On annulment and divorce (1)

There are things noticeably odd—and interesting—in the current debate on divorce. The proponents of divorce in the House of Representatives are women, belonging to the women’s rights party list, Gabriela. In the Senate, the champion of the divorce bill is another woman, Senator Pia Cayetano. The most vocal oppositionists of divorce, on the other hand, (excluding the church) are mostly men. The Cayetano siblings in the Senate are, in fact, polarized on this issue. Several male legislators who oppose divorce said that divorce could lead to a rise in the number of broken families.

My initial impulse was disbelief. How come the men are the ones opposing the bill? Are they seriously more committed to marriage than women? Or is it because they see no use for divorce as they can, frequently, carry on extramarital affairs with impunity? The double standard of our laws on marital infidelity makes it easy for men to violate marital vows while extremely difficult for women. Men can, therefore, have their cake and eat it, too, so to speak, so why divorce? There is, in fact, a family court judge in Quezon City who denies petitions for nullity or annulment of marriage 95 per cent of the time. Yet he, himself, is a beneficiary of our laws declaring nullity of marriages. He had, in fact, gotten married anew. If this is not plain hubris on account of his merely being a member of the male species, I do not know what is.

Upon reading up on the subject I realized that all over the world, more women seek divorce than men. In countries where divorce is legally available, and this means, practically the entire civilized world—except the Philippines and Malta—more than two-thirds of those who file for divorce are women.

One other odd thing—amusing, you might say – I noticed in the raging debate on the divorce bill is that most of those taking a stand do not really understand the issues on the table. Legalese and jargons are loosely used such that many of those debating are not really on the same page with the others. The non-lawyers are confused about terms used and the distinction between divorce and annulment; divorce and legal separation.

Under Philippine law, while we have no divorce, we have three categories of remedies for couples whose marriages are broken, depending on the reasons for the breakdown. One is legal separation. It is a decree rendered by a court allowing spouses to live separately but they remain married to each other. In fact, if one of them lives or cohabits with another partner of the opposite sex, he or she may be charged with either adultery (with respect to the wife), or concubinage (with respect to the husband). Legal separation is therefore only a separation in bed and board but the marital bond remains intact. Among the grounds for legal separation include: marital infidelity, attempt on the life of the other spouse, homosexuality or lesbianism, repeated physical violence and abandonment without justifiable cause for more than one year.

Two other remedies available are the declaration of absolute nullity of marriage and annulment of voidable marriage. These two terms cannot be interchanged because they mean different things. A declaration of absolute nullity of a marriage pertains to marriages that are void ab initio or from the beginning. Thus, a marriage that is void from the start need not be annulled but only needs to be declared null and void ab initio. Examples of this are: those where a party is below 18 years of age; bigamous or polygamous marriages; incestuous marriages; those solemnized where the parties do not have a license to get married or where the solemnizing officer had no license or authority to solemnize marriages. Even marriages where one is proven to be psychologically incapacitated to perform the obligations of marriage may be declared void ab initio, too.

Marriages that are subject to annulment— not a declaration of nullity—are those which are voidable because they have defects in the consent but may be ratified by the continuous cohabitation of the spouses. Among these are those where one of the parties was 18 years of age but below 21 and the consent of the parents were not obtained; or where the consent of one of the parties was obtained by fraud or mistake in the identity of the other party.

When a court declares with finality that a marriage is void ab initio or annuls a voidable marriage, the parties may remarry. Thus, essentially, it is similar to divorce in terms of effect because the marital bond is dissolved. So why then are certain sectors, especially women, advocating for the passage of a divorce law? The first reason may be that the grounds for the declaration of nullity and the annulment of voidable marriages are limited. The broadest of all the grounds—psychological incapacity to perform the obligations of marriage—is not easy to prove. One has to engage the service of a psychologist or psychiatrist to evaluate if either or both of the spouses have personality disorders which caused the breakdown of the marriage. The costs to obtain a nullity of marriage are a hurdle, by itself. And the sad part is, while it is the aggrieved spouse who files a petition for declaration of nullity and bears all the costs, the spouse who gave cause for the breakdown of the marriage receives his freedom in a silver platter, at no cost.

Our laws on nullity and annulment of marriage are almost the same as the “at-fault” type of divorce where one has to prove that the other party committed a breach in the marital vows. In this type of divorce, the innocent spouse is given a huge share in the settlement of properties as well as alimony, by way of compensation for her suffering. In our jurisdiction, the innocent party gets no alimony and does not receive a bigger share in the division of conjugal assets.

But then again, what does the divorce bill in Congress say? Is it proposing an “At-Fault” type of divorce or a “No-Fault” type? The “No-Fault” type of divorce is what the Catholic Church should guard against and rile about. Essentially, in this type of divorce, the parties may mutually agree to separate and end their marital bond. Or, one party may file an application for divorce without need to allege any fault on the part of the other spouse.

For a close look at what the proposed divorce bill in Congress is all about, please watch out for the second part of this article next week. –Rita Linda V. Jimeno, Manila Standard Today

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