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Why The Philippines Needs A Divorce Law

Evalyn G. Ursua

(Two completely opposite divorce bills are pending in the House of Representatives.
Marikina’s Rep. Marcelino Teodoro filed an “Anti-Divorce and Unlawful Dissolution
of Marriage Act,” seeking to guarantee a ban on any law facilitating or recognizing
divorce. Another bill coauthored by Gabriela Representatives Luzviminda Ilagan and
Emerenciana de Jesus would amend the Family Code to include a divorce provision. It
is backed by no less than Speaker Feliciano Belmonte. Following the enactment of the
reproductive health law, the divorce bills promise to stir up a new controversy involving
the Catholic Church and its supporters. Below is an op-ed supporting the legalization
of divorce. This won’t be the last we’ll hear on the subject from either side. –Editors)

People who say that divorce is not advisable for the Philippines forget or ignore
our history. The ethno-linguistic communities of the Philippine archipelago
before the Spanish conquest practiced divorce. We had a divorce law from 1917
until August 30, 1950, when the Civil Code of 1950 took effect. The latter law
prohibited divorce for Filipinos, and the prohibition continues under the
present Family Code. But Muslim Filipinos have always practiced divorce,
which Philippine law allowed. Today, divorce continues to be available to
Muslim Filipinos under the Code of Muslim Personal Law of the Philippines
(Presidential Decree No. 1083), promulgated in 1977.
So to say that divorce does not exist in present Philippine law is not
accurate. The prohibition against divorce under Philippine law applies only to
Filipinos whose marriages are not governed by the Muslim Code. Since
Philippine law on marriage applies to all Filipino citizens even though they are
residing in a foreign country, the prohibition against divorce for non-Muslim
Filipinos is also a concern of Filipino expatriates.

We are the only country in the world that has no divorce law for all its citizens
regardless of religious belief or affiliation.

Some think that we do not need a divorce law because the Family Code, which
applies to non-Muslim Filipinos, already provides for the termination of
marriages through “annulment.” This argument misleads. Annulment is a legal
term that has a specific meaning. The remedy of annulment is based on
specified grounds that occurred at the time of the celebration of the marriage, such
as lack of parental consent and vitiated consent (as when a person married
another at gunpoint). The remedy of annulment expires, and the defect may
actually be cured by ratification through free and voluntary cohabitation.
Misconceptions About Annulment

When lay people speak of “annulment” as a means of terminating a marriage,


they actually refer to the remedy under Article 36 of the Family Code. Article
36 declares that a marriage is void from the beginning when one or both
spouses are psychologically incapacitated to perform the essential marital
obligations. Under Article 36, a court does not terminate a marriage but only
declares it void. One must prove psychological incapacity by presenting
evidence on three essential elements of the condition: that it already existed
before the marriage; that it is grave or serious; and that it is incurable. To do
this, one usually needs the help of a psychiatrist or psychologist to testify as an
expert witness.

But what if the marriage worked in the first ten years, but later the parties
drifted apart for some reason or another? What if the other spouse was violent,
unfaithful, indolent, or an alcoholic or a drug addict? What if one spouse
abandoned the family? These may not be used for “annulment,” or for a
marriage to be declared void under Article 36, unless it can be proved that these
are manifestations of psychological incapacity that predated the marriage.

A divorce law will provide a remedy that Article 36 does not. Divorce does not
concern itself with validity or invalidity of a marriage. It terminates a marriage
based on a ground that occurred during the marriage, which makes the marital
relationship no longer tenable, regardless of the spouse’s psychological
constitution. A divorce law will provide a straightforward remedy to a marital
failure. It will benefit Filipinos wherever they are.

“The law should only give people a choice, to be exercised


according to their own personal beliefs.”

Pending Bill

A divorce bill has been pending in the House of Representatives for the last six
years, sponsored by the representatives of the Gabriela Women’s Party. The bill
lists five grounds for divorce, among them: when the spouses have been
separated in fact for at least five years or have been legally separated for at least
two years, and their reconciliation is highly improbable; when any of the
grounds recognized by law for legal separation has caused the irreparable
breakdown of the marriage. The bill has not progressed beyond the Committee
level because the energies of many were focused on the reproductive health bill
that was recently passed into law.

There is no more time to pass a divorce law in the current Congress since
elections are scheduled in May. But the bill will be filed again in the next
Congress. Can it pass? Yes, definitely, eventually, with the support of
enlightened Filipinos. The lesson we have learned from past initiatives is that a
relevant and much-needed measure that has strong popular support will pass.
Just as sustained citizen support carried the day for the reproductive health bill,
so too will strong popular support make possible the enactment of a divorce
law. People have to make their voices heard in support of the divorce bill.

It is time to give the remedy of divorce to those who need it, even as we respect
the decision of those who want to stay married despite their miserable marital
life. To be sure, the Catholic Church will be the staunchest opponent of the
divorce bill. It will once again argue against the bill on moral grounds. It will
invoke the constitutional provision directing the State to protect marriage and
the family, and another that refers to the sanctity of family life. But these
constitutional provisions were never intended to prohibit Congress from
legalizing divorce.

