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DIVORCE IN THE PHILIPPINES, YES OR NO?

The Philippines is the only country, aside from the Vatican, that does not allow divorce,
but legislators have long been trying to legalize divorce in the Philippines for almost three
decades now. Representative Edcel Lagman, the principal author of the 2012 Reproductive
Health Law, once again presented a bill that would allow couples to divorce. Mr. Lagman says
the bill is designed to help women, especially the poor ones, who are trapped in unhappy,
sometimes abusive, relations: It is meant to provide “a merciful liberation of the hapless wife
from a long-dead marriage”, but many legislators were indifferent yet again.

For a brief history of divorce in the Philippines, divorce was legal in the Philippines and
widely practiced especially among tribal communities until 1950 when the country’s New Civil
Code prohibited divorce. Act 2710 dated March 11, 1917, was the old divorce law which
allowed absolute Divorce and the two grounds were adultery on the part of the wife and
concubinage on the part of the husband. This was repealed by another absolute divorce law that
was effected on October 23, 1944 under Executive Order 141when General Douglas Mac Arthur,
by Proclamation, reestablished the Commonwealth Government. This in effect repealed and
enlarges the grounds provided for under Act 2710. Executive Order 141 had been framed “as an
answer to the cry of many victims of chronic matrimonial tragedies which under Art 2710,
practically only death could dissolved. This old divorce law was repealed by New Civil Code
and today with the exception of Muslim divorces, Philippine law doesn't allow divorces,
however, it does allow for legal separation, annulment and void marriages. A brief description of
these provisions under the Family Code of the Philippines was worth mentioning below.

In Legal Separation, Under Title II, a spouse can file for legal separation in court if the
other spouse is sentenced to jail for more than five years; physically abuses her or a child in the
household or attempts to marry another person. Legal separation is allowed if one spouse has a
drug or alcohol problem or is homosexual. Adultery or aggressive attempts by one spouse to get
the other spouse to change religions; adopt political views or prostitute herself or a child in the
home, are also grounds for legal separation. If one spouse leaves the other spouse without having
a reason held as valid by the court, the abandoned spouse can file for separation after a year has
passed. The spouse must file within five years of the qualifying event, and the court can deny the
petition for various reasons, including evidence the filing spouse consented to the qualifying
event.

In Annulment, Article 45 establishes the allowable grounds for annulment. A marriage


can be annulled if one spouse wasn't mentally sound at the time of the marriage or was forced
into it, unless she continued living as husband and wife after regaining mental competence or the
threat of force disappeared. Fraud on behalf of either spouse when agreeing to marry is grounds
for annulment, as well as the discovery of an incurable sexually transmitted disease or permanent
impotence. If either spouse was over 18, but not yet 21, and got married without parental
consent, the marriage can be annulled if the parties no longer lived together as husband and wife
once the spouse turned 21.

Finally in void marriages, Articles 35 to 38 set the conditions of marriages that are void
from the very beginning, as if no marriage took place.

From the above provisions, Philippine laws on relative divorce or legal separation, the
spouses are still considered married to each other hence, cannot remarry. In Annulment and
nullity of marriage for voidable and void marriages can remarry but establishing evidences to
prosper the action prayed for is quite difficult and expensive.
For absolute divorce, no provisions or grounds under our Philippine laws can be found.
For in attempting to legalize divorce in the Philippines would be in a sense not consistent with
what our constitution sets forth and declared in the state policy as mentioned below:

Article II, Section 12. Provides that “The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social institution.

Article XV, Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its total
development.

Article XV, Section 2. Marriage, as an inviolable social institution, is the foundation of


the family and shall be protected by the State.

Article XV. Section 3. The State shall defend: (1) The right of spouses to found a family
in accordance with their religious convictions and the demands of responsible
parenthood; (2) The right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation and other
conditions prejudicial to their development

Also, Section 1 of the Family Code provides that “Marriage is a special contract of
permanent union between a man and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of the family and an inviolable
social institution whose nature, consequences, and incidents are governed by law and not subject
to stipulation, except that marriage settlements may fix the property relations during the marriage
within the limits provided by the Family Code.

With reference to the laws enumerated above, it can be concluded that the state is
protecting the family as a basic social institution so therefore divorce is an infringement of such
policy. The influence that brought about this law in our country is basically religion. Philippine
is a Christian country, although our Constitution formally guarantees the separation of church
and state, the Catholic establishment here has considerable influence in politics. The Church has
long been opposing divorce calling it anti-family. However, the 2012 Reproductive Health Law
was passed despite their hostility. This history signaled a drop in the Church’s influence over
politicians. And declining church attendance suggests that organized religion is losing its
popularity afterall.

In today’s society, divorce has become a norm in the world, basically from the fact that
the Philippines, aside from the Vatican is the only country that opposed Divorce. Now, that it is
being introduced once again to legalize divorce, the question is “are we ready for a divorce in
the Philippines”?

Divorce is not new to the Philippines as history tells. We have divorce in the Philippines
until the year 1950 when the Civil Code replaces divorce with another form of separation of
marriages. The absolute divorce was prohibited under the new Civil Code. In absolute divorce,
spouses can remarry as distinguished from relative divorce or legal separation. Having an affair
under such separation, spouses can be charged criminally because marriage bound was not
dissolved, that is why it is being introduced repeatedly for almost three decades now by its
advocates. A divorce law will provide a remedy that Article 36 does not. 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 incapacity. A divorce
law will provide remedy to a marital failure. It will benefit Filipinos wherever they are. With the
introduction of its legalization once again is an expectation of a heated argument in the congress.
It is important to at least consider this for our country. There are already close to 800
cases being applied for annulment or legal separation a month — most of these cases by women.
We need to realize the important reasons why this is happening. A lot of it goes beyond no
longer getting along. Sometimes it’s due to domestic violence, infidelity, and abandonment.
Should these spouses be made to suffer for the rest of their lives when they find themselves in a
situation like this? It certainly does not seem fair.

On the other hand, most of these divorced couples have children that are very young and
due to their age, have no idea on how to deal with an event like a divorce. These children will
have to learn to deal with their parent’s divorce at such a young age, affecting them in a positive
or negative way. But in a family where parents having a constant fight will also affect the child
emotionally and psychologically and even worse than having their parents separated.

Married couples today are getting a divorce due to many different reasons, either because
of conflicts in the marriage, a spouse committing an affair, and other type of marriage problems.
As of now, the most common reason cited for annulment is mental incapacity. To increase the
chances of having the marriage annulled, some lawyers advise collusion between the estranged
couple. One, usually the one who didn't file the case, will be designated as the one with mental
incapacity and should agree not to contest that claim. A mental incapacity is "proven" usually
with a report from a psychiatrist who is also part of the collusion that provides these reports
without even meeting the subject even once. Isn't it strange that a person whose marriage had
been annulled because he/she had been declared as mentally incapacitated can actually re-marry?

So to speak there’s this fear, that people will not think things through before getting
married because they know they have a way out. However, this will not be the case, because a
divorce cannot be obtained simply because you have decided you no longer like your spouse.
There will be regulations and strict reasons for divorce that will be decided upon by the courts,
so it is not a quick and easy solution that many others worry about. The law should only give
people a choice, to be exercised according to their own personal beliefs.

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. This will not be the further breaking down
of our morals. It simply gives a couple an option when they have exhausted all means to make
their relationship work and have found that it is just not possible.

Persons and Family Relations


Subject

Atty. Ian Macasinag


Professor

Maria Lourdes A. Asueta


LLB-1