Almost five months after it was overwhelmingly approved by the House of Representatives on third and final reading on March 19,2018 House Bill 7303, "An Act Instituting Absolute Divorce and Dissolution of Marriage in the Philippines" languishes on the Senate floor, its passage into law uncertain.
The Divorce Bill’s passage into a law is a big question mark despite its being favored by the majority of Filipinos surveyed as revealed in a scientific study conducted by the Social Weather Station.
Like other Divorce Bills debated in Congress in the past 10 years, this one has to overcome many obstacles from formidable forces such as the objection of the current the President, the Philippine Senate and the Catholic hierarchy.
The Senate would prefer to simply amend the current provisions on annulment that are found in the Philippine Family Code in order to just shorten the process and make it less expensive. This sentiment has been verbally expressed in earlier pronouncements by a majority of the senators regarding their preference to amend certain provisions of the Family Code.
An annulment is a legal procedure which dissolves a marriage between a man and a woman. Legally, annulment declares that the marriage never technically existed and was never valid and therefore in effect may be completely erased.
According to the Family Code of the Philippines a marriage is considered to have been void at the beginning because of the absence of essential and formal requisites that are necessary for a marriage to have validity. The elements of a marriage entail legal capacity such as age of the spouse, gender requirements and when the relationship is against public policy which may involve incestuous situations or when one of the parties has already married another individual. Likewise, mental incapacity or deficiencies could cause a void marriage, and similar circumstances may lead to the same end.
Of the different bases cited, one of the most common and controversial grounds used is psychological incapacity. Psychological incapacity "contemplates downright incapacity or inability to take cognizance of and to assume the basic marital obligations; not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse."
Catholic married couples wishing to obtain annulment must also go through an ecclesiastical annulment, through a Church tribunal without which a Catholic cannot get remarried in the Church after a legal divorce is granted. This is a separate procedure from the court process. This separate procedure increases the cost and the length of time spent for the process which makes annulment an expensive and lengthy process. The major fees involved in an annulment process are the following: P10,000 or less filing fees, P100,000 and up acceptance fees, P5,000 – P10,000 each (P100,000 total) pleading fees, P5,000 – P10,000 each (P70,000 total) appearance fees for lawyer, variable doctor/psychiatrist fees. The entire cost is approximately P250,000.
Furthermore,the annulment process takes about three to five years to complete. Because of these two reasons, the list of many of the reported successful annulment processes only includes wealthy and powerful people. The annulment of the president, lawmakers, including senators and celebrity stars have been widely reported and discussed in Philippine social circles.
Currently in the Philippines there are three modes of ending dysfunctional and irreparable marriages that are legal: annulment, legal separation, and divorce. But the last mode is only for two specific groups of people: the Muslims which roughly constitute 5% of the population and the overseas Filipinos who have obtained divorce in a foreign country. But for the rest of the Filipinos, divorce is still not allowed which occasions many people to question, “Why is divorce law okay for some and not for others?”
For the Muslims, divorce is the formal dissolution of the marriage bond in accordance with the Philippine Muslim Code. This is granted only after all possible means of reconciliation between the spouses have been exhausted. It may be effected by: repudiation of the wife by the husband (talaq); a vow of continence by the husband (ila); injurious assimilation of the wife by the husband (zihar); acts of imprecation (li’an); redemption by the wife (khul’); exercise by the wife of the delegated right to repudiate (tafwid); or judicial decree (faskh).
The only good news
On the other hand, a welcome news for the overseas Filipino is the a landmark ruling on April 24, 2018 by the Supreme Court en banc that recognized the validity of foreign divorce obtained by a Filipino against a foreign spouse. The landmark decision paves the way for a Filipino who obtains a divorce from the foreign spouse to have the divorce recognized by Philippine courts. This recognizes the Filipino’s right to have the foreign divorce recognized and to be free to remarry, regardless of who files for and obtains the divorce.
Curiously, there are certain disconnects in the annulment law and historical realities How can a marriage be null and void from the beginning if the union resulted in the bringing into the world new human beings? And yet children of the annulled couples are considered legitimate. How can something legitimate result from a union that was not valid in the first place? And why does society refer to annulled couples as ex-spouses? Through the years after the passage of the Family Code, this disconnect between rhetoric and historical realities has largely been ignored as Philippine society seems to have accepted it as the norm.
What will happen to the 2018 Philippine Divorce Bill? Abangan.
(Adelaida Lacaba- Bago, Ph.D. is a retired professor of education at De La Salle University in the Philippines where she handled courses in the graduate programs. She has published four books on curriculum development, supervision of instruction, social dimensions of Philippine education and the most recent one, Thesis Writing with Confidence.)
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