The Philippines does not have divorce and it is the only country in the world that does not provide for divorce as a measure to legally end a marriage.
In Canada, a husband and wife who are separated can ask for a divorce and end a marriage. There are a lot of Filipino Canadians who have been granted a decree of divorce in Canada. More often than not, the question asked is whether the divorce granted in Canada by the Court of Queen’s Bench automatically ends legally the marriage entered into by Filipinos in the Philippines. The short answer: no.
In 2011, the predominantly Catholic country of Malta approved the enactment of its Divorce Law. This bestowed to the Philippines the inglorious honor of being the only country in the world (i.e. apart from the celibate City State of the Vatican of course) that does not legally recognize divorce.
Instead, the road to legally end a marriage in the Philippines is through the process of annulment of marriage.
I have been reading an interesting email from my former partner inviting me to look up the series of articles which appeared at Rappler.com on the various legal schemes and outright scams to secure an annulment of marriage in the Philippines.
The 5 part series cover “The Annulment Business” (Part 1); “Cotabato Court Issues Spurious Annulment Documents” (Part 2); “Cavite: Haven for Paid-Up Annulments” (Part 3); “Bribery in Annulment Mills” (Part 4); and “Annulment Scams” (Part 5).
The authors named judges of various courts in known annulment havens, clerks and officers of the courts, lawyers who styled themselves as “annulment specialists”, and favored court venues to file for annulment of marriages.
There were revelations of the falsification of court decisions, bribery schemes of lawyers, judicial “facilitation fees” demanded by judges and court personnel, falsely voided marriage contracts manufactured by the notorious “C. M. Recto falsified documents factory”, and other scams that promise to cut the marital bond of spouses who seek an annulment.
For this month of February, I welcome Filipinos to the “annulment legal cottage industry”.
This nefarious but highly profitable legal industry will continue to thrive for so long as the Philippine legislature and the judiciary continue to make it extremely expensive and very difficult for married couples to opt out of marriages that have gone down the drain.
It is an accepted fact that the influence of the Catholic Church in the Philippines has greatly contributed to the lack of the legislative will to enact or even seriously consider the passing of a reasonable divorce law.
According to Msgr. Oscar Cruz, “(B)eing a country where divorce is not legal is an honor that every Filipino should be proud of. Love for the family is the heart of Filipino cultural identity and cannot be destroyed by divorce”. Go figure.
The prelate’s view is a myth. To date, social weather station surveys show that more than 70% percent of Filipinos are now open to the enactment of reasonable divorce legislation.
I now believe “Catholicism” is not entirely to blame (except for the unique power hungry Philippine Catholic Church which continues to be the institution it was since the time of Rizal).
In other predominantly Catholic countries, the reality is faith has not stopped the enactment of reasonable divorce legislation. I do however believe that the “Philippine Catholic Church” is an institution that is bizarrely unique. The Philippine Catholic Church’s strange influence in the Philippines in this day and age remains the biggest reason why divorce will remain a dream.
Italy (where the Vatican city-state is situated) legalized divorce in 1970 despite fierce opposition from the Vatican. One by one, predominantly Catholic countries eventually recognized divorce – Brazil legalized divorce in 1977 followed by Spain (the original “exporter” of Catholicism to the Philippines) in 1981; Argentina (1987); Ireland (1997); Chile (2004); and, Malta (2011).
In lieu of divorce, the Family Code of the Philippines provides for annulment of marriage to legally end a marriage. Annulment means the marriage is void and did not even legally exist once a decree is granted by a court. Once annulled, it is as if the marriage did not happen and the parties are given the opportunity to legally enter marriage again should they choose to do so.
The most controversial of the annulment grounds under our law is “psychological incapacity” which is found in Article 36 of the Family Code. It provides that a marriage may be declared a nullity if a party is found to be “psychologically incapacitated” to perform his/her essential marital obligations. The provision of the law was adapted from the provisions of Canon Law on Church annulment of marriages grounded on psychological incompatibility.
“Psychological incapacity” has proved difficult through the years. The main problem is its lack of a definition.
The parties are obligated to prove “through their marital history” that either or both parties to the marriage are suffering from a psychological anomaly; an aberration; or “incapacity” that render them incapable of performing their essential marital obligations. The law also mandates that the State (through the Office of the Solicitor General) must participate in the proceedings to “protect” the sanctity of families and the marriage at all costs even in situations where the spouses have long been separated and the possibility of reconciliation is nil.
