In preparation for a lecture I have been asked to give in the near future, I have prepared the following table to compare the existing family law with the proposed bill on divorce.
A COMPARISON OF THE EXISTING
FAMILY LAW AND THE PROPOSED LAW ON DIVORCE IN THE PHILIPPINES
| EXISTING FAMILY LAW Art. 55. A petition for legal separation may be filed on any of the following grounds:
(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.
For purposes of this Article, the term "child" shall include
a child by nature or by adoption.Art. 56. The petition for legal separation shall be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the
offense or act complained of;
(2) Where the aggrieved party has consented to
the commission of the offense or act complained of;
(3) Where there is connivance between the
parties in the commission of the offense or act constituting the ground for
legal separation;
(4) Where both parties have given ground for
legal separation;
(5) Where there is collusion between the parties
to obtain decree of legal separation; or
(6) Where the action is barred by prescription.
Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n) Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live
separately from each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal
partnership shall be dissolved and liquidated but the offending spouse shall
have no right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in accordance
with the provisions of Article 43(2)
(3) The custody of the minor children shall be
awarded to the innocent spouse, subject to the provisions of Article 213 of
this Code; and
(4) The offending spouse shall be disqualified
from inheriting from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of the innocent spouse
shall be revoked by operation of law. (106a)
Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. (107a) Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences:
(1) The legal separation proceedings, if still
pending, shall thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall
be set aside, but the separation of property and any forfeiture of the share
of the guilty spouse already effected shall subsist, unless the spouses agree
to revive their former property regime.
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PROPOSED DIVORCE LAW
Art.
55. (A) A petition for legal separation may be filed on
any of the following grounds:
(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.
For
purposes of this Article, the term "child" shall include a child by
nature or by adoption.
(B} A PETITION
FOR DIVORCE MAY BE FILED ON
ANY OF THE FOLLOWING GROUNDS:
(1) THE PETITIONER HAS BEEN SEPARATED DE FACTO 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) THE PETITIONER HAS BEEN
LEGALLY SEPARATED FROM HIS OR HER SPOUSE FOR AT LEAST
TWO Y EARS AT THE TIME OF THE FILING OF THE PETITION AND RECONCILIATION IS HIGHLY IMPROBABLE;
(3) WHEN ANY OF THE GROUNDS FOR LEGAL SEPARATION UNDER PARAGRAPH
(A} OF THIS ARTICLE HAS CAUSED THE IRREPARAB LE BREAKDOWN OF THE MARRIAGE;
(4)
WHEN ONE OR BOTH SPOUSES ARE PSYCHOLOGICA LLY INCA PACITATED TO COMPLY WITH THE ESSENTIAL MARITAL OBLIGATIONS;
(5)
WHEN THE SPOUSES SUFFER FROM
IRRECONCILABLE DIFFERENCES THAT HA VE CAUSED THE IRREPARABL E BREAKDOWN OF
THE MARRIAGE."
Art.
56. The petition for legal separation OR DIVORCE shall
be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the
offense or act complained of;
(2) Where the aggrieved party has consented to
the commission of the offense or act complained of;
(3) Where there is connivance between the
parties in the commission of the offense or act constituting the ground for
legal separation;
(4) Where both parties have given ground for
legal separation;
(5) Where there is collusion between the parties
to obtain decree of legal separation; or
(6) Where the action is barred by prescription.
Art. 57. AN ACTION FOR
LEGAL SEPARATION OR
DIVORCE MAY
BE FILED AT ANY TIME."
Art.
58. An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition.
THE SAME RULE SHALL
APPLY TO AN ACTION FOR DIVORCE BASED ON ARTICLE 55 (B),NUMBERS 3 AND 5 OF THIS CODE. THIS RULE SHALL NOT . APPLY WHERE THE ACTION FOR LEGAL
SEPARATION OR DIVORCE INVOLVES ACTS OF VIOLENCE AGAINST WOMEN
AND THEIR CHILDREN UNDER REPUBLIC ACT NO. 9262.
IN A
SUCH CASE,
SECTION 19 OF THE
REPUBLIC ACT NO.
