(Lecture delivered by Rep. Edcel C. Lagman during the DSWD-NCR Policy Forum on the Divorce Bills on 25 November 2022)
Good morning to one and all. Thanks to the Department of Social Welfare and Development (DSWD) for organizing this forum on the absolute divorce bill, of which I am the principal author. I am presently attending the Bicameral Conference Committee meeting on the 2023 National Budget. Hence, this video presentation.
Before I discuss the salient features of House Bill No. 78 or “An Act Reinstituting Absolute Divorce as an Alternative Mode for the Dissolution of Marriage”, I shall first address and debunk the opposition against the measure, which are the following:
- An Absolute Divorce Law will open the floodgates to divorces.
- An Absolute Divorce Law will destroy the institution of marriage.
- An Absolute Divorce Law will result to the State’s abandonment of marriage as a social institution and the foundation of the family.
- An Absolute Divorce Law is unconstitutional.
- An Absolute Divorce Law is against the Catholic faith.
- An Absolute Divorce Law is unnecessary considering the availability of annulment, legal separation, and dissolution of marriage under the Family Code.
No Floodgates to Divorces
The Absolute Divorce Law is not for everybody. The overwhelming majority of Filipino married couples are in harmonious and vibrant marital relationships. They do not need a divorce law.
Divorce is only an option for couples in distress, particularly abused wives of dysfunctional and long-dead marriages.
According to the World Population Bureau, in countries where absolute divorce has long been legislated, divorce is not the rule. For example, in the following countries the rate of divorce per 1,000 population in 2022 is low:
- South Korea – 2.1
- Spain – 1.9
- Poland – 1.7
- Italy – 1.4
- Thailand – 1.4
- Mexico – 1.3
- Ireland – 0.7
- Malta – 0.7
- Vietnam – 0.2
- Sri Lanka – 0.15
What clearly increases divorce rates is the availability of “no-fault or no-contest divorce” which is a non-contentious proceeding, which is not included in our proposed divorce bill.
No Marriage Is Destroyed
In absolute divorce and dissolution of marriage proceedings, there is no more marriage to protect or marital union to destroy because the subject marriage has long perished in fact.
Although it is said that marriages are solemnized in heaven, some plummet into hell because marriage is still a human institution which could collapse and wither because of human frailty and mortal limitations.
Paraphrasing the case of Te vs. Te, the Supreme Court held that the nullification of a marriage is a decent interment of a long-dead union.
Marriage Is Still The Foundation Of The Family
The institution of absolute divorce and dissolution of marriage does not temporize the steadfast commitment of the State to protect and preserve marriage as a social institution and as the foundation of the family.
For this reason, the bill provides for clear and categorical safeguards for the preservation and protection of marriage like the following:
One of the guiding principles is that “Absolute divorce shall be judicially decreed after the fact of an irremediably broken marital union or a marriage vitiated from the start.”
Another guiding principle is that “the State has the role of strengthening marriage and family life by undertaking relevant pre-nuptial and post-matrimonial programs and activities.”
“Except for grounds under summary judicial proceedings, the proper court shall not start the trial of a petition for absolute divorce before the expiration of a mandatory six-month cooling-off period after the filing of the petition during which the court shall exercise all efforts to reunite and reconcile the parties.”
Despite the pendency of a petition for absolute divorce or the issuance of a decree of absolute divorce, reconciliation of the spouses shall be effectuated by either terminating the divorce proceedings or recalling the decree of divorce.
Drive-thru or quickie divorces are prohibited because “No decree of absolute divorce shall be based upon a stipulation of facts or a confession of judgment.”
The Office of the Public Prosecutor is authorized and obliged to conduct investigations to find out whether or not there is collusion between the spouses in a petition for absolute divorce and shall report its findings to the proper court within six (6) months from the filing of the petition.
Stiff penalties are imposable on colluding spouses and on a spouse who coerces or compels the other to file a petition for absolute divorce. The penalties are an indivisible imprisonment of five (5) years and a fine of P200,000.00
Moreover, the State is obligated to rescue couples and their children from a house on fire.
An Absolute Divorce Law Is Constitutional
Notwithstanding the adoption in the 1987 Constitution of the precepts that marriage is a social institution, that it is the foundation of the family and that it is inviolable, the Commissioners of the 1986 Constitutional Commission were unanimous that the Congress is not prohibited or precluded from instituting absolute divorce and dissolution of marriage under the current Charter.
