ISSUE ON DIVORCE IN THE PHILIPPINES

At present, the Philippine legal system generally prohibits the practice of absolute divorce within the country. Absolute divorce, as it is known in other countries, may only be availed of by the spouses in very specific instances. As a rule, Philippine Family law merely provides for the practice of relative divorce or legal separation. This relatively limited recourse permits the spouses to live and manage their property separately but such does not result in the severance of the marriage tie.

Nevertheless, a divorce obtained abroad by a foreign spouse may still be given legal recognition in the country under Article 26 of the Family Code if such would result in allowing the foreigner spouse to remarry. A recent Supreme Court decision interpreted this provision in such a way as to include instances where one of the spouses was originally a Filipino citizen but was later on able to change his or her citizenship. This new decision only considers the citizenship of the spouses at the time a divorce was procured instead of their nationality at the time of their marriage.

On the other hand, Muslim marriages allow absolute divorce to take place in several instances. Despite this open recognition of divorce, the law is only applicable when 1) the spouses are both Muslims; or 2) where only the male party is a Muslim and the marriage is solemnized in accordance with the provisions of the Code of Muslim Personal Laws. For those marriages not falling within the mentioned instances, the provisions of the Civil and Family Codes as well as the general prohibition on divorce still applies.

Therefore, what substitutes for absolute divorce in the country may only be found in Article 36 of the Family Code. This provision allows the dissolution of a marriage and the separation of the spouses by reason of psychological incapacity. What constitutes psychological incapacity has been defined as the mental incapacity that causes a party to be truly incognitive of basic marital covenants that must be assumed and discharged by them. The law did not give any specific situation that may be considered as indicative of psychological incapacity as it was the intent of the framers to provide the courts with a certain degree of flexibility. Nonetheless, guidelines have been ensured in order to prevent abuse and possible collusion.