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Allowing Absolute Divorce in the Philippines

Topics: Family Law | By Atty. Fred | April 18, 2008 Divorce is a popular and controversial topic, except that it’s often discussed with hushed voices. Many are just waiting for the right opportunity to end their respective marriages, and the reasons are diverse — physical abuse (against the spouse and/or the children), sexual infidelity, irreconcilable differences and conflicting personalities, gross irresponsibility, loss (and transfer) of affection, among others. Unfortunately, these grounds are not enough to severe the marital bond through annulment. In lieu of divorce, married persons resort to annulment and according to the Office of the Solicitor General (OSG), there is an alarming increase in the number of annulment cases in the Philippines. The number of annulment cases filed in courts, which never breached the 7,000-mark prior to 2006, rose to 7,138 (2006) and 7,753 (2007). Existing Philippine Laws regarding Divorce Philippine laws do not provide for absolute divorce, but divorce was available in certain periods in Philippine history. Divorce was allowed under the Divorce Law of 1917 (Act No. 2710) and during the Japanese occupation, pursuant to Executive Order No. 141 (1943). As the law stands today, however, a marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad. In mixed marriages involving a Filipino and a foreigner (or former Filipinos), Article 26 of the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry. It is not really accurate to say that there is absolutely no divorce in the Philippines. Under Presidential Decree No. 1083, also known as the “Code of Muslim Personal Laws of the Philippines,” divorce is allowed in certain instances, but this law applies only when both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law in any part of the Philippines. For the rest of Filipinos, therefore, divorce is not available. Efforts to Legalize Divorce in the Philippines In 2005, party-list representative Liza Masa of Gabriela filed a divorce bill. According to Masa, the annulment process has been expensive for most Filipinos and has not been responsive to the needs of women, particularly those suffering from marital abuse.” 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. The highlights of the explanatory note of House Bill No. 6993, in support for divorce, are:

In addition to these reasons. The Family Code sanctions relative divorce (a mensa et thoro). the Gadang of Nueva Vizcaya. Divorce is not exclusive to contemporary times. it has become morally and socially acceptable for many Filipinos to grant spouses of broken marriages the legal right to remarry. Anyone could decide to get married without thinking twice because they can get out of the marriage easily with divorce. Allowing divorce would serious weaken the institution of marriage. absolute divorce had been widely practiced among our ancestral tribes — the Tagbanwas of Palawan. If the current increase of annulment cases is alarming.Not all marriages succeed as a permanent union. grossly abusive conduct and other acts of or offenses that — rather than promote blissful. Divorce is not a novel legal right. however. there are criticisms that the existing laws on annulment are anti-poor. Other arguments against the . to name a few. Bila-an and Moslems of Visayas and Mindanao islands. as the high cost needed to pursue a case for annulment prevents the poor from securing one. the Manobo. These laws are no longer in effect. the Sagada and Igorot of the Cordilleras. harmonious conjugal and family life — impair. The present grounds for legal separation which are recognized in our society as justifiable bases for relative divorce should be re-enacted as lawful grounds for absolute divorce. E. Spouses living in a state of irreparable marital conflict or discord should be given the opportunity to present their marital contrarieties before the courts and have such differences adjudged as substantial grounds to dissolve or sever the legal bond of marriage. An increasing number of married individuals find themselves subjected by their marriage partners to physical violence. In 1917.O. Before the Spanish colonial rule in the early 16th century. Based on the increasing number of failed marriages which confines many of our citizens to a perpetual state of marital limbo. This. The bill seeks to give spouses which are shacked by an irretrievably broken marriage the freedom to remarry and possibly succeed in attaining a stable and fulfilling family life. Legal separation is a recognized remedy for victims of failed marriages. No. is the very reason cited by those who oppose divorce — the high cost is intended to discourage the people from trifling with marriage. There were prior divorce laws. 141. Act 2710 allowed divorce on the grounds of adultery on the part of the wife and concubinage on the part of the husband. In addition. a new law on absolute divorce. imagine how the allowance of divorce would greatly increase the figure. Our civil laws on marriage justify and allow the separation of married individuals but does not confer them the legal right or remedy to extricate themselves from the ordeal of a broken marriage. it is recommended that “irreconcilable marital differences” be included in our present civil laws as a justifiable cause for absolute divorce because not all circumstances and situations that vitiate the institution of marriage could be specifically categorized and defined by our lawmakers. was promulgated providing for ten grounds for divorce. debase or destroy the legitimate ends of the marriage relationship. During the Japanese Occupation.

