The Ways to Dissolve Marriages in PH
WHILE divorce is illegal in the Philippines, there are four ways to legally dissolve marriages in the famously-devout Catholic country, a visiting Integrated Bar of the Philippines (IBP) member said.
Lawyer Joseph Inocencio, IBP-Bulacan chapter member, said Filipinos can have their marriages dissolved through a declaration of presumptive death, annulment, declaration of nullity, and divorce by foreign spouse.
“Maraming paraan kung papaano maghiwalay,” Inocencio said during a forum at the Philippine Consulate General on October 18.
Presumptive death
He said one way of dissolving marriages is through a “declaration of presumptive death,” which can be used if one spouse had been “missing” for four straight years.
“Yun pong asawang nawawala ay wala na sa loob ng apat na taon or more continuous. Kailangan four years continuously walang communication whatsoever,” he said.
Inocencio said the courts allow this four-year period to be shortened to two years if the missing spouse was in a ship or airplane that had gone missing “like the Malaysian Airlines flight;” the spouse is a member of the Armed Forces of the Philippines and had gone off to war; and other “similar situations.”
“Katulad ng sundalo o pulis na pinadala sa Jolo o sa Basilan para lumaban sa mga rebelde,” he said.
Inocencio said the surviving spouse should have “well-founded belief” that her “missing” husband or his “missing” wife was already dead.
“Ibig sabihin, malinis sa puso niya na paniniwala niya na patay na yung asawa niya dahil nga wala ng communication.. ala na siyang naririnig whatsoever,” Innocencio said.
He said the courts were strict in dissolving marriages through a “declaration of presumptive death” because this method had been abused before.
“Mahigpit po ang nirerequire ng husgado kasi inaabuso ng iba itong paraan na ito. Kabilang sa maaring i-require na evidence yung katunayan na kayo ay nagpunta sa estasyon ng radyo para manawagan dun sa asawa ninyo. Or, kung nagpublish ba kayo sa diyaryo,” he said.
“Pupuwede hingan kayo ng husgado ng ebidensya na nagpapatunay na ginawa ninyo ang lahat ng magagawa ninyo sa abot ng makakaya para yung asawa ninyo ay hanapin,” he added.
Annulment
Another legal way to dissolve marriages is through annulment.
He said a Filipino marriage could be annulled if the spouses were 18 to 20 years old and got married without getting their parents’ consent.
Another ground for annulment is insanity or if the spouse was out of his or her mind when they got married.
“Natatawa kayo kasi sino bang nagpapakasal na nasa wastong katinuan,” Inocencio said in jest.
“Ang ibig sabihin nito ay basta meron siyang kakulangan sa pag-iisip. Hindi niya alam kung ano ang kanyang pinapasok. Siya ba talaga ay kinakasal? Ito ba ay bahay-bahayan lang?” he added.
Inocencio said another ground for annulment was fraud or if one of the spouses deceived the other.
“Ito yung lubhang pangloloko. Halimbawa, yung napangasawa ninyo ay meron palang tinatagong sakit…sexually transmitted. The point is when there was fraud, pupuwede yang maging dahilan para ipa-annul,” he said.
Inocencio said a marriage can also be annulled if the spouses were married through “force, intimidation, or undue influence.”
“Napilitan yung isa na magpakasal dahil siya ay pwenersa… any form of force or duress. Yung duress, hindi naman kailangan i-shot gun ka,” Inocencio said.
“Halimbawa, yung tatay ng babae may utang sa isang tao—nakasangla ang kanilang lupa at wala ng titirahan yung pamilya ng babae—at pinilit siyang magpakasal na labag sa kalooban,” he said.
“It’s a kind of duress. Yung force mas overt..kitang-kita. Yung duress, it’s a mental term. Nararamdaman o naiisip niyo na merong pumipilit sa inyo na gawin ang isang bagay na labag sa inyong kalooban,” he added.
Declaration of nullity
Inocencio said the third legal way to annul a marriage in the Philippines is through a declaration of nullity.
He said the courts issue this declaration if the marriage in question was “missing an element.”
These include marriages where those who tied the knot “were not a man and a woman;” the spouses were not yet 18 years old when they got married; or if they did not categorically give their consent– -or did not say their “I dos”—during the wedding.
“Hindi pwede na walang ‘Oo’ during the wedding. Yung pag-oo ay pagtanggap hindi lamang nung mapapangasawa mo but also yung pagpasok mo sa buhay may asawa. Kaya nga po marriage contract yan kasi yan ay isang kontrata sa pagitan ninyong dalawa,” Inocencio said.
He said a declaration of nullity could also be obtained if the solemnizing officer during the wedding had no authority to marry the couple.
“Katulad si Yaya Dub, ikinasal pala ng isang pastor na impostor,” Inocencio said in jest.
He said a marriage could also be nullified if there was no marriage certificate issued or if no wedding ceremony happened.
“However short, kailangang may seremonyang naganap sa harap ng solemnizing officer,” Inocencio said.
He said another ground for the nullification of a marriage was “psychological incapacity.”
“Maraming manifestation yan katulad ng perversion o kung ano-ano ang pinapagawa sa asawa kung sila ay magsisiping,” Inocencio said.
He said other manifestations of “psychological incapacity” include immaturity, irresponsibility, and homosexuality.
“There has to be an expert finding that there is indeed psychological incapacity not merely now but at the time that they were married. The cause should be existing at the time of that they were married,” Inocencio said.
A marriage could also be nullified if it violates Article 51 of the Family Code, which requires widows and widowers to give their children’s inheritance before getting married again.
“May asawa kayo tas yung asawa namatay at may anak kayo. Kailangan po bago magpakasal ulit, yung asawa, kailangan ideliver muna yung (mana),” Inocencio
said.
“Kung hindi niyo gawin yun at nagpakasal kayo, yun pong kasal na yun automatically void,” he said.
“Prinoprotektahan ng ating batas yung interes ng mga anak na ayaw nila na may mahalong ibang lahi at mamingle yung properties sa magiging mga kapatid nila sa pangalawa regardless of the age of the children,” he added.
He said marriages that are bigamous, polygamous, incestuous, or “are against public policy” could also be declared as null and void.
Divorce by foreign spouse
The last legal way to dissolve a marriage in the Philippines is through “divorce by foreign spouse.”
“Ito ay kung nagpakasal ang isang foreigner sa isang Pilipino at yung foreigner mismo yung nagdivorce dun sa Pilipino, maari dun sa bansa kung saan siya national o sa ibang bansa but no in the Philippines,” Inocencio said.
IBP lawyers will again visit Hong Kong in mid-November to provide Filipinos with free legal consultations at the consulate.