Issue Paper: an Act of Introducing Divorce in the Philippines

Introduction

In our Philippine Constitution, Article XV, family is defined as a group of persons united together by ties of marriage and blood. Family is important in our country and to our society. It is the foundation of the nation which is but a conglomeration of families bound not only by affinity and consanguinity and common interests but also by a common past and shared vision of the future. When there is a family, there is also Marriage. Marriage is defined as a status or relation of one man and woman, legally united for life, with rights and obligations which are governed by law and not subject to private agreement between the parties. In this aspect, marriage is an inviolable social institution in the maintenance of which the public is deeply interested, for it is the “foundation of the family” and society, without which there could be neither civilization nor progress. Our country is traditional and religious, and marriage is a sacred union. During those times of our ancestors, if a man wants to marry a woman, he must do all the hard works not only to win the heart of the woman he loves but also the approval of her family. And before marriage, the groom has to give a dowry. This dowry consisted gold, land, money, slaves, or anything of value. Aside from dowry, the groom had to serve the parents of the girl for free. This service might consist of chopping woods, fetching water, and other manual work asked by her parents. During those times, man and woman merely do not give up on their marriage easily because of the hard work they been through before upon their marriage. In our today’s modern society, the practices no longer exist or it’s no longer being practiced. And the reality, not all marriages ended likes ones in those fairy tales. Like any other things in this world, nothing is constant, not even love. It is a fact that not all marriages succeed as a permanent union. That no matter how traditional and religious our country might be, they are many failed unhappy marriages across all Filipino classes. Though, through Article 36 of the Family Code, the provisions under the declaration of nullity of the marriage, couples have been given a way out of their failed marriages. With Legal Separation unable to grant freedom to remarry and with Annulment being viewed as very expensive. But with the Annulment only voids a marriage if one of the couple is “psychologically incapacitated.” But many Filipino couple coming from the marginalized sectors, who do not have the economic means to settle their failed marriage in court, just simply ends it without the benefits in the legal processes. This paper is about Divorce Bill filed in the Congress, stated that the Philippines need a divorce law that defines clearly and unequivocally the grounds and terms for terminating a marriage. The law that will put an end to all lies they went through or they will go through to only to prove that one of the couple is “psychologically incapacitated.” And when a marriage is viable, divorce should be an option.

Body
Annulment and Legal Separation in the Philippines
Annulment
A decree of annulment that has been issued by the court allows the parties to remarry. It can be based on several grounds, such as, but not limited to: minority, lack of authority of the solemnizing officer, bigamous or polygamous marriages, and the psychological incapacity to comply with the essential marital obligations. A decree of annulment restores the spouses to their status before the marriage, such that they are allowed to remarry. Also, the children of the marriage conceived prior to its termination shall be considered legitimate; the conjugal property shall be dissolved and liquidated; donations by reason of marriage shall generally remain valid; the innocent spouse may revoke the designation of the spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and the spouse who contracted the subsequent marriage in bad faith shall no longer be qualified to inherit from the innocent spouse.
Legal Separation
A decree of legal separation only allows the spouses to live separately, but it does not sever the bonds of marriage, meaning that the parties cannot get married to other people. Legal separation is granted on 10 grounds, including repeated physical violence or grossly abusive conduct directed against the innocent spouse or their child; drug addiction or habitual alcoholism; lesbianism or homosexuality; sexual infidelity or perversion; attempt by the offending spouse against the life of the innocent spouse; and abandonment of the innocent spouse without justifiable cause for more than one year. A decree of legal separation gives the spouses the right to live separately from each other, dissolves the conjugal partnership, awards the minor children to the innocent spouse, and disqualifies the offending spouse from inheriting from the estate of the innocent spouse.

Brief History the Concept of Divorce in the Philippines 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 Vizcaya, the Sagadans and Igorots of the Cordilleras, and the Manobos, B’laans 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.

