(Last of two parts)

THE Supreme Court in the very recent case of Tan-Andal v. Andal facilitates the nullification of marriage based on psychological incapacity of a spouse under Art. 36 of the Family Code, which originated from Canon law. It unanimously reinforces and clarifies that psychological incapacity is a not a medical but a legal concept. Consequently, the testimony of a psychologist or psychiatrist is not always mandatory. This appears to presage the reinstitution by the Congress of absolute divorce which likewise liberalizes the dissolution of marriage under specific grounds through an inexpensive and expeditious judicial proceeding.

The Family Code provides that psychological incapacity must exist “at the time of the celebration” of the marriage. On the contrary, the majority of the causes for absolute divorce supervene after the celebration of the marriage. Studies show that post-solemnization causes are the more prevalent grounds for divorce, like marital infidelity, spousal abuse, abandonment and substantial irreconcilable differences. Consequently, as the bill proposes, psychological incapacity occurring after the nuptial ceremony can be invoked to void a marriage.

The annulment of marriage under Art. 45 of the Family Code is anchored solely on causes “existing at the time of the marriage”. The contemporaneous grounds are lack of legal capacity to marry, vitiated consent, pre-existing insanity, impotence, and serious and incurable sexually transmitted disease. Again, absolute divorce is more liberal and comprehensive as it recognizes grounds obtaining during the marital union.

Legal separation, like absolute divorce, covers grounds occurring after the solemnization of the marriage, like physical violence or abusive conduct, imprisonment of more than six years, drug addiction or habitual alcoholism, homosexuality, contracting a bigamous marriage, marital infidelity or perversion, attempt of one spouse against the life of the other, and abandonment without justifiable cause for more than one year.

However, legal separation fails to give full relief because remarriage is not allowed, unlike in absolute divorce. Art. 63 of the Family Code provides that the decree of legal separation entitles the spouses to live separately “but the marriage bonds shall not be severed”. This limited relief spawns unlawful cohabitations where the parties commit adultery or concubinage and their children are illegitimate. If the State finds valid reasons for allowing spouses to live apart from “bed and board”, why prohibit them from remarrying? This is cruelty in the midst of token liberality.

The foregoing major differences highlight the advantage of absolute divorce which grants a more complete and compassionate remedy. Nonetheless, a salient feature of the bill is that the concerned spouse has still the option to avail of nullification of marriage, annulment, or legal separation. There is no compulsion to secure absolute divorce since the menu of options subsists.

The other salient features of the bill are:

1. The State continues to protect and promote the constitutional precept that “marriage, as an inviolable social institution, is the foundation of the family”. The bill affirms this enduring principle by providing that: a) the State shall undertake pre-nuptial and post-matrimonial programs strengthening marriage and family life; b) except in summary judicial proceedings, a mandatory six-month cooling-off period is prescribed as a “final step of reconciling the concerned spouses”; and c) reconciliation of the parties is recognized pending the petition for divorce or even after the divorce decree has been rendered.

2. Summary judicial proceeding is accorded in: a) separation de facto of five years or more; b) bigamous marriage contracted by a spouse; c) legal separation for at least two years; d) imprisonment for six years of a spouse, even if subsequently pardoned; and e) a spouse has undergone a sex reassignment surgery or has transitioned into another sex. In summary proceedings, technicalities are dispensed with, evidence ex parte is allowed, and the decision is immediately final and executory.

3. The State assures that the divorce proceeding is “affordable, expeditious, and inexpensive”.

4. The grounds for nullification of marriage, annulment, and legal separation under the Family Code are adopted with modifications as causes for absolute divorce together with valid foreign divorces and authentic religious marital dissolutions.

5. The divorce decree includes the custody and support of the children, dissolution of the spouses’ property relations, alimony and moral damages to the innocent spouse, preservation of the children’s legitime, and protection of creditors.

6. “Quickie”, “drive-thru”, “no-contest”, “no-fault”, “notarial”, and “electronic” divorces are prohibited. Absolute divorce entails a judicial process and is “decreed after the fact of an irremediably broken marriage.” The bill provides that “no decree of absolute divorce shall be based on a stipulation of facts or confession of judgement”. Moreover, coerced petitions and convenient collusions are proscribed and penalized. The public prosecutor shall investigate whether or not there is collusion.

Absolute divorce is constitutional. Commissioners led by Fr. Joaquin Bernas advocated that despite the constitutional precepts on marriage, the Congress is not prohibited from enacting an absolute divorce law. There was no dissenting view in the Constitutional Commission. Accordingly, the 1987 Constitution does not bar the reinstitution of absolute divorce.

The “inviolability” of marriage is a descriptive ideal. It does not proscribe absolute divorce. Relevantly, while the Constitution of Colombia has a similar “inviolability” clause, Colombia has legalized absolute divorce, including divorce before a notary public. Incidentally, Colombia has the lowest incidence of divorce in Latin America.

The bill on absolute divorce is an apt sequel to the Responsible Parenthood and Reproductive Health law. These twin measures are pro-woman legislations. Women are the central figures in the RH law which guarantees their right to plan and space the birth of their children, thus mitigating maternal death, infant mortality, and inter-generational poverty. Women are also at the heart of an absolute divorce law which liberates tormented wives from irremediably dead marriages, and helps them regain dignity and self-respect.

Rep. Lagman’s email address is This email address is being protected from spambots. You need JavaScript enabled to view it..