Proposed divorce law in the Philippines

philippine law blogPhilippine divorce lawsImage via WikipediaBy Rey Cartojano
For a predominantly Catholic country as the Philippines, the refiling by the Gabriela women's party-list group of a controversial bill to legalize divorce in the country drew mixed reactions.

The refiled measure, now renamed House Bill No. 1799 (An Act Introducing Divorce in the Philippines), lists down five grounds for the filing of a petition for divorce:
1. Petitioner has been separated de facto (in fact) from his or her spouse for at least five years at the time of the filing of the petition and reconciliation is highly improbable;
2. Petitioner has been legally separated from his or her spouse for at least two years at the time of the filing of the petition and reconciliation is highly improbable;
3. When the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage;
4. When one or both spouses are psychologically incapacitated to comply with the essential marital obligations;
5. Any of the grounds for legal separation that has caused the irreparable breakdown of the marriage.
Under the present law, particularly Article 36 of the Family Code of the Philippines, only psychological incapacity is the only ground for annulment of marriage, and the process of securing annulment is not only tedious but expensive as well, making the provision biased in favor of those who have the financial means to sustain costly litigation.
Under the proposed divorce bill, separation in fact (de facto) for five (5) years and legal separation for two (2) years are already grounds for divorce, as long as reconciliation of the spouses is highly improbable.  Separation in fact is a widespread phenomenon in the Philippines, especially for couples who could not afford the legal process of annulment, thus providing these separated couples a ground to formally and legally severe their marital ties.  On the other hand, legal separation for two (2) years is thought by the proponents of the divorce bill enough basis to proceed to divorce, considering that the spouses already passed the ordeal and process of legal separation.
The third ground is irreconcilable differences that caused irreparable breakdown of marriage.  What these irreconcilable differences are not clear, for as long as they caused irreparable breakdown of marriage, again without sufficiently defining what irreparable breakdown of marriage means.  The third ground provides possible judicial interpretation based on the facts of the case, which can be questioned as unwarranted delegation of legislative authority, i.e., judicial legislation, or simply unconstitutional for being vague.
The fourth ground of psychological incapacity is feared to be a useless provision if the proposed divorce bill is passed into law, as the other grounds will be easier to establish and less costly for the parties. In fact, the existence of the third ground of irreconcilable differences, which is broader in scope, will be sufficient to absorb this ground of psychological incapacity.

The last ground for divorce, which can be any of the grounds of legal separation under existing law that caused irreparable breakdown of marriage, provides an opening for the broadening in the scope of the coverage for divorce in the Philippines. The Family Code provides the following as grounds for legal separation:
[1] Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
[2] Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
[3] Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
[4] Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
[5] Drug addiction or habitual alcoholism of the respondent;
[6] Lesbianism or homosexuality of the respondent;
[7] Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
[8] Sexual infidelity or perversion;
[9] Attempt by the respondent against the life of the petitioner; or
[10] Abandonment of petitioner by respondent without justifiable cause for more than one year.
In effect, the proposed divorce bill added ten (10) more specific grounds for divorce as enumerated above, as long as the said grounds caused irreparable breakdown of marriage, again without clearly defining what irreparable breakdown means. 
The Philippine Daily Inquirer reported that the refiling of the bill quickly elicited an objection from Parañaque Rep. Roilo Golez, who said, “That is like giving a married couple a weapon of mass destruction that they can use against each other even for petty, solvable marital problems.”   

Buhay party-list Rep. Erwin Tieng also said his group was against divorce because it was tantamount to giving troubled marriages an “exit clause from a very important union.”   He suggested “preempting” the dissolution of marriages by effective counseling or “better family relations” programs from the Church, government and volunteer groups.
The bill’s authors, however, said a divorce law would address the issue of domestic violence. Police statistics in 2009 showed that 19 women a day fell victim to marital violence.  Gabriela Representatives Luzviminda Ilagan and Emerenciana De Jesus stressed legalizing divorce would give “married couples in irreparable marriages another legal remedy that they can resort to in addition to the country’s existing laws on legal separation and annulment.”
Ilagan and De Jesus said a divorce law could help put an end to domestic violence still prevalent among married Filipino couples.  The Philippines is one of only two countries in the world (excluding the Vatican) that has not legalized divorce.  “For women in abusive marital relationships, the need for a divorce law is real. It is high time that we give Filipino couples, especially the women, this option,” said Ilagan and De Jesus in the bill’s explanatory note.
It appears that the proponents of the divorce bill anchor principally their arguments on domestic violence, citing several alarming statistics to establish convincingly their points.  However, the grounds being proposed under the divorce law encompass areas outside of domestic violence, as for instance the addition of the ten (10) grounds under legal separation as grounds also for the filing of divorce.
Although it is really high time that the Philippines takes a second very serious look on our outdated and unresponsive law on annulment, the proposed bill on divorce appears too revolutionary and unwieldy for most Filipinos.  While we are cognizant that our various tribal and cultural communities had already indigenous customs and practices similar to the divorce being practiced by the Muslims especially in southern Philippines which ALL predated the advent of Spanish, American and Japanese colonizers, we have to face the reality that a revolutionary and unwieldy divorce bill as proposed now may not pass into law especially with the strong opposition of the Catholic hierarchy.  