9262 SHALL APPLY.
Art.
59. No legal separation OR DIVORCE may be decreed unless
the Court has taken steps toward the reconciliation of the spouses and is
fully satisfied, despite such efforts, that reconciliation is highly
improbable. (n)
Art.
60. No decree of legal separation OR DIVORCE shall
be based upon a stipulation of facts or a confession of judgment.
In any
case, the Court shall order the prosecuting attorney or fiscal assigned to it
to take steps to prevent collusion between the parties and to take care that
the evidence is not fabricated or suppressed.
Art. 61. After the filing of the petition
for legal separation OR DIVORCE, the spouses shall be
entitled to live separately from each other.
The
court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute
community or conjugal partnership property. The administrator appointed by
the court shall have the same powers and duties as those of a guardian under
the Rules of Court.
Art.
62. During the pendency of the action for legal separation, the provisions of
Article 49 shall likewise apply to the support of the spouses and the custody
and support of the common children.
Art.
63. (A) The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live
separately from each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal
partnership shall be dissolved and liquidated AND THE ASSETS SHALL BE EQUALLY DIVIDED BETWEEN THE SPOUSES but the offending spouse shall PAY TO THE INNOCENT SPOUSE ACTUAL,MORAL AND EXEMPLARY DAMAGES IN ACCORDANCE WITH THE PROVISIONS OF THE CIVIL CODE ON DAMAGES;
(4) THE IIIINNOCENT SPOUSE AND THE CHILDREN SHALL BE ENTITLED TO SUPPORT IN ACCORDANC E WITH THE PROVISIONS OF THIS CODE;
(5) THE CHILDREN SHALL BE ENTITLED TO THEIR PRESUMPTIVE LEGITIME WHICH SHALL BE COMPUTED AS OF THE DATE OF THE
FINAL JUDGMENT OF THE COURT; AND
(6) The offending spouse shall be disqualified
from inheriting from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of the innocent
spouse shall be revoked by operation of law. (106a)
B) THE DECREE OF DIVORCE SHALL
HAVE THE FOLLOWING EFFECTS:
(1) THE MARRIAGE BONDS SHALL BE SEVERED;
(2) THE ABSOLUTE COMMUNITY OR THE CONJUGAL PARTNERSHIP OF GAINS
SHALL BE DISSOLVED AND
LIQUIDATED AND THE ASSETS SHALL BE DIVIDED EQUALLY BETWEEN THE SPOUSES. IN THE PARTITION OF THE ASSETS,THE PRESUMPTIVE LEGITIME OF THE COMMON CHILDREN,COMPUTED AS OF THE DA,:E OF THE FINALJUDGMENT OF THE COURT, SHALL BE DELIVERED TO
THEM.THE PARTITION ANO DISTRIBUTION OF THE PROPERTIES
OF THE SPOUSES AND THE DELIVERY OF THE CHILDREN'S PRESUMPTIVE LEGITIME SHALL BE RECORDED IN THE APPROPR IATE CIVIL REGISTRY ANO REGISTRIES OF PROPERTY,OTHERWISE THE SAME SHALL NOT AFFECT THIRD PERSONS
(3) IN
ADDITION TO HIS OR HER EQUAL SHARE IN THE ASSETS OF THE ABSOLUTE COMMUNITY OR
THE CONJUGAL PARTNERSHIP, THE SPOUSE WHO IS NOT GAINFULLY EMPLOYED SHALL BE
ENTITLED TO SUPPORT FROM THE OTHER SPOUSE UNTIL HE OR SHE FINDS ADEQUATE
EMPLOYMENT, PROVIDED, HOWEVER THAT THE SUPPORT SHALL ONLY BE FOR ONE YEAR
FROM THE FINALITY OF THE DECREE OF DIVORCE, AND PROVIDED FURTHER THAT THE
RIGHT TO SUPPORT SHALL BE SUBJECT TO THE PROVISIONS OF ARTICLE 201 OF THIS
CODE.
