Divorce in the Philippines: A Legal History
By De Borja Lamorena and Duano Law Offices, Philippines
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To date, the Philippines stands alone in the world as the only country that has yet to allow for absolute divorce. Malta, another staunchly Catholic state, has already adopted a resolution that may very well pave the way for a divorce law in that country. A look at Philippine legal history will show that this vacuum in Philippine family law has not always been the case.
A. Pre-Spanish Colonial Period (Prior to 1521)
It is a curiosity that pre-colonial Filipinos were more liberal than today’s Filipinos when it came to terminating a marriage or divorce. It has been chronicled among the Tagbanwans of Palawan, the Gadangs of Nueva Viscaya, the Sagadans and Igorots of the Cordilleras, and the Manobos, B’laans, and Moslems of the Visayas and Mindanao islands (House of Representatives, Republic of the Philippines 2010). In fact, this liberal attitude towards divorce was considered one of the obstacles of introducing Catholicism in the islands. A form of legal retribution was imposed on the part of the party at fault resulting for instance in the return of the wife’s dowry if she committed adultery and caused the divorce.
B. Spanish Rule (1521 to 1898)
Absolute divorce was prohibited under the Spanish Civil Code and only relative divorce or what is similar in today’s Family Code as legal separation was allowed. This is divorce “a mensa et thoro” or from bed and board. The marital tie itself was not voided but it allowed the couple freedom from the obligation to live together, and more importantly, to manage their properties. This went on for more than 300 years mired as it were in the theocracy that was Spain and the Catholic church.
C. American Colonial Rule (1898 to 1941)
When the Philippines was ceded by Spain to the United States via the Treaty of Paris (1898), a wave of cultural and religious pragmatism premised on the principles of Separation of Church and State and religious freedom enveloped the islands. The matter of marriage was not to be spared by these new Western philosophies from the new colonial rulers. The restrictive intrusions of the Catholic church into marriage was seen as impermissible religious interference in a very personal decision which only the State should be able to regulate. Act No. 2710 was passed by the Philippine Legislature on March 11, 1917 which allowed for absolute divorce on the ground of criminal conviction for adultery on the part of the wife or concubinage on the part of the husband. Because of the limited grounds and the requirement of criminal conviction, the difficulty of obtaining a divorce under the new law quickly became clear and several attempts were made to further liberalize the process of divorce in the Philippines. 300 years of colonial Spain and the Roman Catholic church could not be undone that easily.
D. The Japanese Occupation (1941 to 1946)
It took World War II and an Asian neighbor to finally allow for an honest to goodness divorce law in the Philippines. The Chairman of the Philippine Executive Commission pursuant to the authority granted by the Commander in Chief of the Japanese Imperial Forces in the Philippines, issued Executive Order No. 141 on March 25, 1943 which expressly repealed Act No. 2710 and allowed divorce under the following grounds:
1. Adultery on the part of the wife and concubinage on the part of the husband committed under any of the forms described in the Revised Penal Code;
2. Attempt of one spouse against the life of the other;
3. A second or subsequent marriage contracted by either spouse before the former marriage has been legally dis. solved;
4. Loathsome contagious diseases contracted either spouse;
5. Incurable insanity which has reached such a stage that the intellectual community between the spouses has ceased;
6. Impotency on the part of either spouse;
7. Criminal conviction of either spouse of a crime in which the minimum penalty imposed is not less than six (6) years imprisonment;
8. Repeated bodily violence by one against the other to such an extent that the spouses cannot continue living together without endangering the lives of both or of either of them;
9. Intentional or unjustified desertion continuously for at least one year prior to the filing of the action;
10. Unexplained absence from the last conjugal abode continuously for three consecutive years prior to the filing of the action;
11. Slander by deed or gross insult by one spouse against the other to such an extent as to make further living together impracticable.
D. Liberation and Independence (1946 to 1971)
Barely 3 years hence, with the end of World War II and the grant of Philippine independence by the Americans who gladly turned over a war-ravaged colony back to its political class, the Japanese version of divorce in the Philippines was abrogated. The legal environment prior to the Japanese occupation was revived and with it the restrictive divorce law under the Americans. This prevailed until the advent of the Civil Code of the Philippines which was passed in 1950 which repealed any absolute divorce legislation in the Philippines and practically restored Spanish colonial rules and Catholic mores in the realm of marriage and family. There is a recognition , however, of the practice of divorce among the Muslim or the then Moro populations of the Philippines.
E. The Martial Law Years (1972 to 1986)
Barely 15 years after the passage of the Civil Code of the Philippines, Ferdinand Marcos rose to power, and declared martial law throughout the Philippines in 1972 auspiciously just before his rule would have ended the following year. Eager to ingratiate himself to the Muslim population of southern Philippines, the dictator issued Presidential Decree 1083, A DECREE TO ORDAIN AND PROMULGATE A CODE RECOGNIZING THE SYSTEM OF FILIPINO MUSLIM LAWS, CODIFYING MUSLIM PERSONAL LAWS, AND PROVIDING FOR ITS ADMINISTRATION AND FOR OTHER PURPOSES. The law provided for the creation of Shariah courts in the Philippines and allowed for divorce among Muslims , or when the husband is Muslim, and the marriage was celebrated under Muslim rites. This law is the only effective divorce law in the Philippines and remains in full force and effect.
E. The Family Code of the Philippines (1988 to Present)
Fourteen (14) years of martial law tested the political will of the Filipino people to its breaking point culminating in the People Power Revolution of February 1986 led by Corazon Aquino who set up a revolutionary government upon coming to power. Among the first revolutionary laws passed under executive fiat was Executive Order No. 109, otherwise known as the Family Code of the Philippines on July 6, 1987 and became effective on August 3, 1988. It allowed for the filing of a petition for Declaration of Nullity on the ground of psychological incapacity, which has been argued by some as a form of divorce since the ground must have existed upon the celebration of the marriage although it may have manifested itself after the marriage. (Article 36, Family Code of the Philippines). A declaration of nullity renders the marriage void ab initio or from the very beginning, but produces legal effects as to status of children and treatment of property of the spouses.
AUTHOR: Frederick M. De Borja
Copyright De Borja Lamorena and Duano Law Offices
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.