Monday, May 11, 2015

How the Divorce Bill HB 4408 rewrites the Philippine Family Code


The previous article is a 20-point critique of the Explanatory Note in the Philippine Divorce Bill HB 4408. This may be useful for readers who wishes to know the problems regarding the philosophical assumptions behind the Divorce Bill. In this new blog post, let us now look at the Divorce Bill itself, also known as
  • "An Act Introducing Divorce in the Philippines, Amending for the Purpose Articles 26, 55 to 66 and repealing article 36 under Title II of Executive Order No. 209, otherwise known as the Family Code of the Philippines, and for Other Purposes." 
Let's discuss the Divorce Bill per article and compare these with those of Legal Separation and Annulment in the Family Code. If you do not wish to go through this detailed analysis, you may immediately jump to the end of the article to read the Conclusions.

Article 55

The Divorce Bill starts by enumerating the grounds for Legal Separation which are just copied from Article 55 of the Family Code:
  1. Repeated 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 years, even if pardoned;
  5. Drug addiction or habitual alcoholism of the respondent;
  6. Lesbianism or homosexuality of the respondent;
  7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
  8. Sexual infidelity or perversion;
  9. Attempt by the respondent against the life of the petitioner; or;
  10. Abandonment of petitioner by respondent without justifiable cause for more than one year.
*For the purposes of this Article, the term 'child' shall include a child by nature or by adoption.

Now, the Bill presents something new by listing the grounds for filing a divorce:
  1. The petitioner has been separated de facto from his or her spouse for at least five (5) years at the time of the filing of the petition and reconciliation is highly improbable;
  2. The petitioner has been legally separated from his or her spouse for at least two (2) years at the time of the filing of the petition and reconciliation is highly improbable;
  3. When any of the grounds for legal separation under paragraph (A) [Article 55] of this article has caused the irreparable breakdown of marriage;
  4. When one or both spouses are psychologically incapacitated to comply with the essential marital obligations;
  5. When the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of marriage;
The first two grounds for divorce makes the act of separation slide to divorce in 2 to 5 years depending on whether the divorce is legal or de facto. This makes legal separation a slippery slope to divorce. But for couples who can't wait this long, they could simply show that one of the grounds for legal separation existed and has caused the breakdown of marriage, whatever this breakdown means (this is still undefined so it can be interpreted loosely).  The fourth ground for divorce is psychological incapacity, which was previously a ground only for annulment. The fifth ground for divorce is irreconcilable differences, a term which can never be found in the Family Code. Since we have no examples for this, we can imagine that if the wife wants the toilet seat up and the husband wants it down, and they fight over it for days and weeks and months, then that's irreconcilable difference which is a ground for divorce.

We interpret that when the proponents placed articles in brackets [ like this ], whatever are inside the brackets are removed.

Article 56

The Bill replaced the phrase "legal separation" by "legal separation or divorce."

The Bill also removed the following items as grounds for denying a petition for legal separation or divorce:
  • When the aggrieved party has condoned the offense or act complained of;
  • Where the aggrieved party has consented to the commission of the offense or act complained of;
  • Where both particles have given ground for legal separation
  • The action (filing of the petition) is barred by prescription;
On the other hand, the following items are retained as grounds for denying a petition for legal separation or divorce:
  • Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation or divorce;
  • Where there is collusion between the parties to obtain the decree of legal separation or divorce;

Article 57

The Bill removed the following statement of the article:

  • An action for legal separation shall be filed within five years from the time of the occurrence of the cause.
The Bill replaced this with the following:
  • An action for legal separation or divorce may be filed at anytime.
This change is important. The 5-year limit is a measure for tolerance: if one of the parties can live with the defects of the other for 5 years, then it is probable that both parties can really live together under one roof despite these defects. What the new bill wants is to make legal separation and divorce available at any point during marriage life, even if the husband and wife were already married for 50 years.

Article 58

The original statement contains only one line:
  • An action for legal separation shall in no case be tried before (6) months shall have elapsed since the filing of the petition.
The law understands that it is possible for marriage difficulties to be resolved within 6 months, making the action for legal separation unnecessary.  

