Allowing Absolute Divorce in the Philippines

Topics: Family Law | By Atty. Fred | April 18, 2008

Divorce is a popular and controversial topic, except that its 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:
Not all marriages succeed as a permanent union. An increasing number of married
individuals find themselves subjected by their marriage partners to physical violence,
grossly abusive conduct and other acts of or offenses that rather than promote blissful,
harmonious conjugal and family life impair, debase or destroy the legitimate ends of
the marriage relationship. 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.

Divorce is not a novel legal right. The Family Code sanctions relative divorce (a mensa
et thoro). Legal separation is a recognized remedy for victims of failed marriages. 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.

Divorce is not exclusive to contemporary times. Before the Spanish colonial rule in the
early 16th century, absolute divorce had been widely practiced among our ancestral tribes
the Tagbanwas of Palawan, the Gadang of Nueva Vizcaya, the Sagada and Igorot of
the Cordilleras, the Manobo, Bila-an and Moslems of Visayas and Mindanao islands, to
name a few.

There were prior divorce laws. In 1917, Act 2710 allowed divorce on the grounds of
adultery on the part of the wife and concubinage on the part of the husband. During the
Japanese Occupation, a new law on absolute divorce, E.O. No. 141, was promulgated
providing for ten grounds for divorce. These laws are no longer in effect.

Based on the increasing number of failed marriages which confines many of our citizens
to a perpetual state of marital limbo, it has become morally and socially acceptable for
many Filipinos to grant spouses of broken marriages the legal right to remarry. 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. In
addition, 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. 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.

In addition to these reasons, there are criticisms that the existing laws on annulment are
anti-poor, as the high cost needed to pursue a case for annulment prevents the poor from
securing one. This, however, is the very reason cited by those who oppose divorce the
high cost is intended to discourage the people from trifling with marriage. Allowing
divorce would serious weaken the institution of marriage. Anyone could decide to get
married without thinking twice because they can get out of the marriage easily with
divorce. If the current increase of annulment cases is alarming, imagine how the
allowance of divorce would greatly increase the figure. Other arguments against the
legalization of divorce are contained in the Position Paper of the Commission on Human
Rights (CHR) against these bills. The highlights are:

1. The proposal to legalize absolute divorce with the right to remarry violates relevant
international instruments on human rights, particularly Article 16(3) of the United Nation
Declaration of Human Rights.

2.The innocent spouse and the children in most cases may suffer economic difficulties.
Aside from being abandoned by the guilty spouse, the innocent spouse and children, in
most cases, will suffer untold economic difficulties. The divorced spouses who will
remarry will have to maintain another family of their own.

3. The human rights of the innocent spouse is violated. 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, thus violating Article 68 of the Family Code which
reads: The husband and wife are obliged to live together, observe mutual love, respect
and fidelity and render mutual help and support.

4. Irrespective of any religious beliefs, divorce of spouses with right to remarry

constitutes a grave offense against a natural law. Divorce is unnatural and immoral as it
causes disorder in the family and society. Because of its contagious effect in society, it
becomes a plague on society. A divorce invites another divorce. The innocent spouse who
has not contravened any law is unlawfully deserted.

5. Absolute divorce is destructive of the family as a social institution mandated under the
Constitution. One of the basic policies of the State, 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. It shall equally
protect the life of the mother and the life of the unborn from conception. 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.(Article 11,
Section 12) The relevant constitutional provisions will have to be amended before the
divorce bills will be enacted into law.

6. Absolute divorce violates the concept of marriage, a permanent union of man and
woman. The Family Code defines marriage as a permanent union of man and woman
(Art. 1). The Civil Code also provides for the presumption of the solidarity of the family
and the indissolubility of marriage bonds (Art. 220).

Absolute divorce destroys the very concept of family as an inviolable social institution.
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. The experience in countries where divorces are allowed and easily
obtained, such as the United States, is that people divorces have experienced multiple
divorces and have remarried several times in their selfish desire to get rid of unwanted
spouses by intentionally creating the cause of the divorce.

