Annulment and divorce (2)

The fate of House Bill 1799 or a bill to introduce divorce in the Philippines still hangs in the balance. Much like the reproductive health bill, the divorce bill can expect rough sailing because the Catholic Church is seen as poised to block it.

What does the bill say? Is it as diabolical as some quarters say, predicting that if passed into law, it will destroy families and the institution of marriage in this country?

The divorce bill pending in Congress proposes five grounds for filing a petition for divorce. The first is that the petitioner has been separated de facto (in fact) from his or her spouse for at least five years and reconciliation is highly improbable.

This, to me, is a fair ground because many spouses, especially those belonging to the poor sectors of society cannot afford to obtain a declaration of nullity of marriage. When their marital relationships go sour, they simply separate. Then either one or both of them live-in with other partners without the benefit of marriage. This is a fact of life that stares us in the face. We all like to believe that, without divorce, spouses will try to stay together. Yet, the truth is, no law, or the absence of a law, can ever force couples to stay together in loveless and hell marriages.

The second ground proposed in the divorce bill is: the petitioner has been legally separated from his or her spouse for at least two years and reconciliation is highly improbable.

In the first part of this article (published August 23, 2010), we said that a decree of legal separation issued by a court does not allow the separated spouses to re-marry or to live with other partners. This is because their marital bond remains intact. Its most significant effect is that the community of properties of the spouses is dissolved and the share of the guilty spouse in the profits or fruits of the community assets is forfeited in favor of their common children. It makes sense, therefore, that after a given period of time—not necessarily two years—from the time a decree of legal separation is issued, separated spouses should be given the option to seek divorce to be able to move on with their lives.

The third proposed ground for divorce is that it should be permitted when the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage.

Under the Family Code, “irreconcilable differences” is not a ground for seeking the declaration of nullity of a marriage. What is allowed is proof that one is, or both of the spouses are, psychologically incapacitated to perform the obligations of marriage. The problem with this is that a spouse who seeks a declaration of nullity must impute a personality disorder on the other. This results in two things. First, a bitter court battle almost always ensues as the one alleged to be psychologically disordered is compelled to prove otherwise. Second, psychologists who are engaged by a petitioner to do an evaluation are put in a situation where they have to justify that the breakdown of the marriage was caused by the disorder of the other spouse. In many instances, psychologists say the same things and invoke the same disorders, in an almost pro-forma manner, as the cause of the breakdown of numerous marriages.

The fourth proposed ground for divorce under the bill is psychological incapacity on the part of one or both spouses. This ground is the same as that contained in Article 36 of the Family Code which says that when one or both of the spouses is psychologically incapacitated to perform the essential marital obligations, the marriage shall be void ab initio.

This provision was patterned after, and culled from, the grounds for annulling marriages under the rules of the Catholic Church. Given this, there seems to be no reason why divorce should not be permitted on grounds of psychological incapacity. In fact, this appears more in keeping with what is just because alimony and support may be granted through divorce to the aggrieved spouse. Under our present laws, when a marriage is declared void on grounds of psychological incapacity, the aggrieved spouse does not get support or alimony from the spouse who caused the breakdown of the marriage when the marital bond is severed. Moreover, the community properties are divided equally between them, with provisions only for the advance inheritance of their children, called the presumptive legitime. Worst of all, it is the aggrieved spouse who has to spend for everything to get the marriage voided—attorney’s fees, docket fees, psychologist’s fees and all the other costs of suit. The one who gave cause for the breakdown of the marriage gets his freedom in a silver platter for free. In contrast, in divorce, the aggrieved spouse gets a bigger share in the settlement of properties, with alimony to boot.

The fifth and last proposal in the bill is to allow divorce if any of the grounds for legal separation caused the irreparable breakdown of the marriage. Some of these grounds are repeated physical violence or grossly abusive conduct; attempt to induce the other spouse or a child of that spouse to engage in prostitution; drug addiction or habitual alcoholism; final judgment sentencing a spouse to imprisonment of more than six years; sexual infidelity or perversion; attempt against the life of the other spouse and homosexuality or lesbianism.

These grounds, if proven, should justify divorce because of their seriousness. If legal separation were the only remedy available to an aggrieved spouse, she or he is left without a chance to move on because legal separation does not allow spouses to remarry.

The divorce bill in Congress appears to be fair and suited to Philippine culture. It is a fault-based divorce, not upon a mere agreement of the spouses. It does not deviate too far from what our present laws provide on the grounds for the declaration of nullity of marriage. Yet, it promises to be less costly because psychologists need not be engaged. To argue that divorce will lead to a breakdown in the institution of marriage is sweeping and not founded on fact. With or without divorce, couples will break away from unhappy and loveless marriages. On the contrary, I think spouses who love each other will work harder at their marriage and not take each other for granted. In the United Kingdom, Australia and Japan where divorce has long been in existence, divorce rate has been steadily dropping. In India, the rate of divorce has consistently been one of the lowest in the world. –Rita Linda V. Jimeno, Manila Standard Today

E-mail: ritalindaj@gmail.com Visit: www.jimenolaw.com.ph