Church Need Not Worry

The Catholic Church need not worry. The institutions of marriage and the
family have survived to this day, as they will survive a Philippine divorce law.
We are a secular state, where no religious group has the right to define law or
policy for the entire population. There is not one but a plurality of beliefs in
Philippine society. The law should only give people a choice, to be exercised
according to their own personal beliefs.

Every day, Filipinos get married, bear children, separate and get into other
relationships, regardless of what the law says. The lack of a divorce law for non-
Muslim Filipinos complicates further the marital and family problems of many
Filipinos. Our government has clearly failed to respond to their needs. If the
country wants to move forward, it has to confront the realities of marital and
family life of Filipinos in the Philippines and abroad. It has to pass a divorce
law now.

Adopting Divorce in the Family Code


POLICY BRIEF NO. 12

This policy brief provides the rationale for adopting divorce in the Family Code of the
Philippines.
WHAT IS THE ISSUE? WHAT HAS BEEN OUR RECENT EXPERIENCE/S WITH REGARDS
TO THE ISSUE?

Based on the figures from the Office of the Solicitor General (OSG), the number of annulment
and nullity of cases has been increasing since 2001, from 4,520 to 8,283 in 2010.1 The 2013
data showed that more females (half of the 10,000 petitions filed) initiate the filing of
annulment or nullity proceedings.2

Under Philippine laws, married couples who want to end their marriage have limited options.
One is through legal separation which will allow for couples to live apart and separate their
possessions, but does not permit them to remarry. Another option is through declaration of
nullity of marriage which means the marriage is considered null and void because:

1. It lacks the essential and formal requisites of marriage such as no legal capacity to
enter into marriage;
2. It is considered as against public policy (e.g. incestuous and bigamous marriages);
3. It did not conform to the requirement set forth by the Family Code; and
4. It is a case wherein one or both parties is/are psychologically incapacitated to perform
the marital obligations thereto.3

The last option is annulment which connotes that a marriage contract is valid and existing but
was only cancelled or annulled. Based on the Family Code, the grounds for annulment are
lack of parental consent, insanity/psychological incapacity; fraud, force, intimidation, or
undue influence; impotence; and sexually transmissible diseases.

Annulment has been the best recourse for couples who have problematic marriage.4 But it
comes with a price, as the annulment procedure has been described as a “game of mud-
slinging and outsmarting” that makes breaking up uglier and encourages a petitioner to
exaggerate problems in order to attain a favorable decision.5 It is also lengthy, exhaustive,
inhumane, and entails expensive court proceeding. In fact, an annulment would cost around
Php 300,000 to Php 1,000,000 and could take years to reach promulgation, and decision may
not be favorable to the couple.

Married couples should be given an option that clears away a lengthy, exhaustive, inhumane
and expensive court proceeding like annulment, but gives them the liberty to start all over
again and remarry which legal separation cannot provide. Divorce can be the best alternative
given such circumstances.

WHY IS THE ISSUE IMPORTANT?

The burden of failed marriage usually falls on women due to the cultural stereotypes and the
current legal system that our country has. Women are sometimes solely burdened to
financially provide for their children and they balance this with personal struggle of loneliness
and social stigma.6

The most common cited reasons for the breakdown of marriage are:

1) infidelity or extramarital sexual relations or affairs by usually the husband; and in


some cases, the wife;
2) violence inflicted by the man on the woman or on their children;
3) sexual abuse inflicted usually by the husband on children or other close relations.7

The above-mentioned reasons are the actual grounds for legal separation under Article 55 of
the Family Code of the Philippines. Other grounds cited include attempt to engage in
prostitution, imprisonment of more than six years, drug addiction or habitual alcoholism,
lesbianism or homosexuality, attempt against the life of petitioner and abandonment.

Take for instance the case of a wife (G.R. No. 126010 December 8, 1999) who tried to get
out of her marriage because of a husband who is irresponsible, immature, drunkard and a
womanizer, and even gave her a sexually-transmitted disease (STD).8 She filed for annulment
for the reason of psychological incapacity but the court denied her petition on the grounds
that chronic sexual infidelity, abandonment, gambling and use of prohibited drugs are not
grounds of the spouse’s psychological incapacity.9

The petitioner’s cited reasons are actually grounds for legal separation. By having an option
for divorce, abused women like her can pursue a healthy and happy life without their abusive
husbands. Discarding long annulment proceedings but will provide them the freedom from
various marital legalities such as documents/papers under their married name, conjugal
issues on properties and the risk of being charged with adultery should they get involved in a
new relationship.10

WHAT ARE THE EXISTING LAWS OR POLICIES RELATED TO THE ISSUE?

Section 19 of RA 9710 or the Magna Carta of Women (MCW) states that “the State shall take
all appropriate measures to eliminate discrimination against women in all matters relating to
marriage and family relations and shall ensure: (a) the same rights to enter into and leave
marriages or common law relationships referred to under the Family Code without prejudice
to personal or religious beliefs;”

Article 16 of United Nations’ Universal Declaration of Human Rights provides that “men and
women of full age, without any limitation due to race, nationality or religion, have the right
to marry and to found a family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution”.

