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June 13, 2011

Divorce Bill Primer

Another bill pending in the House of Representatives has been getting a lot of airtime lately. This is House Bill No. 1799, more popularly known as the Divorce Bill and sponsored by representatives from the Gabriela Party List. As expected, the Divorce Bill, just like the controversial RH Bill, has become fodder for more debates and disagreements between civil society and women's organizations, and the church and its followers. bill

In the interest of fairness, let us examine what the proposed Divorce Bill is all about against existing laws, legal doctrines and jurisprudence so that readers may decide if it is timely, responsive, sound and necessary legislation.

The first acid test that the bill "just like all pieces of legislation" must pass is the Philippine Constitution. While all laws enjoy the presumption of validity, they are subject to scrutiny and may be declared invalid if found to be unconstitutional. In the words of retired Justice Isagani A. Cruz, "The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No act shall be valid, however nobly intentioned, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law" (Cruz, 1991).

In Article II, Section 12, the 1987 Constitution says: "The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institutiona¦." It also devotes an entire Article on the Family, the relevant provisions of which are reproduced below:

ARTICLE XV

THE FAMILY

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.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

Section 3. The State shall defend:

• The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood;

x x x

(4) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.

At first blush, it is easy to conclude that the nature of the Divorce Bill itself contradicts the "sanctity of family life" and the definition of marriage as an "inviolable social institution." In the Explanatory Note, however, the sponsors of the bill maintained: "The sanctity of marriage is not based on the number of marriages existing but on the quality of marital relationships. When a marriage is no longer viable, divorce should be an option." In essence, the Divorce Bill would want to separate the chaff from the grain, so to speak, and protect the sanctity only of quality marriages, no matter how many previous marriages one has been through. This aspect alone is already highly debatable and subject to different interpretations.

To understand the Divorce Bill better, we also need to differentiate between "divorce," "legal separation," "annulment of marriage," and "declaration of nullity." These terms differ in definition and legal effect. Legal separation under the Family Code is often referred to as separation from bed and board.

Here, a spouse may file a petition for legal separation based on any of several grounds, including "violence or grossly abusive conduct," among many others. When granted, the decree of legal separation excuses the spouses from the obligation of cohabitation but does not sever the marital relations and does not capacitate the spouses from remarrying.

Declaration of nullity on the other hand is a remedy for having the marriage declared void from the beginning. There are also several grounds for declaration of nullity, but the most "popular" of these grounds is psychological incapacity. Note that "declaration of nullity" is not the same as "annulment of marriage." In the former, the court declares that the marriage was null and void due to certain reasons. In the latter, the marriage is voidable, which means it is valid until it is declared void by the court. In voidable marriages, the law requires that the petition be filed within a certain period. Otherwise, the spouse concerned loses his right to have the marriage annulled.

Finally, divorce simply refers to the termination of marriage by the filing of a complaint or petition by a party. Now, how does divorce fit into the picture? Basically, HB 1799, aside from "inserting" a divorce provision into our Family Code, wants to restructure existing provisions at the same time. The amendment sought by the bill lumps divorce together with legal separation. The grounds for divorce enumerated are: 1) separation in fact for at least five years; 2) legal separation for at least two years; 3) existence of any ground for legal separation, causing irreparable breakdown; 4) psychological incapacity (removed from the grounds for declaration of nullity); and, 5) irreconcilable differences.

Obviously, the new concepts here are "separation in fact," "irreparable breakdown" and "irreconcilable differences." None of these were present as grounds for any remedy prior to the divorce bill. In practice, couples who are dissatisfied with their marriage for any reason resort to filing a petition for declaration of nullity by reason of psychological incapacity. By nature, the concept of "psychological incapacity" is all-inclusive. The effect of the introduction of these new grounds is clearly to make it easy for spouses to terminate their marriages and remarry, and—if the subsequent marriage turns out undesirable"terminate the second marriage and remarry for as many times as they want.

There are many other areas in HB 1799 that are ripe for discussion and debate. These include: how the old law and the bill addresses domestic violence, and the legal effect of the divorce bill on property relations, child support, and the status of the spouses' children. I shall discuss these sufficiently in my subsequent columns.

If you have questions for Atty. Allen, email feedback@herword.com.

Atty. Allen A. Liberato is head of Corporate Legal Affairs at strategic marketing communications firm TeamAsia. She earned her Bachelor's Degree from the University of the Philippines Diliman and her law education from the University of Perpetual Help under Dean Justice Isagani A. Cruz.

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