A Comprehensive Study About the Legalization of Divorce in the Philippines

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE

A COMPREHENSIVE STUDY ABOUT THE LEGALIZATION OF DIVORCE IN THE PHILIPPINES

A Thesis Submitted in the Faculty of College of Arts and Sciences Department Lyceum of the Philippines University Cavite

In Partial Fulfillment of the Requirements for the Degree Bachelor of Arts in Legal Studies

HEYWARD JOSEPH C. AVE October 2015 COLLEGE OF ARTS AND SCIENCES 1

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE College of Arts and Sciences

APPROVAL SHEET

This thesis is entitled A COMPREHENSIVE STUDY ABOUT THE LEGALIZATION OF DIVORCE IN THE PHILIPPINES prepared and submitted by HEYWARD JOSEPH C. AVE has been reviewed and recommended as partial fulfillment of the requirements for the degree of Bachelor of Arts in Legal Studies.

ATTY.MARK BRIAN CELESTINO, RSW Research Adviser

Accepted and approved by the panel of examiners following a successful Oral Defense on October, 2015 with a grade of __________.

MARYLYN G. ALPARO Associate Dean, College of Arts and Sciences

Accepted and approved in partial fulfillment of the requirements for the degree of Bachelor of Arts in Legal Studies.

RAMON C. MANIAGO. PhD Executive Dean Date: October, 2015 COLLEGE OF ARTS AND SCIENCES 2

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE

Certificate of Originality

I hereby declare that the research paper entitled:

A COMPREHENSIVE STUDY ABOUT THE LEGALIZATION OF DIVORCE IN THE PHILIPPINES

is my own work and that, to the best of my knowledge and belief, it contains no material previously published or written by another person nor material to which to a substantial extent has been accepted for award of any other degree or diploma of a university or other institute of higher learning, except where due acknowledgement is made in the text. I also declare that the intellectual content of this thesis is the product of my work, even though I may have received assistance from others on style, presentation and language expression.

Heyward Joseph C. Ave

Date of Completion: October 2015 Attested by:

ATTY. MARK BRIAN CELESTINO, RSW Research Adviser`s Signature

Date of Completion: ____________

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ACKNOWLEDGEMENT

This undergraduate thesis would not have been possible without the support of many people. The researcher wishes to express his gratitude to his research teacher, partner and adviser Atty.Mark Brian Celestino who was abundantly helpful and offered invaluable assistance, support and guidance. Deepest gratitude is also due to the members of the panel of examiners Atty. Janice Kristine Ramos, Ms. Marylyn G. Alparo without their knowledge and assistance this study would not have been successful. The researcher would also like to express his special thanks to Atty.Uella Mancenido-Gayo for her never ending support, help and imparted knowledge that will and cannot be forgotten. Special thanks also to all their gratitude friends, especially section members Legal Studies Students of Lyceum of the Philippines University for sharing their knowledge and invaluable assistance. The researcher would also want to express his warmest thanks to the government officials of the Office of the Solicitor General, Department of Justice, Senate of the Philippines and Office of the City Prosecutor of Pasay City Hall. The researcher would like to convey thanks to the Faculty for providing the instructions and laboratory facilities. The researcher wishes to express his love and gratitude to his beloved family for their understanding and endless love through the duration of his studies. Above all, the researchers would like to give their sincerest and warmest appreciation, to the Lord, and Savior, ALMIGHTY GOD, who is the source of their strength, knowledge and skills, who always bear their prayers, guides their path, and never leaves their side throughout their journey in life.

HEYWARD JOSEPH C. AVE

COLLEGE OF ARTS AND SCIENCES 4

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE College of Arts and Sciences Bachelor of Arts in Legal Studies

Abstract

A COMPREHENSIVE STUDY ABOUT THE LEGALIZATION OF DIVORCE IN THE PHILIPPINES

Heyward Joseph C. Ave and Atty.Mark Brian Celestino, RSW Proponent and Research Adviser

The Philippines and the Vatican City are the only states left in the world without divorce. While the Philippines recognize relative divorce, or legal separation as termed under its Family Code, it has not sanctioned absolute divorce in the country except for Muslims and foreigners. During the pre-colonial times and the Japanese occupation of the country, absolute divorce was legal and widely practiced. The purpose of this study then is to provide a comprehensive analysis of the divorce laws in the Philippines that were filed in the Senate and its reintroduction on a legal, pragmatic, and rights based approached. Furthermore, to provide an anti-thesis of the societal expectation that divorce destroys the foundation of the society rather than it protects and strengthens the family. It is legal, constitutional, and in compliance with the international human rights obligations of the Philippines. It is the answer to the issues on and inadequacies of the existing legal framework on nullity, annulment and legal separation. COLLEGE OF ARTS AND SCIENCES 5

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE TABLE OF CONTENTS Page TITLE PAGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPROVAL SHEET. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CERTIFICATE OF ORIGINALITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ACKNOWLEDGEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ABSTRACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TABLE OF CONTENTS LIST OF TABLES LIST OF APPENDICES INTRODUCTION Background of the Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statement of the Problem. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conceptual Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hypothesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Significance of the study. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope and Limitations of the study. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition of terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . LITERATURE REVIEW Divorce in the Philippines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . History and Background of Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Divorce in Spain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Divorce in Malta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Synthesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . METHODOLOGY Research Design. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Population and Sample Size. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Description of Respondents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Instrumentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Data gathering Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statistical Treatment of Data. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE RESULTS AND DISCUSSIONS Socio-Demographic Profile Characteristics Preceived Potentials SUMMARY, CONCLUSION, AND RECOMMENDATIONS Summary Conclusions Recommendations

REFERENCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE

LIST OF TABLES

Table

1 2 3 4

Page

Comparison of Divorce Bills in the Philippines.......................................... Grounds for Nullity of Marriage, Annulment, and Legal Separation . . . Number of Annulment Cases filed every year . . . . . . . . . . . . . . . . . . . . . . Number of Battered wife and child abuse cases filed every year. . . . . . . . .

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38 44

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LIST OF APPENDICES Appendix 1 2 3 4 5 6 7

Page House Bill 1799 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . House Bill 4016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . House Bill 6993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Senate Bill 782 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . House Bill 878 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Permit to conduct interviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Curriculum Vitae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE CHAPTER 1 INTRODUCTION This chapter presents the background of the study, the problem and its significance, and the scope and limitations of the study. Background of the Study Marriage is regarded as a sacred union and the family founded on marriage is considered as a fount of love, protection and care. Philippine society generally frowns upon and discourages marital break-ups and so provides cultural and legal safeguards to preserve marital relations. The Philippines located in the Southeast Asia, composed of 7, 107 islands and populated by 48.2 million women and 49 million men. Of these figures, more than 29 million are single while roughly 30 million are married. Together, they make up a predominantly Roman Catholic population. Under the 2012 United Nations Development category, ranking 114 out of 187 countries and territories. Twenty-two out of one hundred families are estimated to be poor and 10% of the entire population are living in extreme poverty. The Philippines has a constitutional, democratic and republican government. It is a party to major international human rights treaties and “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”. Despite the pre-dominance of Catholicism in the country, the inviobalityof the separation of church and state is recognized. COLLEGE OF ARTS AND SCIENCES 10

