Why the Philippines Needs a Divorce Law

After the heated reproductive health debate comes the issue of divorce. (Source: www.sxc.hu)

(Two completely opposite divorce bills are pending in the House of Representatives. Marikina’s Rep. Marcelino Teodoro filed an “Anti-Divorce and Unlawful Dissolution of Marriage Act,” seeking to guarantee a ban on any law facilitating or recognizing divorce. Another bill coauthored by Gabriela Representatives Luzviminda Ilagan and Emerenciana de Jesus would amend the Family Code to include a divorce provision. It is backed by no less than Speaker Feliciano Belmonte. Following the enactment of the reproductive health law, the divorce bills promise to stir up a new controversy involving the Catholic Church and its supporters. Below is an op-ed supporting the legalization of divorce. This won’t be the last we’ll hear on the subject from either side. –Editors)

People who say that divorce is not advisable for the Philippines forget or ignore our history. The ethno-linguistic communities of the Philippine archipelago before the Spanish conquest practiced divorce. We had a divorce law from 1917 until August 30, 1950, when the Civil Code of 1950 took effect. The latter law prohibited divorce for Filipinos, and the prohibition continues under the present Family Code. But Muslim Filipinos have always practiced divorce, which Philippine law allowed. Today, divorce continues to be available to Muslim Filipinos under the Code of Muslim Personal Law of the Philippines (Presidential Decree No. 1083), promulgated in 1977.

So to say that divorce does not exist in present Philippine law is not accurate.  The prohibition against divorce under Philippine law applies only to Filipinos whose marriages are not governed by the Muslim Code. Since Philippine law on marriage applies to all Filipino citizens even though they are residing in a foreign country, the prohibition against divorce for non-Muslim Filipinos is also a concern of Filipino expatriates.

We are the only country in the world that has no divorce law for all its citizens regardless of religious belief or affiliation.

Some think that we do not need a divorce law because the Family Code, which applies to non-Muslim Filipinos, already provides for the termination of marriages through “annulment.” This argument misleads. Annulment is a legal term that has a specific meaning. The remedy of annulment is based on specified grounds that occurred at the time of the celebration of the marriage, such as lack of parental consent and vitiated consent (as when a person married another at gunpoint). The remedy of annulment expires, and the defect may actually be cured by ratification through free and voluntary cohabitation.  

Gabriela representatives Luzviminda Ilagan (above) and Emerenciana de Jesus are planning to include a divorce provision in the Family code. (Photo by Ruby Thursday More/AKP Images)

Misconceptions About Annulment

When lay people speak of “annulment” as a means of terminating a marriage, they actually refer to the remedy under Article 36 of the Family Code.  Article 36 declares that a marriage is void from the beginning when one or both spouses are psychologically incapacitated to perform the essential marital obligations. Under Article 36, a court does not terminate a marriage but only declares it void. One must prove psychological incapacity by presenting evidence on three essential elements of the condition: that it already existed before the marriage; that it is grave or serious; and that it is incurable.  To do this, one usually needs the help of a psychiatrist or psychologist to testify as an expert witness.   

But what if the marriage worked in the first ten years, but later the parties drifted apart for some reason or another? What if the other spouse was violent, unfaithful, indolent, or an alcoholic or a drug addict? What if one spouse abandoned the family?  These may not be used for “annulment,” or for a marriage to be declared void under Article 36, unless it can be proved that these are manifestations of psychological incapacity that predated the marriage. 

A divorce law will provide a remedy that Article 36 does not. Divorce does not concern itself with validity or invalidity of a marriage.  It terminates a marriage based on a ground that occurred during the marriage, which makes the marital relationship no longer tenable, regardless of the spouse’s psychological constitution. A divorce law will provide a straightforward remedy to a marital failure. It will benefit Filipinos wherever they are. 

The law should only give people a choice, to be exercised according to their own personal beliefs.

Pending Bill

A divorce bill has been pending in the House of Representatives for the last six years, sponsored by the representatives of the Gabriela Women’s Party. The bill lists five grounds for divorce, among them: when the spouses have been separated in fact for at least five years or have been legally separated for at least two years, and their reconciliation is highly improbable; when any of the grounds recognized by law for legal separation has caused the irreparable breakdown of the marriage. The bill has not progressed beyond the Committee level because the energies of many were focused on the reproductive health bill that was recently passed into law.

There is no more time to pass a divorce law in the current Congress since elections are scheduled in May. But the bill will be filed again in the next Congress. Can it pass?  Yes, definitely, eventually, with the support of enlightened Filipinos. The lesson we have learned from past initiatives is that a relevant and much-needed measure that has strong popular support will pass. Just as sustained citizen support carried the day for the reproductive health bill, so too will strong popular support make possible the enactment of a divorce law. People have to make their voices heard in support of the divorce bill.

It is time to give the remedy of divorce to those who need it, even as we respect the decision of those who want to stay married despite their miserable marital life. To be sure, the Catholic Church will be the staunchest opponent of the divorce bill. It will once again argue against the bill on moral grounds. It will invoke the constitutional provision directing the State to protect marriage and the family, and another that refers to the sanctity of family life. But these constitutional provisions were never intended to prohibit Congress from legalizing divorce.  

Church Need Not Worry

The Catholic Church need not worry. The institutions of marriage and the family have survived to this day, as they will survive a Philippine divorce law. We are a secular state, where no religious group has the right to define law or policy for the entire population. There is not one but a plurality of beliefs in Philippine society. The law should only give people a choice, to be exercised according to their own personal beliefs.   

Every day, Filipinos get married, bear children, separate and get into other relationships, regardless of what the law says. The lack of a divorce law for non-Muslim Filipinos complicates further the marital and family problems of many Filipinos. Our government has clearly failed to respond to their needs. If the country wants to move forward, it has to confront the realities of marital and family life of Filipinos in the Philippines and abroad.  It has to pass a divorce law now.

Author Evalyn Ursua

Author Evalyn Ursua

Evalyn G. Ursua is a litigator, human rights lawyer, researcher and academic in the Philippines.  She taught family law at the University of the Philippines College of Law in Quezon City.