But what the Bill now wants is to apply the same measure for divorce:
  • The same rule shall apply to an action for divorce based on articles 55(B), numbers 3 and 5 of this code.
Article 55(B) are the grounds for filing a petition for divorce we mentioned earlier, while numbers 2 and 3 are as follows:
  • (3) The petitioner has been legally separated from his or her spouse for at least two (2) years at the time of the filing of the petition and reconciliation is highly improbable;
  • (5) When the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of marriage;
As we mentioned earlier in Article 55, statement (3) has made legal separation easily slide to divorce after two years, while statement (5) uses the word "irreconcilable differences," a term which is not found in the Family Code. The phrase "irreparable breakdown of marriage" is also not clearly defined.

Furthermore, the Bill adds the following statement:
  • This rule shall not apply where the action for legal separation or divorce involves acts of violence against women and their children under Republic Act no. 9262. In such a case, section 19 of Republic Act 9262 shall apply
Republic Act 9262 is An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefore, and for Other Purposes. This is an interesting Act which I think unjustly discriminates against the husbands, because many of the acts in Section 5 may also be made by women on men, e.g. a wife wielding a bolo while running after her husband, reading his text messages, humiliate him in public, etc.

Article 59, 60, 61, and 62

The Bill simply replaced the phrase "legal separation" by "legal separation or divorce" in Articles 56, 59, 60, 61, and 62 of the Family Code.  This further blurs the distinction between legal separation and divorce.

Article 63

A. Legal Separation

Article 63 of the Family Code describes the effects of legal separation:
  • (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
  • (2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2);
  • (3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and
  • (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a)
The effects of legal separation in the Divorce Bill is similar to that in the Family Code, except for the following deleted item:
  • (the offending spouse) shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43 (2)
Now, the Bill adds the following items:
  • (2) And the Assets shall be equally divided between the spouses but the offending spouse shall pay the innocent spouse actual, moral and exemplary damages in accordance with the provisions of the civil code on damages
  • (4) The innocent spouse and the children shall be entitled to support in accordance with the provisions of this code
  • (5) The children shall be entitled to their presumptive legitime which shall be computed as of the date of the final judgment of the court
The additional item on the payment of damages in item 2 makes the legal separation really damaging to the offending party, so that reconciliation becomes really difficult.  The use of the marital terms like "absolute community" and "conjugal partnership" already includes the children's presumptive legitime as one of its effects as stated in the Article 102.5 of the Family Code, so that item (5) is unnecessary because it is already implied:
  • Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply: ... (5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51.
  • Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such maters.

B. Divorce

The effects of divorce are as follows:
  • (1) The marriage bonds shall be severed;
  • (2) The absolute community or the conjugal partnership of gains shall be dissolved and liquidated and the assets shall be equally equally divided between the spouses. In the partition of the assets, the presumptive legitime of the common children, computed as of the date of the final judgment of the court, shall be delivered to them.  The partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitime shall be recorded in the appropriate civil registry and registries of property, otherwise the same shall not affect third persons;
  • (3) In addition to his or her equal share in the assets of the absolute community or the conjugal partnership, the spouse who is not gainfully employed shall be entitled to support from the other spouse until he or she finds adequate employment, provided, however, that the support shall only be for one year from the finality of the decree of divorce, and provided further that the right to support shall be subject to the provisions of Article 201 of this code;
  • (4) Actual, moral and exemplary damages shall be awarded to the aggrieved spouse in accordance with the provisions of the civil code on damages;
  • (5) The custody of nay minor children shall be decided by the court in accordance with the best interests of the children, subject to the provisions of Article 213 of this code;
  • (6) The children shall be entitled to support in accordance wit the provisions of this code;
  • (7) Children conceived or born before the decree of divorce has become final and executory shall be considered legitimate; and
  • (8) The parties shall be disqualified from inheriting from each other by intestate succession. Moreover, provisions in favor of one spouse made in the will of the other spouse shall be revoked by operation of law.
Notice that the terms are very similar to the Legal Separation, except for the following items:
  • (1) The marriage bonds shall be severed
  • (2) The partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitime shall be recorded in the appropriate civil registry and registries of property, otherwise the same shall not affect third persons;
  • (3)... the spouse who is not gainfully employed shall be entitled to support from the other spouse until he or she finds adequate employment, provided, however, that the support shall only be for one year from the finality of the decree of divorce, and provided further that the right to support shall be subject to the provisions of Article 201 of this code;
  • (7) Children conceived or born before the decree of divorce has become final and executory shall be considered legitimate; and
Item (7) is similar to the effects of annulment in Art. 43 of the Family Code:
  • Art. 43. (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;
Item (2) is similar to the first paragraph of Art. 52 in Chapter 3. Void and Voidable Marriages of the Family Code:
  • Art. 52.The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n)
Item (3) is similar to and a modification of the support requested during the pendency of the proceedings for the separation of the property, except that the support in the Divorce Bill happens after the decree of divorce though only for a year: 
  • Art. 137...During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. (192a) 
Finally, item (1) is the crux of the Bill:
  • (1) The marriage bonds shall be severed

