OBJECTIVES: 1. Show cause cause why passin passing g HB 1799 is is beneficial beneficial to to Filipino Filipino spouses spouses who who wants to end their marriage. 2. Show cause cause why HB HB 1799 1799 INTEGRAL INTEGRALLY LY SPEAKIN SPEAKING G is complete. complete. 3. What What aspects aspects are includ included ed in HB 1799 that is not includ included ed in the other forms forms of voiding a marriage? DEBATE PROPER: Louis Nizer once wrote, “a divorce is not the death of a marriage; it is a death certificate of a marriage already dead. The courts merely provide a decent burial.” At present, there are only two situations wherein this so-called marriage death certificate is allowed in the Philippines. The first one is termed an implied recognition of a foreign divorce under article 26 and the other one is under legal separation, AKA relative divorce or bed and board divorce. Implied recognition of a foreign divorce under u nder article 26 is, according to Atty. Jim Lopez, is highly criticized to Filipinos who were divorced by their Filipino spouses, and is called by a lot of scholars as a remnant of class legislation. It does not allow a Filipino spouse to remarry if the one who procured the divorce decree is a Filipino also. An exception to this is the case of van dorn vs romillo (139 scra 139), where it was the Filipino spouse who procured the divorce but the same was considered valid with respect to the conjugal property, as the same is binding on the foreigner husband, thus the Supreme Court impliedly recognized divorce. Which brings us to our side’s main argument. A husband without a wife or a wife without a husband should be unknown to the law. And the pending divorce bill, House Bill No. 1799, was borne out of that sentiment. At the outset, I may gainsay that the Constitution does not prohibit divorce but rather strengthens the family and marriage, the latter being an inviolable social institution. But there are certain cases, as one Family Code professor aptly opined, where the parties might have undergone a marriage ceremony to bind themselves together but subsequently no functional marital life would exist. Hence, there is no marriage to preserve at all. AND WHAT HAS NOT ARISEN CANNOT BE SACROSANCT. There are a lot of reasons why Divorce as enunciated under HB 1799 must be passed. Firs First, t, it was was admi admitt tted ed by Atty Atty.. Mel Mel Sta. Sta. Mari Mariaa that that as a gener general al rule rule,, the the grou ground nd enumerated under article 55 usually occur after the celebration of the marriage. What substantial change, then, would a divorce law could introduce to the field of family law, if the latter would also pertain to causes that may occur after the celebration of the marriage? As a matter of fact, two grounds referring to the existence of the decree of legal separation and existence of the grounds therein, respectively, are adopted in HB 1799, section 2 (b), nos. 2 and 3. This means that aside from the severance of the vinculum matrimonio, divorce does not differ much from legal separation, and goes one step step furt furthe herr by allo allowi wing ng the the lega legall lly y sepa separa rate ted d coup couple le a chan chance ce to rema remarr rry, y, whic which h
according to the same author, citing Zablocki vs Redhail, is a central part of the liberty protected by the due process clause. Such is not allowed under legal separation. Of course, the main difference is that the matrimonial vinculum is not severed under legal separation. But come to think of it, why should we allow a husband who feels he has been robbed of a wife, figuratively or literally by irreconcilable differences with the latter, or a wife who cannot feel her husband (of course, just figuratively speaking) anymore due to the latter’s neglect for the former, be stuck in a slow and agonizing pit roast called marriage? Divorce offers a spouse in a failed marriage to seek an absolute severance of marriage ties which in the long run, as one blogger puts it, is a way to fix problems and actually improve relationships Which brings me to my second point. Contrary to popular belief, divorce is more beneficial to the child, aptly called an issue by some family law scholars, than annulment or legal separation. I’ll give you two scenarios. First scenario: Irresponsible, drunkard father beats up his wife in front of his children and threatens his children with physical harm “if they go against his will” by defending their physically abused mother. The second scenario: Married couples with irreconcilable differences file for divorce and separate on friendly terms with each parent spending pre-determined time with the children. Both parents also provide for their children’s needs. Which of the two scenarios is better for the all the parties involved? Moreover, if you will read HB 1799’s provisions pertinent to the outcome of the divorce decree, as compared to annulment or legal separation, the provision wherein it is imperative that the court should declare which of the spouses are at fault, is only with regard to the donation given by the offended spouse to the offending spouse and the liability for damages, which must be proved as provided in the Civil Code, and not automatically awarded absent proof showing the same. The bill does not want to play blame game as to who is in bad faith or in good faith; it puts emphasis on the general notion of divorce as a no-fault proceeding. The reason for this is, as far as the issue/s are concerned, the bill does not want to tell the children to blame either parent for the breakup of their (parent’s) marriage; instead, the bill intends to mitigate its effect on the child and emphasize the fact that the parents are just not married anymore, but it does not mean that they will not provide the child a suitable atmosphere of love and happiness that they so deserve. Third, the Bill whittles away with the distinction of a divorce filed by a foreigner spouse from that of a Filipino spouse abroad by allowing a divorce decree acquired by the Filipino spouse to have the same effect as if it is filed by the foreigner spouse as long as it is based on the ground under Article 55 (b) of the family code. As stated earlier, before the amendments enunciated in HB 1799, the Filipino spouse’s right to remarry depends on the nationality of his/her other half who procured a divorce decree abroad. If he/she is a foreigner, the Filipino spouse has capacity to remarry; if Filipino, the spouse cannot. This reeks of class legislation, because according to Justice JBL Reyes in Tenchavez vs Escano, it could give rise to the irritating and scandalous discrimination in favor of rich Filipinos who can go abroad and get a divorce.