Absolute divorce destroys the very concept of family as an inviolable social institution. in most cases. Absolute divorce is destructive of the family as a social institution mandated under the Constitution. 220). The human rights of the innocent spouse is violated. The natural and primary right and duty of parents in the rearing of the young for civic inefficiency and the development of moral character shall receive the support of the government.The innocent spouse and the children in most cases may suffer economic difficulties. Absolute divorce violates the concept of marriage. The Family Code defines marriage as a permanent union of man and woman (Art.”(Article 11. observe mutual love. It shall equally protect the life of the mother and the life of the unborn from conception. such as the United States. Divorce is unnatural and immoral as it causes disorder in the family and society. thus violating Article 68 of the Family Code which reads: “The husband and wife are obliged to live together. 1). 5. 2. particularly Article 16(3) of the United Nation Declaration of Human Rights. The divorced spouses who will remarry will have to maintain another family of their own. will suffer untold economic difficulties. Irrespective of any religious beliefs. The experience in countries where divorces are allowed and easily obtained. 6.” 4. Section 12) The relevant constitutional provisions will have to be amended before the divorce bills will be enacted into law. A divorce invites another divorce. The guilty spouse in the divorce case is allowed to abandon or neglect his obligation to provide company and care of the innocent spouse and the children. The purpose of the proponents of the Senate and House Bills that it will give an opportunity for spouses to separate from an intolerable spouse and by entering into a new marriage is not altogether an assurance that the new marriage will be a happy and permanent one. One of the basic policies of the State. the innocent spouse and children. 3. is that people divorces have experienced multiple . The innocent spouse who has not contravened any law is unlawfully deserted. it becomes a plague on society. Aside from being abandoned by the guilty spouse.legalization of divorce are contained in the Position Paper of the Commission on Human Rights (CHR) against these bills. The Civil Code also provides for the presumption of the solidarity of the family and the indissolubility of marriage bonds (Art. as declared in the principles of the Philippine Constitution reads: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. The highlights are: 1. Because of its contagious effect in society. respect and fidelity and render mutual help and support. a permanent union of man and woman. The proposal to legalize absolute divorce with the right to remarry violates relevant international instruments on human rights. divorce of spouses with right to remarry constitutes a grave offense against a natural law.

impotence etc. It is for this reason that court comes in as a last resort in the Islamic scheme of separation of husband and wife. Let’s hear what you have to say. The jurists have developed some indices which may be accepted as grounds of divorce in case the divorce matter goes to the court. therefore. The general ground of divorce in the Quran. desertion etc. There was little interest in our previous post calling for arguments regarding the allowance of divorce in the Philippines. the grounds may be stated and may in reality be false. It. Maybe we’ll get more substantial arguments and ideas this time around. The Prophet of Islam has said: "Among lawful things. divorce is most disliked by Allah" (narrated in the book of tradition of Abu Daud). that is to say. although the informal poll reveals that 79% favors divorce. however. On the other hand. long imprisonment. is hopeless failure of one or both parties to discharge their marital duties and to consort with each other in kindness. A husband may divorce his wife once and let the Iddat (the period of waiting after divorce) . refusal to provide for wife. Islam has not made it necessary that the grounds of divorce should be publicized. three pronouncements or acts of divorce on three different occasions provided that each divorce is pronounced during the time when the wife is in the period of purity (that is not in her menstrual time). A Muslim male is allowed three chances. Either party may take steps to divorce in case of chronicle disease. Islamic Laws Regarding Divorce Islam allows divorce if circumstances warrant or necessitate it. does not mean that Islam views divorce lightly. Long absence of husband without any information. there is no blame on either of them if she redeems herself (from the marriage tie) " (2 : 229). deceptive misrepresentation during marriage contract. Islam has permitted divorce reluctantly. publicity of grounds may not be of any positive consequence. In fact.divorces and have remarried several times in their selfish desire to get rid of unwanted spouses by intentionally creating the cause of the divorce. The grounds may not be pronounced but genuine. neither liking nor recommending it. peace and compassion. insanity.e husband and wife) may not be able to keep the limits ordered by Allah. The Quran states as regards grounds of divorce in very general terms: "And if you fear that the two (i. Islam does not also want washing dirty linen of private affairs in public or in the court except in exceptional circumstances. are some of the grounds on which wife can ask for divorce.