An Act Introducing Divorce in the Philippines The divorce bill filed in the Philippine Congress by GABRIELA Women’s Party List Representatives Luzviminda C. Ilagan and Emerenciana A. De Jesus, is a commitment to the policy of the 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. In the 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. 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 future. 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 couple who are desperate to get out of failed marriages. Even when couples start out well in their marriage, political, economical 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. The Department of Social Welfare and Development (DSWD) likewise recorded marital violence against women were husbands of the victims. Husbands accounted for 28 percent of the violence against women crimes. Given these realities, couples must have the option to avail 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. To quote some of 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 on 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 valid from the beginning and the court declares its non-existence… Beyond [the] grounds specified [in the law], declaration of nullity is not possible.”
“Since August 3, 1988, couples have been given a way out of failed marriages through Article 36 of the Family Code... The remedy provides under Article 36 declaration of nullity of the marriage. The article voids a marriage where one party is “psychologically incapacitated” to comply with the essentials of marital 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.” ”
Thus, the bill seeks to introduce divorce as another option for couples in failed and irreparable marriages. The 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 divorce bill seeks to introduce divorce in the 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.
In recognition of the history of divorce in the Philippines, the farmers of the 1987 Philippine Constitution left the wisdom in legalizing divorce to the Congress. Thus, the 1987 Constitution does not prohibit the legalization of divorce. The Philippines is a traditional and religious country. The divorce 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 remain 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. The divorce 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 divorce 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 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. The 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 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 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 or the other spouse shall be revoked by operation of law. The Philippines and Malta are 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.
Divorce as a Solution With legal separation unable to grant freedom to remarry and with annulment being viewed as anti-poor, being both too time consuming and too expensive to procure, proponents of the bill perceive divorce as a timely option that guarantees the full respect of human rights, particularly those of women and children who have endured inequalities, abuses and violence in marriage as well as a means of helping victims of failed and irreparable marriages to eventually find peace and self-fulfillment.
The inherent complexity of marriage requires serious preparation. Maturity in terms of financial skills, communication, psychological readiness and emotional stability are just few the basics of what must acquired prior to the act of marriage. Ironically, more primitive societies’ conditioning and preparation in these areas begin early in life, thus they suffer only isolated instances of abuse within marriage. With our present society being more preoccupied with preparation for material and intellectual fulfillment, preparation in these same key areas have taken the backseat. And with it, a steady rise in the breakdown of marriage.
From the Philippine National Police (PNP) in 2009 that showed that 19 women fall victims to marital violence every day. Among the forms of violence and abuse against women committed in 2009, wife battery ranked the highest at 6,783 or 72%. There were a total of 8,283 cases filed for nullification of marriages in 2010. This is nearly double the 4,520 cases of nullity filed in 2001. The statistic only tells us that we need a law that will provide a way out from the harm of marriage in an equal, inexpensive, and in an easy way.

Conclusion / Recommendation
The Divorce Bill filed in the Philippine Congress is merely for the protection of men and women from the harms of marriage. But the opponents of the bill tell us that it is unconstitutional. That it will be the reason that a family will wreck. If it is so, on the first place the Annulment and Legal Separation should not been implemented. The road in divorce is much smoother than annulment and legal separation. The opponents of the bill tell us that it is a violation in the law of God. But I guess, no one really knows what God wants. Does God will prefer a married couple fighting, screaming and yelling at each other? Does God will prefer a married couple killed his/her own spouse because of anger? Or Does God want to just let the married couple go in separate lives to live in harmony and peace? The opponents of the bill tells us that with divorce being presented as a liberating instrument to intolerable unions, in effect, would be culpable to the formation of an entire society of individuals who view marriage as a loss of freedom, and so, would find marriage as either temporary union that can be dissolved the moment either party is unhappy or as a non-essential in society that can be replaced by such unions as cohabitation. The answer to that is, the future married couple must be educated. All Filipino must be educated in terms of divorce. That there are grounds for divorce, it will not be like when they are both tired they can easily quit.
Divorce or not, there is what we call Responsibility. Responsibility, in terms that a man and a woman must be responsible on their duties as husband and wife. They must respect each other. They must know each other boundaries. During their struggling time, if they are having a problem they must fix it together for shouting and yelling will not do. If possible, both of them ask for help, do counseling to strengthen their marriage. Or before, when marrying someone they must analyze the person he/she is about to marry with. If it can provide the physiological need of his family. If he/she have the strength to handle a certain problem. If he/she can handle the stress in life. If he/she can control his/her tempers. If he/she can control it, what he/she do in expressing his/her anger? Divorce or not, it will all start to be responsible in choosing someone to be within sickness and in health.