2019 PROPOSED DIVORCE LAW IN THE PHILIPPINES

 

 

NEW 2019 TOP 10 FAQ ABOUT THE PROPOSED DIVORCE LAW IN THE PHILIPPINES

The Philippines has officially earned the distinction or notoriety as  the only state  that has not legalized divorce. The process of declaration of nullity of marriage on the ground of psychological incapacity , which is the nearest thing to divorce in the statute books, first appeared in 1988 via Article 36 of the Family Code of the Philippines. Buoyed by the unity between the secular and clerical sectors of Philippine society which came to a head with the ouster of Ferdinand Marcos by People Power, a compromise provision short of divorce  has been the legal norm for the better part of 30 years.  Annulment, as it has been loosely named, has proven to be a drawn out and expensive legal process in the Philippines, and has widely been viewed as being being outside the economic means of the masses. Several attempts at a divorce law in the Philippines were made, the more recent being at the 17th  Congress where several proposed legislation from automatically recognizing a church annulment and widening the grounds for dissolving the marital ties with the novel concept of “unhappiness” to a somewhat consolidated version under House Bill No. 07303 . (See our article on this bill by CLICKING HERE) The relatively young 18th Congress has opened with two divorce bills, filed by two female Senators, Risa Hontiveros (Senate Bill No. 356) and Pia Cayetano (Senate Bill No. 288).

 For  more detailed information about divorce or annulment  in the Philippines, please CLICK HERE.

 

1) Is there already a divorce law in the Philippines with the announcement of the two Senate Bills?

No, the bills have just been filed by Senators Cayetano and Hontiveros. Unlike the previous version of the Divorce Bill in the 17th  Congress which already passed second reading.

2) What are the prospects of the new divorce bills becoming a law?

As we mentioned in another article, the House of Representatives has already taken up on second reading its version of the Divorce Bill under HB No 07303. With the two new bills filed in the Senate, it may be viewed as the Senate coming up with its version,  paving the way for all the pending bills being taken up in conference committee in the future.

Note though that historically, the Philippine Congress has not been able to pass a Divorce Law for the  last 30 years since the Family Code of the Philippines took effect  in 1988.

3) Will it be easier to have a marriage dissolved under the new divorce bills compared to having a marriage nullified because of psychological incapacity?

It is difficult to tell whether or not divorce will be easier than the present process. It can be argued that it may be more difficult in the short term because new procedures  and implementing rules have to be  formulated by the Supreme Court and the involved government agencies should a new Divorce Law be approved.

4) Will it be cheaper to obtain a divorce under the new bills?

Maybe not if you are not an indigent (which is covered below) . What drives the price of anything is the law of supply and demand. At the very least, the immediate effect of a new divorce law in the Philippines will be the rush of  filing of Petitions for Absolute Divorce. Since the number of new lawyers and new courts would not be able to keep up with the demand brought about by the new divorce cases, it will not be a surprise to see the same levels of prices or even higher. The effects long term  however may be favorable to lower prices.

5) If I have already filed for annulment, will the money I already spent in attorney’s fees and other costs be wasted if the new divorce bills become a law?

No, both bills provide for an option to proceed under the current law on annulment  with the same effect as an absolute divorce. The two bills in fact include the ground of psychological incapacity as a ground for divorce, with the further expansion that it need not be present at the time of the celebration of the marriage. Also, the bills allow the conversion of an annulment petition to absolute divorce.

6)  Will the Senate Bills make it more difficult for me to dissolve my marriage?

Arguably, the following provisions may make a divorce more complicated:

a) It does not allow the parties to agree to a divorce;

b) By providing that a petition for divorce be accompanied by a joint plan for support, custody, parental authority, and living arrangements which is not required in the current procedure for getting an annulment;

c) By requiring all creditors of the parties to be notified when they file a petition for absolute divorce, which will unduly delay the process ;

d) By requiring a 6-month cooling period before the Petition for Divorce can proceed which can delay the process.