There was little interest in our previous post calling for arguments regarding the
allowance of divorce in the Philippines, although the informal poll reveals that 79%
favors divorce. Maybe well get more substantial arguments and ideas this time around.
Lets hear what you have to say.

Islamic Laws Regarding Divorce

Islam allows divorce if circumstances warrant or necessitate it. Islam has permitted
divorce reluctantly, neither liking nor recommending it. The Prophet of Islam has said:

"Among lawful things, divorce is most disliked by Allah" (narrated in the book of
tradition of Abu Daud).

Islam has not made it necessary that the grounds of divorce should be publicized. It,
however; does not mean that Islam views divorce lightly. In fact, publicity of grounds
may not be of any positive consequence. The grounds may not be pronounced but
genuine. On the other hand, the grounds may be stated and may in reality be false. Islam
does not also want washing dirty linen of private affairs in public or in the court except in
exceptional circumstances. It is for this reason that court comes in as a last resort in the
Islamic scheme of separation of husband and wife.

The Quran states as regards grounds of divorce in very general terms:

"And if you fear that the two (i.e husband and wife) may not be able to keep the limits
ordered by Allah, there is no blame on either of them if she redeems herself (from the
marriage tie) "
(2 : 229).

The general ground of divorce in the Quran, therefore, is hopeless failure of one or both
parties to discharge their marital duties and to consort with each other in kindness, peace
and compassion.

The jurists have developed some indices which may be accepted as grounds of divorce in
case the divorce matter goes to the court. Long absence of husband without any
information, long imprisonment, refusal to provide for wife, impotence etc. are some of
the grounds on which wife can ask for divorce. Either party may take steps to divorce in
case of chronicle disease, insanity, deceptive misrepresentation during marriage contract,
desertion etc.

A Muslim male is allowed three chances, that is to say, 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 husband
may divorce his wife once and let the Iddat (the period of waiting after divorce) pass.
During the waiting period the two have the option of being reconciled. If however the
waiting period passes without reconciliation, they stand fully divorced.

If after the first divorce the husband is reconciled with his wife but the hostility and
conflict begins all over again, he may divorce her a second time in the same manner as
stated above. In this case also he can return to her during the Iddat (or waiting period). If
however, after second reconciliation, he divorces the wife the third time, he can not take
back the wife during the Iddat. She is totally prohibited for him. The lady, thereafter can
marry any person she likes according to her choice. (Ref: The Lawful and the prohibited
in Islam by Dr. Yusuf Al Qaradawi).

The wife can divorce her husband if this condition is stipulated in the marriage contract.
This kind of divorce is called Delegated Divorce (Talaq Taffiz). Marriage can also be
dissolved through mutual consent. This is called Khula in the technical language of
Islamic law. Marriage can also be dissolved by judicial process through the court on
complaint of the wife on the grounds explained before.

One of the consequences of the divorce is the commencement of waiting period for the
wife. This usually lasts three months. If there is a pregnancy, it lasts as long as pregnancy
lasts. The waiting period is basically a term of probation during which reconciliation can
be attempted. It is also required to establish whether the wife has conceived. It also
allows time for planning the future.

Maintenance of wife during the waiting period is on husband. The wife can not be
expelled from her place of residence and he can not in any way harass her. These will
constitute moral as well as criminal offence.

In case of divorce, the young children remain in the custody of their divorced mother.
However, the father has to provide the cost of maintenance of young children though they
remain under the custody of mother. (Ref : The Family Structure in Islam by Dr.
Hammudah Abdul Ati).

Islamic law of divorce is based on practical considerations. The process of separation is

basically a matter of husband and wife. However; when conflict arises, attempts should
be made for reconciliation. It has not made judicial process obligatory in divorce for
reasons explained earlier. The intervention of court has nowhere reduced the number of
divorce. 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, reduce conflict and ensure justice.

Divorce Law
Divorce, also known as dissolution of marriage, occurs when a marriage is legally
terminated. Divorce law governs the sometimes complicated process of divorce, helping
to determine how property and assets are divided as well as who will have custody of
children the couple may have. Couples going through a divorce may want to consider
hiring a qualified divorce lawyer to help determine the most equitable decisions.