Without this, the whole Divorce Bill falls apart, because the other articles can just be modifications of the existing laws on Legal Separation and Annulment.  By severing the marriage bonds, the couple who were validly married before can now remarry again but with other partners and live separate lives.

Article 64

Article 64 of the Family Code states:
  • Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.
  • The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. (107a)
What the Divorce Bill did was to make the following changes:
  •  Replace "legal separation" by  "legal separation or divorce"
  • Add an additional statement after innocent spouse: "in the case of legal separation or in the case of divorce under Article 55(B) numbers 3 and 5"
This is just a rewording to accommodate divorce in the legal separation statutes.

Article 65

In the Family Code, Art. 65 states:
  • Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n)
The Divorce Bill modifies this by specifying the spouses as "who have been legally separated."  Notice that unlike Legal Separation, reconciliation is not anymore an option for those who were divorced.

Articles 26 and 36

In the Family Code, Article 26 states:
  • Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. (17a)
  • 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 Philippine law. (As amended by Executive Order 227)
In the Divorce Bill, Article 36 was removed in the list of prohibitions:
  • Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227)
The reason for this is that psychological incapacity is now a ground for divorce in the Bill (see Article 55 B).

Also, an additional clause was added in the Bill to accommodate divorce obtained from another country:
  • A decree of divorce validly obtained by a Filipino citizen abroad shall be valid in this country only after a determination by a Philippine court that the same is based on a ground falling under Article 55 (B) of this code.
This clause is rooted in the following items in the Explanatory Note of the Divorce Bill:
  • The interconnectivity brought about by advances in modern transportation and information technology has also increased the number of mixed marriages among Filipinos, exposing them to foreign family cultures that often grate against their marriages. (p. 2, par. 1)
  • It also does not include marital dissolution cases based on petitions for judicial recognition of divorce decrees obtained in foreign forums which constitute 47% of the total marital dissolution cases handled by our courts, suggesting of a growing number of aggrieved parties who are suing foreign judicial systems to skirt around the absence of divorce law in the country.

CONCLUSIONS

We saw that the Philippine Divorce  Bill HB 4408 has several features:
  • The payment of actual, moral and exemplary damages in Legal Separation is so damaging to the offending party that reconciliation would become very difficult, so that divorce is the natural end of the relationship. 
  • Divorce can already be applied after 2 years for legal separation and 5 years for de facto separation, making separation a slippery slope to divorce. 
  • If one of the grounds for legal separation, lead to a breakdown of the marriage, divorce can be already be applied.  This blurs the distinction between legal separation and divorce. 
  • If the couple's irreconcilable differences lead to a breakdown of the marriage, divorce can be already be applied. This is really disastrous for marriages: irreconcilable differences should only be a ground for legal separation and not for divorce.
  • Psychological incapacity, which was previously a ground for annulment, is now a ground for divorce.
  • Divorce can be applied any time during the marriage, even if the couples were already married for 50 years, because it removes the 5 year limit of filing after the occurrence of the cause.
  • Divorce really severs the marriage bonds as expected, allowing the husband and wife to remarry and form new families. Remarriage is the ultimate goal of the divorce bill. If you remove this clause, the whole divorce bill falls apart.
  • Divorce obtained in other countries would be applicable to the Philippines provided that the grounds for divorce are the same as that in the Philippines.
    This Divorce Bill should not be passed in Congress because it destroys the marriage and family which are protected by the Philippine Constitution:
    • Art. II Declaration of Principles and State Policies. Section 12. The State recognizes the sanctity 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 youth for civic efficiency and the development of moral character shall receive the support of the Government. 
    • Art. XV The Family: Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. 
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