Divorce in the Philippines... There is no such thing..
Divorce and Annulment in the Philippines and Australia
By Michael Jones
Article XV
THE FAMILY
Section 1. The State recognizes the Filipino Family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
The Constitution of the Republic of the Philippines, from which the above words are taken, forbids the making of laws which would "violate" the institution of marriage, and charges the State with the duty of actively intervening to protect that institution.
As a result, the legal ending of what had been a valid marriage between two living spouses, allowing them both to go on their way in life and, if they so desire, marry again, is not possible in the Philippines, and the State actively intervenes in marital disputes wherever it feels that the institution of marriage is under attack.
The law of Australia is completely different. Although the Constitution of this country gives the Federal government the power to make laws with respect to "matrimonial causes", it says nothing whatsoever about the nature of marriage. In Australia, the State prefers to facilitate the legal termination of marriages that are not working. This reflects an attitude in this country that personal relationships are a private affair which the State should have little or nothing to do with.
For Filipinos who have made this country their home, the difference between the two approaches to marriage can be a source of great personal and legal difficulty.
Divorce and nullity
But is it true that there is no divorce in the Philippines? How can it be that the Solicitor General of the Philippines recently claimed in the Supreme Court that the Philippines had the "most liberal divorce procedure in the world"? What he was referring to, in the case of Republic of the Philippines v Court of Appeals and Roridel Olaviano Molina (decision of February 13, 1997) was Article 36 of the Family Code. According to that provision, a marriage entered into by a person who was, at the time of the marriage ceremony, "psychologically incapacitated to comply with the essential marital obligations of marriage", is null and void.
To say that a marriage is "null and void" is to say that it never really happened. The couple went through the ceremony, the papers were signed, it looked like a marriage, but in fact it never was a marriage. In a divorce, the couple are legally married up until the divorce takes effect. Where the Court rules that a marriage is void (called a "declaration of nullity"), the law treats the couple as never having been married at all.
There are several other grounds on which a marriage can be declared null and void, some of which apply under Australian law as well. Since a person can only be legally married to one person at a time, any subsequent or bigamous marriage is null and void. So are marriages where one of the parties is under the legal age for getting married (now 18 in the Philippines, as in Australia), or marriages between close relatives (first cousins can't marry in the Philippines, though they can in Australia), or in some cases of mistaken identity or failure to comply with legal requirements. To complicate matters, certain other marriages in the Philippines (though not in Australia) are "voidable", which means they can be declared void in certain circumstances but remain valid until "annulled".
It goes without saying that Filipino law with respect to marriage is based on the law of the Catholic Church, known as Canon law. However, a declaration by the Marriage Tribunal of the Church that a marriage is void does not automatically make it void in Filipino law. That can only be done by the Regional Trial Court or a higher Court. It is possible therefore for a couple to be unmarried in the eyes of the Church but married in the eyes of the State.
Psychological incapacity
Article 36, which was only introduced in 1988, was put into the Family Code because Filipino law was actually stricter than the law of the Catholic Church. The "psychologically incapacitated" ground has been part of Canon law for many years.
In the case of Roridel Olaviano Molina, the Regional Trial Court of La Trinidad declared her marriage to Reynaldo Molina void under Article 36. She claimed he was immature and irresponsible as a husband and father, preferred the company of his friends to that of his family, squandered his money, was dishonest about finances, would not get work to support the family, and was highly immature and habitually quarrelsome.
That decision was upheld on appeal to the Court of Appeals, but was finally struck down by the Supreme Court. In doing so, it was following the precedent set in 1995 in the case of Leouel Santos v Court of Appeals. After these two decisions, the scope for use of Article 36 has been greatly reduced, but not removed altogether. The noted commentator Ernesto L. Pineda lists a number of examples of psychological incapacity taken from Canon law: homosexuality; lesbianism; satyriasis; nymphomania; emotional immaturity or irresponsibility; epilepsy; habitual alcoholism; criminality. It must be said that epilepsy would be unlikely to be considered a psychological problem by a modern secular Court.
