Is the Philipines ready for Divorce?

Dateline: May 29, 2011 - The divorce referendum was held in Malta  to consult the electorate on the introduction of divorce, and resulted in a majority of the voters approving legalisation of divorce. At that time, Malta was one of only three countries in the world, along with the Philippines and the Vatican City,in which divorce was not permitted.. As a consequence of the referendum outcome, a law allowing divorce under certain conditions was enacted in the same year. As Philippines and Vatican are the remaining two countries where no divorce is allowed, are Filipinos  ready to accept it  now? Philippine law, in general, does not provide for divorce inside the Philippines. The only exception is with respect to Muslims, who are allowed to divorce in certain circumstances. The Code of Muslim Personal Laws of the Philippines allows for divorce—however, with stipulations: namely, a man can divorce his wife, but a woman cannot divorce her husband. For those not of the Muslim faith, the law only allows annulment of marriages. Article 26 of the Family Code of the Philippines does provide that Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. This would seem to apply only if the spouse obtaining the foreign divorce is an alien. According to a Social Weather Station survey conducted in March 2011, “50 percent of adult Filipinos agree and 33 percent disagree with the statement: 'Married couples who have already separated and cannot reconcile anymore should be allowed to divorce so that they can get legally married again.’” In 2005, a similar survey was conducted which showed that 43 percent of adult Filipinos were in favor of divorce and 44 percent were not. According to the Proposed divorce bill , House Bill 1799 ,  in Congress sponsored by the  Gabriela Partylist, the sanctity of marriage is not based on the number of marriages existing but on the quality of marital relationships. When a marriage is no longer viable, divorce should be an option. Underpinning this proposal is a commitment to the policy of the State to protect and strengthen marriage and the family as basic social institutions, to value the dignity of every human person, to guarantee full respect for human rights, and to ensure the fundamental equality before the law of women and men. Even when couples start out well in their marriage, political, economic and social realities take their toll on their relationship. Some are not prepared to handle the intricacies of the married life. For a large number of women, the inequalities and violence in marriage negate its ideals as the embodiment of love, care and safety and erode the bases upon which a marriage is founded. The marital relations facilitate the commission of violence and perpetuate their oppression. Given these realities, the bill stressed, couples must have the option to avail of remedies that will pave the way for the attainment of their full human development and selffulfillment and the protection of their human rights. The following are the grounds under the proposed bill:  (1) THE PETITIONER HAS BEEN SEPARATED DE FACTO FROM HIS OR HER SPOUSE FOR AT LEAST FIVE YEARS AT THE TIME OF THE FILING OF THE PETITION AND RECONCILIATION IS HIGHLY IMPROBABLE; (2) THE PETITIONER HAS BEEN LEGALLY SEPARATED FROM HIS OR HER SPOUSE FOR AT LEAST TWO YEARS AT THE TIME OF THE FILING OF THE PETITION AND RECONCILIATION IS HIGHLY IMPROBABLE; (3) WHEN ANY OF THE GROUNDS FOR LEGAL SEPARATION UNDER PARAGRAPH (A) OF THIS ARTICLE HAS CAUSED THE IRREPARABLE BREAKDOWN OF THE MARRIAGE; (4) WHEN ONE OR BOTH SPOUSES ARE PSYCHOLOGICALLY INCAPACITATED TO COMPLY WITH THE ESSENTIAL MARITAL OBLIGATIONS; (5) WHEN THE SPOUSES SUFFER FROM IRRECONCILABLE DIFFERENCES THAT HAVE CAUSED THE IRREPARABLE BREAKDOWN OF THE MARRIAGE.” Annulment of Marriage Under the present legal regime, the process  for a marriage solemnized in the Philippines to be terminated is called an annulment.  An annulment unlike a divorce has the effect of considering the marriage as “void ab initio”, a latin term to meaning the marriage NEVER existed at all.  The grounds for annulment are often pertaining to the absence of, or defect in, one of the essential or formal requisites of marriage. Although it has a different effect in how it considers the marriage (null and void) after annulment, it has however the same effect in terms of capacitating the parties to remarry. It should be noted that for a marriage to take place, there are essential requisites and formal requisites which must first be met. The essential requisites of marriage are: 1) legal capacity of the contracting party, who must be male and female, and 2) consent freely given in the presence of the solemnizing officer (Article 2, Family Code [FC]).  The formal requisites of marriage are (1) authority of the solemnizing officer, (2) a valid marriage license (except in specific instances mentioned under Chapter 2 of the Family Code), and (3) a marriage ceremony which takes place with both of the contracting parties appearing before the solemnizing officer and declaring that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (Article 3, FC). In an Action for Annulment of Marriage, the following marriages may be annulled: that the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over, but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; that either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; that the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; that the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; that either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or that either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.  Unlike in the first set of grounds above mentioned, an action for the annulment of marriage prescribes; in case of lack of consent, until the party filing for annulment reaches 21;  in case of insanity until the death of either party or the lucid interval of the insane spouse; in case of fraud, force, intimidation or undue influence, incapacity to consummate the marriage or knowledge of the sexually-transmissible disease, within five years from the occurrence of the fraud, force, intimidation or undue influence, incapacity to consummate the marriage or knowledge of the sexually-transmissible disease.   Although many loosely call all actions for terminating marriage in the Philippines as annulment, the truth is there are other  actions that may be instituted to terminate the marriage. Declaration of Nullity of Marriage Grounds rendering a marriage “void ab initio” are: those contracted by any party below 18 even with the consent of parents or guardians; those solemnized by any person not legally authorized to perform marriage unless either or both parties believed in good faith that the solemnizing officer had the legal authority to do so; those solemnized without a marriage license except those expresslyexempted by law to secure a marriage license; those bigamous or polygamous marriages; those contracted through mistake of one of the contracting parties as to the identity of the other; incestuous marriages as defined in Article 37 of the FC; and void marriages by reason of public policy (i.e. between step-parents and step-children, between adopting parent and adopted child). An action for the declaration of the absolute nullity of marriage may be instituted at any time and shall not prescribe (Art. 39, FC). It must be emphasized that although the marriage is void from the beginning, a party cannot unilaterally contract a subsequent marriage with the thought in mind that the previous marriage was invalid.  For example, A and B contracted a marriage with a fake marriage license.  Spouse B who knew that the marriage license was fake contracted a second marriage with C.  Is the marriage between Spouse B and C valid? No!  The marriage between A and B should have first been declared null and void by the Court before Spouse B and C can marry. . In the event that annulment is not feasible, the Family Code Art. 55 (A) states that a petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality-of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;, (8) Sexual infidelity or perversion; (9) Attempt by the respondent against life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year.

