Divorce in PH: a long way to go

“Couples must have the option to avail of remedies that will pave the way for the attainment of their full human development and self-fulfilment and the protection of their human rights.”

Second of 2 parts

Please also read first part: When marriage fails


MANILA – While Pope Francis has acknowledged the reality of failed marriages, and expressed openness to considering divorce as an option, the Philippine Catholic Church remains steadfast in its stand against divorce.

“A failed marriage is not an argument for divorce,” said Archbishop Socrates Villegas, re-elected president of the Catholic Bishops’ Conference of the Philippines (CBCP). In a statement, he reiterated that there are legal remedies for those who want to end a troubled marriage.

Gabriela Women’s Partylist (GWP) legal counsel Alnie Foja, said such legal remedies are: declaration of absolute nullity of marriage, annulment and legal separation.

But are these remedies enough?

GWP said no, and since 2004, the group had filed in Congress a proposed law for divorce.

Foja said these remedies in the Philippines do not cover instances that happened during the marriage. The declaration of absolute nullity of marriage says that the marriage was void from the very beginning.

“It does not recognize the marriage that took place even if the couple had been together for 20 years,” said Foja.

Foja explained that a marriage would be declared as null and void or invalid based on events that happened during the actual wedding, such as, if one party was a minor at the time of the wedding, if the marriage license is invalid, or if the marriage is bigamous, meaning one party is previously married to someone else.

Once the marriage is declared null and void, children that were also born during the invalidated marriage will then be considered illegitimate.

Article 36 of the Family Code voids a marriage based on “psychological incapacity,” one of the most used grounds for nullity of marriage.

Article 36 says, “A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”

Specific guidelines were also set by the Supreme Court (G.R. No. 108763) in applying and interpreting psychological incapacity such as: the burden of proof to show the nullity of the marriage belongs to the plaintiff (complainant); the root cause of psychological incapacity must be medically or clinically identified; the incapacity must be proven to be existing at the time of the marriage; such incapacity must be shown to be incurable; such incapacity must be grave enough to bring about disability of the party to fulfil essential obligations of marriage.

Foja said an expert witness like a psychologist is needed to prove that the respondent is psychologically incapacitated. In the proposed divorce bill, there is no need for an expert witness because the grounds have existed during the marriage.

Annulment, however, is different from a declaration of nullity. Annulment cancels the marriage, but does not invalidate it, and the children are still legitimate.

Some of the grounds for annulment are: fraud, lack of parental consent for couple who got married between the age of 18 and 21, the consent of either part was obtained by force, intimidation or undue influence, if either party was of unsound mind or insane, if either party was physically incapable of consummating the marriage and the condition is incurable, and either party was afflicted with incurable sexually-transmissible disease (STD).

Article 45 of the Family Code puts a prescriptive period of five years to some of the grounds for annulment. Fraud or force would only be valid grounds for annulment if the petition was filed within five years after the discovery of fraud and from the time of use of force.

The incapacity of either party to consume the marriage and STD can be filed as valid grounds only five years after the marriage. The insanity on the other hand has no prescriptive period.

Although grounds for legal separation includes some acts that may have happened during the marriage such as repeated physical violence, infidelity, drug addiction or habitual alcoholism. However, it does not dissolve the marriage bond.

Legal separation, said Foja, is only separation from bed and board meaning the couple will live separately. Both are still not allowed to remarry. If one party had a relationship with someone else, the other party can file a case of adultery or concubinage.

Why divorce?

Growing public clamour for divorce shows that existing legal remedies are not enough. The Social Weather Station’s recent survey showed that six out of 10 Filipinos are in favour of divorce.

The Women’s Legal Bureau, in its paper, “Relevance of Divorce in the Philippines,” said, “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 the marriage, does not put an end to marriage.”

Every year since 2004, GWP had filed a proposed bill for divorce, “to assert the women’s right to be given a more progressive, realistic option to get out of abusive marriage.” In 2014, GWP Reps. Luzviminda Ilagan and Emmi de Jesus again filed House Bill 4408, “An Act Introducing Divorce in the Philippines.”

Lifted from the House Bill 4408 "An Act Introducing Divorce Bill in the Philippines."
Lifted from the House Bill 4408 “An Act Introducing Divorce Bill in the Philippines.”

Sadly, Foja said, the bill is gathering dust and has not even reached the committee level. The House of Representatives’ website shows that it was only referred to the Committee on Population and Family Relations. No committee hearing has ever taken place.

The explanatory note of the House Bill 4408 read, “Couples must have the option to avail of remedies that will pave the way for the attainment of their full human development and self-fulfilment and the protection of their human rights. Existing laws are not enough to guarantee and protect these rights.”

The GWP said that they will re-file the bill when Congress reopens next week. (https://www.bulatlat.com)

Please also read first part: When marriage fails

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  1. It’s interesting how “there never was a wedding” is never mentioned in any of these articles. Where were the vows? But if some pieces of papers are signed, you can be married according to the cemonar. The laws need a serious re-think.

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