Divorce in the Philippines

divorceI sometimes give free legal advises to Kababayans here in Singapore through phone calls. I observe that most problems consulted with me concern marital affairs. This is not uncommon with husbands and wives who are far apart from each other, especially if one lives in Singapore and the other in the Philippines.

What strikes me most is – the issues consulted with me deal with the intention of either the husband or the wife filing “divorce” back home. What is funny is these people wanted only to sign agreements with their spouses to end their marriage. They sometimes request me to file the so-called agreement with a government agency in the Philippines. I would often laugh at how uninformed our Kababayans are of our laws even at present times. I may attribute the blame to my fellow lawyers who oftentimes prefer to leave out explanation to these needy people during consultations and would directly proceed to the remedies they had in mind, most of which ends up in court.

Unlike Singapore and other western countries, the Philippines does not have western-style divorce. If we mean “divorce” as the the process where both husband and wife would hire lawyers and agree before a government body to end their marriage, then there indeed is no divorce in the Philippines. I believe it would be even difficult for Congress to pass a law on divorce on mere compromise of husbands and wives alone, unless maybe the Constitution is amended. It is because our present Constitution would not allow it to happen. Our Constitution mandates (Article XV, Section 2) that “Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” The important words in this provision are “inviolable” and “protected”. “Inviolable” means that marriage should “not be broken”. And it should be “protected” by the State from being broken, even by the spouses themselves.

It means that marriage in the Philippines could not be broken, or terminated, or severed by anyone or anything. This includes the agreement between the husband and the wife to end it. One may argue that marriage is only a contract, and like any other contract, one or both of the parties may terminate it. In its basic sense, marriage is indeed a contract. But in the Philippines, it is not considered as ordinary. Basing on the declaration of the Constitution, former President Corazon Aquino passed the Family Code of the Philippines in 1987 through an Executive Order. This law declares that marriage is not an ordinary agreement but a special contract where the State has a special interest. It is through marriage that a family is created, and the Family is considered the most basic social institution. Several families or group of families comprise the Barangay and Barangays constitute a Municipality, and so on and so forth. This law, which embodies the mandate of the Constitution, stipulates that break-up of marriage through whimsical decisions would entail an adverse effect on family relations.

However for every rule there is always an exception. The Family Code does not only declare what a marriage should be but also provides the grounds or reasons why a marriage may be terminated. The law tells that a marriage may also be severed based only on the grounds it enumerates. Other than those it provides, marriage could not be dissolved. The Family Code tells us of two modes a husband and wife can part ways. One is annulment where after it is granted marriage is totally voided, and both husband and wife can marry again. The other is legal separation where the marriage is not broken. The husband and wife remain married but they can legally live apart, and can manage their properties separately.

The grounds for the two modes totally differ from each other. The basic grounds for annulment are: marriage before eighteen (18) years of age; marriage between the age of eighteen (18) and twenty-five (25) without either of the parents’ consent; mental illness at the time of marriage; fraud (which includes sexually transmissible disease) unknown to the other party during marriage; and intimidation, undue influence, and physical violence forcing the other to marry (“shot-gun marriage”). The grounds for legal separation, on the other hand, are: repeated physical violence and grossly abusive conduct during marriage, imprisonment of one of the spouse to more than six (6) years; drug addiction or habitual alcoholism; homosexuality or lesbianism; sexual infidelity or perversion; attempt on the life by one spouse against the other; and abandonment by one of the spouse for more than one year without cause.

Comparison of the two shows that most of the grounds for annulment should be present before and during the wedding. It means that the husband or the wife must be tricked or compelled to marry. While grounds for legal separation may start to manifest after the wedding, it does not however mean that marriage can already be annulled when grounds for legal separation were present before the wedding. So, even if the husband is a homosexual, and such was unknown to the wife before the wedding, but was made known to her only during marriage, she could not use it as a ground to annul her marriage. The same principle goes to lesbianism, alcoholism, drug addiction, or perversion.

But the Family Code, since it is an amendment to the Civil Code on Marriage, added a new ground to annul an existing marriage. This is the famous “psychological incapacity” ground. Article 36 of the Code provides that “A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.” This provision of the law tells us that a marriage is void or invalid when one of the spouse was psychologically incapacitated to perform his or her marital obligations before and at the time of the wedding, even if such incapacity only manifested after the ceremony.