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE The country was under the Spanish rule from 1521 until the Philippine revolution and declaration of independence in 1898. It was then occupied for a shorter period by United States and Japan until the end of the World War II. As a result of more than 300 years of Spanish colonization, Philippine culture is replete with Spanish influences. The influences are apparent particularly on the language, cuisine, and religion of the country. The views of the Catholic Church (Church) weigh heavily over the customs and norms of Filipinos; they account for the many conservative laws in the country and absence of policies that permit or regulare such matters as abortion, contraception, and divorce. Divorce was recognized in the Philippines before the enactment of the Civil Code of the Philippines (Civil Code). At present, it is not recognized in the country save for some exceptions. The Philippine and Vatican City are the only remaining states in the world without divorce. Divorce is the “legal termination of a marriage by a court in a legal proceeding, requiring a petition or complaint for divorce by one party. It is the “legal separation of husband and wife, effected, for cause, by the judgment of a court, and either totally dissolving the marriage relation, or suspending its effects so far as it concerns the cohabitation of the parties.”It can also refer to termination of a marriage that is without any fault on the part of either parties and without “need to find out if any misconduct occurred.” There are two kinds of divorce: (1) absolute divorce or divortio a vinculomatrimonio, and (2) relative divorce or divortio a mensa et thoro. The first is used to refer to dissolution or “divorce from the bond of matrimony” and the latter is used to COLLEGE OF ARTS AND SCIENCES 11

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE refer to the “suspension [or] divorce fromn bed and board.” Marriage bonds are severed under absolute divorce while they subsist under relative divorce. The type of divorce argued for in this thesis is absolute divorce or divortio a vinculo matrimony as differentiated from relative divorce or divortio a mensa et thoro. The term “divorce” as used in this thesis refers to absolute divorce unless otherwise indicated The Family Code of the Philippines (Family Code) provides for three remedies on the dissolution or suspension of marriage bonds: nullity, annulment, and legal separation. Unlike divorce, the grounds for nullity and annulment must exist before or at the time of the celebration of marriage to terminate marriage bonds. In contrast to divorce, legal separation merely grants spouses the right to lieve separately from each other but does not dissolve marriage bonds. The enactment of a divorce law has been strongly pushed for Grabriela Women`s Party, a party-list launched by General Assembly Binding Women for Reforms, Integrity, Equality, Leadership, and Action (GABRIELA) which is a national coalition of women`s organizations. Women`s groups claim that petitions for declaration of nullity of marriage, annulment, and legal separation are inadequate options for an abused spouse. They maintain that spouses who want to separate from each other and terminate their marriages are met with rigid limitations in the present laws` response to the countless causes of failed marriages. These groups claim that remedies of declaration of nullity of marriage and annulment do not cover the problems that occur after the celebration of marriage

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE while legal separation does not put an end of marriage. The lack of divorce is questioned as “discriminatory policy and religious imposition” on non-muslim Filipinos. On the other hand, opposers led by the Church treat the concept of divorce with disdain and contempt primarily because it destroys Filipino families which the State has vowed to protect. The biblical argument that “what therefore God hath joined together, let not man put asunder” still remains popular among the antagonists.

Statement of the Problem The purpose of this study is to provide a comprehensive analysis and scrutiny of the divorce laws that were proposed in the Senate of the Philippines. Specifically, it aims to answer the following questions: 1.) 2.) 3.) 4.)

What are the factors affecting the legality of the divorce law in the Philippines? What is the actual extent of Church`s influence on the Divorce Policy issue? What are the features that are in with or in conflict with the constitution? What are the different divorce laws that were proposed in the Senate of the

Philippines? 5.) What is the most appropriate divorce law that was proposed? 6.) What are the remedies and process to allow the Legalization of Divorce in the Philippines?

Conceptual Framework

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE

Office of the Solicitor General 1.1 Number of Annulment Cases filed everyday Department of Justice 2.2 Number of Battered Wife and Child Abuse every year Senate of the Philippines 3.3 History of Divorce

7.) 8.) 9.) Divorce 10.) Bills filed in 11.)Senate of the the

Philippines

Established fact of the necessity of divorce law in the Philippines Legalization of Divorce

Figure 1.1 The Conceptual Framework of the Study

Figure 1.1 Depict the input or the Divorce Bills that were duly filed and pending in the senate of the Philippines to establish the earnest efforts of the legislators to pass this into a law. With this, the researcher will have to undergo the process of gathering data and conduct unstructured interview to the different agencies of the government concerned in the issue at hand such as the Department of Justice, Office of the Solicitor General and Senate of the Philippines specifically the Committee on women, children, family relations and gender equality. Assesment of the data gathered will follow. After processing, the researcher will acquire the result and that is the necessity of having a divorce law in the Philippines and its impact once passed.

Objectives of the Study COLLEGE OF ARTS AND SCIENCES 14

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE The main objective of this study is to provide a comprehensive analysis and scrutiny of the divorce laws that were proposed in the Senate of the Philippines. Specifically, the study aims to: 1.) To provide the history and background of divorce in the Philippines 2.) To explain and provide a comprehensive study that will possibly convince the legislators for the necessity of a divorce law in the Philippines. 3.) Explain the proper implementation of divorce 4.) Establish the Inadequacies of remedies for broken and irreparable marriages provided by the Civil Code of the Philippines. 5.) To Establish the necessity of having a divorce law in the Philippines

Significance of the Study The main purpose of this study is to provide a comprehensive analysis of the divorce laws that were filed in the Senate of the Philippines. Specifically, the study aims to benefit Women, Children and the Society.

Women The 2003 report of the Philippine National Police shows that wife battering accounted for 53.6 percent of the total 8,011 cases of violence against women. About three of ten perpertrators were husbands of the victims. Husbands accounted for 28 pecent of the violence against women crimes. The Department of Social Welfare and Development reported that in 2003, of the 15, 314 women in especially difficult circumstances that the agency serviced, 25.1 percent of 5,353 were cases of physical abuse, maltreatment and battering. COLLEGE OF ARTS AND SCIENCES 15

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Women have rights but it can never be enough. Given these realities and through the existence of a divorce law, women will more likely be protected from spousal violence.

Children The children are the most affected party in an irreparable and broken relationship of their parents. It creates a very traumatic scenario that could affect self-worth, growth and development. They suffer the consequences of the mistakes created by their ascendants which should not be happening. Children are vulnerable and are prone to physical, mental, emotional and psychological abuse and that could possibly be the result of witnessing things that they should not while they are in the different stage of development. The existence of a divorce law could possibly lessen, or if not end, several forms of child abuse that is happening in reality, Society The study will provide an anti-thesis of the societal expectation that divorce destroys the basic unit of the society: Family and that it is Anti-Filipino. The Civil Code of the Philippines nor the constitution did not provide an exact definition of “family”. Divorce strengthens the society in the sense that it eradicates sufferings among its members may it be physical, emotional, mental and psychological. It brings peace and order to the society.