Types of Divorce
There are two types of divorce: fault and no fault divorce. In the past, the spouse filing
for divorce had to show evidence of wrongdoing on the part of his or her partner. Today
most states no longer require it. There may still be divorce cases, however, when showing
that one partner is at fault may be worthwhile. The following is a description of each type
of divorce.

Fault Divorce

In some cases, one partner can be shown to be at fault in a divorce. This is most common
when abuse is an issue. One spouse may also be found at fault if it can be shown that he
or she is guilty of adultery or abandonment. In addition, a fault divorce may be given if
one partner is unable to engage in sexual intercourse or if he or she is in prison. In some
cases, the divorcing spouse may want to file a fault divorce, because he or she may be
awarded a greater share of the couples assets. Fault divorces also tend to be processed
more quickly as there is no separation period like the one required for a no fault divorce.

No-Fault Divorce

A no-fault divorce is much less complicated than a fault divorce. In a no fault divorce
there is no need for evidence or proof of wrongdoing. Instead, any legally recognized
reason for divorce is acceptable. Generally, irreconcilable differences, or the mere
inability to get along, is considered a valid reason for no fault divorce. This means that
the other spouse cannot prevent his or her partner from filing for divorce. By challenging
the decision, he or she only lends merit to the fact that the couple does not see eye to eye.

Couples seeking a divorce may want to consider consulting an experienced divorce

attorney.

http://www.lawyershop.com/news/practice-areas/family-law/divorce-law/

Absolute Divorce
The most common form of divorce is legally termed absolute divorce. In this form of
divorce, marriage is completely dissolved. Legal grounds for absolute divorce depend on
individual state laws, but typically it can be granted on the basis of marital misconduct
(at-fault) or because the couple simply cannot get along (no-fault). The distinction
between at-fault divorce and no-fault divorce can have important consequences for the
outcome of the legal proceedings.
At-Fault Divorce
This type of divorce occurs when one spouse sues for divorce due to the transgressions of
the other. Grounds for at-fault divorce include cruelty (inflicting needless physical or
emotional pain), adultery, abandonment, lengthy imprisonment, and inability or
unwillingness to consummate marriage. Not all states offer at-fault divorce. In those that
do, the spouse that can prove fault may be awarded a greater portion of community
property or larger alimony payments.

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. Suitable grounds for no-fault divorce include
incompatibility and irreconcilable differences. All states offer no-fault divorce; however,
some states require a separation period before divorce can be granted. No-fault divorces
are still subject to legal battles over property distribution, child custody, child support,
and alimony.

What is divorce?
A divorce is defined as the dissolution of marriage. There are two types of divorce:
limited and absolute. Limited divorce is also known as a separation. An absolute divorce
occurs when the marriage is completely dissolved and all marital rights and obligations
are terminated. There are two types of absolute divorce: no-fault and fault.

What is a separation?
A separation is defined as the termination of legal cohabitation. A separation is also
known as a limited divorce.

What is an annulment?
An annulment is defined as the legal declaration that a marriage was never valid. In this
instance, the marriage is treated as though it never occurred.

What is child custody?

Child custody refers to whom the children live with after a divorce.

What are the different types of child custody?

There are four types of child custody: legal custody, physical custody, joint custody, and
sole custody.
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.

Who pays child support?

Child support can be paid by either spouse, depending on who is awarded physical
custody of the children and who is financially able to pay support. Child support
guidelines differ from state to state.

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 three types of alimony: permanent
alimony, temporary alimony, and lump sum alimony.

Who pays alimony?

Either spouse can pay alimony. If the wife is the homemaker and primary caretaker of the
children, then the husband will be responsible for alimony payments. However, the
reverse may also be true.

Annulment, legal separation and divorce

By Connie Veneracion on Mar 19, 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, those who have
been campaigning for the passage of a divorce law in Philippines would finally be
silenced. Well, it did for about fifteen years. Until everyoneincluding the common tao
realized that there is a vast difference between annulment and divorce. Lately, the pro-
divorce sector has been actively campaigning once more. Annulment under the Family
Code is no viable substitute for a real divorce law.