annulment vs. divorce

The debate on legalizing divorce took a kick-start when news of Maltese referendum favoring divorce reached the Philippines a few days ago. This has prompted progressive groups to make a bolder call for the country to follow in Malta's steps and legalize divorce in a predominantly Catholic nation.

In House Bil 1799, which is proposed by the GABRIELA Partylist,  they argued in essence,  the philosophy behind the divorce bill in the following manner:   :

"Underpinning this proposal is a commitment to the policy of the State to protect and strengthen marriage and the family as basic social institutions, to value the dignity of every human person, to guarantee full respect for human rights, and to ensure the fundamental equality before the law of women and men .. Given realities, couples must have the option to avail of remedies that will pave the way for the attainment of their full human development and self- fulfillment and the protection of their human rights. Existing laws are not enough to guarantee and protect these rights. .. The sanctity of marriage is not based on the number of marriages existing but on the quality of marital relationships. When a marriage is no longer viable, divorce should be an option."

Under this bill, the grounds for filing divorce are , among others, a.

a.       a. when the petitioner has been separated de facto (in fact) from his or her spouse for at least five years at the time of the filing of the petition and reconciliation is highly improbable,

b.      b. when the petitioner has been legally separated from his or her spouse for at least two years at the time of the filing of the petition and reconciliation is highly improbable

c.       c. when the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage

d.      d. when one or both spouses are psychologically incapacitated to comply with the essential marital obligations.

It must be understood however that divorce in the legal parlance, is the dissolution of marriage for whatever reason resulting in capacitating both parties to remarry.  Divorce legally recognizes that a marriage actually existed, but for whatever reason, one or both parties can no longer continue with the commitment.

