Some Clarifications on Divorce, Declaration of Nullity, and Legal Separation

Pro-life friend Stef Patag published an article last night at Patheos on the divorce bill currently pending in Congress, with its corresponding concerns.

Here, our Filipinos for Life legal representative Atty. Jan Lumanta takes portions of Stef’s post and clarifies certain points, which you’ll see in bold letters.

The proposed solution, absolute divorce or simply divorce, however, cannot be considered “greener pasture”. The devastation that absolute divorce has wreaked in its wake, in the United States and other countries, is well documented and readily observable. Why would anyone want the Philippines to jump from the frying pan into the fire?

Absolute divorce is simply a stopgap measure that doesn’t address the roots of the problem. It does nothing but perpetuate cycles of fatherlessness, trauma, instability, and poverty. While there are divorce survivors who seem to have adjusted quite well, the best option is still to promote healthy marriages and families. The effects of divorce ripple across society and touch everyone. The consequences of legalizing absolute divorce in the Philippines won’t be available for scrutiny until decades later, when we will look at each other’s faces and ask, what have we done?

Under the Philippine laws, there could be “Petition for Declaration of Absolute Nullity of Marriage” for void marriages, “Petition for Annulment” for voidable marriages, and “Petition for Legal Separation” for valid marriages which is separation only of bed and board.

When two individuals, a man and a woman, enter into marriage, there is a presumption that they entered into such special contract legally which renders their marriage binding and valid.  The parties could not presume that their marriage is invalid simply because of their personal belief that a ground for its invalidity exists.  The ground for invalidity must be sanctioned by law and ruled upon by a competent court.

When a marriage is void from the beginning, a Petition for Declaration of Absolute Nullity of Marriage is filed with the court. One does not file a Petition for Annulment simply because there is nothing to annul as the marriage is void from the start.

Under the Family Code of the Philippines, the grounds to declare the marriage void are as follows:

  1. Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
  2. Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
  3. Those solemnized without license unless exempted by law.
  4. Those bigamous or polygamous marriages.
  5. Those contracted through mistake of one contracting party as to the identity of the other;
  6. Assuming that you caused the annulment of your first marriage. However, you get married immediately without waiting for issuance of the Final Decree of Annulment. Your second marriage can also be voided by the Court.
  7. Psychological Incapacity of the husband or wife, existing at the time of marriage, which prevents him or her from complying with the essential marital obligations of marriage, even if such incapacity becomes manifest only after the solemnization of the marriage.
  8. Incestuous Marriages (between ascendants and descendants; between brothers and sisters whether full or half blood).
  9. Marriages between relatives:
  • between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;
  • between step-parents and step-children;
  • between parents-in-law and children-in-law;
  • between the adopting parent and the adopted child;
  • between the surviving spouse of the adopting parent and the adopted child;
  • between the surviving spouse of the adopted child and the adopter;
  • between an adopted child and and a legitimate child of the adopter;
  • between adopted children of the same adopter;
  • between parties where one, with the intention to marry the other, killed the other person’s spouse, or his or her own spouse.

When the marriage is voidable, meaning, valid until annulled, a Petition for Annulment is filed with the court.  The following are the grounds:

  1. That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
  2. That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
  3. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
  4. That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
  5. That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
  6. That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

Legal separation is also available, though not many avail of it these days. Legal separation is also known as “relative divorce”.  It is called “divorce a mensa et thoro”, meaning separation from bed and board only. While nothing stops couples from separating, a legal separation works like divorce, without the right to remarry. The conjugal partnership is dissolved and the custody of children decided by the court. Obtaining a legal separation benefits abandoned spouses and children.

Under the Family Code of the Philippines, a Petition for Legal Separation may be filed on any of the following grounds:

(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.

Note that repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner is only a ground for legal separation.  Halfway houses and women’s crisis centers are available to victims of abuse, and the Anti-Violence Against Women and Children Law (Republic Act No. 9262) already protects them. The obvious consideration here is that men can also be abuse victims, and there is currently no law in place that protects or benefits them.

For civil declaration of nullity of marriage and annulments, most fees are actually lawyers’ fees. Of course, there is the additional problem of the Philippine judicial system, as a whole, having a huge backlog; courts’ dockets are consistently clogged.  Nonetheless, government only has to strengthen its Public Attorney’s Office to resolve the issue pertaining to the cost of either Petition for Declaration of Absolute Nullity of Marriage, Petition for Annulment, and Petition for Divorce.

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