Almost identical provisions on marriage and the family are found in the Constitutions of Latin American countries including Cuba, Catholic countries of Europe, the Russian Federation and Saudi Arabia, among others. However, these constitutional provisions did not deter these countries from legalizing absolute divorce.
Whatever synonyms are ascribed to “inviolability”, the fact remains that the statement that marriage is “inviolable” is a prescription of a norm or standard but it is not a proscription or prohibition of absolute divorce. Inviolability of marriage also appears in the constitution of Columbia but this Catholic Latin American country has instituted absolute divorce 17 years ago on 10 June 2005, including legalizing consensual divorce before a notary public. It is a truism that no rule or doctrine is immune from exceptions.
Divorce Does Not Defy The Catholic Faith
If divorce is not consistent with the Catholic faith, why is it that all of the Catholic countries in the world, except the Philippines, has legalized divorce.
Spain, which brought to us Catholicism, has divorce. Likewise, Italy where the Vatican is located has legalized divorce. Moreover, Ireland, which is fiercely Catholic, also has a divorce law. Even Catholic Columbia has notarial divorce and similarly in Catholic Portugal one can get a divorce decree via email.
In the Old Testament, Moses permitted a man to obtain a divorce on just about any grounds. While the New Testament states that “what God has joined together, let man not separate”, divorce was still justified by Jesus in cases of adultery, sexual immorality, and unchastity.
The apostle Paul added to the teachings of Jesus what is called the “Pauline Privilege”. According to this concept, if an unbelieving spouse leaves a believer, the believer is not bound to the marriage relationship, but is free to remarry (1 Corinthians, Chapter 7, Verse 15). There is also “constructive desertion”, “when a husband so brutalizes his wife that it is impossible to live with him any longer; or when a wife has so harassed, or brutalized her husband that it becomes impossible for him to stay with her.” When this happened, divorce and remarriage were permissible.
Even the Catholic Church has a matrimonial tribunal which dissolves marriages, as in divorce, on the ground of psychological incapacity of either or both spouses. Well-off Catholics have been availing of this canonical dissolution of marriage.
Divorce Is A Necessary, Cheaper, And More Expeditious Option
While the Family Code provides for annulment of marriage (Article 45), legal separation (Article 55), and dissolution of marriage based on psychological incapacity (Article 36), divorce is a more viable, affordable, and expeditious option.
In legal separation, the husband and the wife are only separated from bed and board, but their marriage is not severed. Consequently, they are barred from remarriage. However, in absolute divorce, the decree of dissolution of marriage allows the spouses to marry again.
In annulment, the grounds must be prior to or contemporaneous with the marriage ceremony. However, most grounds causing irremediable marital conflict occur during the cohabitation of the couple or after the marriage, which supervening grounds divorce addresses.
In dissolution of marriage based on psychological incapacity, the requirement is that the psychological incapacity must be present before or during the celebration of the marriage even if it appears after the marriage ceremony. This is a very limited and expensive remedy as expensive as annulment and legal separation processes.
Incidentally, all of the grounds for annulment, legal separation, and dissolution of marriage under the Family Code have been adopted as grounds for absolute divorce. And the availing party or parties have the option whether to file for any of the said remedies or for absolute divorce.
Salient Features Of The Divorce Bill
The salient features of the absolute divorce bill have been repeatedly discussed, articulated and defended in congressional fora and outside the halls of the Congress. To reiterate, the following are the major features:
(A) This bill reinstates absolute divorce because absolute divorce was practiced during the pre-Spanish times, the American colonial period and during the Japanese occupation;
(B) It is the declared policy that “while the State continues to protect and preserve marriage as a social institution and as the foundation family, it shall also give the opportunity to spouses in irremediably failed marriages to secure an absolute divorce decree as an alternative mode for the dissolution of an irreparably broken or dysfunctional marriage under limited grounds and well-defined judicial procedures”;
(C) The following are the grounds for a judicial decree of absolute divorce:
First, the grounds for legal separation under Article 55 of the Family Code of the Philippines, modified or amended, as follows:
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 of respondent 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 respondent to imprisonment of more than six (6) 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 (1) year;
When the spouses are legally separated by judicial decree for more than two (2) years, either spouse can petition the proper court for an absolute divorce based on said judicial decree of legal separation
Second, grounds for annulment of marriage under Article 45 of the Family Code of the Philippines, restated as follows:
The party in whose behalf it is sought to have the marriage annulled was eighteen (18) years of age or over but below twenty-one (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 attaining the age of twenty-one (21), such party freely cohabited with the other and both lived together as husband and 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:
Provided, That the grounds mentioned in numbers 2 (unsound mind), 5 (impotency) and 6 (incurable sexually transmitted infection) existed either at the time of the marriage or supervenes after the marriage.
