divorce in the Philippines

[OPINION] Why women seek divorce

Claire Padilla

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[OPINION] Why women seek divorce
The Catholic Church is lenient in dissolving marriage compared to the Philippines' Family Code. The Church recognizes that certain marriages are already broken.

A marriage is a contractual obligation between the parties to love each other. However, when there is no love but only verbal, physical, emotional, sexual, and financial abuses, there is no marriage to speak of.

National statistics show that one out of five married women experienced physical, sexual, or other forms of violence from their husbands (NDHS 2022). Divorced, separated, or widowed women reported the highest incidence of violence from their husbands. The number of women in the lowest wealth quintile who experience abuse is almost double the number of women in the highest wealth quintile.

Many women need a divorce for a variety of reasons: their husbands tried to kill them; marital rape or incest rape; wife battery; threats of physical or financial abuse; gambling, alcoholism, drug addiction, and unemployment; infidelity; spending their family earnings on vices and extra-marital affairs; abandonment; lack of financial support; years of separation, among others.

These women seek recourse after realizing their husbands have not changed throughout their marriage.

Annulment process is too difficult

Nullity of marriage based on psychological incapacity under Article 36 of the Family Code has failed Filipino women who want freedom from their abusive marriages. Petitions for declaration of nullity are too difficult, too traumatic, and too costly.

Nullity based on psychological incapacity is subject to court interpretation. According to the 15-year data of the Office of the Solicitor General on the disposition of Article 36 cases from 2008 through 2022, one in five nullity cases were denied and dismissed. The abused women in these marriages continue to be married under the eyes of the law.

Nullity cases are extremely traumatic for women who are forced to relive the abuses they suffered from their husbands. Women undergo torture when they take the witness stand and end up crying incessantly just to be able to free themselves from an abusive marriage.

Clearer grounds under the absolute divorce bill

The proposed law provides clear grounds that are easier to prove. For example:

  • At least five years of separation.
  • Irreconcilable differences
  • Revised grounds for legal separation and annulment
  • Civil registration recognition of foreign divorce by the foreign or Filipino spouse
  • Civil registration of church dissolution
  • Summary judicial proceedings
  • Less costs (with provisions on low attorney’s fees and appointment of a counsel for court-assisted petitioners)

Divorce will also solve the legal fiction in Article 36 where the previous marriage is declared void from the beginning based on antecedence, incurability, and gravity of psychological incapacity. With divorce, the previous marriage is recognized as valid but is subsequently severed due to causes that arose during the marriage, and the abused woman can be awarded alimony.

Constitutional guarantees cover the right to divorce

There is no equal protection of the law when Filipino Muslims can avail themselves of divorce, some petitions for nullity have been granted while other petitions were denied, and Filipino wives of foreigners can divorce their husbands abroad (Republic v. Manalo).

The right to privacy covers personal decisions precluding governmental interference, such as marriage, procreation, contraception, divorce, and diverse relationships (Carey v. Population Services International).

According to the March 2024 Social Weather Stations survey, 50% of Filipinos support the legalization of divorce for irreconcilably separated couples.

Not having a divorce law based on religion violates the constitutional guarantee of non-establishment of religion and infringes on one’s freedom of religion or belief. Our laws and governance should be based on secular standards for the public good, not religious morals (Estrada vs. Escritor and Ang Ladlad vs. Comelec).

Those who oppose divorce are free to exercise their own beliefs, but they must not impose their beliefs on those who clamor for the passage of a divorce law.

Progressive laws exist in other predominantly Catholic countries

Only the Philippines and Vatican City, an ecclesiastical state, do not have divorce.

Filipinos should be mindful of progressive laws. All predominantly Catholic countries, such as Spain, Italy, Ireland, and Mexico, have legalized divorce. Spain and Mexico allow marriage equality, with Spain being the third country to pass such a measure. Also, in Spain and various places in Mexico, access to safe abortion is legal.

Even the Catholic Church has lenient grounds for annulment

The Catholic Church is lenient in dissolving marriage. It allows three grounds for annulment: lack of sufficient use of reason, grave lack of discretionary judgment on essential marital obligations, and psychological incapacity. In contrast, the Philippines’ Family Code only allows nullity based on psychological incapacity.

The Catholic Church recognizes that certain marriages are already broken. There is a long line of Marriage Tribunal decisions granting annulment in cases of immaturity, incompatibility, irresponsibility, alcoholism, and selfishness, where one spouse cannot perform ordinary duties of marriage and family when the spouse is not other-oriented or is not capable of self-giving love or cannot maintain fidelity. (Notes on Sacraments and Sacramentals, Vol. II, Marriage, Father Wilfredo Paguio; The Code of Canon Law: A Text and Commentary, 1985)

In 2006, the Committee on the Elimination of Discrimination Against Women (the Committee) urged the Philippines to pass a divorce law. In 2016, the Committee reiterated its recommendation that the Philippine government expedite the adoption of a divorce law.

As representatives of the people, our legislators must immediately pass a divorce law and respond to the clamor of Filipino people to adopt one. – Rappler.com

Atty. Clara Rita “Claire” Padilla is the founder and executive director of EnGendeRights. She has long been advocating for divorce legislation and was a member of the House committee technical working group on the divorce bill. She is known internationally for working on gender, gender-based violence, reproductive rights, and diverse sexual orientations and gender identities. She is a fellow of the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto.

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