Scope and Limitations of the Study

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE The scope of the study focuses on the analysis and legalization of divorce laws in the Philippines as it is necessary for all Filipino couples who are hopeless and irreparable marriages. The respondents not only involved married and separated couples but as well as government agencies concerned in the nature of the study such as Office of the Solicitor General, Department of Justice, Supreme Court, Court of Appeals and Senate of the Philippines. The Office of the Solicitor General holds and keeps the records of the number of nullity of marriage, annulment and legal separation cases filed everyday.

Definition of Terms These are the following terms that can be found in this study, which are defined operationally to acquaint the readers for better understanding. COLLEGE OF ARTS AND SCIENCES 17

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Marriage – a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. Divorce - the “legal termination of a marriage by a court in a legal proceeding, requiring a petition or complaint for divorce by one party. It is the “legal separation of husband and wife, effected, for cause, by the judgment of a court, and either totally dissolving the marriage relation, or suspending its effects so far as it concerns the cohabitation of the parties.”. Constitution – the supreme and fundamental law of the land. Family Code of the Philippines – the governing law on Family relations. Annulment – is in the nature of a court proceeding with the end view of severing the marital bond between husband and wife. It is applicable only to voidable marriages, and is availed of in a situation where the marriage is valid from the beginning but can be annulled on various grounds by the court, specifically provided for under Article 45 of the Family Code. A petition for annulment of marriage is applicable to marriages that are voidable. Under Philippine law, a voidable marriage is one that “is valid until otherwise declared by the court.”

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Legal Separation – is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order. Psychological Incapacity –incapacity or inability to take cognizance of and to assume basic marital obligations, and is not merely the difficulty, refusal or neglect in the performance of marital obligations or ill will. Nullity of Marriage – presupposes that the marriage was void from the beginning on account of the inability of the parties to satisfy the formal and essential requisites of marriage (Article 2 and 3 Family Code of the Philippines) as well as their failure to comply the essential marital obligations of marriage, namely: to “live together, observe mutual love, respect and fidelity, and render mutual help and support.” (Article 68 Family Code of the Philippines).

Chapter II Review of Related Literature COLLEGE OF ARTS AND SCIENCES 19

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE

This chapter contains informations gathered from books, journals, documentation and web pages on the subject of Divorce in the Philippines.

Divorce in the Philippines Several attempts were made to legalize a divorce law in the Philippines and several times have the legislators failed and were rejected. The Philippines and Vatican City are the only remaining states who do not recognize divorce in the world. Vatican in view of the consideration that it is an ecclesiastical state has an excuse and Philippines a state without religion do not recognize divorce is a big question. Contrary to the common belief, things were not always like this, before the enactment of the Civil Code of the Philippines, divorce was a legally recognized procedure practiced extensively by the people.

History and Background of Divorce Long before the advent of Spanish colonial rule beginning in the early 16 th century, absolute divorce had been widely practiced among the ancestral tribes – the Tagbanwas of Palawan, the Gadangs of Nueva Vizcaya, the Sagadas and Igorots of the Cordilleras, the Manobos, Bila-ans and Moslems of Visayas and Mindanao islands, to name a few. During the Spanish occupation, the law on divorce was the SietePartidaswhich allowed only legal separation. Under these provisions, legal separation ordivortio a mensa et thoro may be granted when (1) one of the spouses COLLEGE OF ARTS AND SCIENCES 20

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE sought to enter a religious order and the other granted permission to do so; (2) adultery had been committed by either of the spouses; and (3) either of the parties had become a heretic. Upon the acquisition of the Philippines by the United States, the law on marriage in force in the country was Article 44 to 78 of the Law of Marriage of 1870, otherwise known as the Spanish Marriage Law, which was extended to the Philippines by a royal decree on 13 April 1883. On December 1899, Major General Otis as Commander in Chief of an American army in the Philippines promulgated General Order No.68. While Order expressly repealed some of the provisions of the Spanish Marriage Law, the law on Divorce continued in force. In 1917, Act 2710 was passed by the Philippine Legislature repealing the SietePartidas by allowing divorce only on the grounds of Adultery on the part if the wife and concubinage in the part of the husband. To grant divorce, the guilt of the defendant had to be established by final sentence in criminal action. In 1920, the Supreme Court of the Philippines declared that “the divorce consisting of judicial separation without the dissolution of the bonds of matrimony, which was formerly granted for the adultery of either spouses, has been abrogated and in its place has been substituted the absolute divorce ex vinculismatrimonii, obtainable only under the conditions stated in said Act. On 25th of March 1943, during the Japanese Occupation, Executive Order No. 141 was promulgated by the Chairman of the Philippine Executive Commission which provided eleven grounds for divorce. The law lasted until 1944 when General Douglas

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE MacArthur, by a proclamation, re-establised the Commonwealth Government. Through the Proclamation Act 2710 was revived and the Japanese law on divorce repealed. Attempts to relax the provisions of Act 2710 were made after the country was liberated from Japanese occupation. Proposals to go away with the condition precedent of conviction for adultery or concubinage and make continued absence as an additional ground for divorce were eventually rejected. Parallel to these attempts were efforts to completely abolish divorce because according to the Congressman Agustin Kintanar, it is “unchristian and fundamentally alien to the Filipino temperament and way of life” and, as noted by then Congressnan Francisco Perfecto, “something scorned and looked down upon.” On 30 August 1950, Act 2710 was repealed when the Civil Code took effect which allowed only legal separation. During the deliberations on the Civil Cide, the majority of the members were in favor of liberalizing the provisions on divorce; however. They were asked by then President Manuel Roxas to be conservative on the subject. Last minute attempts by then Congressman HermenegildoAtienza to include divorce provisions were futile. As a result, the Civil Code made divorce illegal except under an accompanying measure enacted the same month. Two legal exceptions to the ban on absolute divorce were later recognized. The first exception was made in 1977 when then President Ferdinand Marcos enacted Presidential Decree No. 1083 (Muslim Code) which recognized Muslim divorce. The second was added when the Civil Cide, amended in 1988 by the Family Code, recognized divorce obtained by foreigners abroad against their Filipino spouses. COLLEGE OF ARTS AND SCIENCES 22

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE At present, while there is no explicit divorce law to speack of, there are three well defined scenarios where the process (or atlease its effects) is somewhat recognized by law: (1) valid foreign divorce as provided under Article 26 of the Family Code to wit: (1) valid foreign divorce as provided under Article 26 of the Family Code; (2) Muslim divorce under the Muslim Code; and (3) Legal Separation under Articles 55-67 of the Family Code. Owing to the Nationality principle, only Filipinos are covered by the policy against absolute divorce, the same being considered contrary to public policy and morality. Divorce obtained abroad either by a foreigner or a Filipino who has become naturalized in another country is recognized. Explicitly, the Family Code provides that, “where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under the Philippine law. The exception is understood to allow a Filipino, divorced by a spouse who has acquired foreign citizenship and remarried, to likewise remarry as if the other party were a foreigner at the time of the solemnization of marriage. After an alien spouse obtains a divorce decree, either of the spouses may file an action for recognition of such foreign judgment or invoke such judgment as an integral aspect of his or her claim or defense in another action. The burden of proof lies with the person alleging the fact and validity of divorce becayse “no sovereign is bound to give effect within its dominion to judgment rendered by a tribunal of another country.

