The divorce bill in the Senate

A Senate committee has recently approved a consolidated divorce bill. This may be the closest the Philippines has come to passing a general divorce law since the Family Code that omitted it was enacted in 1988. However, the bill’s passage into law is not assured.

A bill must be approved by both chambers of Congress – the Senate and the House of Representatives – for it to become law. It must hurdle three readings on separate days on the floor of each chamber. 

The House of Representatives approved a divorce bill on third reading before the latest election. However, at the same time, the Senate’s equivalent bill languished and died at the committee level, leaving nothing for its minority advocates but to refile it in this term.

Now the Senate bill has hurdled not only its first reading, but has also been endorsed by the Senate Committee on Women, Children, Family Relations, and Gender Equality chaired by Senator Risa Hontiveros.

Thus, it is now pending its second of three readings on the Senate floor. Under Senate rules, it is calendared as a matter for ordinary business, to be included among other bills in the order they were received by the Office of the Secretary of the Senate.

What happens now?

With the Senate adjourning from September 30, 2023, we can expect the divorce bill’s second reading after the legislative session resumes on November 6.

The second reading will occasion impassioned debate on the Senate floor. Its authors will deliver their sponsorship speeches, will be subject to questioning by both their allies and by senators opposing its passage. The latter will make speeches and arguments of their own.

Changes to the bill’s provisions may result from the debates and proposals on the floor at this time. Then the attending senators will vote on the resulting version of the bill. 

It shall be momentous if the Senate divorce bill gains a majority of votes after second reading. There is reason to believe this is within reach. While only six senators signed the committee report endorsing the bill, the committee has 11 members who, under Senate rules, are presumed to have concurred with the report unless they register their dissent. A majority of the quorum may be found to vote this into law.

Contemporary surveys show that most Filipinos are in favor of divorce. The House of Representatives already reflects this view. Perhaps the Senate finally shall as well.

If the Senate bill obtains a majority vote of the quorum, then it will be calendared for third reading on a separate day. Printed copies of the bill’s final version will be distributed to the Senators ahead of this third reading. On that day, only the title of the bill will be read on the floor and the attending senators will vote once more. The greatest hurdles will have been overcome if the Senate divorce bill clears that point.

Assuming the Lower House’s version of the divorce bill will have also passed on third reading – as it has in the past – then that and the Senate version shall be reconciled by a bicameral conference committee. The bicameral report reconciling the two versions will need to be approved by both chambers. The approved version will be known as the enrolled bill. 

Finally, this enrolled bill will be submitted to the President of the Philippines for his approval. The President may sign it into law or veto the bill and send it back to Congress with a veto message. Or, if he does not act upon the bill within 30 days of its receipt, it will lapse into law as if he had signed it.

How would you get a divorce under this law?

The different pending versions of the bill have provisions in common which give us a good idea of how a divorce would be obtained if this law is passed.

In the proposed bills of both the Lower House and the Senate, the procedure for filing a divorce is through a court case. We can expect that a petition for divorce should be filed with the Regional Trial Court of the city or province where one of the spouses resides.

The court process contemplated in the various divorce bills is patterned after those for legal separation or annulment of marriage under our Rules of Court, including a cooling off period – between the time of filing the petition and commencement of trial – before the divorce case can proceed. The legislators included this cooling off pause to prevent hasty decisions that precipitate resorting to divorce.

Under the Senate bill, the grounds for allowing divorce are more expansive than what is provided for annulment or even legal separation cases under the Family Code. 

Unlike annulment or petitions for nullity of marriage, the grounds granting divorce need not have existed from the time of the celebration of the marriage. They can come to exist after. The grounds for granting legal separation under the Family Code are also adopted by the Senate divorce bill as grounds to dissolve the marriage entirely. 

Additional grounds are created by the Senate divorce bill. These include rape by one spouse before or after marriage, prolonged separation in fact between the spouses, and irreconcilable differences. A valid divorce obtained overseas is also included as grounds for divorce in the Philippines. Finally, a religious annulment or dissolution granted by a minister or priest is also grounds for granting divorce under the proposed law. 

A petitioner for divorce would thus file the case with the Family Court and prove through testimony and documentary evidence that any of the grounds are met and divorce should be granted.

The proposed law further provides that a court decision granting divorce is final and executory insofar as capacity to remarry is concerned. This means that the spouses are deemed single and can immediately remarry once a divorce is granted even if one of them appeals the decision with respect to its ruling on the issues of support, child custody, and division of property.

What would a divorce law mean for pending cases of legal separation or nullity of marriage?

In the absence of a divorce law, many spouses who want to end their marriage have had to file cases for annulment or nullity of marriage allowed under the Family Code. Such petitions can go on for years without assurance of being granted because of the frankly subjective nature of psychological incapacity, the most common ground that such cases claim as basis for dissolution of marriage.

The authors of the divorce bills have taken this into consideration. The law will allow court cases for legal separation, annulment, or nullity of marriage pending at the time of its passage to be converted to divorce cases. This will spare parties who have already been going to court for years from having to refile and retry their cases and from having to present evidence anew. This also happens to meet certain opposing senators’ argument that, in lieu of a divorce law, annulments should be made less costly and more accessible. In effect, the passage of the divorce law would indeed make annulment cases more accessible. – Rappler.com

Atty. Francesco C. Britanico is a family and corporate lawyer. He has taught Property Law and other subjects at the Legal Studies program of the Lyceum of the Philippines University. He is the managing lawyer and founder of FCB Law.