But tempering and limiting its provisions, and making it cover only to very specific and defined grounds, such as for instance repeated domestic violence, may probably cause a rethinking by the local Catholic hierarchy of its position on the issue.  After all, if Italy and Spain, which are supposed to be centers of global Catholicism have their own versions of divorce laws, why can't we have here also in the Philippines?

A GRASP ON SUCCESSION

Philippine Succession LawsImage via Wikipedia

By Beverly Caboteja
I’m looking through my notes at home , and I remember one subject, which a lot of people say , one of the most difficult yet boring subjects. It is SUCCESSION. I had no clear idea though of what kind of animal is this (not until I have studied it) because at one point, I know I have no property or rights to transfer, neither do I have the inheritance to succeed. But nobody knows what lies ahead. Maybe in the future, God willing, I can use this.
One author says that , Civil Law has and always will be one of the stabilizing factors in our daily lives. Part of this is succession. When we mention the word “succession” , some people get excited, some get nervous because basically we talk about inheritance and death, respectively. Of course, up to a certain degree we need to know about succession because the only way we can learn is through discussing it. Seldom do people talk about it because they say this is only for the rich and famous. True or not, the need still arises.
Art 777 of the Civil Code states that “ the rights to the succession are transmitted from the moment of the death of the decedent. At the moment of the decedent’s death , the heirs start to own the property , subject to the decedent’s liabilities. In fact, they may dispose of the same even while the property is under administration.”
In its generic or general sense, succession is defined as the transmission of rights and properties from one person to another. In this sense, succession may be intervivos (where transfer is effective during lifetime of the giver) or mortis causa (after his death).
Succession in its legal definition, is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the value of the inheritance , of a person are transmitted through his death to another or others either by his will or by operation of law (Art. 774, New Civil Code). In brief, someone gets something from another who has died.
It is true that death transfers the rights to the succession- but only if the following conditions are present, namely:
1. That indeed there has been a death (either actual or presumed)
The law is silent in determining as to when a person is deemed considered dead. Technically, a person is considered dead when all its sensory faculties, bodily activities, heart and brain systems cease to function. Yet, under the law death is not limited to natural or physical demise. It includes presumed death occasioned by prolonged legal absence.
Legally, there are two (2) kinds of presumed death: the ordinary presumption caused by ordinary absence there being no danger or idea of death and an extraordinary presumption caused by an extraordinary or qualified absence. Here in the first presumption, if a person disappears, at the end of ten (10) years, he shall be presumed dead for the purpose of opening his succession (Art 390 of the Civl Code).
On the other hand, if he disappears after the age of 75, absence of five (5) years is enough in order that his succession may be opened. Note that death takes place on the last day of the period of absence required by law.
Moreover, under Art 391 of the Civil Code, there is extraordianary presumption because of great probability of death. The law says that the following shall be presumed dead for all purposes including the division of the estate among the heirs:
a. A person on board a vessel lost during a sea voyage or an aeroplane which is missing, who has not been heard for four years since the loss of the vessel or aeroplane;
b. A person in the armed forces who has taken part in war, and has been missing for four years;
c. A person who has been in danger of death under other circumstances and his existence has not been known for four years.
Under these conditions, it has been held that the person is presumed to have died at the time of the disappearance, that is at the time the calamity took place and not at the end of four years. In other words, at the end of four years, the presumption will arise that death had occurred four (4)years before.
Furthermore, in both absences, succession is only of provisional character because there is always a chance that the absentee may still be alive. As such, it may be rebutted or proved as to when death actually occurred.
The problem here is, what if the absentee appears or returns? Knowingly, if the absentee appears or without appearing his existence is proved, “he shall recover his property in the condition in which it may be found and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rent. “
2. That the rights or properties are indeed transmissible or descendible
As mentioned, inheritance includes all the property , rights and obligations of a person which are not extinguished by his death. Some rights are extinguished by death, some are not. To name few of those rights which are extinguished by death (and which therefore are not part of the estate), these include: family rights, marital and parental authorrity, support, action for legal separation, right to hold public office or private office or job. These rights have no inheritability , hence not transmissible mortis causa.
Thus, rights and obligations are generally transmissible unless purely personal.
3. That the transferee is still alive (no predecease), willing (no repudiation) and is capacitated to inherit.
It is noteworthy that if the heir instituted is incapacitated, repudiates the inheritance, or predeceases the testator, said heir inherits NOTHING. The same conclusion is reached when although the heir is ready, willling and able- the right is not transmissible or descindible- as for instance the right to support.
While it is true that a person has the right to transfer his or her inheritance but this only takes place by virtue of his will (i.e testamentary succession )or by operation of law (i.e. legal or intestate). Still, the act of such person is moderated by the law so as not to defeat the real intent or purpose of the law. So long as all the requisties concur or all requirements are complied with, succession may transpire.