Amicus Curiae

Under Executive Order No. 209, otherwise known as The Family Code of the Philippines, only declaration of nullity of marriage and annulment of marriage can sever a marriage bond between husband and wife. Moreover, the grounds provided for by law are exclusive.
Irreconcilable differences are not valid grounds for declaration of nullity or annulment of marriage. Likewise, sexual infidelity, bigamy, or abandonment, which are some of the many causes of an irremediable marriage, are not valid grounds to sever the marriage bond. These factors, however, along with physical, verbal, or psychological abuse, may be used and considered to prove psychological incapacity, a ground for declaration of nullity under Article 36 of the Family Code.
But the stringent Molina doctrine (Republic v. CA and Molina, 268 SCRA 198) requires that psychological incapacity must be grave, incurable and existing at the time when the couples exchanged their “I do’s.” The root cause of the incapacity must likewise be medically or clinically identified, and sufficiently proven by experts, which makes the filing of a petition for declaration of nullity of marriage even more expensive.
Although the Supreme Court relaxed the application of the Molina doctrine in Marcos v. Marcos (343 SCRA 755) by clarifying that a physician is not required to examine the person to be declared psychologically incapacitated, still, the party seeking an annulment must present evidence that can adequately establish the psychological condition. Simply put, the totality of evidence presented must be able to sustain a finding of psychological incapacity, characterized as grave and existing at the time of marriage, and that the same is incurable.
The current stringent requirements to sever a marriage bond may have contributed to the decline of the reported number of marriages from years 2007 to 2016, based on data from the Philippine Statistics Authority (PSA). According to PSA, “in a span of 10 years, the reported number of marriages decreased by 14.4% from 2007 to 2016.”
To give an opportunity to spouses in irremediably failed marriages to secure absolute divorce under limited grounds, as well as judicial procedures to end dysfunction of a long-broken marriage, the House of Representatives approved House Bill (HB) No. 7303, otherwise known as “Absolute Divorce Act of 2018.” This Bill also hopes to save the children from the pain, stress, and agony consequent to their parents’ constant marital clashes, and grant the divorced spouses the right to marry again for another chance to achieve marital bliss.
Under Section 5 thereof, the following are the grounds for absolute divorce:

a. The grounds for legal separation under Article 55 of the Family Code.

b. Grounds for annulment of marriage under Article 45 of the Family Code.

c. When the spouses have been separated in fact for at least 5 years at the time the Petition for Absolute Divorce is filed and reconciliation is highly improbable.

d. Psychological Incapacity as provided for in Article 36 of the Family Code, whether or not the incapacity was present at the time of the marriage or later.

e. When one of the spouses undergoes a gender reassignment surgery or transitions from one sex to another, the other spouses is entitled to petition for absolute divorce with the transgender or transsexual as respondent, or versa.

f. Irreconcilable marital differences and conflicts which have resulted in the total breakdown of the marriage beyond repair, despite earnest and repeated efforts at reconciliation, shall entitle either spouse or both spouses to petition for absolute divorce.

In letter (a) above, the grounds for legal separation under Article 55 of the Family Code, as basis for absolute divorce, are amended. It no longer requires “repeated” physical violence as the bill removed such qualifier. It also included “chronic gambling of the respondent” as ground. Having a child with another other than one’s spouse during the marriage is also included as ground, except when upon the mutual agreement of the spouses, a child is born to them by in vitro or a similar procedure, or when the wife is a rape victim, who bears a child after the incident.
Moreover, when the spouses are legally separated by judicial decree for more than 2 years, either or both spouses can petition for an absolute divorce based on said judicial decree of separation.
The court shall not start the trial of a petition for absolute divorce unless the mandatory six-month cooling-off period is observed, except in cases which involve acts of violence against women and children under RA 9262. This serves as a final attempt to reconcile the parties.
On the effect of an absolute divorce decree to children born during the marriage, these children, as well as the adopted children, shall retain their legal status and legitimacy.
The bill, which does not provide for a retroactive application, was already approved by the House on third reading, and is now pending before the Senate. Needless to say, this bill may still undergo substantial changes/modifications given the strong opposition by the Church and conservative Filipinos.
The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes, and not offered as, and does not constitute, legal advice or legal opinion.
Erika Joy B. Murcia is an associate of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW) Cebu Branch.
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