Third, when the spouses have been separated in fact for at least five (5) years at the time the petition for absolute divorce is filed, and reconciliation is highly improbable.
Fourth, psychological incapacity of either spouse as provided for in Article 36 of the Family Code of the Philippines, whether or not the incapacity existed at the time of the marriage or supervenes after the marriage.
Fifth, when one of the spouses undergoes a gender reassignment surgery or transitions from one sex to another, the other spouse is entitled to petition for absolute divorce with the transgender or transsexual as respondent, or vice versa.
Sixth, irreconcilable marital differences as defined in Sec. 4. O which reads:
“Irreconcilable differences refer to the substantial incompatibility of the spouses due to their intransigence or fault by holding on to divergent and divisive behavior resulting to the total breakdown of their marriage which could not be repaired despite earnest efforts to reconcile;”
Seventh, other forms of domestic or marital abuse as defined under Sec. 4. l which reads:
“Domestic or marital abuse refers to violence or aggressive behavior within the home, typically involving the violent abuse of a spouse by the other which may be committed through:
- physical violence,
- psychological and emotional violence,
- sexual violence, or
- economic abuse;”
The grant of absolute divorce based on domestic or marital abuse or violation of Republic Act No. 9262 otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004" shall be without prejudice to the prosecution of the errant spouse under the said Act.
Eighth, when a valid foreign divorce has been secured by either the alien or Filipino spouse.
In order that a foreign divorce can be recognized as a ground for divorce or shall have the effect of a divorce under this Act, without going through the judicial process, said foreign divorce must be authenticated by the Philippine Consul in or proximate to the foreign country where it was secured, and subsequently filed with the proper civil registrar in the Philippines or the Office of the Philippine Consul abroad where the Filipino spouse is residing.
Ninth, when a marriage is nullified or dissolved by the proper canonical tribunal of the Roman Catholic Church or any other recognized religious sect or denomination which may have their own ecclesiastical tribunal, the said nullified or dissolved marriage shall constitute a ground for divorce or shall have the effect of a divorce under this Act, without going through the judicial process, when it is authenticated by the proper authorities of the Roman Catholic Church or any other recognized religious sect or denomination, and registered with the proper civil registrar in the Philippines.
(D) Procedure for obtaining absolute divorce - The established and recognized procedures for securing legal separation, annulment of marriage, and voiding of a marriage under the Family Code of the Philippines, as far as practicable, and not in conflict with this Act, shall govern the process of obtaining a judicial decree of absolute divorce from the proper family court which shall be commenced by the petitioner filing a verified petition for absolute divorce.
(E) Overseas Filipino Petitioners - Petitioners who are overseas Filipinos shall be given priority by the proper court with respect to the hearing of their petitions and the court shall set the reception of evidence, upon the availability of the petitioners, for not more than two (2) consecutive days.
(F) Summary judicial proceedings - The following grounds for absolute divorce may be subject to summary judicial proceedings as defined in Sec. 4. u:
When the spouses have been separated de facto for at least five (5) years;
When one of the spouses has contracted a bigamous marriage;
When the spouses have been legally separated by judicial decree for two (2) years or more;
When one of the spouses has been sentenced to imprisonment for six (6) years, even if subsequently pardoned; and
When one of the spouses has undergone a sex reassignment surgery or has transitioned into another sex.
(G) Mandatory Six-month Cooling-off Period. – Except for grounds under summary judicial proceedings, the proper court shall not start the trial of a petition for absolute divorce before the expiration of a six-month cooling-off period after the filing of the petition during which the court shall exercise all efforts to reunite and reconcile the parties.