Likewise, Article 16 of the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) calls upon the State Parties to “take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family relations and in
particular shall ensure, on a basis of equality of men and and women: …(a) The same right
to enter into marriage; (b) The same right to choose a spouse; (c) The same rights and
responsibilities during marriage and at its dissolution; …”

The same is reiterated in CEDAW GR No. 21 (1994) on Equality in Marriage and Family
Relations “States parties should be able to adopt the principles contained in the Convention
that men and women should have the same rights and responsibilities during marriage and
at its dissolution”; CEDAW GR No. 29 (2013) on Economic Consequences of Marriage, Family
relations (40) recommends States parties to revise provisions related to divorce and its
financial consequences to prevent husbands avoiding financial obligations towards their wives
and eliminate different standards of fault for wives than for husbands; and in CEDAW
Concluding Observations No. 50 (July 22, 2016):

“(a) Expedite the harmonization of the Family Code and other laws on marriage and
family relations with the Convention and the Magna Carta for Women and ensure
equality of women and men in marriage as well as upon the dissolution of marriage,
including by expediting adoption of the long pending Divorce Bill and taking into account
the Committee’s general recommendations No. 21 (1994) on equality in marriage and
family relations and No. 29 (2013) on economic consequences of marriage, family
relations and their dissolution;”

POLICY RECOMMENDATION

Adopt divorce in the Family Code by repealing the legal separation provision in the Family
Code and making its grounds as grounds for divorce. It will benefit both spouses who may
have serious problems with their corresponding partners. But given that women are the
common victims of physical, sexual and emotional abuses, the proposed measures will give
them the opportunity to rebuild a family, regain self-esteem and have an option to remarry.11

Specifically, the following are recommended:

1. Adopt provisions on divorce that shall have the following effects:

a. Dissolution of marriage;
b. Right to contract marriage again;
c. Dissolution of conjugal partnership of gains;
d. Retention of legal status of legitimate and adopted children of the divorced
parents;
e. Children’s custody and financial support shall be determined by the court based
on the existing provisions of the Family Code.

2. Repeal of Title III Legal Separation of the Family Code of the Philippines;

3. Make the grounds for Legal Separation stated in Article 55 as grounds for Divorce as
follows:

a. Infidelity or extra-marital sexual relations;


b. Violence;
c. Sexual abuse;
d. Attempt to engage in prostitution;
e. Imprisonment of more than six years;
f. Drug addiction or habitual alcoholism;
g. Lesbianism or homosexuality;
h. Attempt against the life of the petitioner; and
i. Abandonment.

4. Include provisions in Article 56 in the provisions to safeguard the process from


condonation, consensus, connivance and collusion among involved parties, to read:
“… the petition for divorce shall be denied on any of the following grounds:

a. Where the aggrieved party condoned the offense or act complained of;
b. Where the aggrieved party has consented to the commission of the offense or
act complained of;
c. Where there is connivance between parties in the commission of the offense or
act constituting the ground for divorce;
d. Where both parties have given ground for divorce;
e. Where there is collusion between the parties to obtain the decree of divorce;
or
f. Where the action is barred by prescription.”

5. Add a provision that will recognize divorce obtained by a Filipino citizen abroad
provided that the ground filed falls under the grounds cited in the Family Code.

6. Simplify the divorce process and reduce the cost of the procedure;

7. Review other related provisions in connection with Legal Separation and Divorce to
complement the amendments

CONCLUSION

Married couples who want to end their problematic/dysfunctional marriage should have a legal
recourse through a simplified and inexpensive divorce process with grounds as stated under
legal separation; hence this proposed measure.
This proposed measure considers the plight of women trapped in a marriage ridden with
violence, abuse, oppression and deprivation to be completely free to start a better life.

ENDNOTES

1Office of the Solicitor General


2Ana P. Santos, Ending a Marriage in the Only Country that Bans Divorce (The Atlantic, June
2015), http://www.theatlantic.com/international/archive/2015/06/divorce-philipp...
3Atty. Lifrendo Gonzales, Annulment vs. Nullity of Marriage in the Philippines (LMG Law
Office), https://www.hg.org/article.asp?id=28719
4Andreo Calonzo & Marc Jayson Cayabyab, More Pinoy Couples Seeking Annulment Despite
Cost (GMA News, April
2013), http://www.gmanetwork.com/news/story/302435/news/nation/more-pinoy-coupl...
5Ana P. Santos, Ending a Marriage….
6Edelvina S. Relucio, The Stresses and Coping Reactions of Separated Women: An Exploratory
Study (ADMU, 1995)
7Veronica Fenix-Villavicencio and Rina Jimenez-David, Our Right to Self-Determination….
8Lucita Hernandez v. Court of Appeals and Mario Hernandez (Lepiten and Bojos Law
Office), http://www.lepitenbojos.com/index.php?option=com_content&view=article&id...
9Ibid.
10Ana P. Santos, Ending a Marriage...
11Veronica Fenix-Villavicencio and Rina Jimenez-David, Our Rights to Self-Determination…