The waiting period is basically a term of probation during which reconciliation can be attempted. he may divorce her a second time in the same manner as stated above. thereafter can marry any person she likes according to her choice. attempts should be made for reconciliation. She is totally prohibited for him. Maintenance of wife during the waiting period is on husband. It also allows time for planning the future. However. The wife can not be expelled from her place of residence and he can not in any way harass her. it lasts as long as pregnancy lasts. he can not take back the wife during the Iddat.” occurs when a marriage is legally terminated. Hammudah Abdul Ati). Marriage can also be dissolved by judicial process through the court on complaint of the wife on the grounds explained before. In case of divorce. the father has to provide the cost of maintenance of young children though they remain under the custody of mother. The process of separation is basically a matter of husband and wife. The intervention of court has nowhere reduced the number of divorce. It is also required to establish whether the wife has conceived. Yusuf Al Qaradawi). Judicial process in Islam is the last resort in so far as divorce is concerned. Islamic law on divorce if followed in true spirit will enhance the dignity of man and woman. also known as “dissolution of marriage. If after the first divorce the husband is reconciled with his wife but the hostility and conflict begins all over again. This usually lasts three months.pass. This is called Khula in the technical language of Islamic law. One of the consequences of the divorce is the commencement of waiting period for the wife. The wife can divorce her husband if this condition is stipulated in the marriage contract. he divorces the wife the third time. The lady. However. Divorce Law Divorce. It has not made judicial process obligatory in divorce for reasons explained earlier. If there is a pregnancy. During the waiting period the two have the option of being reconciled. This kind of divorce is called ‘Delegated Divorce’ (Talaq Taffiz). Divorce law governs the sometimes complicated process of divorce. If however. the young children remain in the custody of their divorced mother. Marriage can also be dissolved through mutual consent. reduce conflict and ensure justice. (Ref : The Family Structure in Islam by Dr. These will constitute moral as well as criminal offence. helping to determine how property and assets are divided as well as who will have custody of . If however the waiting period passes without reconciliation. Islamic law of divorce is based on practical considerations. (Ref: The Lawful and the prohibited in Islam by Dr. after second reconciliation. In this case also he can return to her during the Iddat (or waiting period). they stand fully divorced. when conflict arises.