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE The twin elements for the recognition of foreign divorce decree are: (1) valid marriage that has been celebrated between a Filipino citizen and a foreigner; and (2) valid divorce obtained abroad by the alien spouse capacitating him or her to remarry. It must be shown that the decree of divorce is valid according to the national law of the foreigner becayse a foreign judgment or final order against a person constitutes only as “Presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.” The second exception to the “no divorce policy” arises where both parties to the marriage are Muslims or where only the male party is a Muslim; and the marriage is solemnized in accordance with Muslim laws or the Muslim Code in any part of the country, The Muslim Code governs the essential requisities and legal impediments of a Muslim marriage as well as divorce, paternity and filiation, guardianship and custody of minors, support and maintenance, claims for customary dower (mahr), bethrotal, breach of contract to marry, solemnization and registration of marriage and divorce, rights and obligations between husband and wife , parental authority, and the properly relations between husband and wife. Accordingly, where the marriage is between a muslim and non-muslim, solemnized not in accordance with Muslim Law, the Family Code applies. Under the Muslim Code, divorce is the formal dissolution of the marriage bond granted only after the exhaustion of all possible means of reconciliation between the spouses.” It may be effected by several means; (a) repudiation of the wife by the husband or talaq; (b) vow of continence by the husband or ila; (c) injurious assanilation of the wife by the husband orzihar; (d) acts of imprecation irli`an; (e) redemption by the wife COLLEGE OF ARTS AND SCIENCES 24

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE orkhul`; (f) exercise by the wife of the delegated right to repudiate or tafwld; (g) judicial decree or faskh. Sharia`a Circuit Courts have exclusive original jurisdiction over all covil actions and proceedings involving disputes relating to marriage and divorce recognized under the Muslim Code. However, these courts are not vested with exlusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws since the Muslim Code does not provide for this kind of situation. The regular trial courts may still exercise its general jurisdiction over actions for nullity of these marriages. Relative divorce or legal separation is the third expection. Unlike the first two instances which recognize absolute divorce, marital ties are not severed in legal separation and the spouses are only permitted to live separately. Divorce in Spain Getting a divorce in Spain is a relatively straightforward process provided both parties agree on the appropriate arrangements for children and assets. The divorce law in Spain is no-fault, meaning that it is not necessary to cite a reason in order to obtain a divorce. It only requires a petition from one of the spouses. Non-Spanish nationals can obtain a divorce in Spain if they or their spouse is a Spanish resident or a Spanish national. The divorce rate in Spain places it among the mid-range of European countries. Divorce is actually a relatively recent phenomenon in Spain and was only introduced to the country in 1981. Since then figures have shown a steady increase in the incidence of divorce. In 1990 nine years after it was made legal, the divorce rate was 0.6 divorces per COLLEGE OF ARTS AND SCIENCES 25

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE 1,000 inhabitants. This increased to 0.9 divorces per 1,000 people in 2000 and rose substantially to 2.2 divorces per 1,000 people in 2010. This is set against an average of 2.0 for the 27-member EU. Once the divorce is granted, the parties to the marriage can remarry legally. Both parties will immediately lose any marital inheritance rights and widow's pension rights, as well as those obligations directly derived from their marriage. In addition, any joint financial liabilities the couple has in relation to third parties are terminated. However, the divorced parents

still

keep

their

duties

with

regard

to

their

children.

Spanish courts generally award alimony only where one of the spouses is clearly disadvantaged economically as a result of the divorce. A typical example would be where one spouse has given up a career to look after the children. Alimony awards vary but are generally

between

15

–

40

percent

of

the

higher

income.

Where younger children are concerned, custody is awarded to the mother in most cases, unless there are factors that demonstrate this would not be in the best interest of the child. In recent years the courts have paid greater attention to considering awarding joint custody. If the couple agrees to share visitation rights the judge will take this into account. Regarding the division of assets, the rules are affected by where the couple is living. In Catalonia, Aragon, Navarre, Balearic Islands and the Basque Country, ‘Separción de Bienes’ is the default system. This allows a couple to retain ownership of items that they brought with them into the marriage. Where joint purchases were made during the marriage they are divided according to the contribution made by each party. Court rulings COLLEGE OF ARTS AND SCIENCES 26

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE have also attributed a financial value to non-financial contributions, such as doing domestic chores or raising children. In the other Spanish regions, ‘Sociedad de Gananciales’ applies, where all assets acquired during the marriage are considered to belong to both spouses equally, unless they are ‘private goods’. Dual ownership would apply to rental income, businesses and goods bought via installments from the ‘matrimonial pot’. The spouses may divorce by mutual agreement when they have been married for at least three full months. Whenever the parties ask the judge for a divorce order, a proposal of governing convention (convenio regulador) must be attached to the petition. It is not necessary for the couple to have been legally separated for any period of time before filing for divorce. In certain cases a party may petition for a divorce without waiting for the three-month period. This would apply when there is a proven danger to the life, physical integrity, liberty, moral integrity or sexual liberty or indemnity of the petitioner. Divorce in Malta Despite civil marriage being introduced in 1975, no provision was made for divorce except for the recognition of divorces granted by foreign courts. Legislation introducing divorce came into effect in October 2011 following the result of a referendum on the subject earlier in the year. It provides for no-fault divorce, with the marriage being dissolved through aCourt judgement following the request of one of the parties, provided the couple has lived apart for at least four years out of the previous five and adequate alimony is being paid or is guaranteed. The same law made a number of COLLEGE OF ARTS AND SCIENCES 27

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE important changes regarding alimony, notably through extending it to children born of marriage who are still in full-time education or are disabled and through protecting alimony even after the Court pronounces a divorce.

Divorce in Italy Divorce was introduced in Italy by law of 1 December 1970. An abrogative referendum supported by Catholic organizations and by the Vatican was defeated on May 12, 1974. A constitutional issue had been also raised with regard to Italy's obligations under the Lateran Treaty, entered into in 1929, on whether it prohibited Italy from authorizing divorce. Before 1970, there was no provision for divorce in Italian law, and the difficulty of ridding oneself of an unwanted spouse in the absence of any legal way to do so was a frequent topic of drama and humor, reaching its apotheosis in the 1961 film Divorce, Italian Style. In Italy, almost all divorces are granted on the ground of legal separation. In 2015, the period of legal separation was reduced to one year, and six months in the case of consensual separation (from the previous three years), [25] since the comparition of the spouses at the first hearing hearing in the separation procedure or since the date of the separation agreement. A separation decree may be granted when there are facts that would render the continuation of married life intolerable or have a serious and damaging impact on the upbringing of the children. Separation may also be granted by mutual COLLEGE OF ARTS AND SCIENCES 28

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE consent. Separation by mutual consent and uncontested divorce are also possible without judicial procedure. Divorce may be granted without a previous legal separation only in very rare cases (e.g. final criminal conviction, annulment or divorce obtained abroad by the foreign spouse, unconsummated marriage, sex change).

