Divorce in PH: For better or worse?

The Philippines is one of only two countries in the world that do not have a divorce law. The other is Vatican City, where most residents are Catholic nuns and priests who don’t marry.

But is the absence of divorce law in the Philippines for the better or for the worse?

The third part of GMA News Online's Special Report on 'Divorce in PH' tries to answer this question through the lens of supporters and those against an "Absolute Divorce" in the Philippines. 

Family Code

For former Solicitor General and Justice Secretary Silvestre Bello III who handled petitions for legal separation, annulment and declaration of nullity during his tenure as Solicitor General during the Ramos administration, the passage of the Divorce bill will certainly be an improvement compared with the present Family Code which lacks specific grounds for terminating a marriage. 

“Psychological incapacity [as a ground for annulment under the Family Code]...masyadong malawak.  It means you really don’t have a capacity for marriage, and this [incapacity] should exist at the time of the marriage,” Bello told GMA News Online. 

“Kung tutuusin, dapat padamihin ang [specific] grounds. Here [in our Family Code], when you talk of marriage, we presume that it is a happy marriage. But there are a lot of unhappy marriages. To avoid that, you put additional grounds for annulment or legal separation. For one, VAWC (violence against women and children) should be a ground for annulment, because violence could occur after the time of marriage,” Bello added.

The proposed Divorce bill explicitly lists violence against women and children and marital infidelity as grounds for divorce, something that is not provided under the Family Code.

The Divorce bill also lists the grounds for legal separation, annulment of marriage and declaration of nullity of marriage provided under the Family Code as grounds for divorce. 

Under the existing Family Code, VAWC is only a ground for legal separation, which does not allow legally separated couples to remarry. 

Divorce 'at any time'

Lawyer Kristine Liu, who handles family law cases, said that the catch-all Family Code provisions do very little for those who are in abusive marriages.

“The grounds under the proposed Divorce bill are more comprehensive and less susceptible to personal biases of judges. Currently, the most used ground is Article 36 of the Family Code, which is psychological incapacity. This one is usually subjective and depends on the appreciation of the judge, making the process very lengthy and emotional,” Liu said.

“Under the [Divorce] bill, the grounds are more straightforward, i.e. when the spouses have been separated in fact by at least five years and reconciliation is highly improbable, you can already file a divorce petition. Or if a party contracts a bigamous marriage, you are eligible to file for divorce, not just legal separation,” Liu added.

Further, Liu said that the Divorce bill could still be improved by removing the prescriptive period clause because the pace of healing and reckoning of individuals is not universal. 

“They should remove the prescriptive period because the measure can be rendered useless having that time limit. Divorce should be available at any time.  In the case of women suffering from battered women syndrome, it is hard to pinpoint a reckoning period of the prescriptive period,” Liu said. 

Sanctity of marriage

Bello, for his part, pointed out that Article 48 of the Family Code mandates that government lawyers preserve the sanctity of marriage, making the specificity of grounds for terminating a marriage more crucial. 

Article 48 of the Family Code states that “in all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.” 

In addition, Article 48 also provides that “in the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.”

“It is not mandatory [for us to oppose], but there is Article 48 of the Family Code, and the intention there is to preserve the marriage. And for that to be preserved, the Solicitor General can appeal, can question, the grounds for annulment to ensure that there is no collusion among parties. Because in an annulment, a person could easily say, pinikot mo ako, which is a ground for annulment, under forced marriage,” Bello said.

“The OSG [only] enters the picture to see to it that the evidence presented is actually genuine evidence, not [a] fabricated [one]. To me, that is the correct arrangement. At kung very clear na, kung [halimbawa] binaril, [other forms of] violence, kukuwestiyunin mo pa ba ‘yun [as OSG]?,” Bello said. 

(If the grounds are clear, like the aggrieved party was shot by a gun, or was a victim of violence, why would you question that as the OSG?)

Why suffer?

Under the House-approved Divorce bill, public prosecutors in provinces, cities and capital towns are mandated to conduct investigations to find out whether or not there is collusion between the spouses in a petition for absolute divorce or if a spouse has coerced the other to file the petition, and they will report their findings to the proper Family Court within 60 days from the filing of the petition.

“There was never a time that the OSG automatically agreed [to a granted petition terminating the marriage by the lower court], but the OSG can choose not to make a comment on the subject petition, unless it reaches the Supreme Court, which would really wait for the OSG’s comment before making the decision,” Bello said.

In conclusion, Bello said there should be an accessible and realistic remedy for people whose relationship is already reeking off of resentment instead of love, respect, and kindness. 