Void and "voidable" marriages
As I have said, a marriage that is declared void never really happened, while a divorce just brings a marriage to an end. Unfortunately, and no doubt in large part because of the difficulty of getting out of a marriage in the Philippines, some Filipinos take the risk of marrying again while their first spouse is still alive. This is a criminal offence (bigamy) in both the Philippines and Australia, and the second marriage is considered void in both countries. A second marriage is not made valid by the subsequent termination of the first one. Thus if a person marries once in the Philippines, then marries again in Australia, then the first marriage ends because the other spouse dies or a divorce is obtained in Australia, the second marriage remains invalid and the liability to be charged with bigamy remains. But what if the first marriage is declared void?
This is where another difference arises between Filipino and Australian law. Although a void marriage is no marriage at all, in the Philippines there must be an actual declaration by a Court that the marriage is void before the person can marry again (Article 40). Any second marriage before the Court order is made is also void. Australian law takes what seems to be the more logical approach. If the marriage never happened, then all the Court is doing is stating it for the record. So if a first marriage is declared void after a second marriage has taken place (in Australia), the second marriage is perfectly valid in Australian law and the parties cannot be charged with bigamy.
The situation with respect to "voidable" marriages is more complicated. Voidable marriages can be annulled until a certain event happens or a certain time passes. After that, they are no longer open to challenge. For example, in the Philippines a person aged 18 or over but under 21 needs the consent of a parent or guardian to marry. If such a person marries without that consent, the marriage can be annulled up until the party turns 21 or for five years after that, unless after turning 21 the couple freely cohabit and live as husband and wife. If that happens, the validity of the marriage cannot be challenged.
Under Australian law, foreign marriages which are voidable under the law of the other country are considered invalid until such time as they are no longer voidable (Marriage Act, s 88D(4)). This means that a Filipino whose marriage remains voidable in the Philippines could legally marry in Australia. An example would be someone who married under the age of 21 without parental consent, and either has not yet turned 21 or did not live with the spouse after turning 21. No Court order is necessary in Australia, but would be required in the Philippines.
But Filipino law contains an even more complicated idea than the voidable marriage. Under Article 41 of the Family Code, a person is free to remarry if the first spouse has been absent for four consecutive years and the person wanting to remarry has a "well-founded belief" that the first spouse is already dead. This four year period can be reduced to two years where the first spouse disappeared in certain dangerous circumstances. In any event, there must be a Court order that the first spouse is presumed dead. Where a second marriage takes place, and the first spouse then reappears, the second marriage is "automatically terminated" (Article 42).
Choices for Filipino-Australians
A Filipino or former Filipino residing lawfully in this country for more than 12 months can of course obtain a divorce under Australian law and is then free to marry in this country. As most readers would be aware, however, the Australian divorce is not recognised in the Philippines and the first marriage continues to be valid in that country. Where possible, a declaration of nullity under Filipino law can therefore have advantages.
Generally speaking, even if both of the parties to the first marriage are living permanently in Australia, the application should be lodged in the Philippines. This is not to say that Australian Courts could not be called upon to apply Filipino law to determine the marital status of someone living in Australia, say in a bigamy case, but generally they would be reluctant to do so on the principle that each country's Courts are the ones best suited to interpret their own laws.
Perhaps because it was a new ground introduced into the law, the legislature decided to limit the availability of Article 36 in respect of marriages contracted before the Family Code came into effect on August 4, 1988 to ten years from that date. Therefore action to declare nullity on the grounds of "psychological incapacity" in respect of a marriage entered into before that date must be commenced by August 4, 1998. An action in respect of a marriage contracted on or after August 4, 1988 can be commenced at any time.
Matters of marriage and divorce are not just private issues, even in Australia. They can have serious implications in relation to property, children, immigration and even the criminal law. It can never hurt to discuss the situation confidentially with a qualified legal practitioner.
