Divorce, Chilean Style: Now, It Will Be Legal But Not Exactly Easy
SANTIAGO, Chile -- For much of his life, Ricardo Saavedra has had a cloud over his head: the wife he stopped living with 20 years ago. The 1884 marital code of this tradition-bound country prohibited divorce.
For Dr. Saavedra, a 61-year-old gynecologist, the unbreakable marriage bond has meant living in a rented apartment because he can't get a mortgage loan without his wife's signature. And the two children he had with another woman after the split with his wife weren't allowed to enroll in a Roman Catholic elementary school that considered them illegitimate.
A lawyer once proposed a creative way around Dr. Saavedra's predicament: have his wife declared "presumed dead." The lawyer said Dr. Saavedra would have to take out a newspaper ad for three days proclaiming his wife missing and calling on her to make contact. "Of course, it had to be in a provincial paper so there was no chance she would actually see it," Dr. Saavedra says. He wouldn't go along with the scheme, he says.
On Nov. 17, Chile's first divorce law, passed by Congress and signed by the president earlier this year, goes into effect. It promises relief for Dr. Saavedra and an estimated 900,000 Chileans -- roughly 10% of the adult population -- who are trapped in marriages that exist in name only. The coming of Chile's D-Day -- which will leave Malta and the Philippines as the most prominent countries prohibiting divorce -- will be a leap into the unknown for this Catholic nation.
To keep his campaign pledge to get a divorce bill through Congress, Socialist President Ricardo Lagos had to compromise with conservatives. Under the law, the product of a nine-year parliamentary debate, judges are to try to "preserve and recompose" marriages, if necessary, by recommending court-sponsored mediation. The law mandates a one-year separation if both spouses want a divorce, but a three-year separation if only one does. The law also grants state recognition to church weddings.
The law is confusing, even to specialists. "It's a very Chilean kind of law, a product of consensus that is not at all direct or clear-cut," says Janett Fuentealba Rollat, secretary of the Chilean bar association, making a zigzag motion with her hand. Many decisions, including financial compensation for the more economically vulnerable spouse, will be left to the discretion of newly created Family Tribunals, which aren't expected to be fully operational until late next year and which will eventually employ 207 new judges and 400 mediators.
Despite their misgivings, feminists consider access to divorce a rare victory in Chile, where women's rights have lagged because of Catholicism, geographical isolation and life under a repressive military dictatorship in the 1970s and 1980s, when the feminist movement was flowering elsewhere.
Chilean judges and hospitals have suppressed the distribution of the "morning after" birth-control pill. Studies show women here earning about 25% less than men for comparable work. Womens' rights activists say the divorce ban helped foster another depressing statistic: about one-third of women in a study by the University of Chile said they had experienced sexual or physical violence in a relationship.
At a coffee break during a seminar on family law at a Holiday Inn here recently, attorney Rodrigo Javier Atal Achelat said he thinks Chilean tradition and high legal fees will inhibit all but a handful of people from seeking divorce. But his partner, Luis Alberto Varas Undurraga, said people are finding the money somewhere to pay his fees. He already has 10 divorce cases lined up.
Some Chileans seem to be hedging their bets on the effectiveness of the new law. According to Carlos Brice?o, a Justice Ministry official, there appears to be an 11th-hour surge in applications for annulments, a widely winked at form of fraud that Chileans with financial means have traditionally used to get around the divorce prohibition. To obtain such an annulment, a couple goes to court with witnesses willing to offer perjured testimony that the address on the marriage form was wrong. Dr. Saavedra, the gynecologist, couldn't get an annulment because it takes the collusion of both husband and wife to annul, and his wife wouldn't go along with it.
The annulments, which will no longer be available after the divorce law takes effect, are usually approved in about four months. Mr. Brice?o says that at first it could take more than a year to get a divorce, though the process should eventually move more swiftly.
