Feminist Policymaking in Chile

Chapter 5: Winning The Game: The Legalization of Divorce

5 winning the game: the legalization of divorce If marriage falls, it is my conviction that so too falls the family. And next will come marriages of homosexuals and lesbians. —UDI representative Hernán Larraı́n The legalization of divorce in Chile in 2004 was arguably the greatest legislative victory for feminists since the transition to democracy.1 The passage of the divorce law represents the culmination of political learning by congressional feminists and signals a positive shift in representatives’ relationship with Sernam. This success invigorated the feminist movement and forced public debate on women’s rights, and it suggests that feminists can achieve fundamental policy reform even on controversial issues if they can successfully strategize around institutional constraints and cultural opposition. The New Civil Marriage Law was introduced as a bill in 1995 and became law nine years later. One can identify two phases of the policymaking dynamic on this legislation. In the first phase, the absence of institutional cooperation necessitated significant compromises on the bill’s content. In the second phase, strong executive support allowed representatives to renegotiate more fundamental policy reform. Compared with earlier divorce bills, which were liberal in content and narrow in their base of support, representatives approached the 1995 divorce bill much more strategically, negotiating with the conservative opposition early on. Major concessions on content, together 1. The epigraph by Larraı́n is quoted in Castillo and Meléndez 1994, 27. 146 FEMINIST POLICYMAKING IN CHILE with a conscious effort to frame the topic within a pro-family discourse, allowed feminist representatives to exploit ideological divisions within the Christian Democratic Party and build PDC support for the bill early in the legislative process. This was a key factor in the bill’s passage in the Chamber of Deputies in 1997. Executive support after 2000 reactivated the bill in the Senate and, most important, allowed legislators to renegotiate and pass a more progressive version of the bill. The example of divorce legislation is particularly useful, as it allows us to gauge how changing conditions over time affected efforts to legalize divorce. As proponents of legal divorce evolved more sophisticated legislative strategies , public support for divorce was increasing. The initial absence of executive support for legalization was reversed following the election of a Socialist administration. Finally, party alliances shifted in Congress as support for legal divorce increased within the PDC and the Right. Each of these factors increased the political opportunities for reform. A Pressing Need for Policy Reform With the legalization of divorce in Ireland in 1996, Chile became the only nation to lack some type of legal divorce. Although the Catholic Church grants marriage annulments in specific circumstances, until 2004 there was no legal way to receive a civil divorce. Divorce a la Chilena referred to the one method of obtaining a civil annulment: committing perjury before the civil registrar by claiming that one had lied on some aspect of the original marriage license, thereby voiding the contract.2 Efforts to legalize divorce focused on the widespread use of perjury to gain civil annulments and argued that the government should replace this informal system with a set of logical and equitable legal guidelines to regulate the dissolution of marriage. Pursuing a civil annulment is expensive. One must hire a lawyer as well as two witnesses to testify that the original marriage contract contains a falsehood. Proponents of legal divorce focused on the class bias at work in the granting of annulments: if one has the financial means, getting a marriage annulled is quite easy; if one does not have the resources, it is impossible. In addition, prior to 2004, the lack of formal divorce made the establishment 2. Couples must marry at the civil registrar in the home district of the man or woman. The easiest way to void the marriage contract is to have witnesses testify that at the time of the marriage neither party actually lived in the district where they registered. THE LEGALIZATION OF DIVORCE 147 of alimony and child-support payments extremely difficult. This difficulty was aggravated by the fact that, until the reform of paternity laws in 1998 (Law 19.585), Chilean children born outside marriage had less right to parental financial support and inheritance than children born within marriage.3 In 1995, 40 percent of Chilean children were born outside marriage, many of them to parents who had previously been married and...