On the other hand, for a marriage solemnized in the Philippines to be terminated is, however, not called divorce, it is called an annulment.  An annulment unlike a divorce has the effect of considering the marriage as “void ab initio”, a latin term to meaning the marriage NEVER existed at all.  The grounds for annulment are often pertaining to the absence of, or defect in, one of the essential or formal requisites of marriage. Although it has a different effect in how it considers the marriage (null and void) after annulment, it has however the same effect in terms of capacitating the parties to remarry. It should be noted that for a marriage to take place, there are essential requisites and formal requisites which must first be met.

The essential requisites of marriage are: 1) legal capacity of the contracting party, who must be male and female, and 2) consent freely given in the presence of the solemnizing officer (Article 2, Family Code [FC]).  The formal requisites of marriage are (1) authority of the solemnizing officer, (2) a valid marriage license (except in specific instances mentioned under Chapter 2 of the Family Code), and (3) a marriage ceremony which takes place with both of the contracting parties appearing before the solemnizing officer and declaring that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (Article 3, FC).

Although many loosely call all actions for terminating marriage in the Philippines as annulment, the truth is there are several actions that may be instituted to terminate the marriage.

Declaration of Nullity of Marriage

Grounds rendering a marriage “void ab initio” are:

1. those contracted by any party below 18 even with the consent of parents
   or guardians;
2. those solemnized by any person not legally authorized to perform marriage unless either or both parties believed in good faith that the solemnizing officer had the legal authority to do so;
3. those solemnized without a marriage license except those expresslyexempted by law to secure a marriage license;
4. those bigamous or polygamous marriages;
5. those contracted through mistake of one of the contracting parties as to the identity of the other;
6. incestuous marriages as defined in Article 37 of the FC; and
7. void marriages by reason of public policy (i.e. between step-parents and step-children, between adopting parent and adopted child).

An action for the declaration of the absolute nullity of marriage may be instituted at any time and shall not prescribe (Art. 39, FC).

It must be emphasized that although the marriage is void from the beginning, a party cannot unilaterally contract a subsequent marriage with the thought in mind that the previous marriage was invalid.  For example, A and B contracted a marriage with a fake marriage license.  Spouse B who knew that the marriage license was fake contracted a second marriage with C.  Is the marriage between Spouse B and C valid? No!  The marriage between A and B should have first been declared null and void by the Court before Spouse B and C can marry.

Annulment of Marriage

In an Action for Annulment of Marriage, the following marriages may be annulled:

1. that the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over, but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
2. that either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
3. that the consent of either party was obtained by fraud, unless such party
   afterwards, with full knowledge of the facts constituting the fraud, freely
   cohabited with the other as husband and wife;
4. that the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
5. that either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
6. that either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

 Unlike in the first set of grounds above mentioned, an action for the annulment of marriage prescribes; in case of lack of consent, until the party filing for annulment reaches 21;  in case of insanity until the death of either party or the lucid interval of the insane spouse; in case of fraud, force, intimidation or undue influence, incapacity to consummate the marriage or knowledge of the sexually-transmissible disease, within five years from the occurrence of the fraud, force, intimidation or undue influence, incapacity to consummate the marriage or knowledge of the sexually-transmissible disease.

For couples desperate to find a way out of their troubled marriages, annulment is a trying and tedious legal process. Aside from being weighed down by the difficulty of proving the psychological incapacity of either spouse, they also have to incur many expenses: the cost of litigation, filing fees, and even the professional fees of psychologists and psychiatrists.

Bayan Muna proposed House Bill 3952, "An Act Recognizing Spousal Violence, Infidelity and Abandonment as Presumptive Psychological Incapacity Constituting a Ground for the Annulment of Marriage", hopes to make annulment more accessible even to poor couples and seeks to simplify the annulment process, offers couples an easier and less expensive way out.

Under HB 3952, infidelity, abandonment or spousal violence are presumed indications of psychological incapacity. In effect, psychological incapacity would be easier to prove, and the annulment process would take less time and money to complete. Under the measure, adding the presumption of psychological incapacity under Article 36 would reduce the length of the proceedings, and cut expenses like professional fees for psychiatrists or psychologists.

Simplifying the path to annulment

 For couples desperate to find a way out of their troubled marriages, annulment is a trying and tedious legal process. Aside from being weighed down by the difficulty of proving the psychological incapacity of either spouse, they also have to incur many expenses: the cost of litigation, filing fees, and even the professional fees of psychologists and psychiatrists.

