On March 19, 2018, the House of Representatives approved the Absolute Divorce Act of 2018 on its third reading, despite opposition from President Rodrigo Duterte (whose marriage has been legally annulled). House Bill 7303 promises to be a faster and cheaper option for couples who no longer want to be married, and it is also the farthest any proposal about divorce has ever gone. ICYDK, worldwide, divorce is only illegal in Vatican City and the Philippines.
To understand what legalizing divorce could mean for Filipino couples, Atty. Hanna Bravo of Barrios & Bravo Law Offices first walked us through the options we currently have in place: legal separation, annulment, and the nullity of marriage. These three procedures could take at least two years, which is already considered fast.
Atty. Bravo refers to this as "bed and board separation." Technically, you're still married, but your properties are separated. Even if you earn, what you earn isn't co-owned anymore. From the time the court decides you're legally separated, "Para ka nang single, hindi ka lang puwede mag-asawa ulit."
Grounds for legal separation (Article 55 of the Family Code of the Philippines):
- Physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
- Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
- Attempt to corrupt or induce the petitioner, a common child, or a child of the petitioner; to engage in prostitution, or connivance in such corruption or inducement;
- Final judgment sentencing the responded to imprisonment of more than six years, even if pardoned;
- Drug addiction or habitual alcoholism or chronic gambling of the respondent;
- Homosexuality of the respondent;
- Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
- Marital infidelity or perversion or having a child with another person other than one's spouse during the marriage, except when upon the mutual agreement of the spouses, a child is born to them by in vitro or a similar procedure or when the wife bears a child after being a victim of rape;
- Attempt by the respondent against the life of the petitioner, a common child or a child of the petitioner;
- Abandonment of petitioner by respondent without justifiable cause for more than one year
What's the difference between Annulment and the Nullity of Marriage?
According to Atty. Bravo, annulment and the nullity of marriage are often mixed up when portrayed in media. Unlike legal separation, when you file for annulment or the nullity of marriage, once it's been approved by the court, you are allowed to remarry. So what's the difference? She explained, "'Pag sinabi mong 'annulment', yung mga anak niyo considered legitimate. Sa 'nullity,' walang valid marriage na nangyari in the first place. Never kayo naging kasal, so illegitimate yung mga anak niyo."
Grounds for annulment (Article 45 of the Family Code of the Philippines):
- If the petitioner was below 18 or over but below 21, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order unless after becoming 21, such party freely cohabited with the other and both lived together as husband wife;
- Either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
- The consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
- The consent of either party was obtained by force, intimidation, or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
- Either party was physically incapable of consummating the marriage with the other and such incapacity continues or appears to be incurable;
- Either party was afflicted with a sexually transmissible infection found to be serious or appears to be incurable
Grounds for the the nullity of marriage include: being a minor, lack of authority of the solemnizing officer, lack of a marriage license, mistaken identity, incestuous marriages, and the most used one, psychological incapacity. Psychological incapacity means not being able to perform your marital obligations. This is also where disorders come in. Filing for the nullity of marriage becomes expensive because you'll have to pay a psychologist, who will then have to trace the issue back to your childhood.
So what's in the Divorce Bill? How is it different from our existing laws?
Not only are all the favorable provisions of our current laws present in the divorce bill, it also does a good job of addressing additional concerns many Filipino couples have.
Grounds for absolute divorce:
- The grounds for legal separation under Article 55 of the Family Code of the Philippines, provided that physical violence and grossly abusive misconduct under Article 55(1) need not be repeated offenses to be considered as ground;
Atty. Bravo: "In legal separation, kailangan repetitive and grossly abusive, pero sa divorce, kahit once lang."
- The grounds for annulment of marriage under Article 45 of the Family Code of the Philippines, provided that the grounds cited in numbers 2, 5, 6 of Article 45 may either have existed at the time of the marriage, or supervening after the marriage;
Atty. Bravo: "In annulment, kailangan nag-occur na siya during the time of the marriage, hindi mo lang na-discover until after; sa divorce, kahit after the marriage siya nag-start mag-occur or exist, pasok na siya."
- Psychological incapacity of either spouse as provided for in Article 36 of the Family Code of the Philippines, whether or not the incapacity was present at the time of the celebration of the marriage or after;
- All acts mentioned under Section 5 of Republic Act No. 9262, of the Anti-Violence Against Women and their Children Act (VAWC) of 2004;
Atty Bravo: "For VAWC kasi, kailangan mo pa mag-file ng criminal case against them, hindi siya automatic ground para mahiwalayan mo asawa mo. Dito, kahit wala pang conviction basta nandun na yung act, puwede na."
- The commission of the crime of rape by the respondent-spouse against the petitioner-spouse before the celebration of marriage;
Atty Bravo: "Our law says if the person who raped you marries you, ma-e-erase na yung rape." If, for some reason, you decide to marry the person who raped you, but changed your mind about the marriage after, you can file for divorce.
- When one of the spouses has been sentenced by final judgment under Republic Act No. 9262, or a permanent protection order has been issued in favor of the petitioner spouse against the other spouse under the said Act; Republic Act No. 9995, and Republic Act No. 9775, whether or not the complainants in the criminal cases filed under the mentioned Acts is the petitioner-spouse or their common children;
Atty Bravo: "This is somewhat related to no. 4, which means 'pag na-sentence na yung abuser for VAWC. Sometimes the court issues a temporary protection order; sometimes din ayaw ipakulong ng asawa kasi yung logic is hindi makakapagtrabaho [and provide] yung abuser."
- When the spouses are legally separated by judicial decree under Article 55 of the Family Code of the Philippines for at least two years;
Atty Bravo: "'Pag two years na kayong legally separated, puwede ka na mag-file for divorce"
- When the spouses have been separated in fact for at least five years at the time the petition for absolute divorce is filed; and reconciliation is highly improbable.
- Irreconcilable marital differences or irreparable breakdown of the marriage, despite earnest efforts at reconciliation
When asked which of the grounds she thinks will be more difficult to defend, Atty. Bravo names this last one: "I think baka kailangan pa i-define yung coverage nito 'cause the other grounds are based on existing laws. There's still the fear of turning marriage into just another contract."
We brought up that divorce rates are high abroad, and she said, "In reality, marami na ang 'divorced' sa atin. Hindi lang sa papel. Ang mangyayari lang this time [if it becomes legal], is it'll be recorded, which is good kasi mapro-protektohan yung rights ng mga bata."
Would divorce really be a cheaper and faster option?
Atty. Bravo: "Definitely. To begin with, when there are fewer options, it's more expensive. Kung mas mahirap ipasok yung grounds, mas mahal din yung rate ng lawyer because they will treat it as a very complex case. In this divorce bill, considering self-explanatory yung grounds, it's just about undergoing the procedure.
Also, you won't always have to consult an expert witness because the grounds are all about existence or presence of the act itself. Consulting a psychologist could cost upwards of P50,000. Lawyer rates go from P80,000 to P150,000; the filing fee could be around P10,000; and the entire process of filing for legal separation, annulment, or the nullity of marriage can reach P350,000 (sometimes higher). It's expensive and traumatic. Uungkatin lahat kasi kailangan mong i-prove na grabe yung nangyari sa'yo."
Section 9 of the divorce bill (summary judicial proceedings), which doesn't exist in our current laws, states that the process will be faster because it'll be considered a priority by the court. The faster the process, the cheaper it is (ie. less appearance fees for lawyers).
Atty. Hanna Bravo is the co-founder of Barrios & Bravo Law Offices located at U-2 46 West Avenue, Quezon City.
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