By Michael Jones
Article XV
THE FAMILY
Section 1. The State recognizes the Filipino Family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
The Constitution of the Republic of the Philippines, from which the above words are taken, forbids the making of laws which would "violate" the institution of marriage, and charges the State with the duty of actively intervening to protect that institution.
As a result, the legal ending of what had been a valid marriage between two living spouses, allowing them both to go on their way in life and, if they so desire, marry again, is not possible in the Philippines, and the State actively intervenes in marital disputes wherever it feels that the institution of marriage is under attack.
The law of Australia is completely different. Although the Constitution of this country gives the Federal government the power to make laws with respect to "matrimonial causes", it says nothing whatsoever about the nature of marriage. In Australia, the State prefers to facilitate the legal termination of marriages that are not working. This reflects an attitude in this country that personal relationships are a private affair which the State should have little or nothing to do with.
For Filipinos who have made this country their home, the difference between the two approaches to marriage can be a source of great personal and legal difficulty.
Divorce and nullity
But is it true that there is no divorce in the Philippines? How can it be that the Solicitor General of the Philippines recently claimed in the Supreme Court that the Philippines had the "most liberal divorce procedure in the world"? What he was referring to, in the case of Republic of the Philippines v Court of Appeals and Roridel Olaviano Molina (decision of February 13, 1997) was Article 36 of the Family Code. According to that provision, a marriage entered into by a person who was, at the time of the marriage ceremony, "psychologically incapacitated to comply with the essential marital obligations of marriage", is null and void.
To say that a marriage is "null and void" is to say that it never really happened. The couple went through the ceremony, the papers were signed, it looked like a marriage, but in fact it never was a marriage. In a divorce, the couple are legally married up until the divorce takes effect. Where the Court rules that a marriage is void (called a "declaration of nullity"), the law treats the couple as never having been married at all.
There are several other grounds on which a marriage can be declared null and void, some of which apply under Australian law as well. Since a person can only be legally married to one person at a time, any subsequent or bigamous marriage is null and void. So are marriages where one of the parties is under the legal age for getting married (now 18 in the Philippines, as in Australia), or marriages between close relatives (first cousins can't marry in the Philippines, though they can in Australia), or in some cases of mistaken identity or failure to comply with legal requirements. To complicate matters, certain other marriages in the Philippines (though not in Australia) are "voidable", which means they can be declared void in certain circumstances but remain valid until "annulled".
It goes without saying that Filipino law with respect to marriage is based on the law of the Catholic Church, known as Canon law. However, a declaration by the Marriage Tribunal of the Church that a marriage is void does not automatically make it void in Filipino law. That can only be done by the Regional Trial Court or a higher Court. It is possible therefore for a couple to be unmarried in the eyes of the Church but married in the eyes of the State.
Psychological incapacity
Article 36, which was only introduced in 1988, was put into the Family Code because Filipino law was actually stricter than the law of the Catholic Church. The "psychologically incapacitated" ground has been part of Canon law for many years.
In the case of Roridel Olaviano Molina, the Regional Trial Court of La Trinidad declared her marriage to Reynaldo Molina void under Article 36. She claimed he was immature and irresponsible as a husband and father, preferred the company of his friends to that of his family, squandered his money, was dishonest about finances, would not get work to support the family, and was highly immature and habitually quarrelsome.
That decision was upheld on appeal to the Court of Appeals, but was finally struck down by the Supreme Court. In doing so, it was following the precedent set in 1995 in the case of Leouel Santos v Court of Appeals. After these two decisions, the scope for use of Article 36 has been greatly reduced, but not removed altogether. The noted commentator Ernesto L. Pineda lists a number of examples of psychological incapacity taken from Canon law: homosexuality; lesbianism; satyriasis; nymphomania; emotional immaturity or irresponsibility; epilepsy; habitual alcoholism; criminality. It must be said that epilepsy would be unlikely to be considered a psychological problem by a modern secular Court.
