Nullity of marriage and divorce

I could not believe my ears when a friend told me that she was opposed to having divorce in the Philippines. I was bewildered. After all, her husband had left her for a younger woman years ago. He had since lived with the woman and their common children as though his primary responsibility was to them.

When my friend’s husband abandoned her, she was left alone to feed, raise their three children and send them to school. She bore the weight of parenthood alone, working double time until every one of her children had finished a degree. Despite the passing of years, bitterness in her voice is still perceptible when the subject of her marriage is touched. She has not filed any legal action to nullify their marriage; or to legally separate from him. She also has not filed a criminal case for concubinage which would have been easy for her to prove considering her husband’s open relationship with the other woman.

When I asked her if she did not want to move on, she said that in her on way she has moved on. She has been able to live without him; learned not to expect anything from him; and is enjoying the company of her their children all by herself. If she obtained a declaration of nullity of marriage, she said, it would be like rewarding her husband for his despicable irresponsibility and infidelity, she added. She is advocating against the passing of a divorce law in the Philippines, saying that women who are in a miserable marriage have enough options under our laws, citing the availability of petitioning for a declaration of nullity of marriage, or annulment of voidable marriages, or legal separation.

When I explained to her that our laws on nullity or annulment of marriage, in fact, favor the spouse who offends the marriage and who gives cause for its breakdown, she was surprised. How so, she asked.

For one, under our laws, the offended party who files a legal action will have to bear the cost of filing fees which could sometimes run from five to six figures, or even higher, depending on the value of assets owned by the spouses. Then, if the ground alleged in the petition is psychological incapacity which, by the way, is the most commonly-used ground, the petitioning spouse will have to spend for the psychologist’s fee, too. And this fee is, by no means, easy on the pocket either. The burden of proving that either spouse is, or both are, psychologically incapacitated to perform the obligations of marriage lies on the shoulders of the petitioning spouse. Thus, the cost of engaging the service of experts lies on the petitioner’s doorstep just as legal fees have to be borne by the petitioner, as well.

For another, while the petitioner is often the innocent spouse, all assets owned by them will be divided in equal shares between them, leaving only a portion for the presumptive legitimes of their children.

A more compelling argument against the present laws on nullity or annulment of marriage is that as soon as the marital bond is cut off by either a declaration that the marriage was void from the beginning or annulled because of some defect in the consent of one spouse, spousal support ends. No alimony is ordered given to the innocent spouse even if she will be left with no means to support herself. This is often the reason those who have no capability to be on their own, remain in a loveless, miserable marriage, although against their will.

In divorce, on the other hand, support or alimony continues to be given to the innocent spouse even after the dissolution of the marriage. Very often, too, the innocent spouse’s share in the conjugal or community assets is bigger than the offending spouse. Further, in divorce, there is no need for the presentation of a psychologist to declare that one is, or both the spouses are, psychologically incapacitated.

Divorce may either be a no-fault divorce or a fault divorce. In a no-fault divorce, the spouses need not state the reason why they seek a dissolution of their marriage. If their marriage is no longer working due to myriad reasons such as incompatibility, acrimonious relationship, role conflicts, and many more, the spouses may agree to divorce. In such a case, they could go through mediation to settle issues of alimony, children’s custody and support or leave the decision on these matters to the court.

In a fault divorce, the guilty spouse may be made to indemnify the innocent spouse; to give a bigger share of the community assets to her; to give alimony; and, sometimes, he may be deprived of children’s custody. In short, when a spouse is guilty of violating the marital vows, he is the one penalized, not the innocent one which is essentially the case in our jurisdiction. Under our laws, when a spouse abuses the other, either physically, economically or psychologically; or abandons his responsibilities to his wife and their children; or is habitually and brazenly unfaithful, the offended spouse has to prove that the root cause of such destructive behavior is the offender’s psychological incapacity to perform the obligations of marriage. Failing to prove psychological incapacity as the root cause will result in the dismissal of one’s petition.

Our laws on nullity or annulment of marriages do not recognize infidelity, incompatibility, abuse per se, or acrimonious relationship as grounds for the declaration of nullity of marriage. If the innocent spouse wants to be liberated from marriage she will then have to engage the service of a psychologist who must link such behaviors to a personality or psychological disorder. She must be prepared to be the one to spend money and to lose support after the marriage is dissolved. And here begins another plane of abuse and injustice.

My friend was of the belief that if she refused to file a nullity case against her husband she would, in effect, be punishing him as he would then be eternally tied to her in marriage even as he now lives with another woman. This, unfortunately, is not necessarily the case. In our jurisdiction, the offending spouse may, himself, file a petition for the declaration of nullity of his marriage to another on the ground that he is psychologically incapacitated to perform the marital obligations. Our laws require only that at least one of the spouses be proven psychologically incapacitated to perform the obligations of marriage, regardless of who files the petition.

Given the state of our laws on nullity of marriage, divorce clearly appears to be the better option. At the very least, if the time for divorce has not come to the Philippines, (it is now the only country left in the world with no law on divorce, with the exception of the Vatican) our family laws should be revisited. Indemnification to the innocent spouse and alimony after the marriage’s dissolution should be provided. –Rita Linda V. Jimeno, Manila Standard Today

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