July 6, 2011
Domestic Violence and the Divorce Bill: A Commentary
There is no doubt that the intention behind House Bill 1799 is a laudable one. In the Explanatory Note annexed to the bill, the sponsors of the bill identify domestic violence as one of the major driving forces and rationale for the bill. The Divorce Bill, if enacted into law, will provide a way out for women who are trapped in physically violent and abusive marriages.
But does this mean that women who are victims of domestic violence have no recourse under the present law? The Family Code provides for two civil remedies for cases of domestic violence, although both have limitations and are subject to stringent requirements.
The first one is legal separation under Title II of the Family Code, Article 55 of which enumerates the grounds for the filing of a petition for legal separation. Among these grounds are: "(1) Repeated physical violence or grossly abusive conduct against the petitioner, a common child, or a child of the petitioner" and "(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation."
Note, however, that for domestic violence to be a valid ground, it has to be "repeated." Similarly, for any other form of abusive conduct to qualify as a ground, the same has to be "gross." For the second ground, the essence here is not the physical violence but the compulsion to change a spouse's personal beliefs, which are constitutionally protected.
It would seem that as far as legal separation is concerned, the stringent requirements far outweigh the legal effects. This is because a decree of legal separation, once awarded, only entitles the spouses to live separately, but does not capacitate them to remarry.
The second remedy is declaration of nullity on the ground of psychological incapacity. Article 36 of the Family Code is probably the most used and abused provision of the Family Code. To some extent, the provision was actually worded to allow leeway for interpretation. It states: "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."
Physical violence is undoubtedly one of the many manifestations of psychological incapacity. However, in a long line of cases decided by the Supreme Court, the doctrine is that physical violence, standing alone, cannot validly support a finding of psychological incapacity.
In the recent case of Suazo vs. Suazo (G.R. No. 164493, March 10, 2010), the wife filed a petition for declaration of nullity under Article 36 of the Family Code, citing several grounds including physical violence. The Supreme Court denied the petition and ruled on the claim of physical violence in this manner:
The physical violence allegedly inflicted on Jocelyn deserves a different treatment. While we may concede that physical violence on women indicates abnormal behavioral or personality patterns, such violence, standing alone, does not constitute psychological incapacity. Jurisprudence holds that there must be evidence showing a link, medical or the like, between the acts that manifest psychological incapacity and the psychological disorder itself.
In short, the physical violence must be shown to be part of a psychological condition for the same to be a valid ground for having the marriage declared void from the beginning. In addition, physical violence, like any other manifestation of psychological incapacity, must also meet the three requisites lengthily discussed by the Supreme Court in the case of Santos vs. Court of Appeals (310 Phil 21, 1995):
Psychological incapacity must be characterized by (a) gravity; (b) juridical antecedence; and (c) incurability. It should refer to "no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage." It must be confined to "the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage."
In essence, physical violence as a ground for declaration of nullity under Article 36: 1) must be of a grave nature; 2) must be existing prior to the marriage, although the same became manifest only subsequently; and, 3) must be incapable of any cure.
Now, how does the Divorce Bill address domestic violence? Unfortunately, the phrase "physical violence" does not appear in the proposed law, except in Article 55(A), where it quotes the original provision on Legal Separation. Aside from the verbatim quote, there are only two references to physical violence: Article 55(B), Sections 2 and 3.
Article 55(B) enumerates the grounds for the filing of a petition for divorce, which include:
x x x
(2) The petitioner has been legally separated from his or her spouse for at least two years at the time of the filing of the petition and reconciliation is highly improbable;
(3) When any of the grounds for legal separation under paragraph (A) of this article has caused the irreparable breakdown of the marriage;
My personal issue with the proposed law is that it does not bring anything new to the table, at least in terms of lightening the "physical violence" requirements before women can free themselves of violent marriages. While the proposed law offers an easier way out than Article 36, the physical violence and abusive conduct required are still subject to the qualifications of Article 55, that is, they should be "repeated" and "gross," respectively.
Unfortunately, domestic violence is a very real issue. This writer believes that physical violence against women is never justified. It is never excusable under any circumstances. One instance of wife beating is just as bad as repeated beatings, and any level of abuse is still abuse that no wife deserves. In this writer's humble opinion, the proposed law would have been more responsive to the times and the needs of women if the stringent qualifiers were removed, and the only requirement for victims of domestic violence to enjoy the benefits of the law is that they have to want the abuse and violence to end by getting out of the marriage.
If you have questions for Atty. Allen, email email@example.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.