Divorce a new start

“We cannot deny the reality that there are marriages that turn sour. There are marriages that are abusive, even violent and there are bigamous marriages. We need to address this reality and give couples in these failed marriages the option of divorce.” – GWP Rep. Luzviminda Ilagan
There are nineteen victims of marital violence every day. In 2009, wife battery ranked highest among cases of violence against women at 72 percent, victimizing 6,783 women. About three out of ten perpetrators of violence against women are husbands of the victims, according to Philippine National Police (PNP).

Some 800 cases for legal separation and annulment are filed every month before the Office of the Solicitor General. Over 43,650 applications were recorded from 2001 to 2007.

These are the bases of Gabriela Women’s Party (GWP) for introducing House Bill 1799 or “An Act Introducing Divorce in the Philippines.”

The GWP said that HB 1799 is based on the concrete experiences of married Filipinos. “These experiences were studied in their religious, socio-economic, political, cultural and legal context. Lessons and insights were drawn up, and from these lessons, the provisions of HB 1799 were formulated.”

GWP Rep. Luzviminda Ilagan cited studies showing that not all countries that allow divorce have a high divorce rate. Divorce statistics show that In Italy, only 12 percent of marriages end in divorce, while in Spain it is 17 percent. Both countries are predominantly Catholic.

The Catholic Church believes allowing divorce would lead to a breakdown of the family. Others who are likewise opposed to the bill thinks that a divorce law would be abused. Rep. Ilagan asserted that there are enough safeguards to prevent the divorce law from being abused. “The bill has five grounds before a divorce is granted and the couple has to undergo a rigorous process. Divorce will not be granted just because a husband or a wife is bothered by the other’s snoring. This is not like divorce Las Vegas style,” Ilagan said.

Rep. Ilagan also said that HB 1799 is not modeled after divorce systems of other countries; they call it divorce-Filipino style. “And it is sensitive to the rich and diverse cultural – including moral and religious – environment of our country.”

Divorce guarantees women’s rights

The progressive women’s group Gabriela said that divorce provides an option to women who want to get out of abusive and unhappy marriages. “This measure will benefit women, especially those who are victims of domestic violence,” Lana Linaban, secretary general of Gabriela, said.

From 2009 to March 2011, there were 1,452 cases of marital violence that have been referred to Gabriela. This constituted 67 percent of the total number of cases of violence against women that were handled by Gabriela. Domestic violence consistently ranks highest among cases of violence against women (VAW) that Gabriela has been handling.

“The divorce bill seeks to provide a remedy for couples who have come to a point where their marriage is beyond repair. We trust that the bill will especially benefit women who are in abusive relationships and want to get out of their marriage but are constrained by the inadequacy of existing remedies concerning the legal termination of marriage,” Linaban added.

According to the Social Weather Station (SWS) survey released recently, 50 percent of respondents agreed that “couples who have already separated and cannot reconcile anymore should be allowed to divorce so that they can get married again.”

Ilagan noted that the recent survey result is a big jump from the results in 2005 that showed that only 43 percent favored divorce. This, she said, reflects the growing need for divorce as an additional remedy for failed and abusive marriages.

“We cannot deny the reality that there are marriages that turn sour. There are marriages that are abusive, even violent and there are bigamous marriages. We need to address this reality and give couples in these failed marriages the option of divorce,” Ilagan said.

Divorce vs other legal remedies

There are already legal remedies available in the Philippines to terminate a marriage. There is legal separation, annulment and declaration of nullity, but these, according to GWP, are not enough.

“We cannot ignore the fact that existing laws just do not suffice. Getting an annulment can be very expensive while legal separation will not give estranged couples the right to remarry,” said Ilagan.

Linaban explained: “It is not true that abused wives could easily file annulment to get out of their situation. As provided for in the Family Code, annulment and declaration of nullity cover only grounds that happened before marriage or during solemnization. In other words, the grounds should be pre-existing. These remedies do not cover problems that occur during the life of the marriage such as spousal abuse. While a woman can file for legal separation on the basis of domestic violence, the marriage is not dissolved. The victim, therefore, remains married to her abuser.”

The Women’s Legal Bureau (WLB), a legal resource for women agreed that present laws relating to the 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.” A person who is separated can still be charged with bigamy or concubinage, if and when he or she enters into another relationship.

Both divorce and declaration of nullity of a marriage, the WLB said, allow spouses to remarry but the two remedies differ in concept and basis. “A declaration of nullity presupposes that the marriage is void from the beginning and the court declares its non-existence…Beyond the grounds specified in the law of nullity, it is not possible.”

“In an annulment, the marriage of the parties is declared defective from the beginning, albeit it is considered valid until annulled. The defect can be used to nullify the marriage within a specified period but the same may be ignored and the marriage becomes perfectly valid after the lapse of that period, or the defect may be cured through some act. The defect relates to the time of the celebration of the marriage and has nothing to do with circumstances occurring after the marriage is celebrated. In annulment, the marriage is legally cancelled, and the man and woman are restored to their single status,” the WLB said.

In an annulment case, the law requires the couple to prove that one is “psychologically incapacitated,” and this incapacity must have existed before or at the time of the celebration of the marriage. Article 36 of the Family Code only nullifies a marriage when one has proved that he or she is psychologically incapacitated. The WLB said the concept certainly cannot accommodate all cases where divorce would be necessary. “What we need is a divorce law that defines clearly and unequivocally the grounds and terms for terminating a marriage,” it said.

An annulment case also takes two years or longer to reach a conclusion. The cost could reach P250,000 ($5,813) which includes attorney fees, court docketing fee and filing fees plus a host of associated fees such as court appearances fees for the attorney.
A blogger said money talks when one is seeking annulment. The blogger whose marriage is now annulled said that they shelled out P100,000 ($2,325) to pay the judge, solicitor general and initial investigator, as well as everybody involved in the case since her annulment case is not moving after one year. After paying P100,000, the case was concluded in a month’s time. Total cost of her annulment was P175, 000 ($4,069).

Thus, the GWP guarantees that if the law is passed, divorce will be cheaper than annulment.

Main features of HB 1799

In HB 1799, there are five grounds to grant a divorce;

1) When the petitioner who has been separated de facto from his/her spouse for at least 5 years and reconciliation is highly improbable;

2) When the petitioner has been legally separated from his/her spouse for at least 2 years and reconciliation is improbable;

3) When any of the grounds for legal separation under paragraph (a) of Article 55 of the Family Code has caused the irreparable breakdown of the marriage;

4) When one or both spouses are psychologically incapacitated to comply with the essential marital obligations; and

5) When the spouses suffer from irreconcilable differences that have caused irreparable breakdown of the marriage.

HB 1799 also has provisions to guard against possible abuses of the law. These safeguards are the same as the safeguards stipulated in the provisions for legal separation, which can be found in Articles 56, 58 to 61.

Divorce proceedings would likewise be heard by courts, like annulment cases. But GWP believes that the process would be shortened as there would be no need to prove that the grounds for the divorce had been pre-existing.

It also provides for equity between the spouses in divorce. The bill provides that the assets shall be equally divided between the spouses in order to provide for the well-being of each spouse and the children. It dissolves, in effect, the absolute community or conjugal partnership of gains since this property regime is inconsistent with divorce.

HB 1799 also leaves it to the courts to decide on the custody of minor children in accordance with their best interest and with provisions for their support.

“In proper cases, the aggrieved party can claim damages in accordance with the Civil Code provisions on damages. It also provides that the parties shall be disqualified from inheriting from each other by intestate succession and that any donation made by the innocent spouse in favor of the offending spouse may be revoked.”