User talk:Jaylordvaldez23

THE FIGHT FOR DIVORCE LAW IN THE PHILIPPINES Jlord Valdez CHAPTER I INTRODUCTION Background of the Study

	Divorce has long been a subject of contention between progressives and conservatives in the Philippines. It has been subject to debates over and over again between the pro and against the Divorce Law. Suddenly, the Philippines and the Vatican City became the last two countries left in the world where divorce remains illegal.
 	However, several divorce bills have already been filed in the past by lawmakers. The most recent one being House Bill No. 1799,  which was filed by Representative Luzviminda Ilagan and Representative Emerenciana de Jesus of Gabriela Women’s Party.                                                                                                                                     	The aftermath of the Malta referendum, conservatives and religious groups in the Philippines have once again joined forces to wage yet another battle with the progressives in an already longstanding war of attrition. They are mostly the same people who are at loggerheads in the still unresolved debate on the Reproductive Health Bill. 
	The organization Filipino Freethinkers, the largest group of free thinkers in the country, said that the Maltese divorce story is one that is similar to the Filipino people’s struggle. They said that the victory of the citizens of Malta was achieved “despite the constant political meddling and religious blackmail of the Catholic Church.”
	Both countries are last bastions of Catholicism - Malta in Europe, the Philippines in Asia; both countries are predominantly Catholic - 95 percent in Malta, 80 percent in the Philippines; and both battles are primarily between progressive Catholics and conservatives. 
	The Philippine Constitution provides in Section 12: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.”  The succeeding provisions of the Constitution with regards to divorce are not expressly provided by the Constitution. It does not, however, talk about divorce. Further, Section 2 of Article XV of the Constitution states that Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.  Marriage needs to be protected.

The Family Code of the Philippines was enacted in order to provide laws relating to the family and to solve issues that arise in the family. There is no provision of the Family Code that talk about Divorce. The lawmakers debate whether or not divorce law should be enacted and approved in the Philippines. However, many oppose since the country is predominantly composed of Catholics who are conservative in terms of divorce.

CHAPTER II BODY OF THE RESEARCH Divorce

	Divorce is the legal dissolution of a marriage by a court. It is also termed as marital dissolution or dissolution of marriage. When used without qualification, the term imports a dissolution of the marriage relation between husband and wife, that is, a complete severance of the tie by which the parties were united. However, in its common and wider use, the term includes the dissolution of a valid marriage, a formal separation of married persons, and the annulment of a marriage void from the beginning. So, while the term 'divorce' has sometimes been broadly defined or applied to include both decrees of nullity and decrees of dissolution of marriage, especially where the marriage was not void but only voidable at the option of the injured party, this has been declared to be not in accord