(4)ACTUA L,MORAL ANO EXEMPLARY DAMAGES SHALL BE AWARDED TO THE AGGRIEVED SPOUSE IN ACCORDANCE WITHTHE
PROVISIONS OF THE
CIVIL CODE ON DAMAGES;
(5)THE CUSTODY OF ANY MINOR CHILD SHALL BE
DECIDED BY THE COURT IN ACCORDANCE WITH THE BEST INTERESTS OF THE CHILD, SUBJECT TO THE PROVIS IONS OF ART ICLE 213 OF THIS
CODE;
(6)THE CHILDREN SHALL
BE ENTITLED TO SUPPORT IN ACCORDANCE
WITH THE PROVISIONS OF THIS CODE;
(7)CHILDREN
CONCEIVED OR BORN BEFORE THE DECREE OF DIVORCE
HAS BECOME FINAL ANO EXECUTORY SHALL BE CONSIDERED LEGITIMATE; AND
(8)THE PARTIES
SHALL BE DISQUALIFIED FROMINHERITING FROM EACH OTHER BY INTESTATE SUCCESSION. MOREOVER, PROVISIONS IN FAVOR OF ONE SPOUSE MADE IN THE WILL OF THE OTHER SPOUSE SHALL BE REVOKED BY
OPERATION OF LAW.
Art.
64. After the finality of the decree of legal separation OR
DIVORCE the innocent spouse IN THE CASE OF LEGAL SEPARATION
OR IN THE CASE OF DIVORCE UNDER ARTICLE 55 (B) NUMBERS 3 AND 5 may
revoke the donations made by him or by her in favor of the offending spouse,
as well as the designation of the latter as beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable. The revocation
of the donations shall be recorded in the registries of property in the
places where the properties are located. Alienations, liens and encumbrances
registered in good faith before the recording of the complaint for revocation
in the registries of property shall be respected. The revocation of or change
in the designation of the insurance beneficiary shall take effect upon
written notification thereof to the INSURER.
The
action to revoke the donation under this Article must be brought within five
years from the time the decree of legal separation OR
DIVORCE become final. (107a)
Art.
65. If the spouses WHO HAVE BEEN LEGALLY SEPARATED should
reconcile, a corresponding joint manifestation under oath duly signed by them
shall be filed with the court in the same proceeding for legal separation.
Art.
66. The reconciliation referred to in the preceding Articles shall have the
following consequences:
(1) The legal separation proceedings, if still
pending, shall thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall
be set aside, but the separation of property and any forfeiture of the share
of the guilty spouse already effected shall subsist, unless the spouses agree
to revive their former property regime.
The
court's order containing the foregoing shall be recorded in the proper civil
registries. (108a)
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EXISTING FAMILY LAW
Art.
26. All marriages solemnized outside the Philippines, in accordance with the
laws in force in the country where they were solemnized, and valid there as
such, shall also be valid in this country, except those prohibited under
Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
Where
a marriage between a Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse shall have capacity
to remarry under Philippine law. (As amended by Executive Order 227)
Art.
36. A marriage contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization. (As amended by Executive Order
227)
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PROPOSED DIVORCE LAW
Art.
26. All marriages solemnized outside the Philippines, in accordance with the
laws in force in the country where they were solemnized, and valid there as
such, shall also be valid in this country, except those prohibited under
Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
Where
a marriage between a Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse shall have capacity
to remarry under Philippine law.
A DECREE OF
DIVORCE VALIDLY OBTAINED BY A
FILIPINO CITIZEN ABROAD SHALL BE VALID
IN THIS COUNTRY ONLY AFTER A DETERMINATION BY A PHILIPPINE COURT THAT THE
SAME IS BASED ON A GROUND FALLING UNDER ARTICLE 55 18) OF THIS CODE."
SEC. 4.
ARTICLE 36 OF THE FAMILY CODE IS
HEREBY REPEALED
SEC.
5. Repealing
Clause. - The provisions
of any law, executive order, presidential decree or any other issuance inconsistent with this Act are
hereby repealed or modified
accordingly.
SEC. 6. Separability Clause.-lf any part or
provision of this Act is declared
invalid,all other provisions not affected thereby shall remain valid.
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