Philippine e-Legal Forum

Divorce is a controversial topic, except that it’s often discussed with hushed voices (related discussion here). In 2005, party-list representative Liza Masa of Gabriela filed a divorce bill. In 2001, similar bills were filed in the Senate (Bill No. 782), introduced by Senator Rodolfo G. Biazon, and House of Representatives (Bill No. 878), introduced by Honorable Bellaflor J. Angara-Castillo. In 1999, Representative Manuel C. Ortega filed House Bill No. 6993, seeking for the legalization of divorce. This Congress (14th Congress), Gabriela again filed a bill to introduce divorce in the Philippines. Here’s the explanatory note of House Bill 3461, filed by GABRIELA Women’s Party Representatives Liza Largoza-Maza and Luzviminda Ilagan. Let’s open this topic for discussion by everyone. Let’s avoid name-calling and focus on the merits. If you support or oppose the bill, then perhaps you could talk to your respective representatives in the House.

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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. The provisions of this bill are consistent with and in pursuit of those State policies.

In Filipino culture, marriage is regarded as a sacred union and the family founded on marriage is considered as a fount of love, protection and care. Philippine society generally frowns upon and discourages marital break-ups and so provides cultural and legal safeguards to preserve marital relations. Cultural prescriptions and religious norms keep many couples together despite the breakdown of the marriage. But the cultural prescriptions for women and men differ. Women are traditionally regarded as primarily responsible for making the marriage work and are expected to sacrifice everything to preserve the marriage and the solidarity of the family. While absolute fidelity is demanded of wives, men are granted sexual license to have affairs outside marriage. Yet when the marriage fails, the woman is blamed for its failure.

Reality tells us that there are many failed, unhappy marriages across all Filipino classes. Many couples especially from the marginalized sectors, who have no access to the courts, simply end up separating without the benefit of legal processes. The sheer number of petitions that have been filed since 1988 for the declaration of the nullity of the marriage under Article 36 of the Family Code (commonly known as “annulment”) shows that there are just too many couples who are desperate to get out of failed marriages.

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 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. Official figures support this. The 2003 report of the Philippine National Police shows that wife battering accounted for 53.6 percent of the total 8,011 cases of violence against women. About three of ten perpetrators were husbands of the victims. Husbands accounted for 28 per cent of the violence against women crimes. The Department of Social Welfare and Development reported that in 2003, of the 15,314 women in especially difficult circumstances that the agency serviced, 25.1 per cent or 5,353 were cases of physical abuse, maltreatment and battering.

Given these realities, couples must have the option to avail of remedies that will pave the way for the attainment of their full development and self-fulfillment and the protection of their human rights. Existing laws are not enough to address this need. To quote the Women’s Legal Bureau, Inc., a legal resource NGO for women:

“The present laws relating to separation of couples and termination of marriage are inadequate to respond to the myriad causes of failed marriages. Particularly, the remedies of declaration of nullity and annulment do not cover the problems that occur during the existence of marriage. Legal separation, on the other hand, while covering problems during marriage, does not put an end to marriage.”

“Though both divorce and a declaration of nullity of a marriage allow the spouses to remarry, the two remedies differ in concept and basis. A declaration of nullity presupposes that the marriage is void from the beginning and the court declares its non-existence… Beyond [the] grounds specified [in the law], declaration of nullity is not possible. ”

“In annulment, the marriage of the parties is declared defective from the beginning, albeit it is considered valid until annulled. The defect can be used to nullify the marriage within a specified period but the same may be ignored and the marriage becomes perfectly valid after the lapse of that period, or the defect may be cured through some act. The defect relates to the time of the celebration of the marriage and has nothing to do with circumstances occurring after the marriage is celebrated. In annulment, the marriage is legally cancelled, and the man and woman are restored to their single status. ”

“Since August 3, 1988, couples have been given a way out of failed marriages through Article 36 of the Family Code…The remedy provided under Article 36 is declaration of nullity of the marriage. The article voids a marriage where one party is “psychologically incapacitated” to comply with the essential ofmarital obligations. Consistent with the concept of void marriages (where the remedy is declaration of nullity), the law requires that the incapacity must have existed at the time of the celebration of the marriage In practice, Article 36 has become a form of divorce, as valid marriages are declared void every day in the guise of “psychological incapacity.” The innumerable Article 36 cases brought to trial courts is an indication of the elasticity of Article 36 to accommodate the needs of many couples desiring to terminate their marriages. It is proof that divorce is needed in the Philippines. Article 36 provides a remedy only for spouses who can prove “psychological incapacity”. The concept certainly cannot accommodate all cases where divorce would have necessary. What we need is a divorce law that defines clearly and unequivocally the grounds and terms for terminating a marriage. That law will put an end to the creative efforts played daily in courtrooms across the country to accommodate a wide range of cases in order to prove “psychological incapacity.” (Women’s Legal Bureau, Inc., The Relevance of Divorce in the Philippines, 1998)

Thus, this bill seeks to introduce divorce as another option for couples in failed and irreparable marriages.

This bill was crafted in consultation with women lawyers and inspired by the studies and inputs of various women’s groups and the experiences of spouses gathered by GABRIELA from its various chapters nationwide.