with modern usage, and generally, the term denotes only dissolution or suspension of a marital relation, and does not include annulment of an invalid marriage. Divorce grounds vary significantly from country to country. Marriage is, particularly in the West, seen as a contract, as such, the refusal or inability of one spouse to perform the obligations stipulated in the contract may constitute a ground for divorce for the other spouse. Yet, in some countries, such as Sweden, Finland, Australia, New Zealand, divorce is purely no fault. Many jurisdictions offer both the option of a no fault divorce as well as an at fault divorce. This is the case, for example, in many US states. Though divorce laws vary between jurisdictions, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, shared care arrangements and support. In some jurisdictions one spouse may be forced to pay the attorney's fees of another spouse. Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, issues of division of property are typically determined by the law of the jurisdiction in which the property is located. In Europe divorce laws differ from country to country, reflecting differing legal and cultural traditions. In some countries, particularly, but not only, in some former communist countries, divorce can only be obtained on one singe general ground of "irretrievable breakdown of the marriage" or a similar formulation. Yet, what constitutes such a "breakdown" of the marriage is interpreted very differently from jurisdiction to jurisdiction, ranging from very liberal interpretations to quite restrictive ones. For instance, in Poland there must be an "irretrievable and complete disintegration of matrimonial life", but there are many restrictions to granting a divorce. Separation constitutes a ground of divorce in some European countries, like in Germany for instance a divorce is granted on the basis of one year separation if both spouses consent, or three years separation if only one spouse consents. It is important to note that "separation" does not necessarily mean separate residences - in some jurisdictions living in the same household but leading a separate life like eating, sleeping, socializing etc. separately, is sufficient to constitute de facto separation; this is explicitly stated, for instance, in the family law of Latvia. Divorce laws are not static. They often change reflecting evolving social norms of societies. In the 21st century, many European countries have made changes to their divorce laws, in particular by reducing the length of the necessary periods of separation, like in Scotland in 2006, 1 or 2 years from the previous 2 or 5 years; France in 2005, 2 years from the previous 6 years, Switzerland in 2005, 2 years from the previous 4 years, Greece in 2008, 2 years from the previous 4 years. Some countries have completely overhauled their divorce laws, such as Spain in 2005, and Portugal in 2008. A new divorce law also came into force in September 2007 in Belgium, creating a new system that is primarily no-fault. In Italy however, the divorce laws still remain traditionally based, with divorce being a relatively complicated and lengthy process. Austria is another European country where the divorce law remains conservative. The liberalization of divorce laws is not without opposition, particularly in the United States. Indeed, in the US, conservative and religious organizations are lobbying for laws which restrict divorce. Short History After the fall of the Roman Empire, familial life was regulated more by ecclesiastical authority than civil authority. By the ninth or tenth century, the divorce rate had been greatly reduced under the influence of the Church, which considered marriage a sacrament instituted by God and Christ indissoluble by mere human action. Although divorce, as known today, was generally prohibited after the tenth century, separation of husband and wife and the annulment of marriage were well-known. What is today referred to as "separate maintenance" or "legal separation" was termed "divorce a mensa et thoro" that is "divorce from bed-and-board." The husband and wife physically separated and were forbidden to live or cohabit together; but their marital relationship did not fully terminate. Civil courts had no power over marriage or divorce. The grounds for annulment were determined by Church authority and applied in ecclesiastical courts. Annulment was for canonical causes of impediment existing at the time of the marriage. "For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio." The Church held that the sacrament of marriage produced one person from two, inseparable from each other: "By marriage the husband and wife are one person in law: that is, the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything." Since husband and wife became one person upon marriage, that oneness could only be annulled if the parties improperly entered into the marriage initially. Henry VIII of England broke with the Catholic Church in order to obtain a divorce. After the Reformation, marriage came to be considered a civil contract in the new Protestant regions of Europe, and on that basis civil authorities gradually asserted their power to decree a "divortium a vinculo matrimonii", or "divorce from all the bonds of marriage." Since no precedents existed defining the circumstances under which marriage could be dissolved, civil courts heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and considered divorce to be contrary to public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred vow to the "innocent spouse." If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage." Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment, adultery, or "extreme cruelty". An exception to this trend was the Anglican Church, which maintained the doctrine of marital indissolubility. During the English Civil War, the Puritans briefly passed a law that divested marriage of all sacraments, leaving it as a secular contract that could be broken. John Milton wrote four divorce tracts from 1643–1645 that argued for the legitimacy of divorce on grounds of spousal incompatibility. His ideas were ahead of their time; arguing for divorce at all, let alone a version of no-fault divorce, was extremely controversial and religious figures sought to ban his tracts. In 1670 a precedent was first set with an Act of Parliament allowing Lord John Manners to divorce his wife, Lady Anne Pierpon, and until the passage of the Matrimonial Causes Act 1857, divorce could only be obtained through a specific Act of Parliament. The move towards secularization and liberalization was reinforced by the individualistic and secular ideals of the Enlightenment. The Enlightened absolutist, King Frederick II "the Great" of Prussia enshrined a new divorce law in 1752, in which marriage was declared to be a purely private concern, allowing divorce to be granted on the basis of mutual consent. This new system heavily influenced the law in neighboring Austria under Emperor Joseph II, where it was applied to all non-Catholic Imperial subjects. Divorce was legalized in France after the French revolution on a similar basis, although the legal order of the ancient regime was reinstated at the Bourbon restoration of 1816. The trend in Europe throughout the 19th century was one of increased liberalization; by the mid-19th century divorce was generally granted by civil courts in the case of adultery. In Britain before 1857 wives were under the economic and legal control of their husbands, and divorce was almost impossible. It required a very expensive private act of Parliament costing perhaps £200, of the sort only the richest could possibly afford. It was very difficult to secure divorce on the grounds of adultery, desertion, or cruelty. The first key legislative victory came with the Matrimonial Causes Act of 1857, which passed over the strenuous opposition of the highly traditional Church of England. The new law made divorce a civil affair of the courts, rather than a Church matter, with a new civil court in London handling all cases. The process was still quite expensive, at about £40, but now became feasible for the middle class. A woman who obtained a judicial separation took the status of a feme sole, with full control of her own civil rights. Additional amendments came in 1878, which allowed for separations handled by local justices of the peace. The Church of England blocked further reforms until the final breakthrough came with the Matrimonial Causes Act 1973. Divorce rates increased markedly during the twentieth century in developed countries, as social attitudes towards family and sex changed dramatically. Among the nations in which divorce has become commonplace are the United States, Canada, Australia, Germany, New Zealand, Scandinavia, and the United Kingdom. Causes of Divorce An annual study in the UK and other countries by management consultants Grant Thornton, estimates the main proximal causes of divorce based on surveys of matrimonial lawyers. The main causes in 2004 were: • Adultery; Extramarital sex; Infidelity – 27% • Domestic violence – 17% • Midlife crisis – 13% • Addictions, e.g. alcoholism and gambling – 6% • Workaholism – 6% According to this survey, husbands engaged in extramarital affairs in 75% of cases; wives in 25%. In cases of family strain, wives' families were the primary source of strain in 78%, compared to 22% of husbands' families. Emotional and physical abuse were more evenly split, with wives affected in 60% and husbands in 40% of cases. In 70% of workaholism-related divorces it was husbands who were the cause, and in 30%, wives. The 2004 survey found that 93% of divorce cases were petitioned by wives, very few of which were contested. 53% of divorces were of marriages that had lasted 10 to 15 years, with 40% ending after 5 to 10 years. The first 5 years are relatively divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce. Social scientists study the causes of divorce in terms of underlying factors that may possibly motivate divorce. One of these factors is the age at which a person gets married; delaying marriage may provide more opportunity or experience in choosing a compatible partner. Wage, income, and sex ratios are other such underlying factors that have been included in analyses by sociologists and economists. Cohabitation prior to marriage is associated with higher divorce rates, which is called the cohabitation effect. Evidence suggests that this is partly due to selection (people more likely to divorce being more likely to cohabit, and cohabiting couples being more likely to marry with low levels of commitment) as well as the effect of cohabitation itself on the marital union. There is a consensus among researchers that both of these factors explain the cohabitation effect. Divorce distinguished from Declaration of Nullity of Marriage, Annulment and Legal Separation Annulment is the act of nullifying or making void. It may pertain either to a judicial or ecclesiastical declaration that a marriage is void. An annulment establishes that the marital status never existed. So annulment and dissolution of marriage are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution. On the other hand, Declaration of Nullity of Marriage is an action in which a litigant requests a court's assistance not because any rights have been violated but because those rights are uncertain. It makes the marriage bond ineffective. If declared by the court, spouses’ marriage bond no longer exists, thus, they can remarry again. Legal Separation is the separation of husband and wife done through the court and in which it always involves a separation of property. The spouses are necessarily separated but the marriage bond is still existing. In the Philippines, the Family Code expressly provides the rules in availing Declaration of Nullity of Marriage, Annulment and Legal Separation. For Declaration of Nullity of Void Marriage and Annulment of Voidable Marriage, the courts follow the A.M. No. 02-11-10-SC as a basis and guide in filing these cases. For Legal Separation, A.M. No. 02-11-11-SC is followed. The Law and the Philippines Divorce is a court order saying that a man and woman are no longer husband and a wife. Annulment is a judicial statement that there never has a marriage between the man and the woman. It is the cancellation of marriage as if it never happened. This cancellation is done by the court invalidating the marriage from the date of its formation (retroactive application). Example grounds for annulment: absence of parental consent, mental illness, fraud, lack of consent, and certain diseases. Legal Separation is a decree that gives the husband and wife the right to live separately from each other. Through this decree, the conjugal partnership of properties or the absolute community of properties is dissolved. However, the man and woman are still considered married. They may not remarry. For Divorce Law, pending legislative measures are still in Congress. There are a lot of people or group of people who oppose the Divorce Law.

