Thoughts on the Divorce Bill of Gabriela Womens Party

Submitted by Alnie G. Foja on Fri, 09/30/2011 - 00:00 We used to have divorce law in the country. The practice of divorce is traced back to our ancestral tribes of the Tagbanwas of Palawan, the Gadangs of Nueva Vizcaya, the Sagadans and Igorots of the Cordilleras and the Manobos, Blaans and Moslems of the Visayas and Mindanao Islands. During the Spanish Occupation, however, Siete Partidas allowed only legal separation. During the American period, Act No. 2710 was passed by the Philippine Legislature repealing the Siete Partidas. This Act allowed divorce on the grounds of adultery on the part of the wife and concubinage on the part of the husband. During the Japanese Occupation, a new law on divorce, Executive Order No. 141, was passed and this lasted until 1944. But the 1950 Civil Code of the Philippines excluded the draft on divorce and provided only for Legal Separation. At present, we have the Family Code of the Philippines which maintains Legal Separation but provides for Declaration of Nullity of Marriage under Article 36 and recognizing under its amended Article 26 the effects of a divorce obtained by the alien spouse. GWP first filed its proposed Divorce Bill in 2005 through its former representative Liza L. Maza. The bill was crafted with the help of three lawyers, namely, Evalyn Ursua, Flor Almodiel and myself. Before I proceed to discuss the salient features of this divorce bill, let it be clarified and reiterated that GWP believes in and affirms the sanctity of marriage. Its decision to propose divorce is not impelled by baseless and unfair accusations that it does not recognize the sanctity of marriage or that it espouses the destruction of Filipino families. We are for the preservation of our families and of our Filipino values. For is not a reality that women suffer more when families disintegrate and are broken? But we cannot close our eyes on the stark reality that families do disintegrate and husbands or wives do break their marital vows. Failed and abusive marriages are existing realities and due to lack of divorce, couples are trapped in these marriages. Is providing for an option of divorce to these families tantamount to the families destruction? Is it a desecration of marriage which is defined as a permanent union and an inviolable social institution? No, it is not! Divorce did not create these realities. Divorce only seeks to address these realities.

Long before the first Divorce Bill in Congress was filed, a significant number of marriages have already failed and husbands and wives have already broken their marital vows. Otherwise stated, it is not divorce that created this reality of failed marriages and it is not keeping out the option of divorce that will reverse or improve this reality. Rather, given the problems and legal inadequacies of the present options of Legal Separation, Declaration of Nullity and Annulment that divorce seeks to address, divorce, if properly used and implemented can and will improve many of our wives, husbands and childrens lives. The inadequacies of the presently available options do not only trap couples in failed marriages, they also breed social and legal problems. These, in effect, are what our proposed divorce bill seeks to address. As I have said, we cannot close our eyes on these realities. Nor can we address these realities by simply turning a blind eye on it because of speculations that divorce, when made available, will be abused by irresponsible and selfish married people. Arguments against divorce must not be made based on speculations. It is the governments duty, in particular, that of the legislative, to enact measures that address ugly realities and respond to the needs of majority of its people. The facts are:

1. There are countless de facto marriages between people are not capacitated to marry each other;
2. There are spouses, mostly, husbands, who abandon their families. The spouse who is left behind will be married to him or her forever. 3. Spouses who separate, regardless of whether legal separation proceedings were undertaken, do find other partners. The alternative would be: a) To expect them to remain faithful to his/her spouse despite the separation; b) To not to fall in love or desire sexual intercourse with another person for the rest of his / her life. 4. 5. Spouses who separate end up having children with a person not his / her spouse. And the obvious is that marriages do fail for countless of reasons. It could be due to violence (physical, psychological, etc.), sexual infidelity, gross irresponsibility, loss or transfer of affection. I dont think we have a dispute on this. Also, I dont think a contrary position can be made as regards the reality that violence against women and their children do happen. 6. Our existing laws do not adequately address the above realities and its failure and ineptness to address these realities breeds more social problems. The inadequacies of the present legal remedies available to married spouses are shown by the grounds for availing these remedies and their legal effects:

The remedy of declaration of nullity of marriage do not cover the problem that occur during the marriage. Grounds to declare a marriage null and void are: 1. 2. 3. 4. 5. 6. Contracted by any party below eighteen years of age (lack of legal capacity to marry); Those solemnized by any person not legally authorized to perform marriages; Those solemnized without marriage license; Bigamous or polygamous marriages; Those contracted through mistake of one contracting party as to the identity of the other; Article 36 or psychological incapacity of either or both parties to comply with essential marital obligations; 7. Incestuous marriages and marriages between parties who are prohibited to marry by virtue of their relationship (ascendants and descendants of any degree; between brothers and sisters whether full- or half-blood are incestuous and void from the beginning; between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; Between step-parents and step-children; Between parents-in-law and children-in-law; Between the adopting parent and the adopted child; Between the surviving spouse of the adopting parent and the adopted child; Between the surviving spouse of the adopted child and the adopter; Between an adopted child and and a legitimate child of the adopter; Between adopted children of the same adopter; Between parties where one, with the intention to marry the other, killed the other persons spouse, or his or her own spouse. Annulment does not also cover the problems that occur during the marriage. Grounds to annul a marriage are: 1. Absence of Parental Consent for couples 18-21 years of age. Petition must be filed within 5 years of having attained the age of 21.

2. Mental Illness. One or the either party was of unsound mind at the moment of the marriage. But if the
parties freely cohabited with each other after he or she came to reason the law prohibits the filing of a Petition.

3. Fraud. That the consent of either party was obtained by fraud, unless such party once having
knowledge of the fraud freely cohabited with the other as husband and wife. The petition must be filed within five (5) of finding out the facts of the fraud.

4. That the consent of either party was obtained by force, intimidation or undue influence. Except
when the same has ceased and the party filing the petition freely cohabited with the other as husband and wife. 5 years.

5. One or the other party was physically incapable of consummating the marriage, and such
incapacity continues and appears to be incurable. Within 5 years. 6. STD found to be serious and incurable. 5 years.

Legal separation, while covering grounds that occur during the marriage, does not put an end to marriage. Grounds for legal separation are: 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;(b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; 2. 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; 3. 4. 5. 6. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; Drug addiction or habitual alcoholism of the respondent; Lesbianism or homosexuality of the respondent; Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines; 7. 8. 9. Sexual infidelity or perversion of the respondent; Attempt on the life of petitioner by the respondent; or Abandonment of petitioner by respondent without justifiable cause for more than one year.

Since we have adopted the present grounds for Legal Separation as grounds for Divorce, we need to understand what Legal Separation does and does not address: 1. 2. It is only a separation from bed and board. Parties remain married to each other. Legal separation also results in the dissolution of the parties absolute community of property or conjugal partnership of gains; 3. Since parties remain married to each other, they are not allowed to have sexual intercourse with other persons. If they do, they may be charged with the crimes of adultery or concubinage. 4. Even if legally separated couples have come to fully accept their separation and have mutually moved on and found new partners, any child born outside their marriage will be considered illegitimate (unless the presumption of legitimacy applies); and 5. Other effects on property relations.

Gabriela Women Partys proposed divorce bill provides for the following grounds:

1. Separation de facto for at least 5 years at the time of the filing of the petition and reconciliation is
highly improbable; 2. Legal separation for at least 2 years at the time of the filing of the petition and reconciliation is highly improbable; 3. Any of the grounds for Legal Separation that has caused the irreparable breakdown of the marriage;

4. 5.

Psychological incapacity to comply with essential marital obligations; When the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage.

We have also provided the following safety measures against abuses: 1. No action for divorce shall be tried before six months have elapsed since the filing of the petition. This is what is called as the cooling-off period; 2. No divorce may be decreed unless the court has taken steps towards the reconciliation of the spouses and is fully satisfied that, despite such efforts, reconciliation is highly improbable; 3. 4. No decree of divorce based upon stipulation of facts or confession of judgment; Court is to order the prosecuting attorney to take steps to prevent collusion and to ensure that evidence is not fabricated or suppressed; What happens to a divorce obtained by a Filipino citizen abroad after divorce law is passed in the Philippines? Such divorce decree obtained abroad shall only be valid here after a determination by a Philippine court that the same is based on a ground falling under our divorce law. Finally, in answer to the criticisms against or apprehension over the divorce bill, it is important to state what this divorce bill is not:

Divorce is not a religious law or a church edict, therefore, arguments or discussions on divorce must not be confined solely to religious reasons; Divorce does not promise to solve problems that cannot be solved by a persons civil status (single, married, annulled, legally separated, marriage nullified). But the failure or inability of divorce to solve these problems do not mean that it facilitates, worsens or aggravates these problems. In short, divorce is not a miracle cure.

Divorce is not about cutting and running. Our proposed divorce bill does not make it easy for married people to secure divorce. Ours is Filipino-style divorce. Safely measures are proposed to be in place in order to guard abuses.

Alarms created and concerns voiced out as regards the effects of divorce on the family, the children and the society in general, are not based on Philippine realities and are quite speculative. Most of these concerns are based on the assumption that divorce law will be abused and will not be implemented properly, therefore, they do not really address the substance of the proposed legislation.

Thank you!