Fight for divorce law in Philippines continues

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By THIRD ANNE PERALTA-MALONZO, SunStar Manila

THE fight for the enactment of a law allowing divorce in the Philippines continues as three senators, including two newbies, filed their respective bills pertaining to the matter.

Allowing divorce in the Philippines is one of the pet bills of Senators Risa Hontiveros (Dissolution of Marriage Act), Raffy Tulfo (Divorce Act of 2022) and Robin Padilla (Divorce Act of the Philippines).

A survey conducted by the Social Weather System (SWS) in 2017 showed that an average of 53 percent of adult Filipinos were in favor of the legalization of divorce in the country.

The Philippines and Vatican, which is one of the smallest states in the world, were the only ones that have no divorce law.

Article 45 of the Family Code of the Philippines, however, sets grounds to which a union may be annulled. These grounds include:

* No parental consent if either party was between 18 and 21 years at the time of marriage

* Psychological incapacity

* Fraudulent consent, including non-disclosure of either party of a material fact before marriage, such as pregnancy by another man or a sexually transmitted disease

* Consent obtained by force, intimidation, or undue influence

* Physical inability to consummate the marriage

* That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable

In a gist, annulment makes a marital unity null and void, or as if it never happened, while divorce recognizes and ends a legally valid marriage.

According to the Office of Solicitor General, there is an uptrend in the number of annulment and nullity of marriage cases filed in the country since 2001, where there were only over 4,000 cases filed as against the more than 11,000 filed in 2014.

The agency said over 50 percent of the petitioners were women, and among the reasons for seeking the nullity of their marriage with their spouses are abuses.

In the findings of the 2017 National Demographic and Health Survey conducted by the Philippine Statistics Authority, it showed that one in every four married woman experienced spousal violence, either physical, sexual or emotional.

Tulfo, host of a radio/television program that primarily helps those who are abused, said he has received, over the years, a lot of reports pertaining to marital problems.

He said majority of the spouses wants to avail themselves of annulment or legal separation, but they are financially incapable to afford the process.

“Saan, halimbawa, kukuha ng pambayad sa lawyer’s acceptance and appearance fees, court filing fees, professional fees ng mga eksperto gaya ng psychologist at iba pa, ang isang minimum wage earner o wala pa gaya ng security guard, factory worker, kasambahay, at simpleng empleyado? Sweldo pa lang nila kapos na para sa pang-araw-araw na pamumuhay,” said Tulfo.

“Marami ring kasong ganito: Nagpasyang maghiwalay ang mag-asawa. Nagpirmahan pa nga sa barangay. (Hindi na sila nag-file ng annulment sa korte dahil magastos nga yun). Makalipas ang ilang taon ng walang pakialamanan sa buhay at pag-abandona, nagka-boyfriend si babae (o nagka-girlfriend si lalaki), tapos ayun, biglang susulpot si esposo/esposa mula sa kawalaan at iiinvoke ang kasal at kakasuhan ang misis/mister nya. Sa tingin nyo makatarungan ba naman yun?” he added.

Cost

Lawyer Philip Jurado, who discussed Padilla’s proposed Divorce Act of the Philippines, along with the senator in a recent Facebook live, said a person may spend an average of P250,000 to P500,000 to fulfill an annulment case.

An annulment in the Philippines may take two to four years on average, if the other spouse does not contest the proceedings and there are no issues, such as property and custody and/or support of/for the children.

Tulfo said one of the usual grounds for annulment of couples is the psychological incapacity, where the petitioner needs to prove that his/her spouse is psychologically incapable in performing his/her marital obligations.

This may need a psychological examination by a licensed psychologist that may also include the witnesses, which may be presented by the petitioner.

Tulfo said this is one of the factors that make the annulment process expensive.

“Yan kasi ang lalong nagpapamahal at nagpapatagal sa proseso ng paghihiwalay nang matiwasay -- yung kailangan pang patunayan sa korte na ang isang partido ay may ‘psychological incapacity.’ Maraming kaso na kailangan pang magsiraan ang dating nagmahalan, gumawa ng kwentong-kutsero, at umupa ng psychologist para lamang mapanindigan ang kaso,” he said.

He said it also affects a person’s reputation, noting that he/she will have a “psychological incapacity” record in court.

“Requirement kasi ang mental health clearance sa trabaho, so malinis dapat ang mental health record ng isang indibidwal,” said Tulfo.

What adds to the stress caused by the annulment proceedings is the conduct of hearings where one party will have to destroy the other in order to win the case.

The other factors that affect the speed of reaching the finality of an annulment case include retirements or promotion of judges, difficulties in scheduling the hearing considering the availability of the witnesses, opposition by the other party and issues such as custody, support or property and court inventory.

Padilla’s bill

Among the grounds for the filing of a divorce petition based on Padilla’s proposed bill are the following:

* When either of the spouses has no capacity to perform the essential marital obligations of the marriage and the incapacity continues and appears to be incurable;

* When there is an existing irreconcilable marital difference;

* When a spouse obtained a divorce abroad;

* When a spouse is presumed dead under Articles 390 and 391 of the Civil Code of the Philippines;

* Upon conviction of an offense under Republic Act 9262, otherwise "Anti-Violence Against Women and their Children Act of 2004";

* Attempt by the respondent against the life of a common child or a child of the petitioner;

* Having a child with another person other than one’s spouse during the marriage, except when upon the mutual agreement of the spouses, a child is born to them in vitro or through a similar procedure or when the wife bears a child after being a victim of rape;

* When any of the grounds for annulment of marriage under Article 45 of the Family Code of the Philippines, filed by the persons and within the periods provided in Article 47 of said Code are present;

* Except when circumstance is present under Article 56 of the Family Code of the Philippines when any of the grounds for legal separation under Article 55 of the said Code are present;

* When the spouses are separated in fact for at least two consecutive years at the time of the filing of the petition for divorce;

* When the spouses have been legally separated by judicial decree under Article 55 of the Family Code of the Philippines

Padilla’s proposed bill also includes a six months cooling-off period after the filing of the petition and this will be observed before a competent court. During the period, the court shall exercise all efforts to reunite and reconcile the parties.

Hontiveros’ bill

Under Hontiveros’ proposed bill, the grounds are as follows:

* Five continuous years of separation, with or without a judicial decree of separation;

* The commission of the crime of rape by the respondent-spouse against the petitioner-spouse before or after the marriage;

* The grounds for legal separation under Article 55 of the Family Code of any other special law;

* A final decree of absolute divorce validly obtained in a foreign jurisdiction;

* Irreconcilable marital differences or irreparable breakdown of the marriage despite earnest effort at reconciliation.

Lawmakers said the process of divorce may take only “a few months,” or at most a year, but assured that the procedures will be more accessible and way ahead inexpensive.

Once annulment and/or divorce has reached finality, the husband and wife will be allowed to remarry.

The children of the estranged parties will still be considered legitimate while their custody, particularly of the minors, will be determined by the court.

The judgment in both processes should provide a liquidation, partition and distribution of the properties of the spouses, the custody and support of the children, the conjugal dwelling and the lot on which it is situated shall be adjudicated in accordance with the Family Code of the Philippines, and the effects on the spouses of the intestate successions, testamentary dispositions, donations, and insurance on beneficiaries shall be observed. (SunStar Philippines)