Isabel Troncoso, a cashier in a pastry shop, says that for some time, she has had to endure a living arrangement in which her husband sleeps on the couch and she sleeps in the bedroom. The house is in her name, but he has nowhere else to go and won't leave. "It's kind of like living with the enemy," says Ms. Troncoso, who says she hopes the law will help her. Being able to threaten a divorce, she believes, will strengthen her hand with her husband.
Nicolás Figueroa, a 28-year-old salesman who lived with his wife for just a year and has been separated from her for seven years, insists that divorce isn't just a woman's issue. He hasn't made a home with his new girlfriend, whom he has known for six years, because he feared his wife would use a common-law relationship to undermine his visitation rights with his 8-year-old daughter.
Catholic leaders insist the new law will result in more broken homes. But there is evidence that the divorce ban itself was having a boomerang effect on family stability. A little more than half of all Chilean children are born out of wedlock, many to couples who would have liked to get married but couldn't because one or both parents were still bound to a previous mate, according to specialists on the family.
Ivonne Fache Weiszberger, a dating-service operator who says she has arranged 200 marriages, believes the new law will simply be catching up with increasingly liberal mores. She flipped through profiles of what recent female applicants say they want out of a relationship: "Shoes, sex, a new car, security, economic stability, great sex," she read.
Another entrepreneur who hopes to benefit from the divorce law is Sandra Brill Goren. She recently spent about $3,000 to purchase the Internet domain divorcio.cl and now fields scores of online queries from people perplexed about matters such as alimony and adultery. Ms. Goren doesn't have all the answers -- she's just a 24-year-old recent graduate of law school who has yet to take the Chilean equivalent of the bar exam. But, she points out, "no one else in Chile can say they have any more experience in divorce than I do."
智利新婚姻法撤销离婚禁令
里卡多?萨维德拉(Ricardo Saavedra)的大半生都活在一片乌云的笼罩之下：他与妻子20年前就已经分居。这个传统国家一直沿用的1884年婚姻法禁止离婚。