Divorce in United States of America Divorce in the United States is a matter of state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. The laws of the state(s) of residence at the time of divorce govern; all states recognize divorces granted by any other state. All states impose a minimum time of residence. Typically, a county court’s family division judges petitions for dissolution of marriages. Before the latter decades of the 20th century, a spouse seeking divorce had to show cause and even then might not be able to obtain a divorce. The legalization of nofault divorce in the United States began in 1969 in California, pursuant to legislation signed by then Governor, Ronald Reagan, and was completed in 2010, with New York being the last of the fifty states to legalize it. [38][39] However, some states still require some waiting period before a divorce, typically a 1– to 2–year separation. Fault grounds, when available, are sometimes still sought. This may be done where it reduces the COLLEGE OF ARTS AND SCIENCES 29

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, or alimony. Since the mid-1990s, a few states have enacted covenant marriage laws, which allow couples to voluntarily make a divorce more difficult for themselves to obtain than in the typical no-fault divorce action. Mediation is a growing way of resolving divorce issues. It tends to be less adversarial (particularly important for any children), more private, less expensive, and faster than traditional litigation.[40] Similar in concept, but with more support than mediation, is collaborative divorce, where both sides are represented by attorneys but commit to negotiating a settlement without engaging in litigation. Some believe that mediation may not be appropriate for all relationships, especially those that included physical or emotional abuse, or an imbalance of power and knowledge about the parties' finances. States vary in their rules for division of assets. Some states are "community property" states, others are "equitable distribution" states, and others have elements of both. Most "community property" states start with the presumption that community assets will be divided equally, whereas "equitable distribution" states presume fairness may dictate more or less than half of the assets will be awarded to one spouse or the other. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Attempt is made to assure the welfare of any minor children generally through their dependency. Alimony, also known as 'maintenance' or 'spousal support', is still being granted in many cases, especially in longer term marriages. COLLEGE OF ARTS AND SCIENCES 30

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE A decree of divorce will generally not be granted until all questions regarding child care and custody, division of property and assets, and ongoing financial support are resolved. Due to the complex divorce procedures required in many places, some people seek divorces from other jurisdictions that have easier and quicker processes. Most of these places are commonly referred to negatively as "divorce mills." Where people from different countries get married, and one or both then choose to reside in another country, the procedures for divorce can become significantly more complicated. Although most countries make divorce possible, the form of settlement or agreement following divorce may be very different depending on where the divorce takes place. In some countries there may be a bias towards the man regarding property settlements, and in others there may be a bias towards the woman concerning property and custody of any children. One or both parties may seek to divorce in a country that has jurisdiction over them. Normally there will be a residence requirement in the country in which the divorce takes place. See also Divorces obtained by US couples in a different country or jurisdiction above for more information, as applicable globally. In the case of disputed custody, almost all lawyers would strongly advise following the jurisdiction applicable to the dispute, i.e. the country or state of the spouse's residence. Even if not disputed, the spouse could later dispute it and potentially invalidate another jurisdiction's ruling. COLLEGE OF ARTS AND SCIENCES 31

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Synthesis Divorce once existed ion the Philippines but as the law stands and subject to only three excpetions, the Family Code does not allow divorce. Divorce is neither a novel concept for Filipinos nor an unfamiliar legal and cultural approach to Philippine marriages. To recognize divorce is to reintroduce what was once legal in the country during the pre-colonial era and before the Civil Code was enacted. While politics and religion have influenced the absence of divorce in the country, a decision to restore and legalize divorce must be guided by law and reality.

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE CHAPTER III

METHODOLOGY

Research Design The Descriptive historical approach of research method was used in this study. It aimed to provide an accurate description of the current state of some phenomenon related to the study. Causal Comparative Study was utilized to compare difference among phenomena to determine if certain factors or circumstances tend to accompany certain events, conditions, or processes. It was used to compare the states with and without divorce and in giving the history and background of the different divorce bills which was filed in the Senate of the Philippines. Furthermore, Documentary analysis amd Public Opinion Surveys were also used to establish the fact that the legalization of divorce is an immediate necessity. It was utilized to enhance the decision making process by government officials.

Data Gathering The comprehensive study required the opinions of people with appropriate knowledge on the given issue at hand. The researcher did not confined himself to books, news articles, and blogs but delved into the recorded annulment cases for the past few years in the Office of the Solicitor General and number of battered wife and child abuses in the Department of COLLEGE OF ARTS AND SCIENCES 33

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Justice to support the arguments that he presented in the immediate chapters. The researcher ensured that he will resort to persons with appropriate knowledge to the given issue at hand such as the chair person of the senate committee on women, children, family relations and gender equality, Senator Pia Cayetano to ensure that the data he will be gathered will suffice to the problems of the study.

Sources of Data The researcher resorted to primary and secondary data in presenting the review of related literature and studies which were obtained from the records of agency and departments of the Government, books, journals, decided cases of the supreme court and other internet sources.

Data Analysis The researcher arranged the tables and data acquired from the Office of the Solicitor General (OSG), Department of Justice (DOJ) and Senate of the Philippines. The Divorce Bills were compared to find out and observe the most appropriate divorce bill that was filed un the Senate of the Philippines. The number of annulment cases filed every year and number of battered wife and child abuse yearly were also presented. Lastly, the existing remedies in the Philippine system were also discussed to establish its inadequacy.

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE CHAPTER IV RESULTS AND DISCUSSION

Divorce Bills filed in the Senate of the Philippines HB 1799 (2011) HB 4016 (2005) Summary

Grounds

HB 6993 (1999) SB 782 and HB 878 (2001)

The bill recognized both divorce and legal separation. 1.) Separation de facto for atleast five years at the time of the filing of the petition and reconciliation is highly improbable. 2.) Legally separated for at least two years at the time of the filing of the petition and reconciliation is highly improbable. 3.) Any grounds for legal separation has caused the irreparable breakdown of the marriage. 4.) Psychological incapacity of one or both spouses. 5.) Irreconcilable differences that have caused the irreparable breakdown of marriage.

The bills scrapped off legal separation and replaced it with divorce.

1.) Repeated physical violence or grossly abusive conduct directed against the other spouse, a common child, or a child of the spouse. 2.) Physical violence or moral pressure to compel the other spouse to change religious or political affiliation. 3.) Attempt to corrupt or induce the other spouse, a common child, or a child of the spouse, to engage in prostitution, or connivance in such corruption or inducement. 4.) Final judgement sentencing either of the spouses to imprisonment of more than six years, even if pardoned. 5.) Drug addiction or habitual alcoholism. 6.) Lesbianism or homosexuality 7.) Contracting a subsequent bigamous marriage, whether in the Philippines or abroad. 8.) Sexual infidelity or perversion. 9.) Attempt on the life of the other COLLEGE OF ARTS AND SCIENCES 36

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE 10.) Abandonment of spouse without justifiable cause for more than one year. 11.) Irremediable breakdown of the marriage relationship due to irreconcilable differences. Cooling off Period

Consequences of Divorce

6 months from filing of petition when the grounds are that of (3) and (5) except in cases involving violence against women and children under R.A. 9262

1. Marriage bonds are severed. 2. Absolute community and conjugal partnership property are equally divided between the spouses. 3. Presumptive legitimes of children are delivered. 4. Spouses who is not gainfully employed is entitled to support for one year from finality of decree or until he or she finds adequate employment, whichever comes first. 5. Actual, moral, and exemplary damages may be awarded to the aggrieved spouse. 6. Custody of minor children is determined by court. 7. Children are entitled to support. 8. Children conceived or born before the finalityof the decree

6 months from filing of petition.

