[OPINION] Love wins – a lawyer’s take on the House divorce bill

The Filipinos have always been a romantic race. Given our penchant for love stories and over-the-top weddings, we are a country obsessed with all things marriage. Consequently, laws have erected several safeguards to maintain the sanctity and permanence of this union. This is perhaps due to the prevalent role of religion and the church.

It is then quite ironic that the clamor for divorce has been persistent, and growing stronger over the years. All such clamor culminated in the passage of House Bill No. 9349 or the Absolute Divorce Act. Such news caused quite a ruckus. Seen as a ray of hope for those stuck in broken marriages, the bill has likewise been seen as an affront to one’s spiritual and moral convictions. 

Divorce as a familiar local concept

Interestingly, divorce is not a new concept in the Philippines. It was introduced during the American occupation through Act No. 2710 on March 11, 1917, which then could only be obtained by the innocent spouse in case of adultery or concubinage. It was not until the enactment of the Civil Code in 1946 that divorce in the Philippines was abrogated altogether. According to the study of ethnohistorian Dr. Heidi K. Gloria, our indigenous peoples had long since practiced divorce even prior to the arrival of the Spaniards in the 15^th century.

Dissolving marriages under Philippine law

Currently, the Philippines is the only remaining country in the world, save for the Vatican, that has yet to legalize divorce. With the passage of the Family Code in 1987, Filipinos are left with two ways to dissolve their marriage: first, by declaring marriage as void ab initio, or null and void; second, through annulment. A Filipino married to an alien spouse may likewise remarry if the Filipino, subsequently acquiring foreign citizenship, or the alien spouse validly obtains a divorce decree abroad. While Philippine law also allows legal separation, spouses in this case still remain married in the eyes of the law and are only separated from bed and board. 

Hewing to current realities, the grounds to dissolve unwanted and broken marriages appear restrictive and the procedure expensive, leaving the parties exhausted instead of hopeful. Even psychological incapacity, which is the most common ground invoked for nullity of marriage, fails to appease many filing parties, due to the tedious proof that courts require to establish it.

Notwithstanding such difficulties, there appears to be an increasing marital disintegration in the country. In his research article, entitled “Divorce and Separation in the Philippines: Trends and Correlates,” Jeofrey B. Abalos disclosed the steady surge in annulment and nullity cases filed before the Office of the Solicitor-General from 2001 to 2014. Abalos stated that this data is possibly even underreported, especially among the middle class, due to the stigma that comes with being separated and/or annulled.

Welcoming the divorce bill

From the family cases that I have encountered, I observed that parties who opt to go through the rigors of legal dissolution of marriage only desire two outcomes: the capacity to remarry or the chance to acquire exclusive properties – in most cases, parties want both, with no strings attached.

The balancing act of protecting marriage while meeting the objectives of the parties trapped in broken marriages has always been an uphill battle. As an unfortunate consequence of this, some parties opt to merely cohabit if only to move forward and avoid the laborious process of going to court. As of 2020, the Philippine Statistics Authority revealed that the “number of common-law or live-in couples in the country rose to 12.66M between 2015 and 2020,” according to an Inquirer report. Unfortunately, both scenarios only lead to complicated property arrangements and produce illegitimate children. 

For those who go through the legal process, their experiences leave much to be desired. In the end, some parties are constrained to endure their marriages due to the difficulties to achieve freedom. A client of mine was surprised to know that her husband was in an amorous relationship, having kept it from her well over a decade. In another case, a former client had to endure more than two decades of abuse even before having the opportunity to escape. 

Given these real-life struggles, the passage of divorce may represent hope for many Filipinos trapped in unwanted marriages, much like my previous clients, whose ordeals may be similar to other parties. Unlike nullity, where the marriage is said not to have existed in the first place, divorce recognizes the existence of a valid marriage, but for some reason should be dissolved.

A quick perusal of the approved bill shows expanded grounds to dissolve a marriage, which are more responsive to the changing times, such as chronic gambling; having a child with another person, subject to exception; when the wife, being a victim of rape, bears a child; or sexual reassignment surgery or transition, among others. OFWs are also given priority with respect to hearing of the petition and reception of evidence. Certain grounds allow for summary judicial proceedings, a more expedited and less complicated procedure. 

Gateway for abuse

On the other side of the coin, there is much apprehension on whether the bill, when signed into law, may frustrate or, worse, trivialize the institution of marriage. 

In other jurisdictions, divorce is easily obtained by consent or mutual agreement, which presupposes that the reason and evidentiary support is deemed irrelevant. Given that the bill is steps closer to becoming a law, this ease in dissolving a marriage may soon be a possibility in the Philippine setting, and may easily be a gateway for abuse. 

Foremost, the bill introduces, among others, irreconcilable differences as a ground to dissolve the marriage. As defined, it is “the substantial incompatibility of the spouses due to their intransigence or fault by holding on to divergent and divisive behavior resulting in the total breakdown of their marriage which could not be repaired despite earnest efforts to reconcile” (Sec.4[n], HB 9349). Given the subjectivity and expansiveness of this definition, much of the interpretation of this provision would be up to our courts.

Nevertheless, certain questions arise. Would one’s mere refusal to comply with his/her essential marital obligations or to simply maintain the marriage already suffice its dissolution? What parameters would be used to determine the “substantial incompatibility” of the spouses? What would constitute “divergent and divisive behavior”? What would satisfy the court that the parties have indeed exerted “earnest efforts” to reconcile?

While I believe that preserving the sanctity of marriage entails not only the preservation of the marital bond, but also granting freedom to parties in irreparably broken marriages, I implore that the State should all the more be vigilant in the protection of such institution from abuse, with or without the passage of new laws that deem to dissolve the marriage. 

To hark back to the very definition of marriage enshrined in the Family Code, it is a special contract of permanent union between a man and a woman, and the foundation of the family and an inviolable social institution. Effectually, this only means that inconvenience and mere reluctance or refusal to maintain the marriage deserves no protection nor should parties invoking the same be granted reprieve. After all, the first responsibility of one pursuing marriage is to find the right spouse, to be the right spouse, and at all costs ensure that love always wins. – Rappler.com

Katrin Jessica I. Distor-Guinigundo is a junior partner at Calleja Law. She is a litigation attorney, handling family cases among others.