com/news/practice-areas/family-law/divorce-law/ Absolute Divorce The most common form of divorce is legally termed absolute divorce. one partner can be shown to be at fault in a divorce. In this form of divorce. Couples going through a divorce may want to consider hiring a qualified divorce lawyer to help determine the most equitable decisions. By challenging the decision. “irreconcilable differences.lawyershop. but typically it can be granted on the basis of marital misconduct (at-fault) or because the couple simply cannot get along (no-fault). Instead.” or the mere inability to get along. In a no fault divorce there is no need for evidence or proof of wrongdoing. In the past. The following is a description of each type of divorce. This means that the other spouse cannot prevent his or her partner from filing for divorce. marriage is completely dissolved. however. There may still be divorce cases. a fault divorce may be given if one partner is unable to engage in sexual intercourse or if he or she is in prison. because he or she may be awarded a greater share of the couple’s assets. . Today most states no longer require it. Fault Divorce In some cases. is considered a valid reason for no fault divorce. No-Fault Divorce A no-fault divorce is much less complicated than a fault divorce. One spouse may also be found at fault if it can be shown that he or she is guilty of adultery or abandonment. Types of Divorce There are two types of divorce: fault and no fault divorce. the divorcing spouse may want to file a fault divorce. The distinction between at-fault divorce and no-fault divorce can have important consequences for the outcome of the legal proceedings. he or she only lends merit to the fact that the couple does not see eye to eye. when showing that one partner is at fault may be worthwhile.children the couple may have. Legal grounds for absolute divorce depend on individual state laws. http://www. In addition. Fault divorces also tend to be processed more quickly as there is no separation period like the one required for a no fault divorce. Generally. the spouse filing for divorce had to show evidence of wrongdoing on the part of his or her partner. In some cases. Couples seeking a divorce may want to consider consulting an experienced divorce attorney. This is most common when abuse is an issue. any legally recognized reason for divorce is acceptable.

and alimony. What is an annulment? An annulment is defined as the legal declaration that a marriage was never valid. and sole custody. Grounds for at-fault divorce include cruelty (inflicting needless physical or emotional pain). the spouse that can prove fault may be awarded a greater portion of community property or larger alimony payments. In those that do. and inability or unwillingness to consummate marriage. There are two types of divorce: limited and absolute.At-Fault Divorce This type of divorce occurs when one spouse sues for divorce due to the transgressions of the other. What is divorce? A divorce is defined as the dissolution of marriage. A separation is also known as a limited divorce. Not all states offer at-fault divorce. adultery. No-Fault Divorce This describes any divorce where the spouse filing for divorce is not required to prove misconduct on the part of the other partner. Limited divorce is also known as a separation. however. the marriage is treated as though it never occurred. There are two types of absolute divorce: no-fault and fault. child custody. What are the different types of child custody? There are four types of child custody: legal custody. . An absolute divorce occurs when the marriage is completely dissolved and all marital rights and obligations are terminated. All states offer no-fault divorce. Suitable grounds for no-fault divorce include incompatibility and irreconcilable differences. In this instance. No-fault divorces are still subject to legal battles over property distribution. physical custody. lengthy imprisonment. What is child custody? Child custody refers to whom the children live with after a divorce. some states require a separation period before divorce can be granted. abandonment. child support. What is a separation? A separation is defined as the termination of legal cohabitation. joint custody.

However. it did for about fifteen years. Let’s go back a little to get a clear perspective. Child support guidelines differ from state to state. and 2) the procedure. Lately. While it is true that annulment and divorce both pertain to the dissolution of a valid marriage during the lifetime of both spouses. the reverse may also be true. there was no way to dissolve a marriage during the lifetime of both spouses. Until everyone–including the common tao– realized that there is a vast difference between annulment and divorce. depending on who is awarded physical custody of the children and who is financially able to pay support. those who have been campaigning for the passage of a divorce law in Philippines would finally be silenced. There are three types of alimony: permanent alimony.What is child support? Child support refers to the payments made by one spouse to another in order to pay for the upbringing of the children after a divorce. the prodivorce sector has been actively campaigning once more. and lump sum alimony. under the provisions of the old Civil Code. they are not exactly the same. temporary alimony. Annulment under the Family Code is no viable substitute for a real divorce law. Prior to the passage of the Family Code in 1987. Who pays child support? Child support can be paid by either spouse. 2005 A lot of Filipinos thought that with the passage of the Family Code of the of the Philippines with its unprecedented provisions on annulment of marriage. What is alimony? Alimony is defined as payment from one spouse to another that is awarded pending a divorce or after divorce proceedings. There are two fundamental differences: 1) the legal grounds. legal separation and divorce By Connie Veneracion on Mar 19. Well. Although there were provisions on void and voidable marriages. then the husband will be responsible for alimony payments. If the wife is the homemaker and primary caretaker of the children. Annulment. Who pays alimony? Either spouse can pay alimony. these pertained to .

