Why Annulment And Legal Separation Are Not Enough For Divorce Advocates
Some court decisions show how difficult it is to undo marriages in the Philippines, the only country in the world, besides the Vatican, that does not allow couples to divorce.
The House of Representatives is again moving to give the option to divorce to spouses in the Philippines, the only country in the world (besides the Vatican) that does not allow them to do so even if they declare that their marriage no longer works.
On Wednesday, the House committee on population and family relations approved in principle the so-called “marriage dissolution bill.” The provisions to be submitted by the committee to the plenary are not yet finished; a technical working group will meet on Feb. 12 to finalize the text.
Christian fundamentalists, however, continue to be at the forefront of opposing divorce. Some argue that the options of annulment (which can be costly) and legal separation are already available under Articles 45 and 55 of the Family Code – an executive order enacted by then president Corazon Aquino during her revolutionary government, when there was no Congress composed of legislators directly elected by the people.
Understanding these existing legal remedies is important in determining whether there is really no need for the option of divorce or dissolution of marriage.
Annulment
Unlike divorce, annulment does not terminate a valid marriage on grounds that occur after the wedding vows. Physical violence and irreconcilable differences during the course of the marriage are, in many cases, not reason enough to break free through annulment.
Rather, annulment can only render a marriage null and void from the beginning – meaning it was never valid in the first place because of various conditions that already existed before the marriage vows were exchanged.
Void marriages include those between persons under 18 years old, those solemnized without marriage license or by persons not authorized to perform marriages (unless the parties relied in good faith), bigamous or polygamous marriages, cases of mistaken identity, and subsequent marriages contracted without the annulment of the prior marriage being recorded.
Also void from the beginning are incestuous marriages with the immediate family and blood relatives up to the fourth civil degree, and persons connected through adoption or stepparent relationships, as well as those in which one party had to kill his or the other person’s spouse in order to get married.
Lastly, there can be annulment on the ground of psychological incapacity to “comply with the essential obligations of marriage.” What makes this ground really hard to prove is that Article 36 requires it to already be present “at the time of celebration,” even if the other spouse learns about it belatedly.
In its 1997 decision on Republic versus Molina, the Supreme Court held that “ ‘mild characteriological peculiarities, mood changes, occasional emotional outbursts’ cannot be accepted as root causes.”
“The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage,” stated the decision penned by then SC associate justice Artemio Panganiban.
The SC, through Associate Justice Estela Perlas-Bernabe, reiterated in the 2017 case of Del Rosario versus Del Rosario that “Article 36 of the Family Code, as amended, is not a divorce law that cuts the marital bond at the time the grounds for divorce manifest themselves; a marriage, no matter how unsatisfactory, is not a null and void marriage.”
In this case, the SC said the wife “merely” showed that the husband was a drunkard who could get violent, flirted openly and claimed to be single, brought home a bar girl on several occasions, and avoided discharging his obligations to her and their son. This was apparently not enough, since it was not shown to be deeply rooted and incurable.
Legal separation
Persons stuck in marriages marked by repeated physical violence and abuse, pressure to change religious or political affiliation, inducement to prostitution, drug addiction and alcoholism, homosexuality, bigamy, sexual infidelity, and abandonment of more than one year have another option – legal separation.
This remedy, however, only allows spouses to “live separately from each other, but the marriage bonds shall not be severed.” At least, this also dissolves the absolute community of property (all property belong to both spouses by default, with a few exceptions) or the conjugal partnership of gains.
One more legal remedy that terminates marriage concerns spouses who have gone absent for four consecutive years (or two years in cases of plane crash or ship sinking victims, soldiers at war, and danger of death).
Under Article 41 of the Family Code, a husband or wife can institute a summary proceeding for the declaration of presumptive death. The requirement is for the remaining spouse to show a “well-founded belief” that the missing better half is dead.
The declaration of presumptive death allows the remaining spouse to remarry. However, the second marriage is automatically terminated when the absentee spouse reappears and has his affidavit recorded. This situation is unique in that children conceived during the second marriage will still be considered legitimate and donations by reason of marriage will still be valid, unlike in bigamous marriages, which are void.
There are several rights that cannot arise from the current family laws. Legally separated spouses still cannot remarry since their status remains married. Should married persons choose to begin new lives with other people, their children would be illegitimate.
Hence, advocates of women’s rights are pushing for divorce. Albay 1st District Rep. Edcel Lagman, in his explanatory note for House Bill No. 100, declared: “Full relief is not available under legal separation, annulment of marriage, and declaration of nullity of marriage under the Family Code of the Philippines which are costly and lengthy.”
“When a marriage totally breaks down and reconciliation is nil, it is also the duty of the State to afford relief to the spouses in irreconcilable relations and bail them out and their children from the tempest of incessant discord,” Lagman argued.
Many versions of the bill pending in the House seek to grant absolute divorce on the same grounds as legal separation, as well as cases of a spouse of unsound mind, or having physical incapability to consummate the marriage, or affliction with sexually transmitted disease. Divorce is also sought for cases of marriages contracted through fraud or intimidation.
Lagman's version of the bill wants to include the ground of "irreconcilable marital differences and conflicts which have resulted in the total breakdown of the marriage beyond repair, despite earnest and repeated efforts at reconciliation."
Measures to allow divorce were filed as early as 1999, when then La Union 1st District congressman Manuel Ortega and then senator Rodolfo Biazon introduced bills in their respective chambers.
The push for progress gained momentum when Pantaleon Alvarez became speaker of the House. While Alvarez was openly estranged from his wife and had a partner, he said his position on divorce was not self-serving since he was supposedly a Manobo allowed to practice polygamy. On March 20, 2018, the House, for the first time, voted 134-57 to approve the “absolute divorce and dissolution of marriage” bill on third and final reading.
After Alvarez figured in a feud with President Duterte’s daughter Sara, the current Davao City mayor, the President on April 18, 2018 expressed opposition to divorce on the ground that “my daughter is not happy with it.”
Duterte’s marriage had ended in annulment. He was the guilty party in the annulment of his marriage with Sara’s mother Elizabeth Zimmerman, who won her case in 2001 by proving his psychological incapacity to perform his marital obligations.
The Senate did not match the House’s enthusiasm for the divorce bill, and it failed to hurdle the 17th Congress.
Last week, a House committee adopted the bill approved by the chamber in the 17th Congress. Lagman plans to push for a plenary vote on the measure soon.
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