Divorce: An exit from a dystopia
(First Part)
(Author’s note: This article is a report presented by the author in his Regulative Love, Sex, and Marriage class. It is intended to present a factual account of a situation in the Philippines where no absolute divorce is allowed. This article does not necessarily represent the author’s belief on the issue.)
Introduction
The Family Code defines ‘MARRIAGE’ as a contract of permanent union between a man and a woman that vests the parties with rights and imposes on them obligations “to live together, observe mutual love, respect and fidelity, and render mutual help and support”.
The Philippines almost literally adopts the policy of making marriage a contract of permanent union since present laws do not allow absolute divorce as an exit from the union. While there are available remedies in the Family Code, these are available only for causes that exist prior to or at the time of the celebration of the wedding ceremony. Causes that arise after the spouses exchanged “I do’s” are not valid grounds for the dissolution of marriage. In certain instances, what the estranged spouses can do is to avail of legal separation, a remedy that allows them to separate from bed and board with strings still attached to each other. Hence, marriage in the Philippines is better described in the song Hotel California where “You can check-out any time you like, but you can never leave!”
Available remedies in dysfunctional marriages
The Family Code provides for three possible remedies in case of dysfunctional marriages: declaration of nullity, annulment, and legal separation.
The declaration of nullity of marriage applies to marriages that are null and void from the beginning (void ab initio), due to the absence of at least one of the essential or formal requisites of marriages. It is convenient to classify these void ab initio marriages into five categories: (a) void marriages due to lack of requisites (Family Code [“FC”], Article 35); (b) void marriages due to psychological incapacity (FC, Article 36); (c) incestuous marriages (FC, Article 37); (d) marriages against public policy (FC, Article 38); (e) bigamous marriages (FC, Article 41); and (e) void subsequent marriage, when one of the spouses remarry without complying with the recordal requirement of the judgment of annulment or absolute nullity of the previous marriage, etc. (FC, Article 52 and 53). The requisites for each of the grounds are more specifically described in the Family Code and in the cases decided by the Supreme Court.
The declaration of nullity of marriage is distinguished from the annulment of marriage, which considers the marriage valid and existing until it is annulled. The grounds for annulment of marriage must have been existing at the time of marriage, and include lack of parental consent (FC, Article 45[1]), insanity (FC, Article 45[2]), fraud (FC, Article 45[3]), duress (FC, Article 45[4]), impotence (FC, Article 45[5]), and serious and incurable sexually transmissible disease (FC, Article 45[6]).
The declaration of nullity of marriage is also different from legal separation, which is a legal remedy for couples suffering from a problematic marriage. The grounds for legal separation may have arisen after the marriage and may be filed on the grounds provided under Article 55 of the FC). In legal separation, the couple is allowed to live apart and separately own assets. However, legally separated couples are not permitted to remarry, since their marriage is still considered valid and subsisting. (To be continued)