Under the present amendments, the spouse who did not apply for the decree will still be capacitated to marry regardless of the nationality of his/her former spouse, the only limitation is that the grounds relied upon in acquiring the decree falls under the ground under legal separation. Fourth, the bill best reflects the present condition both as to its accessibility and acceptability. The current version of the bill espouses the idea that the right to be free from the bond of a failed marriage can be accessed by everyone, regardless of belief or financial disposition. The bill seeks to offer a better alternative to annulment, which is terribly resorted to nowadays, to the tune of 22 annulment petitions every day from 20012010, in that it offers a cheaper and less time-consuming proceedings that can be accessed even by a humble laundrywoman, as a columnist from the manila times would have it. Moreover, according to the bill’s co-author, rep. Luzviminda Ilagan, while divorce under this proposed measure severs the bonds of marriage, divorce as a remedy need not be for the purpose of re-marriage. It may be resorted to by individuals to achieve peace of mind and facilitate their pursuit of full human development. On the other hand, acceptability pertains to three things. One, the fact that all though prior to the proposed amendments, psychological incapacity is provided as a ground to declare a marriage void is considered misplaced because the incapacity aims to terminate a marriage rather than render it void ab initio, for the reason that its manifestation may come in later on during the marriage (Sta. Maria). Second, as to the first ground espoused in HB 1799, aside from separation in fact, the proposed bill offers another requisite, that reconciliation is highly improbable, and does away with the cooling-off period as per article 58 of the proposed bill. The parties have five years to patch things up –and that is a lot of time inside a marriage- before they can file the petition for divorce. Isn’t it more fitting that the state which is being avoided, according to the words of the Supreme Court in Lacson vs san jose-lacson, fraught with grave danger, that the law should aim to douse the momentary seething of emotions of couples who, at the slightest ruffling of domestic tranquility, brought by mere austerity of temper, petulance of manners, rudeness of language a want of civil attention and accommodation, even occasional sallies of passion, without more – pertains more to divorce than to legal separation, that only provides for 6 months? Third, isn’t it more in line with reason that if a thing existed, it should not be denied, nor condoned, consented or, worse, the right to bring it up should lapse? More to the point, if a marriage actually existed, would it be better that we affirm its existence and not rely on annulment of marriage because of causes that may or may not exist at the time of the marriage but which harks back to the beginning of the marriage, which is a legalized fiction, as Ms. Carmina Olivar of the Manila Times quite put it, just to conveniently end it?
Lastly, it empowers and puts women in a better footing to act against abusive marriages. As contained in the explanatory note of the proposed bill, quoting the Women’s Legal Bureau, the defect in annulment proceedings can be used to nullify the marriage within the specified period of time but the same may be ignored and the marriage becomes
perfectly valid after the lapse of the period or the defect may be cured through some act. Under the proposed measure it would also eliminate “condonation of/consent to the act” of marital abuse as grounds for denying petitions for separation or divorce, which are clearly resorted to by both sexes, but most especially by battered women who definitely would want the marriage to work and would most likely shortchange herself in order for the marriage to work. Separation only becomes imperative for them when they realize that it is necessary for their and their children’s survival, as the co-author of the proposed measure said. Moreover, the proposed bill affords a relief to the unemployed better half, which in most cases is the wife, in the form of spousal support for former spouses who are not gainfully employed. In fine, the proposed bill makes it easier for women to get out of abusive relationships even if the said relationship is sanctioned by the state. In the end, let me quote C. Joybell. “There is no such thing as a "broken family." Family is family, and is not determined by marriage certificates, divorce papers, and adoption documents. Families are made in the heart. The only time family becomes null is when those ties in the heart are cut. If you cut those ties, those people are not your family. If you make those ties, those people are your family. And if you hate those ties, those people will still be your family because whatever you hate will always be with you.”