Neither spouse could legally remarry. Under the old Civil Code. or (4) Concealment of drug addiction. It follows that all second marriages contracted by Filipino citizens following divorces secured abroad were likewise invalid in the Philippines. Fraud took on a whole new significance. Generally. How can the second marriage be attacked? In effect. the capacity to marry of a Filipino citizen. It was under these circumstances that Filipinos secured divorce and. strictly speaking. then the other spouses’s second marriage becomes more easily acceptable. . A clear conflict ensued. is determined by Philippine laws. these are: (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude. a marriage valid where celebrated is valid in the Philippines. these were not valid marriages within the legal sense. Anyway. she was pregnant by a man other than her husband. While retaining legal separation as an option. such marriage should be considered valid in the Philippines. Well. I know what most of you are thinking at this point. irrespective of his physical location. But there is a hitch. all divorces secured abroad are not valid in the Philippines.marriages that lacked one or more requisites to make them legal. following the general rule. existing at the time of the marriage. the person would be committing adultery or concubinage because he/she would be co-habiting with the “second” spouse. Hence. the Family Code encompasses more situations that are considered fraudulent. And legal separation was only available under two circumstances: 1) attempt by one spouse on the life of the other and 2) adultery on the part of the wife or concubinage on the part of the husband. habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage. all those problems were supposed to have been addressed by the Family Code with its more progressive provisions on the annulment of marriage. (2) Concealment by the wife of the fact that at the time of the marriage. Since adultery and concubinage are private crimes–meaning only the aggrieved spouse can file charges–if the aggrieved spouse opts to remain silent. (3) Concealment of sexually transmissible disease. While fraud had been considered a ground for the annulment of marriage even under the old Civil Code. remarried abroad. a divorcee can validly remarry. social acceptance is not the same as being legally valid. the Family Code introduced new grounds for annulment. there was only legal separation which did not severe the marriage ties. under the laws of the Dominican Republic. Under Article 46. Hence. So. Under Philippine laws. But this and that person whom I know did that and he or she is back in the Philippines and the second marriage has been accepted. in many cases. regardless of its nature. since Philippine laws do not recognize divorce. if say.

every new case that alleged acts of psychological incapacity could continuously widen the scope. . So. Eventually. It has happened before that a law is passed as some sort of pacifier. Very sad indeed. the Catholic church is getting more imaginative in coming up with arguments against divorce. A files for annulment alleging that her husband B is a mama’s boy–too immature to act independently–and thus psychologically incapacitated to have entered into marriage in the first place.Another significant concept that the Family Code introduced as a ground for annulment was the now much abused psychological incapacity to enter into marriage. will the passage of a divorce law patch the loopholes in the Family Code? It depends on what the law will allow as valid grounds for divorce and what the required procedure will be. the process was a long and tedious one. there was a huge gaping hole in the law. just so it can be said that a divorce law has been passed. it became clear that despite the leeway allowed by the concept of psychological incapacity. When the Family Code was new. Annulment is a very expensive legal procedure beyond the financial capacity of majority of the Filipinos. Since the law itself did not define what psychological incapacity meant. I doubt if that will satisfy the progressives and the divorce advocates. The laundrywoman living in the slums who is physically abused by the drunken jobless husband could not afford it. Congress can pass a “divorce” law which such narrow grounds and complex process that it will effectively negate the very purpose of a divorce. then. If the circumstances surrounding the allegation– the very acts to show the extent of the immaturity–are sufficient to prove psychological incapacity and the court grants the annulment. For instance. Later on. You know. it becomes a precedent of sorts. depending on how courts decided. It is sad that most Filipinos cannot view marriage independently from its religious context. evolving jurisprudence would do that job. As expected. however. In addition to the expense. many believed that this ground could very well be the foundation of divorce. In short. the divorce advocates started making noise again. It is even more sad that most Filipinos do not consider themselves validly married unless married in church.