Void and "voidable" marriages
As I have said, a marriage that is declared void never really happened, while a divorce just brings a marriage to an end. Unfortunately, and no doubt in large part because of the difficulty of getting out of a marriage in the Philippines, some Filipinos take the risk of marrying again while their first spouse is still alive. This is a criminal offence (bigamy) in both the Philippines and Australia, and the second marriage is considered void in both countries. A second marriage is not made valid by the subsequent termination of the first one. Thus if a person marries once in the Philippines, then marries again in Australia, then the first marriage ends because the other spouse dies or a divorce is obtained in Australia, the second marriage remains invalid and the liability to be charged with bigamy remains. But what if the first marriage is declared void?
This is where another difference arises between Filipino and Australian law. Although a void marriage is no marriage at all, in the Philippines there must be an actual declaration by a Court that the marriage is void before the person can marry again (Article 40). Any second marriage before the Court order is made is also void. Australian law takes what seems to be the more logical approach. If the marriage never happened, then all the Court is doing is stating it for the record. So if a first marriage is declared void after a second marriage has taken place (in Australia), the second marriage is perfectly valid in Australian law and the parties cannot be charged with bigamy.
The situation with respect to "voidable" marriages is more complicated. Voidable marriages can be annulled until a certain event happens or a certain time passes. After that, they are no longer open to challenge. For example, in the Philippines a person aged 18 or over but under 21 needs the consent of a parent or guardian to marry. If such a person marries without that consent, the marriage can be annulled up until the party turns 21 or for five years after that, unless after turning 21 the couple freely cohabit and live as husband and wife. If that happens, the validity of the marriage cannot be challenged.
Under Australian law, foreign marriages which are voidable under the law of the other country are considered invalid until such time as they are no longer voidable (Marriage Act, s 88D(4)). This means that a Filipino whose marriage remains voidable in the Philippines could legally marry in Australia. An example would be someone who married under the age of 21 without parental consent, and either has not yet turned 21 or did not live with the spouse after turning 21. No Court order is necessary in Australia, but would be required in the Philippines.
But Filipino law contains an even more complicated idea than the voidable marriage. Under Article 41 of the Family Code, a person is free to remarry if the first spouse has been absent for four consecutive years and the person wanting to remarry has a "well-founded belief" that the first spouse is already dead. This four year period can be reduced to two years where the first spouse disappeared in certain dangerous circumstances. In any event, there must be a Court order that the first spouse is presumed dead. Where a second marriage takes place, and the first spouse then reappears, the second marriage is "automatically terminated" (Article 42).
Choices for Filipino-Australians
A Filipino or former Filipino residing lawfully in this country for more than 12 months can of course obtain a divorce under Australian law and is then free to marry in this country. As most readers would be aware, however, the Australian divorce is not recognised in the Philippines and the first marriage continues to be valid in that country. Where possible, a declaration of nullity under Filipino law can therefore have advantages.
Generally speaking, even if both of the parties to the first marriage are living permanently in Australia, the application should be lodged in the Philippines. This is not to say that Australian Courts could not be called upon to apply Filipino law to determine the marital status of someone living in Australia, say in a bigamy case, but generally they would be reluctant to do so on the principle that each country's Courts are the ones best suited to interpret their own laws.
Perhaps because it was a new ground introduced into the law, the legislature decided to limit the availability of Article 36 in respect of marriages contracted before the Family Code came into effect on August 4, 1988 to ten years from that date. Therefore action to declare nullity on the grounds of "psychological incapacity" in respect of a marriage entered into before that date must be commenced by August 4, 1998. An action in respect of a marriage contracted on or after August 4, 1988 can be commenced at any time.
Matters of marriage and divorce are not just private issues, even in Australia. They can have serious implications in relation to property, children, immigration and even the criminal law. It can never hurt to discuss the situation confidentially with a qualified legal practitioner.
posted by alfieping at 11:32 PM
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