While it is true that annulment and divorce both pertain to the dissolution of a valid
marriage during the lifetime of both spouses, they are not exactly the same. There are two
fundamental differences: 1) the legal grounds; and 2) the procedure.

Lets go back a little to get a clear perspective.

Prior to the passage of the Family Code in 1987, under the provisions of the old Civil
Code, there was no way to dissolve a marriage during the lifetime of both spouses.
Although there were provisions on void and voidable marriages, these pertained to
marriages that lacked one or more requisites to make them legal. Hence, strictly speaking,
these were not valid marriages within the legal sense. Under the old Civil Code, there
was only legal separation which did not severe the marriage ties. Neither spouse could
legally remarry. 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.

It was under these circumstances that Filipinos secured divorce and, in many cases,
remarried abroad. A clear conflict ensued. Generally, a marriage valid where celebrated is
valid in the Philippines. So, if say, under the laws of the Dominican Republic, a divorcee
can validly remarry, following the general rule, such marriage should be considered valid
in the Philippines. But there is a hitch. Under Philippine laws, the capacity to marry of a
Filipino citizen, irrespective of his physical location, is determined by Philippine laws.
Hence, since Philippine laws do not recognize divorce, all divorces secured abroad are
not valid in the Philippines. It follows that all second marriages contracted by Filipino
citizens following divorces secured abroad were likewise invalid in the Philippines.

I know what most of you are thinking at this point. 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. Well, social acceptance is not the same as being legally valid. How can the
second marriage be attacked? In effect, the person would be committing adultery or
concubinage because he/she would be co-habiting with the second spouse. Since
adultery and concubinage are private crimesmeaning only the aggrieved spouse can file
chargesif the aggrieved spouse opts to remain silent, then the other spousess second
marriage becomes more easily acceptable.

Anyway, all those problems were supposed to have been addressed by the Family Code
with its more progressive provisions on the annulment of marriage. While retaining legal
separation as an option, the Family Code introduced new grounds for annulment. Fraud
took on a whole new significance. While fraud had been considered a ground for the
annulment of marriage even under the old Civil Code, the Family Code encompasses
more situations that are considered fraudulent. Under Article 46, these are:

(1) Non-disclosure of a previous conviction by final judgment of the other party of a

crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant
by a man other than her husband;

(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the
time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism

existing at the time of the marriage.
Another significant concept that the Family Code introduced as a ground for annulment
was the now much abused psychological incapacity to enter into marriage. When the
Family Code was new, many believed that this ground could very well be the foundation
of divorce. Since the law itself did not define what psychological incapacity meant,
evolving jurisprudence would do that job. In short, depending on how courts decided,
every new case that alleged acts of psychological incapacity could continuously widen
the scope. For instance, A files for annulment alleging that her husband B is a mamas
boytoo immature to act independentlyand thus psychologically incapacitated to have
entered into marriage in the first place. If the circumstances surrounding the allegation
the very acts to show the extent of the immaturityare sufficient to prove psychological
incapacity and the court grants the annulment, then, it becomes a precedent of sorts.

Later on, however, it became clear that despite the leeway allowed by the concept of
psychological incapacity, there was a huge gaping hole in the law. Annulment is a very
expensive legal procedure beyond the financial capacity of majority of the Filipinos. The
laundrywoman living in the slums who is physically abused by the drunken jobless
husband could not afford it. In addition to the expense, the process was a long and tedious
one. Eventually, the divorce advocates started making noise again. As expected, the
Catholic church is getting more imaginative in coming up with arguments against
divorce.

It is sad that most Filipinos cannot view marriage independently from its religious
context. It is even more sad that most Filipinos do not consider themselves validly
married unless married in church. Very sad indeed.

So, 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. It has happened before that a law is passed as some sort of pacifier. Congress can
pass a divorce law which such narrow grounds and complex process that it will
effectively negate the very purpose of a divorce. You know, just so it can be said that a
divorce law has been passed. I doubt if that will satisfy the progressives and the divorce
advocates.