Expanded Nullity of Marriage Act

Sritate Offier of thr Sruetary TWENTIETH CONGRESS OF THE REPUBLIC OF THE PHILIPPINES 25 SEP 16 P3:12 First Regular Session SENATE RECEIVED BY: S.B. No. 1396 INTRODUCED BY SENATOR RISA HONTIVEROS AN ACT EXPANDING THE GROUNDS FOR NULLITY OF MARRIAGE, PROVIDING FURTHER PROTECTIONS TO THE PARTIES TO THE MARRIAGE AND ITS COMMON CHILDREN, AMENDING FOR THIS PURPOSE EXECUTIVE ORDER NO. 209, OR THE FAMILY CODE OF THE PHILIPPINES, AND REPUBLIC ACT NO. 11596, OR AN ACT PROHIBITING THE PRACTICE OF CHILD MARRIAGE AND IMPOSING PENALTIES FOR VIOLATIONS THEREO- v.u? EXPLANATORY NOTE The 1987 Constitution provides that the Filipino family is the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. It is also the State's duty to value the dignity of every person, guarantee full respect for human rights, and uphold the fundamental equality before the law of women and men. However, the country's present reality reflects circumstances which undermine rather than strengthen the family as an institution. Failed and abusive marriages are common, with data showing how women are often at the receiving end of the abuse. According to the 2022 Philippine National Demographic and Health Survey, 17.5% of women aged 15 to 49 said they have experienced either physical, sexual, or emotional violence from their current or most recent husband or intimate partner. Of the women who have ever been married and experienced physical abuse, 48% reported that it was inflicted by their current spouse or partner, while 25% said it was committed by a former one?. A marriage that provides no support, that is abusive and oppressive, and that fails to fulfill the vows it made should not be preserved at the expense of justice and dignity. This bill expands the grounds for nullity of marriage beyond those already provided under the Family Code. In this proposed measure, either spouse may seek nullity of their marriage when they have been separated for at least five years if such separation was caused by physical violence or grossly abusive conduct, attempts to corrupt or induce the petitioner or their child into prostitution, or connivance therein https://www.dhsprogram.com/pubs/pdf/PR146/PR146.pdf 2 https://www.rappler.com/philippines/numbers-state-filipino-women-2022/

drug addiction or habitual alcoholism, lesbianism or homosexuality of the respondent which has resulted in marital infidelity; the contracting of a subsequent bigamous marriage, whether in the Philippines or abroad; sexual infidelity or perversion; attempts against the life of the petitioner or their child; or the commission of rape by the respondent against the petitioner or their child, whether before or after the celebration of the marriage. The bill also includes as a ground for nullity a final decree of absolute divorce, whether administrative or judicial, obtained in a foreign jurisdiction by any Filipino citizen, regardless of the nationality of their spouse and regardless of whether such decree has been judicially recognized in the Philippines. Likewise, it acknowledges as a ground a marriage annulment or dissolution duly authorized by a church or religious entity, or a marriage termination duly recognized by the customs and practices of an indigenous cultural community or indigenous peoples to which the parties belong, having the same effect as a judicial decree of annulment, dissolution, or declaration of nullity. Moreover, the bill provides that court proceedings for the declaration of nullity shall be affordable, expeditious, and inexpensive. This is to address the typical process for annulment in the country, which may take up to two to five years and cost about half a million pesos?. The court shall waive the costs of litigation for indigent litigants. Lastly, the best interests of children shall also be a fundamental guiding principle of this measure. A decree of nullity shall likewise include provisions for the care and custody of children. In view of the foregoing, the immediate passage of this bill is earnestly sought. RISA HONTIVEROS Senator 3 https://www.gmanetwork.com/news/money/content/470394/love-on-the-rocks-the-cost-of-having- your-marriage-annulled/story/

Office of the sorretary TWENTIETH CONGRESS OF THE REPUBLIC OF THE PHILIPPINES First Regular Session 25 SEP 16 P3:12 SENATE RECEIVED BY S.B. No. 1396 INTRODUCED BY SENATOR RISA HONTIVEROS AN ACT EXPANDING THE GROUNDS FOR NULLITY OF MARRIAGE, PROVIDING FURTHER PROTECTIONS TO THE PARTIES TO THE MARRIAGE AND ITS COMMON CHILDREN, AMENDING FOR THIS PURPOSE EXECUTIVE ORDER NO. 209, OR THE FAMILY CODE OF THE PHILIPPINES, AND REPUBLIC ACT NO. 11596, OR AN ACT PROHIBITING THE PRACTICE OF CHILD MARRIAGE AND IMPOSING PENALTIES FOR VIOLATIONS THEREO Fus Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Short Title. - This Act shall be entitled as the " Expanded Nullity

2 of Marriage Act."

