of an unfaithful woman must kill, or remain a cuckold.”

But, of course, votes matter so Congress in its political wisdom abolished divorce, except for one part of the population –Muslims. For everyone else, it condemned couples wanting out to living out a sham. As Locsin wrote, “when a wife becomes adulterous, or making of her marriage vows a joke, or when a man takes a mistress and openly lives with her and keeps her under circumstances ‘scandalous,’ the family may continue to exist, but in name only. Its foundations are gone, it is an empty temple, a mockery and a sham. Nothing remains of the ties that had once bound a man and a woman together. There is only a festering sore.”

To be sure our laws, similar to Catholic doctrine, allows annulment. But consider the grounds for annulment under our laws. There are six: the absence of parental consent, mental illness, fraud (meaning consent to marry was obtained by deception), marriage resulting from intimidation, force, or undue influence, physical incapacity to consummate the marriage, or having an STD at the time of marriage. Infidelity, by the way, is not considered grounds for annulment.

What this tells us that to the stress and disappointment that accompanies the collapse of a marriage must be added conditions that permanently disgrace one of the parties concerned. A case can be made that our laws make a battle between two spouses wanting to end their marriage, a battle to the death, maybe not physically, but in terms of their standing before the law and therefore, society.

Since at least 2005, the times have been a-changin’ with divorce bills being filed in Congress. If, before 1949, our legislators were more committed to the separation of Church and State, then perhaps our present era marks a return to a more secular time. Or at least, one in which Bishops have lost their veto power over legislation. I’m reminded of a story, perhaps apocryphal, about Ferdinand Marcos. It’s said that whenever he thought Catholic bishops were being too independent, he would call them to a meeting, open his drawer, and pull out a divorce decree.

But you see, while an enjoyable story, typically Marcos had it all wrong. Lost in his behavior and those of politicians since 1949 has been the public good –what couples reaching the end of the road in terms of marriage deserve. Sympathy, not judgment, under the law.