7) What are the grounds for absolute divorce under the two Senate Bills?

a) The grounds for legal separation under Article 55 of the Family Code of 3 the Philippines, modified or amended, as follows:

(1) Physical violence or grossly abusive conduct directed against the  petitioner, a common child, or a child of the petitioner;

(2)       Physical violence or moral pressure to compel the petitioner to change

religious or political affiliation;

(3) 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;

(4) Final judgment sentencing the respondent to imprisonment of more than

six (6) years, even if pardoned;

(5)       Drug addiction or habitual alcoholism or chronic gambling of the

respondent;

(6)       Homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;

 (8)      Marital infidelity or perversion or having a child with another person other

than one’s spouse during the marriage, except when upon the mutual agreement of the spouses, a child is born to them by in vitro or a similar procedure or when the wife bears a child after being a victim of rape;

(9) Attempt by the respondent against the life of the petitioner, a common  child or a child of the petitioner;

(10) Abandonment of petitioner by respondent without justifiable cause for  more than one (1) year;

When the spouses are legally separated by judicial decree for more than two (2)  years, either or both spouses can petition the proper court for an absolute divorce  based on said judicial decree of legal separation.

 b) Grounds for annulment of marriage under Article 45 of the Family Code 30 of the Philippines, restated as follows:

(1) The party in whose behalf it is sought to have the marriage annulled was  eighteen (18) years of age or over but below twenty-one (21), and the

 marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one (21), such party freely 2 cohabited with the other and both lived together as husband and wife;

(2)       Either party was of unsound mind, unless such party after coming to

reason, freely cohabited with the other as husband and wife;

(3) The consent of either party was obtained by fraud, unless such party  afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

(4) The consent of either party was obtained by force, intimidation or undue  influence, unless the same having disappeared or ceased, such party

thereafter freely cohabited with the other as husband and wife;

(5) Either party was physically incapable of consummating the marriage with  the other and such incapacity continues or appears to be incurable;

(6) Either party was afflicted with a sexually transmissible infection found to

be serious or appears to be incurable: Provided, That the grounds mentioned in numbers 2, 5 and 6 existed either at the time of the marriage or supervening after the marriage.

 c) When the spouses have been separated in fact for at least five (5) years at the time the petition for absolute divorce is filed, and reconciliation is highly

d) Psychological incapacity of either spouse as provided for in Article 36 of the Family Code of the Philippines, whether or not the incapacity was present at the time of the celebration of the marriage or later.

e) When one of the spouses undergoes a gender reassignment surgery or

transitions from one sex to another, the other spouse is entitled to petition for absolute  divorce with the transgender or transsexual as respondent, or vice versa.

f) Irreconcilable marital differences and conflicts which have resulted in the

total breakdown of the marriage beyond repair, despite earnest and repeated efforts at  reconciliation, shall entitle either spouse or both spouses to petition for absolute divorce.

 8) What if my spouse and I reconcile during the proceedings for divorce?

The two Senate Bills provide for a process of recognition of reconciliation which will allow the parties to go back to their previous status and property relations, with provisions on the protection of creditors. An application for the approval of a plan for reconciliation is required to be filed in case of a reconciliation.

9) What are the innovations under the new Senate bills?

Essentially, the two new Senate Bills have adopted the same innovations under the House Bill which passed second reading in 2018, to wit:

  • Provides that the State shall ensure an inexpensive and affordable court proceedings in securing an absolute divorce decree
  • Provides for the grounds on the grant of an absolute divorce decree to include grounds for legal separation and annulment of marriage under the Family Code of the Philippines, separation in fact for at least five (5) years, legal separation by judicial decree for at least two (2) years, psychological incapacity, gender reassignment surgery, irreconcilable differences, and joint petition of spouses
  • Provides priority for OFWs with respect to court hearings
  • Mandates for summary judicial proceedings for certain grounds of absolute divorce to facilitate and eliminate costly and cumbersome court process
  • Provides for a mandatory six-month cooling-off period for petitioner spouses
  • States the effects of absolute divorce on the right of the spouses to remarry, the conjugal partnership of gains, the children and their legitime, donation and alimony
  • Recognizes reconciliation of the spouses through a joint manifestation under oath submitted to the court
  • Provides options for a one-time grant of alimony
  • Provides option for delivering the presumptive legitime if the spouses are still living

Other innovative  provisions in SB No. 356 are the explicit inclusion as grounds for divorce of the violence mentioned in  RA 9262 (Act on Violence Against Women and their Children) and the incorporation of the recent ruling of the Supreme Court  in  Republic vs. Manalo ( for a discussion of the ruling, please CLICK HERE) which now allows for the recognition of a divorce obtained by a Filipino from his or her foreign spouse . Rape committed prior to the celebration of the marriage is also considered a ground for divorce. Stronger provision on alimony and child support can likewise be found in both Senate Bills.

10) Do the Senate Bills provide for assistance for OFW’s?

Both bills allow for  exemption from court and regulatory fees in the case of indigent parties. SB No. 356 does not offer a definition of an “indigent party: while SB No. 288 provides for a 5 Million Peso threshold in combined real and personal assets to qualify for  public legal assistance. OFW’s are supposed to be given priority by courts in hearings for absolute divorce.

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