对于61岁的妇科医生萨维德拉来说，不能解除婚姻关系意味著要长期租房子，因为没有妻子的签名无法拿到购房贷款。他和妻子分居后和另一女子生的两个孩子不允许上天主教小学，因为学校认为他们是私生子，不合法。
曾经有律师想了个办法帮助萨维德拉摆脱这个困境：宣布他的妻子“推测死亡”。律师建议萨维德拉在报纸上刊登三天启事，声称妻子失踪，希望其尽快联系等。 “当然，要在地方报纸上登，这样才有可能不被妻子看到，”萨维德拉说。但他说不会按照这个办法去做。
今年年初，智利第一部离婚法在国会通过并得到总统签署，将于11月17日正式生效。对于萨维德拉和约90万受苦于名义婚姻的智利人（约10%的成年人口）来说，这部法律的诞生意味著苦等多年的解脱。离婚法生效日的到来意味著世界上只剩下马尔他和菲律宾两个禁止离婚的特殊国家，同时也意味著这个天主教国家向不确定的未来迈进了一步。
智利总统、社会党领袖里卡多?拉戈斯(Ricardo Lagos)为了让国会通过离婚法案不得不与保守势力妥协。9年的议会斗争终见成果：该法律规定，如有必要，法官应该通过建议法庭调解来力图“保存和重组婚姻家庭”。法律还规定，如果夫妻双方都同意离婚，需要先分居一年，如果只有一方要求离婚，则需要先分居三年。法律也承认教堂婚礼为婚姻关系的确立。
新法律让人摸不著头脑，即使对专家来说也是如此。“这是一部非常有智利特色的法律，是共识的产物，但一点都不直接、不清晰，”智利律师协会秘书珍妮特?弗恩塔阿尔瓦?罗拉特 (Janett Fuentealba Rollat)说。她一边说一边做了个Z字形手势。许多重要的事宜，如对经济较弱一方的补偿，都要交由新成立的家庭法庭来决定，但家庭法庭预计要到明年底才能完全启动，届时将聘请207位新法官和400名调解员。
女权主义者对这项法律表示忧虑，但她们仍然认为这是智利历史上少有的胜利。在智利，由于天主教的影响、孤立的地理地位以及七八十年代压抑的军事独裁统治，妇女权利落后于其他国家，而七八十年代正是其他国家女权运动大发展的时期。
智利法官和医院严格控制“次日使用”的避孕药的销售。研究结果显示，在智利，相同的工作，妇女比男性少挣25%。女权运动者称，禁止离婚造成了另一个令人沮丧的事实：在智利大学一项调查研究中，约1/3的妇女表示在婚姻关系中曾经遭遇性暴力和身体暴力。
最近，在Holiday Inn酒店举行了一次家庭法律研讨会，会间休息时，律师罗得里戈?雅维尔?阿塔尔?阿奇拉特(Rodrigo Javier Atal Achelat) 说，他认为智利的传统和高额的诉讼费使得只有很少一部分人可以离婚。但他的搭档路易士?阿尔伯多?瓦拉斯?文朵拉格(Luis Alberto Varas Undurraga)却说人们会想办法找钱来付律师费，他那里就已经有10个案子在排队了。
一些担心新法律有效性的智利人似乎在采取别的措施降低风险。据司法部官员卡洛斯?布里塞诺 (Carlos Briceno)称，要求法庭撤销婚姻的申请在新法律即将生效的最后时刻忽然增多。法庭撤销婚姻是普遍默认的造假方式，有钱的智利人一般会用这种方法避开离婚禁令。要获得撤销婚姻，夫妻双方需要在法庭上提供愿意作伪证的证人，证明他们结婚登记表上的地址是错的。萨维德拉医生说，法庭撤销婚姻需要夫妻俩人合作，但他的妻子不愿意。
撤销婚姻的申请通常4个月后获得批准，然而一旦离婚法生效，这种做法将被禁止。布里塞诺说，虽然离婚手续会越来越快，但刚开始实行时需要等一年多的时间。
糕饼店出纳员伊莎贝尔?特朗克索(Isabel Troncoso)说，有好一段日子，她在卧室睡觉，而丈夫在客厅的长沙发上睡，这样的生活安排十分难受。房子是她的，但丈夫不愿离开，因为无处可去。“就像跟敌人生活在一起，”特朗克索说。她希望法律能帮助她。她相信，有了离婚的法律武器，她就更有办法对付丈夫。
28岁的销售员尼古拉斯?菲格罗亚(Nicolas Figueroa)和妻子生活了1年，此后一直分居了7年。他坚持认为离婚不仅是一个女性问题。他和新任女朋友相识了6年，但一直没有成立家庭，因为他担心妻子以事实婚姻关系为由阻止他见8岁的女儿。
天主教领袖坚持认为，新婚姻法将导致更多家庭破裂。然而，有证据显示离婚禁令反而对家庭稳定起到了反作用。据家庭专家称，约半数多的智利儿童是私生子，因为他们的父母有一方或双方受前婚姻关系约束而无法结合。
约会服务工作者伊文?珐什?维兹伯格(Ivonne Fache Weiszberger)说她撮合了200个婚姻，并说新婚姻法很快会跟上日益解放的道德观。她翻了一遍手头的档案，上面记录了最近一些女性申请人所表达的希望从两性关系中寻求的东西。“鞋子、性、新车、经济稳定，美满的性生活”她念道。
桑德拉?布里尔?戈伦(Sandra Brill Goren)是另一个希望从离婚法中获益的企业家。她最近花3000美元购买了一个互联网域名divorcio.cl，目前已经收到几十条网上咨询，都是关于婚姻的困惑问题，如赡养费、私通等。戈伦并非对所有问题都有答案--她不过是名刚从法学院毕业、即将参加律师资格考试的24岁研究生。不过，她指出：“在智利，没有人敢说他们在离婚事务方面比我更有资历。”