The requirement of a cooling off period shall not apply in cases which involve acts of violence against women and their children under Republic Act No. 9262 otherwise known as the “Anti-Violence Against Women and Their Children Act of 2004” or attempt against the life of the other spouse or a common child or a child of the petitioner.
(H) Effects of Absolute Divorce. – The decree of absolute divorce shall have the following effects:
The marriage bond shall be severed and the divorced spouses shall have the right to contract marriage again;
The custody of the minor children shall be decided by the proper court in accordance with the best interests of the children, taking into primary consideration that no child under seven (7) years of age shall be separated from the mother, unless the proper court finds compelling reasons to order otherwise;
The conjugal partnership of gains or the absolute community shall be dissolved and liquidated and the assets shall be equally divided between the spouses excluding the paraphernal or exclusive properties of either spouse. The recognition and delivery of the presumptive legitime to the common children shall be ordered by the court, taking into consideration the interests of the children and the protection of their legitime from dissipation;
In addition to the equal share in the assets of the absolute community or conjugal partnership, the petitioner who is not gainfully employed shall be entitled to spousal support or alimony from the respondent until the petitioner finds adequate employment: Provided, That the support shall not exceed two (2) years from the finality of the decree of absolute divorce and shall cease upon the petitioner’s remarriage;
The proper court shall have the discretion to grant spousal support or alimony, child support and child custody pursuant to the pertinent provisions of the Family Code of the Philippines, and impose contempt of court against the defaulting parties. The necessity of alimony and the amount shall be determined by the court taking into consideration all relevant factors;
The petitioner may revoke the donations made in favor of the respondent, as well as the designation of the latter as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable.
The action to revoke the donation under this provision must be brought within five (5) years from the time the decree of absolute divorce has become final;
The effects on the divorced spouses with respect to intestate succession, testamentary dispositions, donations and insurance provisions on beneficiaries in accordance with the Family Code of the Philippines and jurisprudence will be observed; and
Status of legitimacy of children - the legitimate and adopted children of divorced parents shall retain their legal status and legitimacy; a child conceived or born within 300 days after the filing of a petition for absolute divorce shall be considered legitimate, unless the ground for divorce is the marital infidelity of the wife.
(I) Award for Damages. – The proper court may, as warranted by evidence, award actual, moral, and exemplary damages as provided for under the New Civil Code to the innocent spouse against the errant spouse.
(J) Conversion of Pending Petitions. - Parties who have pending petitions under Articles 36, 45, and 55 of the Family Code of the Philippines may convert their petitions to an action for absolute divorce under this Act without paying filing fees.
(K) Recognition of Reconciliation. - If the petitioners have agreed to reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the same court where the petition for absolute divorce was filed with the interests of the children duly protected.
(L) Any parent in default of providing the required child support under this Act shall be charged with contempt of court and be imposed a fine of:
Fifty thousand pesos (P50,000.00) for the first default,
One hundred thousand pesos (P100,000.00) for the second default, and
Two hundred thousand pesos (P200,000.00) each for the third and the succeeding defaults.
(M) Options and Remedies. – The concerned spouse shall have the option to file a petition for dissolution of marriage, annulment of marriage, or legal separation under Articles 36, 45, and 55, respectively, of the Family Code of the Philippines.
(N) Application for a Court-Assisted Petition. – A petitioner-spouse may apply for a court-assisted petition in obtaining absolute divorce. Upon approval of the application, the proper court shall waive the payment of all forms of filing fees and other costs of litigation and shall appoint a Counsel de oficio in favor of court-assisted petitioner or petitioners and shall assign such number of social workers, psychologists, and psychiatrists as may be necessary from a pool of accredited social workers and practitioners recognized by the Department of Social Welfare and Development (DSWD), and the Department of Justice (DOJ), to assist the petitioner free of charge.
“Court-assisted petitioner” refers to a petitioner-spouse who has personal or real properties not exceeding Two million five hundred thousand pesos (PhP2,500,000.00).
This divorce bill is an apt sequel to the Reproductive Health Law which the DSWD also supported, of which I am likewise the principal author.
In the RH Law, the central figure is the woman whose inherent right to freely determine the number and spacing of her children is protected.
Likewise, in the divorce bill the principal figure is the abused wife who needs to be liberated from an inordinately toxic marriage.
I optimistically hope that the 19th Congress will finally enact the Absolute Divorce Law and all of you will share in the jubilation.