1. Marriage bonds are severed after a year the divorce decree becomes final. 2. Absolute community and conjugal partnership property are equally divided between the spouses however if there is a an adjudged offending spouse, said spouse does not have any share to the net profits except further if the ground for the divorce is that under (3), the net profits are divided equally. 3. Presumptive legitimes of children are delivered a year after the decree become final. 4. Custody of minor children is awarded to the innocent spouse except if the ground is that under (3), the custody is awarded to the spouse more capable in ensuring moral , mental and physical well-being. 5. Children are entitled to support. 6. Parties are disqualified to inherit from each other by intestate and testate succession. 7. Any of the spouses may revoke donations in favor of the other spouse as well as the irrevocable

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE are legitimate. 9. Parties are disqualified to inherit from each other by intestate and testate succession. 10. Under the grounds for divorce are (3) and (5), the innocent souse may revoke donations in favor of the other spouse as well as the irrevocable designation of the offending souse as beneficiary in an insurance policy. Prescription Efforts to reconcile

None

designation of the other as beneficiary in an insurance policy.

Petition must be filed within 1 year from knowledge of cause .



Not mentioned



State of Participation Effects upon filing

Judgement based on stipulation of facts or confession of judgment Denial of Petition

Reconcialiation during the pendency of the proceedings terminates the petition. Reconciliation after the issuance of the decree sets aside thedivorce.

None

1.) Spouses are entitled to live separately from each other. 2.) Court designates administrator of absolute community or conjugal partnership property. 3.) Court provides for support of the spouses and the custody and support of their common children. Not allowed

     

1.) Connivance 2.) Collusion

Connivance Collusion Consent Condonation Both parties at fault Prescription

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE  

Divorce abroad

A divorce obtained abroad by a Filipino is valid in the country if based on any of the grounds provided under the Philippine laws.

Irreconcilable martial differences are insufficient to justify divorce Petitioner has not resided in the country within one year prior to filing the petition.

Not mentioned

Table 1.1 Comparison of Divorce Bills filed in the Senate of the Philippines Allowing Absolute Divorce in the Philippines Divorce is a controversial topic, except that it is often discussed with hushed voices. Many are just waiting for the right opportunity to end their respective marriages, and the reasons are diverse – physical abuse (against the spouse and/or the children). Sexual infidelity, irreconcilable differences and conflicting personalities, gross irresponsibility, loss (and transfer) of affection, among others. Unfortunately, these grounds are not enough to severe the marital bond through annulment. In lieu of divorce, married persons resort to annulment and according to the Office of Solicitor General (OSG), there is an alarming increase in the number of annulment cases in the Philippines. The number of annulment cases filed in courts, which never breached the 7,000-mark prior to 2006, rose to 7,138 (2006) and 7,753 (2007).

Existing Philippine Laws regarding Divorce

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Philippine laws do not provide for absolute divorce, but divorce was available in certain periods in the Philippine history. Divorce was allowed under the Divorce Law of 1917 (Act No.2710) and during the Japanese occupation, pursuant to Executive Order No. 141 (1943). As the law stands today, however, a marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad. In a mixed marriages involving a Filipino and a foreigner (or former Filipinos), Article 26 of the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the Alien spouse capacitating him or her to remarry. It is not correct to say that there is absolutely no divorce in the Philippines. Under Presidential Decree No. 1083 also known as the “Code of Muslim Personal Laws of the Philippines.” Divorce is allowed in certain instances, but this law applies only when both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law in any part of the Philippines. For the rest of Filipinos, therefore, divorce is not available. Efforts to Legalize Divorce in the Philippines In 2005, party-list representative Liza Masa of Gabriela filed a divorce bill. According to Representaive Masa, the Annulment process has been expensive for most Filipinos and has not been responsive to the needs of women, particularly those suffering from marital abuse.” In 2001, similar bills were filed in the Senate (Bill No. 782), Introduced by Senator Rodolfo G. Biazon, and House of Representatives (Bill No. 878), Introduced by Honorable Bellaflor J. Angara-Castillo. In 1999, Representative Manuel C.

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Ortega filed House Bill No. 6993, seeking for the legalization of divorce. The highlights of the Explanatory note of House Bill No.6993, in support of divorce, are: Not all marriages succeed as a permanent union. An increasing number of married individuals find themselves subjected by their marriage partners to physical violence, grossly abusive conduct and other acts of or offenses that – rather than promote blissful, harmonious conjugal and family life – impair, debase or destroy the legitimate ends of the marriage relationship. The bill seeks to give spouses which are shacked by an irretrievably broken marriage the freedom to remarry and possibly succeed in attaining a stable and fulfilling family life. Divorce is not a novel legal right. The Family Code sanctions relative divorce (a mensa et thoro). Legal Separation is a recognized remedy for victims of failed marriages. Our civil laws on marriage justify and allow the separation of married individuals but does not confer them the legal right or remedy to extricate themselves from the ordeal of a broken marriage. Divorce is not exclusive to contemporary times. Before the Spanish colonial rule in the early 16th century, absolute divorce had been widely practiced among our ancestral tribes --- the Tagbanwas of Palawan, the Gadang of Nueva Vizcaya, the Sagada and Igorot of the Cordilleras, the Manobo, Bila-an and Moslems of Visayas and Mindanao islands, to name a few. There were prior divorce laws. In 1917, Act 2710 allowed divorce on the grounds of adultery on the part of the wife and concubiinage on the part of the husband. During the

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Japanese Occupation, a new law on absolute divorce, E.O. No. 141, was promulgated providing for ten grounds for divorce. These laws are no longer in effect. Based on the increasing number of failed marriages which confines many of our citizens to a perpetual state of marital limbo, it has become morally and socially acceptable for many Filipinos to grant spouses of broken marriages the legal right to remarry. The present grounds of legal separation which are recognized in our society as justifiable bases for relative divorce should be re-enacted as lawful grounds for absolute divorce. In addition, it is recommended that “irreconcilable marital differences” be included in our present civil laws as justifiable cause for absolute divorce because not all circumstances and situations that vitiate the institution of marriage could be specifically categorized and defined by our lawmakers. Spouses living in a state of irreparable marital conflict or discord should be given the opportunity to present their marital contrarieties before the courts and have such differences adjudged as substantial grounds to dissolve or sever the legal bond of marriage. In addition to these reasons, there are criticisms that the existing laws on annulment are anti-poor, as the high cost needed to pursue a case for annulment prevents the poor from securing one. This, however, is the very reason cited by those who oppose divorce – the high cost is intended to discourage the people from trifling with marriage. Allowing divorce would serious weaken the institution of marriage. Anyone could decide to get married without thinking twice because they can get out of the marriage easily with divorce. If the current increase of annulment cases is alarming, imagine how the allowance of divorce would greatly increase the figure. Other arguments against the COLLEGE OF ARTS AND SCIENCES 42