The bill seeks to introduce divorce in Philippine law with a strong sense of confidence that it will be used responsibly by Filipino couples. This confidence stems from the experiences of Filipino families that show that separation is usually the last resort of many Filipino couples whose marriage has failed. Cases of battered women also support this. Battered women invariably seek separation only after many years of trying to make the marriage work; separation only becomes imperative for them when they realize that it is necessary for their and their children’s survival. Divorce could actually provide protection to battered women and their children from further violence and abuse. With the predominance of the Catholic faith in the Philippines, the fear that divorce will erode personal values on marriage appears unfounded. The experience of Italy, where the Vatican is located, and Spain, two predominantly Catholic countries which practice divorce, supports this. Those countries have a low rate of divorce. Italy registers a 7% rate while Spain registers 15%. The figures reflect the strong influence of religious beliefs and culture on individuals in deciding to terminate marital relations.

Historically, divorce had been part of our legal system. In the beginning of the 16th century, before the Spanish colonial rule, absolute divorce was widely practiced among ancestral tribes such as the Tagbanwas of Palawan, the Gadangs of Nueva Viscaya, the Sagadans and Igorots of the Cordilleras, and the Monobos, Bila-ans and Moslems of the Visayas and Mindanao islands. Divorce was also available during the American period, starting from 1917 (under Act No. 2710 enacted by the Philippine Legislature), and during the Japanese occupation (under Executive Order No. 141) and after, until 1950. It was only on August 30, 1950, when the New Civil Code took effect, that divorce was disallowed under Philippine law. Only legal separation was available. The same rule was adopted by the Family Code of 1988, which replaced the provisions of the New Civil Code on marriage and the family, although the Family Code introduced the concept of “psychological incapacity” as a basis for declaring the marriage void.

In recognition of the history of divorce in the Philippines, the framers of the 1987 Philippine Constitution left the wisdom of legalizing divorce to the Congress. Thus, the 1987 Constitution does not prohibit the legalization of divorce.

This bill is respectful of and sensitive to differing religious beliefs in the Philippines. It recognizes that the plurality of religious beliefs and cultural sensibilities in the Philippines demand that different remedies for failed marriages should be made available. For this reason, the bill retains the existing remedies of legal separation, declaration of nullity of the marriage and annulment and only adds divorce as one more remedy. Couples may choose from these remedies depending on their situation, religious beliefs, cultural sensibilities, needs and emotional state. While divorce under this proposed measure severs the bonds of marriage, divorce as a remedy need not be for the purpose of re-marriage; it may be resorted to by individuals to achieve peace of mind and facilitate their pursuit of full human development. This bill also seeks to make Philippine law consistent in the way it treats religious beliefs with respect to termination of marriage. Philippine law through the Code of Muslim Personal Laws of the Philippines (Presidential Decree No. 1083 [1977]) allows divorce among Filipino Muslims, in deference to the Islamic faith which recognizes divorce. Non-Muslim Filipinos should have the same option under Philippine law, in accordance with their religious beliefs.

The bill proposes five grounds for divorce. All the five grounds are premised on the irreparable breakdown of the marriage and the total non-performance of marital obligations. Thus, the bill provides that a petition for divorce may be filed 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, or 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.

Not all circumstances and situations that cause the total breakdown of a marriage could be defined in this proposed measure. Thus, the bill also provides that divorce may be granted when the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage. Spouses living in a state of irreparable marital conflict or discord should be given the opportunity to present their marital contrarieties in court and have those differences adjudged as constituting a substantial ground to put an end to the marriage.

Another ground for divorce included in the bill is when one or both spouses are psychologically incapacitated to comply with the essential marital obligations. This provision will consequently repeal Article 36 of the Family Code. The bill seeks to include “psychological incapacity” in the grounds for divorce in the belief that the concept is consistent with the termination of marital ties rather than with a void marriage.

The bill seeks to eliminate “condonation of the act” and “consent to the act” as grounds for denying a petition for legal separation and, by extension, a petition for divorce. Many spouses especially women ignore the offense because of the social and economic conditions they are in. Many women in the marginalized sectors tend to condone the offense because they are economically dependent on their spouses or because of the stigma attached to failed marriages. Some women who are perceived to be condoning the acts of their husbands actually suffer from the cycle of spousal abuse such that they have become so disempowered to address their situation.

Under this proposed measure, a decree of divorce dissolves the absolute community or conjugal partnership of gains. The assets shall be equally divided between the spouses. However, this bill also proposes that in addition to his or her equal share in the assets, the spouse who is not gainfully employed shall be entitled to support until he or she finds adequate employment but the right shall only be effective for not more than one year. This provision is meant to address the economic deprivation or poverty that many women experience as a result of a marital break-up.

The bill also proposes that the custody of any minor child shall be decided by the court in accordance with the best interests of the child and their support provided in accordance with the Family Court provisions on support. Actual, moral and exemplary damages shall be awarded to the aggrieved spouse when proper in accordance with the provisions of the Civil Code on damages. The proposed measure also provides that parties shall be disqualified from inheriting from each other by intestate succession. Moreover, provisions in favor of one spouse made in the will of the other spouse shall be revoked by operation of law.

The Philippines and Malta are the only two remaining countries in the world without a divorce law. This bill is being introduced based on indications that Philippine society is ready for the legalization of divorce.

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.

Thus, the approval of this bill is urgently requested.