The Fight for Divorce Law in the Philippines Divorce as a means of terminating marriage is currently illegal in the Philippines, with the only other recourse in the predominantly Roman Catholic republic being annulment. A couple may also separate according to the law for various reasons including repeated spousal abuse against the petitioner, a common child, or the exclusive child of the petitioner; homosexuality of one or both spouses; and marital abandonment. Declaration of Nullity of Marriage, Annulment of voidable marriage and Legal Separation are valid in the Philippines. For spouses who can no longer settle grave problems in their family, these three are the remedies. If the abovementioned valid laws are legal in the Philippines, the question is, how about divorce? The lawmakers continue to fight for the approval of the divorce law. At present, it is only the Philippines and Vatican City that do not have divorce law. It is always a struggle on the part of the lawmakers since there is a benefit of it specially to the abused spouse.

CHAPTER III CONCLUSION Divorce should be legalized in the Philippines As of 2003, it was recorded that 4 out of 25 marriages in the Philippines end up in Legal Separation. Other couples decide not to legalize their separation simply because they cannot afford it. This is one of the many reasons why many lawmakers are pro divorce. Divorce is the legal dissolution of a marriage by court or other competent bodies. It is way cheaper than annulment and legal separation. Philippines and Vatican City are the only countries in the world that do not allow divorce because the Church is against it. All countries including predominantly Catholic countries in the world like Spain, Poland, and Mexico permit divorce. Maybe the Church there has opposed it, but the state has recognized the right of couples to choose the life they want. The divorce bill has been languished in the Philippine Congress for many years. Although the Church is against Divorce, it should still be legalized in the Philippines because it is beneficial to battered wives, couples with unsuccessful marriages, and the children of separated couples. Divorce is not yet legalized in the Philippines. However, legal separations and annulments are allowed here in our country. In legal separation, the spouses are allowed to live separately but remain married to each other. Legal separation may be granted when there is marital betrayal, homosexuality, repeated physical violence, attempt on the life of the other spouse, and abandonment without reasonable cause for more than one year. In annulments, the marriage can be voided but the couples are not allowed to re-marry. Annulments may be granted when either of the couples can prove that the marriage was invalid from the start according to a certain set of grounds such as impotence, homosexuality, mistaken identity, or psychological incapacity. Most of the grounds are difficult to validate and require a lot of money to prove before the court. The proposed divorce law does not require too much money and it allows couples to re-marry, with added protection, such as child support, alimony and child custody. The lack of divorce law in our country further complicates the marital and family problems of many Filipinos. Therefore, it has to pass a divorce law now. Divorce is beneficial to battered wives because in the Philippines, infidelity and physical abuse are not grounds for annulment. According to the Philippine Commission on Women, “physical injuries and/or wife battering remains to be the most prevalent case across the twelve-year period, from 1997–2009, accounting nearly half (45.5 percent) of all reported violence against women (VAW) cases nationwide.” For instance, the marriage worked for 8 years, but later the husband becomes violent and unfaithful to his wife. These may not be used for annulment under Article 36, unless it can be proved that these are manifestations of psychological inability that preceded the marriage. The divorce law will provide a solution that Article 36 cannot support. “A divorce law will provide a straightforward remedy to a marital failure for it does not concern itself with validity or invalidity of a marriage and it terminates a marriage based on a ground that occurred during the marriage.”

           Moreover, divorce law does not destroy a family. In fact, no law could actually destroy a family. It is only the members of the family who can do that. Legalizing divorce law is accepting that some marriages work and some do not. “In cases where a union is more harmful than beneficial, a divorce can be a benevolent and less hurtful way of severing ties with your partner.” Some marriages and families have survived to this day and it will still survive after the divorce law has been passed. The Church should not interfere in the approval of this law because we are a secular state. Thus, no religious group could dictate any law or policy for the whole country. The law should only give people a choice, to be exercised according to their own personal beliefs.  Besides, there are also grounds to be considered when filing a divorce. A husband or wife cannot file a divorce unless he or she has a valid reason.

The divorce bill is for couples that cannot bear to live with each other for some valid reasons. If the couple truly loves each other, they will not be affected with the legalization of divorce. Therefore, the legalization of the divorce bill will not destroy the relationship of happy and contented families. People who are against divorce believe that it gives a wider path for immorality and marital infidelity. For me, this statement is absurd because it is the choice of a man or woman to stay loyal to their spouse. Any law will not affect a person’s faithfulness and truthfulness for his or her husband or wife. Again, if the couple truly loves each other, they will not be affected with the legalization of divorce. Thus, the said proposed law will not affect their fidelity and behavior towards their spouse.

           Of all the reasons stated above, I can truly say that the divorce bill should be legalized in the Philippines as soon as possible. It will not only benefit the people but it also makes everything legal: re-marriage, child support and child custody, division of properties and debts. Divorce benefits battered wives, couples with unhappy marriages, and children the children of separated couples. Therefore, it must be legalized in the Philippines.

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