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE legalization of divorce are contained in the Position Paper of the Commission on Human Rights (CHR) against these bills. The highlights are: 1. The proposal to legalize absolute divorce with the right to remarry violates relevant international instruments on human rights, particularly Article 16 (3) of the United National Declaration of Human Rughts. 2. The innocent spouse and the children in most cases may suffer economic difficulties. Aside from being abandoned by the guilty spouse, the innocent spouse and children, in most cases, will suffer untold economic difficulties. The divorced spouses who will remarry will have to maintain another family of their own. 3. The human rights of the innocent spouse is violated. The guilty spouse in the divorce case is allowed to abandon or neglect his obligation to provide company and care of the innoncent spouse and the children, thus violating Article 68 of the Family Code which reads: “The husband and wife are obliged to live together, observe mutual love, respect and fidelity and render mutual help and support.” 4. Irrespective of any religious beliefs, divorce of spouses with right to remarry constitutes a grave offense against a natural law. Divorce is unnatural and immoral as it causes disorder in the family and society. Because of its contagious effect in society, it becomes a plague on society. A divorce invites another divorce. The innocent spouse who has not contravened any law is unlawfully deserted. 5. Absolute divorce is destructive of the family as a social institution mandated under the Constitution. One of the basic policies of the State, as declared in the principles of the Philippine Constitution reads: “The State recognizes the sanctity COLLEGE OF ARTS AND SCIENCES 43

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the young for civic inefficiency and the development of moral character shall receive the support of the government. “(Article 11, Section 12) The relevant constitutional provisions will have to be amended before the divorce bills will be enacted into law. 6. Absolute divorce violates the concept of marriage, a permanent union of man and woman. The Family Code defines marriage as a permanent union of man and woman (Article 1). The Civil Code also provides for the presumption of the solidarity of the family and the indissolubility of marriage bonds (Art.220). Absolute divorce destroys the very cobcept of family as an inviolable social institution. The purpose of the proponents of the Senate and House bills that it will giove an opportunity for the spouses to separate from an intolerable spouse and by entering into a new marriage is not altogether an assurance that the new marriage will be a happy and permanent one. The experience in countries where divorces are allowed and easily obtained, such as the United States, is that people divorces have experienced multiple divorces and have remarried several times in their selfish desire to get rid of unwanted spouses by intentionally creating the cause of the divorce. NULLITY

ANNULMENT

LEGAL SEPARATION

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE 1.) Contracted by parties eighteen and below. 2.) Solemnized by a person without legal authority; 3.) Solemnized without a marriage license; 4.) Bigamous or polygamous in nature; 5.) Contracted through mistake of identity; 6.) Subsequently contracted absent prior recording with the appropriate civil registry and registry of properties of the judgment of annulment or nullity of marriage, partition and distribution of the properties of the spouses and delivery of the children`s presumptive legitimes; 7.) Contracted by any party who, at the time of the celebration, was psychologically incapacitated to

1.) Any of the contracting parties was eighteen years of age or over but below twenty-one and the marriage was solemnized without parental or substitute parental consent; 2.) Any of the parties was of unsound mind; 3.) Consent of either party was obtained by fraud; 4.) Consent of either party was obtained by force, intimidation or undue influence; 5.) Continous and incurable physical incapacity to consummate marriage by either of the parties; and 6.) Either party was afflicted with a serious and incurable sexually transmitted disease.

1.) Repeated physical violence or grossly abusive conduct directed against the other spouse, a common child, or a child of the spouse; 2.) Physical Violence or moral pressure to compel the other spouse to change religious or political affiliations. 3.) Attempt to corrupt or induce the other spouse, a common child, or a child of the spouse, to engage in prostitution, or connivance in such corruption or inducement; 4.) Final judgment sentencing either of the spouses to imprisonment of more than six years, even if pardoned; 5.) Drug addiction or habitual alcoholism. 6.) Lesbianism or homosexuality; 7.) Contracting subsequent

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE comply with the essential marital obligations of marriage; 8.) Incestuous in nature; and 9.) Contracted against public policy.

bigamous marriage; 8.) Sexual infidelity or perversion; 9.) Attempt on the life of the other; and 10.) Abandonm ent of spouse without justifiable cause for more than one year.

Table 2.2 Existing Legal Framework on Marriage Nullity, Annulment, and Legal Separation are insufficient The most fundamental argument in favor of the enactment of a divorce law is the very glaring inability of the existing legal mechanisms to address the often complex and multiple causes behind the separation cases and failed marriages. The following points, which are discussed seriatim, serve to elaboarate further: 91) actions for nullity and annulment do not recognize domestic violence as a valid ground for terminating a marriage; (2) a number of other plausible grounds for separation exist but are not recognized by any of the three existing remedies; (3) Psychological incapacity, as a ground for nullity of marriage under Article 36 of the Family Code, is prone and has in fact been subject to abuse; (4) the default participation of the State in actions for nullity, annulment, and legal separation often obstructs – to the point of being unreasonable – the realization of a mutual desire to separate by two consenting adults; (5) the prohibitive costs of pursuing any of the existing legal remedies discriminates among social classes;

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE and (6) on a related note, permitting divorce for Muslims and foreigners actually discriminates against Non-Muslim Filipinos.

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE ]

CHAPTER V SUMMARY, CONLUSIONS, RECOMMENDATIONS

This chapter presents the summary of the findings of the study, the conclusion derived from the data gathered and the recommendation. Summary My study is about the legalization of divorce in the Philippines and to establish the fact of its necessity for the Filipino couples who are in hopeless and irreparable marriages. Legalization of divorce is definitely called for amid the rising number of nullity, annulment and legal separation cases which are denied by the courts for lack of legal grounds. The issues on the existing legal frame work are too grave to ignore. Unlike nullity and annulment actions, divorce recognizes the existence of a valid marriage. Unlike legal separation, divorce severs marriage bonds. Divorce fills in the gaps left by the existing legal framework on marriage. If divorce is not reintroduced into domestic law, the weakness of nullity, annulment, and legal separation will never be addressed. For brevity, the following justifications to legalize divorcer into Philippine law must be kept in mind:

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE 1. The Philippines has the constitutional mandate to protect and strengthen the family and marriage. The term “family” is neither limited to a patriarchal concept nor referring only to the nuclear family. 2. Divorce protects and strengthens the family. It produces positive consequences for the spouses and children which ultimately benefits the society in general. 3. The Philippines, as signatory to international human rights treaties, has a legal and building obligation to respect the rights against non-discrimantion, equality of men and women, against torture and cruel, inhuman or degrading treatment or punishment, and to marriage and family. 4. Treaty Monitoring bodies have continuously expressed their concern on the lack of divorce in the country and are consistent in recommending that a divorce law be enacted. 5. Divorce is legal and Constitutional. The drafters of the Constitution had no intention to prohibit divorce. Other Catholic Countries with constitutional provisions on family and marriage similar to that of the Philippines allow divorce. 6. Divorce reduces the incidence of domestic violence. At present, physical violence is only a ground for spouses to live separately from each other. Divorce provides battered spouses an effective remedy to address the abuse. 7. Divorce terminates a valid marriage based on grounds occurring during the marriage. It does not require proof that marriage is void or defective from the beginning. Divorce gives recognition to the validity of a marriage which the existing legal framework on marriage does not make possible. 8. Divorce promotes equality among muslim and non-muslim Filipinos, and foreigners. Two exceptions to the “No divorce policy” benefit only Muslim Filipinos and foreigners effectively excluding majority of Filipinos who are nonMuslims. COLLEGE OF ARTS AND SCIENCES 49