It is not uncommon for parties to present to the court a marital history fraught with exaggerated (and even fictitious) “factual claims” to prop up a situation of the utter failure of their marriage. This process can be akin to a gladiator contest, emotionally painful for families and the children, and civility of a painless separation is essentially non-existent.
It is the norm in the Philippine annulment process that the “more serious” the incapacity, the better the chance of securing an annulment. It is not farfetched that parties (with the nudging of their counsel) even resort to perjury to present evidence of the “most serious” facts that may be accepted as manifestations of psychological incapacity.
The annulment process also stoked the rise of “psychological and psychiatric experts” who give their imprimatur and opinions on what constitutes “psychological incapacity”.
The lack of a definition in the law gave the courts and their clogged case dockets a wide unfettered discretion to grant annulments subject only to a review by an appeals court. This gave rise to the perfect legal storm for delays and expensive litigation which became a boon for legal practitioners but a bane for litigants who wanted out of their marriages.
Lawyers styling themselves as “annulment specialists” are only too aware of courts which are “liberal annulment mills” and which courts are to be avoided at all costs. It did not take long for some judges, court personnel, and other unscrupulous characters to join in. The legal cottage industry for annulment was born.
Through the years, the Supreme Court released several decisions on the issue of what constitutes “psychological incapacity”. To date, a definition is still to be pronounced by the highest court in the Philippines.
In January 2015, the Supreme Court rendered its final decision in the case of Kalaw v. Fernandez (G.R. No. 166357) and declared the marriage of the parties null and void. The Resolution (which is actually a reversal of its original Decision) was picked up by newspapers and legal opinions abound as to the “relaxation” of the rule on “psychological incapacity” in marriage annulment.
The ruling reiterated that “psychological incapacity” has no definition and what constitutes it to annul a marriage will depend on the factual circumstances; the opinion of experts; the rulings of Church Tribunals (i.e. Catholic annulments); and the appreciation of the trial judges hearing the case.
The Kalaw case confirmed the tedious, expensive, and unsettling nature of annulment cases grounded on “psychological incapacity”. It constitutes indelible proof on how long parties may have to wait for their “life ever after”.
The Kalaw petition was filed at the trial court sometime on July 6, 1994. After a protracted trial, the Regional Trial Court granted the annulment after 4 years. The Court of Appeals heard the appeal and examined the facts of the case for 6 years and reversed the trial court and effectively denying the annulment.
The Supreme Court examined the facts and the law and rendered its first decision on September 19, 2011 affirming the denial of the annulment.
After taking a “second hard look at the facts and a re-application of the law and jurisprudence”, the Supreme Court reversed its earlier denial of the annulment and granted the nullity of the marriage on 14 January 2015.
The Kalaw case took almost 21 years to finish (1994 to 2015). This extremely long legal journey can only lead to the continuation of the highly lucrative legal cottage industry in the Philippines.
Considering the immense study done by the Supreme Court to merit a reversal of its earlier ruling, is the Kalaw ruling the final say of the Supreme Court on the matter of “psychological incapacity”? There is nothing in said ruling that says so.
Reports and legal opinions have prematurely pointed to the ruling in Kalaw as a “relaxation” on the rule on “psychological incapacity” despite the Supreme Court’s careful caveat that its ruling on the motion for reconsideration is not to be taken as a “relaxation” of its stance on Article 36. The court spokesperson was quick to pronounce that the Kalaw ruling is not actually controlling since it was rendered by a mere “division” of the Supreme Court and not a ruling by the en banc. You can ask your lawyer what this means as it can mean anything.
To date, lawyers (and judges) are still in the dark on what factors measure to “psychological incapacity” to legally end a marriage in the Philippines.
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”
(Through the Looking Glass, Chapter 6)
In other words, the search continues.
ABOUT THE AUTHOR
Anthony L. Po is a Barrister and Solicitor in Alberta, Canada since 2016. He practiced law for 28 years in the Philippines in the areas of family law, annulment and legal separation, child adoption and custody, property and real estate law, and civil and criminal litigation. He currently practices with the law firm, Murray MacKay Professional Corporation, of Calgary, AB. Comments may be coursed through email@example.com