“Kung ayaw mo na iyang kasama mo, bakit ka magtitiis? Kung ayaw na sa iyo, papahirapan mo pa ba siya? Ang akin nga eh, kung ayaw na, you can agree to separate, pero legal separation lang, not annulment, kasi it will be abused.

(If you resent your spouse so much, why do you have to suffer? If your spouse has disregarded you, why make it more difficult and stay together when you can agree to separate? But this situation of both parties agreeing to separate should only fall under legal separation alone wherein you cannot remarry. Otherwise, it will be abused.)

“But for annulment and declaration of nullity, there should be solid grounds,” Bello added.

Lawyer Liu also called for a fair and expedient process in ending an abusive marriage. 

“There’s always this argument that it could be abused. But as human beings, we make mistakes over and over. The priority should be making the law accessible, at minimal to no cost, and making the process less tedious,” Liu said.

“Anything is better than the current setup,” Liu added.

Uncertain future

While the divorce bill hurdled the House of Representatives, the Congress’ bicameral setup requires a similar measure to be passed by the Senate before they can reconcile the disagreeing provisions of each chamber’s version of the proposed Divorce bill. 

When both chambers of Congress decide to agree on a reconciled version, it will be the only time that the measure will be ready for the President’s signature to become a law.

The President, however, can also veto, meaning reject the proposed measure. 

Newly-installed Senate President Francis “Chiz” Escudero, whose first marriage with Christine Flores was annulled, is not advocating for the passage of the Divorce bill so far. 

“Ang posisyon ko dito sa divorce ay conscience, personal vote ito. Walang party, walang majority, walang minority stand dito. Personal na desisyon base sa kani-kanilang paniniwala at relihiyon ang mangyayari dyan kada senador. At bilang tagapangulo ng Senado, wala akong balak dumiin pabor o kontra dito,” Escudero, who announced the annulment of his first marriage in 2012, said. 

(On the Divorce bill, this is a conscience, personal vote. Not a party vote, not a majority bloc position. This is a personal decision based on their belief and religion. As Senate President, I don’t intend to call for its passage or non-passage.)

Instead, Escudero, who married actress-model Heart Evangelista in 2015, says he prefers making annulment more accessible and affordable under the Family Code. 

The Senate President, however, conceded that there is a need to explicitly define “psychological incapacity” under the Family Code. 

Although he vowed not to influence the vote of his fellow senators on divorce, Escudero made a statement that the Senate, under his leadership, won’t waste time discussing measures which have less chances of approval.

He did not specifically pertain to Divorce bill, but Senate President Pro Tempore Jinggoy Estrada already interpreted Escudero’s stand as a sign that the upper chamber won’t prioritize it. 

Estrada earlier divulged the initial positions of his colleagues on divorce bill.

"Medyo close fight e kumbaga...Mabigat. Talagang dadaan sa butas ng karayom," Estrada previously said. 

(It’s a close fight. This is tough. It will go through the eye of the needle.)

Those who oppose divorce are Escudero, Estrada, Senators Francis Tolentino, Joel Villanueva, and Ronald dela Rosa. 

Those who are supportive of divorce are Senate Deputy Minority Leader Risa Hontiveros, Senators Robin Padilla, Raffy Tulfo, Grace Poe, Imee Marcos and Pia Cayetano. 

Fair fight

Hontiveros, Padilla, and Tulfo authored separate measures for dissolution of marriage. Meanwhile, Cayetano filed a bill seeking to recognize the foreign decree of termination of marriage, and another bill seeking to recognize the civil effects of a church annulment decree.

Marcos, for her part, proposed a bill expanding the grounds of legal separation. 

These measures are consolidated under Senate Bill 2443 or the proposed Dissolution of Marriage Act which was reported out by the Senate committee on women, children, family relations, and gender equality in September 2023. 

The bill, however, was not sponsored on the plenary since it was approved by the Senate committee. 

With Estrada explicitly stating that the bill on divorce won’t be a priority of the current leadership, Hontiveros appealed to his colleagues to give the measure a “fair fight.” 

"Para sa akin, yun lang naman ang hinihingi, lalung-lalo na, ng mga divorce advocates organizations, fair fight lang. Kasi, ang kakabit ng fair fight na iyan ay yung second chance sa pag-ibig, pagtataya, buong family life ulit. At sino ba naman tayo para ipagkait yun?" said Hontiveros. 

(What the advocates are pushing for is a fair fight. If calling for a fair fight is a second chance at romantic love and happy family life, who are we to deny them that?) —VAL, GMA Integrated News