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE 9. Majority of Filipinos favor the Legalization of Divorce into domestic law. As a democratic and republican government, the Philippines have the duty to defer to the will of the people. 10. The existing legal framework on marriage is onerous, unreasonable, and inaccessible for majority of Filipinos. Limited and exclusive grounds, prohibitive costs for legal and professional fees, default State participation, universal requirement of adversarial proceedings, and lengthy judicial process render the remedies of nullity, annulment, and legal separation ineffective. Recommendations Based on the study provided for in the prior chapters, considering the practical effects of divorce, the following are some of the major areas that must be taken into account: (a) Incorporation of all forms of spousal and child abuse as grounds for divorce All forms of violence must constitute grounds for divorce without need to prove that it resulted in the “irreparable breakdown of the marriage” and regardless of whether it was committed against the husband, wife, or their children. For an abused spouse to necessarily present evidence that his or her marriage is beyond repair before divorce may be granted implies that the State, depending on the circumstances, may condone abuse within the marriage. This goes against the State`s policy to protect and strengthen the family and marriage and its international human rights obligations to end violence and discrimination. (b) Entitlement of Support for the Innocent Spouse and children after divorce One of the effects of divorce is a decrease in the Family`s income. The decrease is particularly felt by families where there is only one income-earner. The two latest COLLEGE OF ARTS AND SCIENCES 50

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE divorce bills were filed in Congress proposed the entitlement of support for the Children and spouse who is not gainfully employed. A distinction must be made between an innocent and guilty spouse. Spousal support must be limited to the innocent spouse because the guilty spouse cannot be made to benefit from his or her wrong doing whatever his or her economic status may be. (c) Non-inclusion of the ground of psychological incapacity for nullity or divorce The fact that the concept of psychological incapacity has been borrowed from canon law intensifies the issues on the prohibitive costs and abuse by the parties of such ground. “Great respect” is given by the courts to the interpretations of the National Matrimonial Tribunal of the Catholic Church. Psychological incapacity must not be included as a ground for divorce because civil and canon laws must remain independent of each other pursuant to the constitutional principle separation of church and state. (d) Inclusion of Both fault and no-fault divorce Both fault and no-fault divorce is essential for an effective divorce. As noted by the Women`s Legal Bureau, “a no-fault divorce is ideal given the realities of marriage and the myriad causes of marriage breakdown. With no-fault divorce, spouses are empowered to determine for themselves the viability of continuing or ending their marriage. Marriage is consensual in character and its continuance must be subject to the voluntary agreement of the parties with only the necessary safeguards in place to prevent abuse.

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REFERENCES

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE

ANNEXES

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE

ANNEX A House Bill 1799

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE

ANNEX B House Bill 4408

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LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE

ANNEX C (The Researcher`s Profile)

Heyward Joseph C. Ave Blk 1 lot 5 phase 2 extension, Mabuhay City Subd. Paliparan III, Dasmarinas City, Cavite 09279104496 / [email protected]

General Objective: COLLEGE OF ARTS AND SCIENCES 57

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Looking for a position of Legal Assistant where I can utilize secretarial and legal skills in an environment beneficial for mutual growth and development in the legal sector. Skills:     

Proficient in both written and spoken English and Filipino language Adaptability and ability to work under pressure Ability to get along well with co-workers and accept supervision. Computer-literate with software proficiency covering variety of applications. Argumentation and Debate

Knowledge:        

Criminal Law Criminal and Civil Procedure Civil Law Philippine Political and Constitutional Law Statutory Construction International Law Labor Law and Legislation Corporation Law

Educational Background: Bachelor of Arts in Legal Studies Lyceum of the Philippines University Manggahan, General Trias, Cavite 2012 - 2016 Secondary Education Saint Aloysius Academy of Dasmarinas Palipaparan III, Dasmarinas, Cavite 2008 - 2012 Elementary Education Paliparan, Dasmarinas, Cavite Marymel Academy Inc. 2002 – 2008 Awards/Achievements: 

Graduated First Honorable Mention in Elementary Level COLLEGE OF ARTS AND SCIENCES 58

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE            

Graduated Valedictorian in Secondary Level FAPE Consistent Scholar (1st year high school – 4th year high school) Governor Jonvic Remulla Provincial Scholarship Program Gerry Roxas Leadership Awardee Recepient of Loren Legarda Leadership Award Recepient of the Eagle Medallion Associate Editor-in-Chief of “The Gonzagan” (CMMA nominee) Dean’s Lister and Entrance Scholar TOEIC Exam Passer (Certified Working Proficiency Level) Academic Excellence Awardee Mercury Drug Excellence in Science Award

Extra-Curricular Activities, Membership and Affiliation:           

Vice President – Internal of CAS Student Government President of Lyceum Central Student Government (LYCESGO) Founder of LPU Lykeios Debate Society Eagle Scouts Organization of the Philippines Gerry Roxas Leadership Awardees Sining ng Arte at Galaw Theater Organization Associate Editor in Chief “The Gonzagan” Editor in Chief “Ang Krusipiks” Legal Studies Society Cavite School Division Press Conference C.A.T Corpse Commander (Philippine Air Force)

Seminars and Trainings Attended: 3rd General Trias Youth Leadership Summit August 16, 2014 University Auditorium, Lyceum of the Philippines University DLSU – Dasmarinas Pre Law Society Mock Trial March 12, 2014 Bulwagang Jose Basa, De La Salle University Dasmarinas Environmental Management Society Orientation January 26, 2014 University Auditorium, Lyceum of the Philippines University COLLEGE OF ARTS AND SCIENCES 59

2015 2015 2015 2008 2012 2013 2014 2014 2014 2010 2011

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Image and Skill Enhancement Training February 14 and 17, 2015 University Auditorium, Lyceum of the Philippines University National Legal Management Festival February 28, 2015 San Beda College, Mendiola 4th Youth General Trias Youth Leadership Summmit August 20, 2015 University Auditorium, Lyceum of the Philippines University 1st CALABARZON Eco-leaders Summit September 5, 2015 Local Government Academy, Los Baños, Laguna GMA NEWS TV LEARNIVERSITY: Facing the real world through the insights of industry professionals September 15, 2015 University Auditorium, Lyceum of the Philippines University Personal Details Sex Date of Birth Age Marital Status Caste & Religion Language known Birth Place Mother`s name Father`s name

: : : : : : : : :

Male June 6, 1995 19 Single Catholic English, Bisaya and Filipino Tacloban City Zenaida C. Ave Neri A. Luna

Work and Experiences: Pasay City Hall of Justice, Office of the City Prosecutor Intern  Accomplished 300 hours of training.  Assisted the Assistant State Prosecutor in high profiled cases. COLLEGE OF ARTS AND SCIENCES 60

LYCEUM OF THE PHILIPPINES UNIVERSITY CAVITE Character References: Hon. Michael Vito Cruz State Prosecutor Department of Justice Hall of Justice, Pasay City Prosecutors Office Atty.Dean Ace Pamaran Court Attorney Court of Appeals Office of Justice Mario Lopez

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