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Part I: Unveiling the Silent Struggle: Examining the Absence of Divorce on Victims of Domestic Violence in the Philippines

Asia, Featured

Part I: Unveiling the Silent Struggle: Examining the Absence of Divorce on Victims of Domestic Violence in the Philippines

by Vayuna Gupta

Legal provisions allowing for divorce are important for married survivors of domestic violence in their attempts to get out of a relationship with their abusers. Unfortunately, there are some countries around the world that do not extend this right to women, the Philippines being one of them.

There are two primary religions in the Philippines: Christianity and Islam. Religious personal laws specific to the two religions govern family practices, including divorces. Roughly four-fifths of the population in the Philippines is Roman Catholic.[1]

The Philippines stands unique globally, alongside Vatican City, as a country where practicing Christians do not have access to divorce through statutory provisions. The Roman Catholic Church and others opposed to divorce argue that divorces are immoral, an anathema to Filipino culture, unconstitutional, and a path to destruction for Filipino families.[2]

This article aims to underscore the legal provisions available for women in the Philippines seeking to get out of marriages, and the repercussions of the absence of divorce provisions for survivors of domestic violence.

Islamic Law

Islam is the second largest religion in the Philippines.[3] Islam family law is codified under the Code of Muslim Personal Laws of the Philippines (“Code of Muslim Laws”). The Code of Muslim Laws applies to marriages and divorces wherein both parties are muslims or when the male is a muslim and the marriage has been solemnized under Islamic law. [4] Chapter three of the Code of Muslim Laws discusses divorce. It provides for a formal dissolution of a marriage as a statutory right. In particular, Article 53 gives the wife the freedom to petition for a divorce if the husband habitually assaults her or inflicts cruelty irrespective of any physical injury.[5]

Unfortunately, no such provision is present for the majority Christian population in the Philippines.

Christian Law

The Family Code of the Philippines (“Code”) governs the Christian majority population. There are three provisions under the Code to gain redressal from marriage: a) nullity, b) annulment, and c) separation

  1. Nullity

Under chapter three of the Code, a marriage is a nullity since its inception when the marriage was solemnized without a license; is a bigamous or polygamous marriage; was contracted through a mistake of the identity of a party; was solemnized between people from the same family[6] of any degree or between siblings; is in violation of public policy[7]; one or both parties were below eighteen years of age or one party was psychologically incapacitated[8] to comply with essential marital obligations at the time of celebration.[9]

  1. b) Annulment

Under Article 45 of the Code, spouses at their option may ask for a declaration of annulment[10] provided they never freely cohabited as husband and wife fully aware of the exact grounds that prompted the annulment petition. These grounds include: marriage was solemnized without the consent of a guardian for parties between the ages of 18 and 21 years; either party was of unsound mind; consent was obtained by fraud[11],force, intimidation, or undue influence; either party was physically incapable of consummating the marriage, or was afflicted with a sexually transmissible disease that appears to be incurable.

  1. c) Separation

A petition for legal separation[12] may be filed on grounds of repeated physical abuse, pressure to change religion, inducement into prostitution, imprisonment of a spouse for more than six years, drug addiction, alcoholism, homosexuality, bigamy, or abandonment up to a year.

Further, this application may be denied if the aggrieved has condoned the act, connived or colluded to obtain a decree of legal separation, or the petition is filed after five years of occurrence.[13] After a decree for separation is passed, the spouses are free to live separately[14], but their marital bond does not end formally. This means that at the conclusion of a legal separation decree, the spouses retain their legal status as husband and wife.

It is important to note that none of these provisions for nullity, annulment, or separation address situations when the spousal relationship disintegrates on irreconcilable differences, on infidelity, or for economic or emotional abuse.

Impact on survivors of domestic violence

A study published by the Asia Pacific Journal for Multidisciplinary Research showed that male control of wealth and decision making are the major predictors for domestic abuse in the Philippines.[15] Inequalities between men and women present in social, economic, cultural, and political spheres manifest into limitations on women’s freedoms.[16] As per statistics released by the 2022 Philippines National Demographic and Health Survey, 18 percent of women suffer physical, sexual, or emotional violence in intimate partner relationships.[17]

Furthermore, legislation victimizes women by keeping them ensnared in marriages, without providing them with the legal option to sever their marriages. The only option available for the majority population of the Philippines and survivors of domestic violence to get out of a marital relationship, is to seek a legal separation. Unfortunately, legal separations are long, tedious, and expensive processes[18] limiting accessibility, and they do not lead to a formal termination of marriage.