Psychological incapacity in the early years of the Code, covered a wide range of definitions. It is undeniable that the phrase is somewhat vague and its construction tends to be subjective. In 1997, the Supreme Court, in the Molina Case, came into the picture and set, once and for all, the definition of psychological incapacity to erase all doubts about its meaning. The High Court ruled that in order for a ground to be considered as “psychological incapacity”, the incapacity must be present during the wedding; it must be medically or clinically permanent or incurable; and it must be grave enough to assume the essential obligations of marriage. Mild character peculiarities, mood changes, occasional emotional outbursts, or incompatibilities cannot be considered as incapacities. After this ruling, the process of annulment based on this ground became difficult to achieve.

The hurdle to annul a marriage in the Philippines even though the grounds exist starts with its filing. Other countries treat marriage as a contract, thus, divorce is granted when the spouses agree on it. The lengthy discussion would only then center on the partition of properties, the custody of children, how much will each spouse contribute to the support and education of the children, and other ownership and possession issues. In the Philippines, since it is illegal for spouses to agree on annulling their marriage, the main question focuses on whether, before anything else, the State would permit the marriage to be annulled.

The process starts when the husband or the wife goes to court to file a petition to annul the marriage. The spouse filing the petition will be called the petitioner and the opposing spouse the respondent. The petitioner must give a copy of the petition to the respondent. Without proof that respondent received a copy of the petition, the case could not continue.

It is also a must that the Office of the City or Provincial Prosecutor and the Office of the Solicitor General should receive copies of the petition to annul. The prosecutor as well as the Solicitor General will check whether the annulment was not agreed upon by the spouses. The case could not continue if they found that the spouses connive or collude to file the case. The court will allot at least six (6) months from the filing of the petition until the first formal proceeding to give time to the spouses to reconcile, if possible.

In any civil case, the non-appearance or the failure to answer by the defendant or respondent would declare him in default. It means he could not anymore present his side in court, and the petitioner would most likely win. But this process does not apply in annulment or legal separation cases. It is because in most of these cases, the respondent husband or wife often does not appear in court, especially when there was already a secret agreement between the spouses to annul the marriage. The non-appearance of the respondent will not place him in default. The city or provincial prosecutor as representative of the State will subject the petitioner and his witnesses to cross-examination to determine for the court whether there is truth in the filing of the case. It is also the duty of the prosecutor or the Solicitor General to appeal the case to a higher tribunal if they are oppose or not satisfied with the court’s ruling in granting the annulment. This duty of the prosecutor and the Solicitor General is in line with the mandate of the Constitution to protect marriage from dissolution.

Some Filipino women who were divorced by their Singaporean husbands here in Singapore sought help on how to annul their marriage in the Philippines. Any Filipino must understand that Philippine laws on marriage apply to Filipino citizens even when they are living abroad, so long as they do not lose their citizenship. So, if a Singaporean and a Filipino citizen marry each other, they are considered married under Philippine laws even if they live in Singapore. The Singaporean is also married to the Filipino under Singapore laws. Since Singapore allows divorce, any divorce granted to the spouses in Singapore is valid and legal under Singapore laws. But the situation is different in the Philippines. Although the spouses are divorced in Singapore, the Filipino is still considered married to the Singaporean in the Philippines.

This case however is not without remedy for the Filipino wife or husband. Article 26 of the Family Code states that, “Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.” 

What the Filipino should do is secure a copy of the divorce papers and decree in Singapore, and have them authenticated by the Philippine Embassy. Thereafter, he must file a petition in the Philippines with the regular courts to declare the nullity of his marriage there. The procedure on regular annulment of marriage I discussed will not be followed. All he needs is to prove that a divorce occurred in Singapore and that the laws of Singapore allow his spouse to remarry. Our courts will then issue a decree nullifying his marriage in the Philippines and the partition of the conjugal properties.

A number of bills were already passed in Congress to enact laws on divorce but none of them even reach third reading. It is because Congress also fears that even if the law is passed, it will be stricken down by the Supreme Court as unconstitutional. Unless our Constitution is amended to allow divorce, this process will only still remain a dream.


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