House Bill 3952, "An Act Recognizing Spousal Violence, Infidelity and Abandonment as Presumptive Psychological Incapacity Constituting a Ground for the Annulment of Marriage", hopes to make annulment more accessible even to poor couples.

Bayan Muna Representative Neri Colmenares, who authored the measure, said HB 3952, which seeks to simplify the annulment process, offers couples an easier and less expensive way out.

Under HB 3952, infidelity, abandonment or spousal violence are presumed indications of psychological incapacity. In effect, psychological incapacity would be easier to prove, and the annulment process would take less time and money to complete.

"Pag na-prove mo na may violence or infidelity, may presumption agad na that is equated to psychological incapacity which should result in the nullification of the marriage," Colmenares said in an interview on "The Rundown" on Tuesday.

Under the measure, Colmenares said, adding the presumption of psychological incapacity under Article 36 would reduce the length of the proceedings, and cut expenses like professional fees for psychiatrists or psychologists.

Is divorce the better option?

But Atty. Evalyn Ursua disagrees.

"Sabihin natin may presumption 'yung batas. Pwede i-dispute by presenting contrary evidence," Ursua said during the same interview.

While the objective of the bill is laudable, Ursua, an advocate of women's and children's rights, said presumption, which would remove the need for psychiatrists, would not necessarily solve the problem of cost or accessibility as the legal process itself could be long-drawn. She said such changes won't matter much as the bill will not change the legal standards set by the Supreme Court.

"Problema ko sa bill mismo, hindi niya binabago 'yung legal standards na si-net ng Supreme Court. Nagke-create siya ng presumption na 'pag ito napatunayan mo, any of the three (conditions), psychological incapacity 'yun. But we have to remember, disputable presumption iyon," she said.

Ursua explained that the high court currently requires 3 things: antecedence (which states that incapacity existed before the marriage), seriousness, and incurability (which is often supported by expert testimony).

In light of such deficiencies in the measure, Ursua added that the annulment process could be shortened by improving the bill, beginning with defining psychological incapacity, changing existing legal standards, and adding consistent refusal rather than mere incapacity as a condition.

"We can define psychological incapacity to do away clearly with the requirement of psychiatric of psychological evidence and change the standards of SC. Say you have to prove inability to perform the marital obligations, not refusal.

"Other legislators might object to this and say this might be worse than a straightforward divorce law kasi parang nagpre-present na psychological incapacity pero mas mababa hinihingi niya. Ang sinasabi namin, 'wag na tayo maglokohan," she said.

Calling Article 36 a "pseudo-divorce law" because of the intellectual dishonesty involved, Ursua said divorce--which is not allowed in the Philippines--may be the better legal option.

"I think there should be a divorce law. I'm for a law that says we can terminate a marriage. Let's not hide behind psychological incapacity.

"If we run a survey, the Filipino people are ready for a divorce law and legislators should listen. This view that we shouldn't have a divorce law is an antiquated view and doesn't address realities," Ursua explained.

Ursua added that legal fees can be reduced to improve accessibility to annulment.

"I suggest we make legal representation more accessible through the Public Attorney's Office," Ursua said.

She added that the Integrated Bar of the Philippines is making rules on free legal assistance which may help address the issue of expensive legal processes.

Aside from Malta, the Philippines is among the last few countries left without a divorce law, according to Ursua.

Catholic church reacts

But instead of pushing for a measure that dissolves marriages, some church leaders say lawmakers may be better off supporting bills that would protect the family unit.

Lipa Archbishop Ramon Arguelles said in an interview on ABS-CBN's "Umagang Kay Ganda", "Ang problema dun sa pino-propose ni Congressman (Colmenares) at other bills similar to that ay [these are] leading to divorce. 'Yung sa bills ni Congressman, we are promoting na masira 'yung family. Why don't we create bills that will preserve the family?"

"They (married couples) should not cover a mistake by another mistake, na 'pag nagkamali, you have to live up to your mistake. Nag-asawa kayo, later on naging taksil. Sa Catholicism, we have to live rightly. 'Yun ang righteousness kaya try your best," he said.

Arguelles lamented how marriage has become trivial in countries like the United States which allow divorce, with separation rates rising from 10% in 1968 to 90% today.

(http://www.abs-cbnnews.com/lifestyle/01/19/11/simplifying-path-annulment)