Now for a lecture on a bread and butter subject (and closest to the heart):
Is there divorce in the Philippines?
No. The only options available to Filipinos to exit a bad marriage are legal separation, declaration of nullity and annulment of marriage.
This comes from state policy:
Marriage is 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. (Article 1, Family Code)
What is legal separation?
Legal separation means just that. The physical separation, the separation from "bed and board" is given legal recognition and either spouse need to fulfill their mutual obligations to each other. This does not erase the obligations to the children, though. And yes, the marriage remains valid and existing.
If accompanied by a request to separate the property, legal separation also splits the property between the parties. And unless disinherited, the other party can still expect something when the other dies…
What are the grounds for legal separation?
According to Article 50 of the Family Code, these are:
(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.
What is declaration of nullity of marriage and how does this differ from an annulment?
A declaration of nullity simply states that, for grounds stated in the law, the marriage is void ab initio (void from the beginning). In a sense, there was no marriage from the start and had no legal effect.
When a marriage is declared void ab initio, all is effects are reversed to the day it was contracted. Yes, the children of this kind of marriage become illegitimate, unless the ground is psychological incapacity, where by exemption, the children are legitimate.
An annulled marriage is a valid marriage until it was annulled, also called a voidable marriage. Hence, that darn thing has legal effect up to and until the day it was annulled.
And there are instances where a voidable marriage (a marriage capable of being annulled) can be ratified (or in laymen's terms, cured and become valid marriages).
What are the void marriages?
(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, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void because the parties failed to partition their property and deliver the presumptive legitimes to their children.
(7) Incestious marriages
(8) Marriages contrary to public policy (like marriages between steps, in-laws, adopter and adopted, where one kills the spouse to marry another, etc.)
(9) Marriages where one or both parties are psychologically incapicated to fulfill the obligations of marriage.
So what are the grounds to have a marriage annulled?
They are (Article 45, Family Code):
(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
Now for a famous question. What if Filipinos obtain a divorce abroad?
That divorce is not recognized in the Philippines because according to our laws, Philippine laws govern as regards marriages of Filipinos.
What about divorces between foreigners and Filipinos?
By way of concession, to cure a ridiculous situation, the second paragraph of Article 26, Family Code states:
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.
So what are the requirements for this law to apply?
1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
Two Filipinos marry in the Philippines. One goes abroad and promises to take the other spouse there once conditions were conducive. Instead, this Filipino divorces the one here, becomes naturalized in that country and remarries there. Will Article 26 apply?
No. That article works only if one is Filipino and the other is a foreigner.
What if that Filipino abroad gets naturalized first, then divorces the one here?
In that case, according to the case of Republic vs. Orbecido (GR 155380, 05 October 2005), Article 26 would apply and the one stuck here can remarry.
Under that case, the former Filipino already becomes a foreigner. "The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry."
So we'll talk more about this some other time…