SC ruling on divorce buoys hopes of advocates

INQUIRER.net PHOTO

If a particular sector of Philippine society is allowed to have divorce, why deprive the rest the same legal recourse?

So asked a party-list representative following the Supreme Court’s (SC) recent affirmation of a couple’s 2011 divorce under the Code of Muslim Personal Laws of the Philippines.

READ: SC affirms divorce of Muslim couple

Although divorce is not allowed in predominantly Catholic Philippines, the high court’s ruling released this week affirmed the divorce between a Muslim man and his Roman Catholic wife over “irreconcilable religious differences.”  The two were married under Muslim rites, but the wife later reverted to her Christian faith, prompting the husband to seek divorce or talaq.

READ: Muslim-Christian couple’s divorce upheld

“Our laws should be consistent in the way it recognizes religious beliefs with respect to marriages,” said former Gabriela women’s party-list Rep. Liza Masa, who first filed a divorce bill in 2005, citing how women in abusive marriages have little recourse under the current Civil Code and Family Code. Gabriela has been refiling the divorce measure since, with no success in Congress.

Same treatment

“Non-Muslim Filipinos should have the same treatment before the law, and the option of divorce should be accessible to them in accordance with their religious beliefs,” Masa told the Inquirer on Friday.

But the high court’s ruling said that divorce as a remedy was available to couples married under Muslim rites, as the Code of Muslim Personal Laws allows different forms of divorce depending on the nature of marital complaints and other incompatibilities—from cases of abuse and infidelity, to criminal conviction and being afflicted with diseases.

Gabriela party-list legal counsel Alnie Foja said that current laws make it “too technical and very complicated” for couples in difficult relationships to part ways.

“The only way to have (divorce in the Philippines is) if you are Muslim. In a way, there’s some form of discrimination against couples (who are not Muslim),” Foja said.  “There’s a vacuum in the law. It’s an obligation to fill that vacuum,” she added.

The lawyer, who had handled several cases of couples seeking to dissolve their union, said there was virtually “no way out” of a bad marriage under current Philippine laws.

Under the Family Code, parties may move for the nullification of their marriage, a declaration that the union was void from the beginning due to technical and legal flaws, including one party being a minor.  Also declared null are marriages solemnized without license, or those considered bigamous or polygamous.

But the recourse risks rendering the involved couples’ children illegitimate, as nullification results in the marriage being invalidated as if it never happened, Foja said.

To avoid that, most couples seeking separation invoke Article 36 of the Family Code, a provision often described as “relative divorce” as it seeks to approximate the effect of a divorce.

“The problem is, under Article 36, you are required to prove that the other (party) is psychologically incapacitated to comply with the essential marital obligations of marriage,” said Foja, who added that litigation on Article 36 usually takes at least two years.

Considered legitimate

The article has since been updated to include a provision that says “children conceived or born before the judgment of annulment or absolute nullity of marriage under Article 36 has become final and executory, shall be considered legitimate.”

The Family Code also provides for legal separation, a recourse for couples when one party has committed adultery or domestic abuse, or was found to be a drug addict, an alcoholic, or a convicted criminal.  The process, however, does not terminate the marriage and deprives the separated couple of the right to remarry.

The most recent divorce bill, House Bill No. 4408, was filed in 2014, but the House of Representatives took no action on the proposed measure.

Under the proposal, divorce may be available to couples under certain circumstances, among them being “separated de facto” for at least five years with no hope of reconciliation.  The bill would also apply to couples who suffer the “irreparable breakdown of their marriage” due to irreconcilable differences, or because either one or both are “psychologically incapacitated to comply with essential marital obligations.”

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