Domestic divorce and the right to pursue happiness

By Atty. Eduardo T. Reyes III

A recent report from Congress divulged that the divorce bill has passed second reading.

This fans the flickering hopes of spouses trapped in loveless marriages. They have been enduring for years marital abuse, antagonism, enmity and all things toxic one can think of in this life.

Save for the Vatican, only the Philippines does not have a divorce law.  Our lawmakers who have, for years, stymied the passage of divorce, keep assuaging the agonizing couples by pointing them to annulment and nullity of marriage on account of psychological incapacity.

Yet annulment and nullity of marriage are difficult to prove let alone expensive to pursue. The difficulty lies in proving the elements or grounds. Without a divorce, a marriage can only be terminated if there is something wrong with it at the time of the ceremony to start with. But if the grounds occur after the solemnization of the marriage, then it cannot be annulled.

For annulment under Article 45 of the Family Code, there must be a defect in the consent given during the marriage, such as fraud. Fraud could be in the form of the “non-disclosure by the wife that she was pregnant by a man other than her husband”; and this fact must have been existing at the time of marriage.  But as a trial lawyer for twenty-four years, mostly handling civil and family law cases, this columnist has only encountered a single case that this happened. The rarity only underlines the difficulty of getting an annulment.

In turn, for psychological incapacity under Article 36 of the Family Code to be appreciated as a ground to declare a marriage void, it must be proven by clear and convincing evidence that one or both parties has/have been afflicted with a psychological malady that had been existing prior to, or during, the marriage. The psychic cause must have developed over time. That it was congealed out of a dysfunctional upbringing or a traumatic experience during childhood.  And the malady only reared its ugly head during the marriage.

This latter ground is even more cumbersome to prove in court as it requires the petitioner-spouse to unearth the ugliest of events in their life and the ones they would rather forget.

So, for those who value their privacy, it would be inconvenient to get either an annulment or a nullity of marriage decree because in both cases, “washing of dirty linen” must be done through court proceedings which are open to the public. And thus for one who is very private, they would rather suffer in silence and stay married to avoid publicity.

Acts of enmity, antagonism, belligerent attacks and irreverent let alone violent actions, when committed only during the marriage without being traced as behavior borne of factors that occurred before the marriage, would not be grounds for annulment or nullity of marriage.

But what about in divorce? How is it different?

In divorce, the grounds could be physical violence or abusive conduct which transpired only recently. The fact that such abuse was inflicted on the petitioner-spouse is enough to support a divorce. Separation-in-fact is also another ground let alone irreconcilable differences.

These grounds need not be proven to have existed prior to the marriage nor “traced” to the family history or childhood experiences of the guilty spouse. For instance, when one’s spouse became addicted to drugs only after the marriage, such could not be a ground for annulment or nullity of marriage. But it could be a ground for divorce.

Divorce is easier to prove and quicker, and therefore will not prolong the agony of the spouses.

Bluntly put, it does not really matter whether one’s actions can be explained scientifically or commonsensically. There is no point in looking for an explanation on what triggered a certain behavior.

Not all marriages are made in heaven. Fairy tale endings are politically incorrect. Sailing into the sunset could lead to a pitch-black night.

Pardon the hyperbole. But when a marriage turns cold; or worse, antagonistic, irreverent, and acrimonious, or is attended by violence, it would be senseless not to give the spouses a way out.

As this column would often repeat: no less than the constitution guarantees a person’s right to pursue happiness. It is an integral part of one’s right to privacy.

Forcing unhappy couples to stay married therefore, by not enacting the domestic divorce law, could be violative of this sacred constitutional precept.

                (The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor, MCLE lecturer, bar reviewer and a book author. His website is