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Yes to divorce in the Philippines

07 November 2017

By Daisy Catherine L. Mandap

(This was the paper I submitted during a public hearing conducted by the Philippine House of Representatives on 1 October 2017 at the Philippine Consulate General in Hong Kong)

I am for divorce. As a lawyer and a journalist I have heard many a sad tale of women, most of them overseas Filipino workers, of being stuck in a marriage they no longer wanted or one that had long ceased to give them comfort and joy.

Statistics released by UN Women in 2013 showed a majority of OFWs are married (57.8%) and of these, 4.4%  are separated/divorced/annulled. But the figure is higher for women OFWs – 7.4% as compared with 1.5% for males. However, these figures do not indicate how many have separated from their spouses after going abroad. (http://asiapacific. unwomen.org/en/digital-library/publications/2016/10/filipino-women-in-international-migration)

For indeed, it is commonly accepted that many married couples split after going abroad.

The physical separation is often the culprit, but in other cases, it is because the woman  —who is long abused, cheated on, or simply unhappy—manages to gather courage and move on.

But while they may be separated in fact, they remain tied to their husbands because of the marriage bond that effectively holds them hostage. As many of them are breadwinners, they often end up having to work hard to keep their children fed, clothed and schooled, while their good-for-nothing husbands spend their time drinking, gambling or even womanizing. Worse, our laws dictate that unless there is legal separation or annulment, her wayward husband still gets to inherit the most from her should she die. Even an act as simple as buying a house from her hard-earned earnings would require the consent of the husband, no matter how unworthy. But that is our law.

Applying for an annulment or nullity of marriage came as an option about three decades ago, but it is not an easy way out. The total cost is now at least P450,000 says one prominent lawyer (http://www.gmanetwork.com/news/lifestyle/familyandrelationships/616462/how-much-does-it-cost-to-get-an-annulment-in-the-philippines/story/), because one has to pay for psychiatrists apart from the lawyer, and other fees. This amount could cost OFWs their life’s savings, or put them in debt bondage, instead of going towards paying for their family’s needs.

Still, many of our OFWs would go through the process in a heartbeat, but there is another difficulty they have to hurdle, which is having to spend their rare and precious vacation leaves (often, only once during a two-year contract) just to go back home to attend court hearings or confer with their lawyer.

So what kind of a divorce law would do justice to our OFWs and to every Filipino, rich and poor alike?

We need a divorce law which is 1) easier to obtain, and 2) not costly, for as long as the applicant meets the prescribed grounds.

Just to compare, in Hong Kong, even our OFWs are allowed to obtain a divorce. The laws here merely require that at least one of the parties has a connection to Hong Kong, and being residents give them that connection. The more beautiful part is, the government even grants them legal aid – with the lawyer of their choice – to obtain a divorce decree.

Sadly, that decree is valid only within Hong Kong and other places that recognize its  laws. It is not recognized in the Philippines because we don’t allow divorce.

The grounds for obtaining a divorce in Hong Kong also make it easier for them to get out of a marriage they no longer want. One year of separation in fact is enough if the other party gives consent; two years without the consent. If there is abuse or any other compelling reason for granting a divorce, even the one-year rule is disregarded. There is no ascertainment of fault – there is no guilty or innocent spouse - for a divorce based on actual separation, which makes the process faster. The separation is proof enough that the marriage is irretrievably broken.

My cursory reading of the divorce bills show that many are still trying to hold on to the long-held belief deeply instilled in our mostly Catholic minds that marriage is sacred and is something that no man should put asunder. With respect, I think this is not right. While I agree that divorce should not be available on a mere whim of either or both spouses, ourlaw that allows it should not be so stringent that we effectively make it out of the reach of a few, mainly the poor.

What we need is an acceptance that there are marriages that cannot be saved – not because one of the spouses is abusive, is a drug addict, a philanderer – etc. These are definitely grounds that should make the divorce easier. But we should also provide for a period of separation when it can be shown that there is no more hope in the marriage; that love does go away for whatever reason. Rep. Emmie de Jesus’ call for a minimum period  of five years’ separation is a good start, but I think even three years is enough for one to know for sure that the marriage is over. There is no reason why the suffering – of the spouses, and even their children if they have any - should drag on.

Only the matter of custody over the children, or intestate succession between the parties, should be determined if there is an aggrieved spouse. Otherwise, our existing laws on these matters should be applied.


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