Inches Toward a Law That Would Make Divorce Legal
The New York Times
September 29, 2003
SANTIAGO, Chile —
This is the only country in the Western Hemisphere that still
prohibits divorce. But after a 120-year battle, Chile is on the
threshold of approving a law to change that, even though the result
may carry so many qualifications and preconditions that the process
of ending a marriage could become even more complex.
Opponents, led by the Roman Catholic Church and its allies in
the main right-wing party in this nation of 15 million people,
are fighting to have the bill include compulsory mediation, waiting
periods of up to five years and no possibility of divorce unless
both partners want it. In the name of human rights and family
values, they are also demanding that couples be allowed to choose
marriage with a "no divorce" option.
getting a bit complicated, and some of these features are going
to create problems," said María Antonieta Saá,
a member of Congress who introduced the legislation in 1997. "But
in the end, I think we will be able to pass a quite reasonable
bill that will finally give people in Chile an honest and civilized
way to terminate a marriage."
Opinion polls indicate
that 70 percent of Chileans favor legalizing divorce. But the
church hierarchy has been conducting an intense campaign that
includes lobbying members of Congress, especially those from the
centrist Christian Democratic Party, and hinting about excommunication.
not be done is to opt for solutions that imply the destruction
of the notion of the family," Cardinal Francisco Javier Errazuriz,
the archbishop of Santiago, wrote in a pastoral letter called
"Let No Man Tear Asunder," issued in June. "Many
countries have done precisely that," he added, but "their
experience demonstrates that introducing divorce is not the right
After Gen. Augusto
Pinochet's dictatorship ended in 1990, four unsuccessful attempts
were made in this socially conservative nation to give the Civil
Marriage Code its first major overhaul since the 1880's. The lower
house of Congress finally approved a divorce bill in 1997, and
after more than five years of hesitation, the Senate voted last
month, 33 to 13, to take up a committee's recommendation in favor
of the bill.
In an interview here,
a legal adviser to the national conference of Catholic bishops,
Jorge Morales Retamal, said church leaders were resigned to losing
the battle. Their focus now, he said, is to mitigate the damage
and to ensure that the law incorporates provisions that they want,
like civil recognition of religious weddings and the "no
divorce" option, which the law's authors strongly oppose.
"If you say
you respect freedom of religion, why shouldn't the law let us
marry for life if that is what we desire?" Mr. Morales said.
"It's an insurmountable contradiction."
In the absence of
divorce, Chileans have traditionally resorted to subterfuge to
get out of unhappy marriages, including women who seek to be declared
widows after their husbands leave them. The most popular tool,
though, is civil annulment, which requires a couple to go to a
court and say their marriage violated the law — for instance,
that neither of them lived in the jurisdiction where they wed.
Witnesses to a wedding
have also been known to misspell their names or give an incorrect
address so that the couple will have grounds for an annulment.
While some judges refuse to hear such cases out of religious convictions,
most rule that the marriage never formally existed. More than
5,000 annulments are granted annually. Beneficiaries include President
Ricardo Lagos and even some legislators who have expressed doubts
about the divorce bill.
Some supporters of
divorce contend that annulment discriminates against poor or uneducated
couples who cannot afford lawyers, and, indeed, the beneficiaries
are overwhelmingly from the middle and upper classes.
Church leaders seeking
to have an effect on the new law want to broaden the grounds for
annulment, though, which could have the effect of making an annulment
quicker and easier to obtain than a divorce.
"There are people
who are saying that with all the obstacles they are trying to
place on this law, we'd be better off with no divorce and continue
with annulment," said Rosalba Todaro, a researcher at the
Center for Women's Studies here. "I don't agree, but since
the Senate is more conservative than the House, there is a risk
that the final result will be something quite different from what
we have seen."
Even so, the authorities
are bracing for a deluge of divorce petitions once the law goes
into effect, which is expected to happen next year. "There
are thousands of couples who have been separated for years and
want to marry again but can't," said Ms. Saá, the
congresswoman. "I think there is going to be an avalanche."
Opponents of divorce
agree and contend that a divorce law will damage the country's
social fabric. They predict increases in psychological problems
for children, prostitution, homosexuality and drug use.
"Make no mistake,
this is not a law that will benefit family life in any way,"
said Flavio Angelini, a leader of the Casa de la Familia Foundation,
a conservative Roman Catholic lay group. "All this is being
done in the name of dressing the country with the image of modernity,
but it's going to allow people to destroy a marriage on a whim
and will produce a lowering of values."
But proponents of
the law say the absence of divorce has also produced severe social
distortions. The number of marriages recorded has sharply dropped
since the return of democracy in 1990, to just over 60,000 annually
from more than 100,000, and nearly half of all children here are
now born to unmarried couples.
"With no divorce,
people don't want to get married," said Ximena Diaz, director
of the Center for Women's Studies. "It's going to be interesting
to see what happens now."