The Philippines currently lacks any legal provision for absolute divorce for its predominant Roman Catholic population. The absence of such a remedy is a matter of grave concern for women, particularly survivors of domestic violence. The avenues to seek annulments and declarations of nullities are often entrenched with restricted criteria, consequential implications, and financial burdens. Separations, on the other hand, do not legally dissolve marriages. It could be valuable for the Philippines to take action and establish a right to divorce as a necessary element of ending domestic violence.

The second part to this series will discuss consequences for Filipino women engaged in transnational marriages, international obligations that Philippines may be in violation of with the absence of divorce rights and what the future of divorce laws looks like in the Philippines.

Vayuna Gupta is the Legal and Policy Advisor for Global Rights for Women.

Footnotes

[1]Michael Sullivan, Divorce is Prohibited in the Philippines but Moves are Underway to Legalize It, NPR (May 23, 2018, 1:49PM ET), https://www.npr.org/sections/parallels/2018/05/23/613335232/divorce-is-prohibited-in-the-philippines-but-moves-are-underway-to-legalize-it.

[2] Jeofrey B. Abalos, Divorce and Separation in the Philippines: Trends and Correlates, 36, Demographic Rsch. 1515, 1525, (2017).

[3] Religious Affiliation in the Philippines, Philippine Statistics Authority (Feb. 22, 2023), https://psa.gov.ph/content/religious-affiliation-philippines-2020-census-population-and-housing.

[4]CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES, A. 13, Pres. Dec. No.1083 (Phil.).

[5] Id. at A. 53.

[6] Antecedents and descendants

[7] Marriage with collateral blood relatives up to 4th degree, between set parents and step children, between parents in law and children in law, between adopting parent and child, between parties wherein one killed the other’s spouse with the intention to marry etc. are in violation of public policy of the Philippines.

[8] As per a recent 2021 decision of the Supreme Court, psychological incapacity Is a legal and not a medical concept. Is a personal condition that prevents a spouse from fulfilling their fundamental obligations in a marriage. The condition may have existed at the time of the marriage but may have revealed itself later. Rosanna L. Tan-andal v. Mario Victor M. Andal, G.R. No. 196359 (May 11, 2021)(Phil.), https://lawphil.net/judjuris/juri2021/may2021/gr_196359_2021.html.

[9] Family Code, A. 35-38, Exec. Ord. 209, as amended (Phil.).

[10] Nullity is when a marriage is not valid under law since its inception and hence not recognized ; voidable/annulment is when the marriage is valid at its beginning but the parties at their request ask for court to declare the marriage as a nullity.

[11] Family Code, A. 40, Exec. Ord. 209, as amended (Phil.).Fraud is understood as non disclosure of a previous conviction, concealment of pregnancy from a man other than husband at the time of marriage, concealment of sexually transmissible diseases at the time of marriage, concealment of drug addiction, habitual alcoholism or homosexuality.

[12] Id. at A. 55.

[13] Family Code, A. 56 and A. 57, Exec. Ord. 209, as amended (Phil.).

[14] Id. at A. 61.

[15] Racidon Bernarte, Quennie Marie M. Acedegbega, Mariah Louise A. Fadera, Hanna Jemima G. Yopyop,Violence Against women in the Philippines, 6 Asia Pacific J. of Multidisciplinary Rsch., 117, 121, (2017).

[16] Id. at 117.

[17] 2022 Philippine National Demographic and Health Survey, Philippine Statistics Authority (Feb. 2023), https://www.dhsprogram.com/pubs/pdf/PR146/PR146.pdf.

[18]Michael Sullivan, Divorce is Prohibited in the Philippines but Moves are Underway to Legalize It, NPR (May 23, 2018, 1:49PM ET), https://www.npr.org/sections/parallels/2018/05/23/613335232/divorce-is-prohibited-in-the-philippines-but-moves-are-underway-to-legalize-it.