Sec. 2. Declaration of Policy. - While the State continues to recognize the

5 sanctity of family life and endeavors to protect and strengthen the family as a basic 6 autonomous social institution, it is also dutybound to safeguard the dignity of every 7 human person, including married persons, guarantee full respect for human rights, 8 uphold the fundamental equality before the law of men and women and protect and ensure the best interest of children as the paramount consideration in all matters concerning them. Towards this end, the State shall adopt a policy in keeping with the fundamental freedoms guaranteed under the Constitution, the rights guaranteed under the Universal Declaration of Human Rights, the International Convention of Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of the Child, and other International Human 16 Rights Instruments to which the Philippines is a party.

Sec. 3. Guiding principles. - The following shall be the guiding principles of the

Act: a) Recognizing the family as the foundation of the nation, the State shall afford the family necessary protection and assistance to ensure that it is an environment conducive to the growth and well-being of all its individual members so that it can fully assume its responsibilities within the community. b) The inherent dignity and the equal and inalienable rights of all members of the family, the protection of all persons from abuse and violence, gender equality, and the best interests of children are the fundamental guiding principles of this legislation and shall be read alongside the responsibility of the State to protect and strengthen the family as an autonomous social institution. c) The State shall ensure that the court proceedings for the grant of nullity of marriage shall be affordable, expeditious, and inexpensive. A decree of nullity shall include provisions for the care and custody of children, termination of the property regime as provided under Articles 147, 148 or 50 - 53, whichever is applicable, of Executive Order No. 209, or the Family Code of the Philippines, and, in resolving issues of child custody, visitation, and support, issues of sexual orientation, gender identity or expression, and sexual characteristics will not be made a factor in deciding the award/s. d) In the invocation of the grounds for the nullity of a marriage, the provisions of this act shall not be construed as permitting any form of discrimination on the basis of age, racial or ethnic origin, religious belief or activity, cultural practices, political inclination or conviction, social class, sex, gender, sexual orientation, gender identity and expression, sexual characteristics, marital or relationship status, disability, migrant status, HIV status, health status or medical history, language, physical features, or other status.

Sec. 4. Definition of Terms. - As used in this Act, the terms:

a) Nullity of marriage refers to the voiding of a marriage by the proper court in a legal proceeding, requiring a petition or complaint filed by one spouse,

which will have the effect of confirming the single status of the contracting parties for all legal intents and purposes, including the right to contract a subsequent marriage, owing to an absence of an essential or formal requisite of marriage, or the presence of a ground identified by law as inimical to marriage, which renders it an absolute nullity ab initio and ipso jure; b) Best interest of the child refers to the totality of the circumstances and conditions most congenial to the survival, protection, and feelings of security of the child, and most encouraging to their physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child; c) Child refers to a child of the spouses, whether in common or solely, below eighteen (18) years of age or eighteen (18) years and older but who is incapable of taking care of oneself as defined under Republic Act No. 7610, or the "Special Protection of Children Against Abuse, Exploitation and Discrimination Act," as amended, and shall include an offspring by legal adoption or one whose custody and care is judicially decreed to be given to a guardian. d) Child custody refers to the parental authority and care of a child as decreed by a proper court when the marriage of the parents of the child has been nullified; e) Marriage annulment or dissolution refers to a marriage duly solemnized by a priest, imam, rabbi, or presiding elder of a church or religious entity, or duly solemnized or performed by an elder or leader of an indigenous cultural community (ICC) or indigenous people (IP) in the Philippines, which is subsequently annulled, dissolved, declared a nullity, or terminated in a final judgment or pronouncement in accordance with the canons or precepts of such church, religious entity, or customs and practices of ICCs or IPs; f) Migrant worker refers to a person who is to be engaged, is engaged, or has been engaged in remunerated activity in a state of which he or she is not a citizen or on board a vessel navigating the foreign sees other than a government ship used for military or non-commercial purposes or on an installation located offshore or on the high seas; to be used interchangeably

with overseas Filipino worker; g) Mixed Marriage refers to a marriage between a Filipino citizen and a foreigner that is validly celebrated abroad or in the Philippines; h) Supportrefers to everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work; i) Proper court refers to the proper Family Court established under Republic Act No. 8369, or the "Family Courts Act of 1997", which shall exercise jurisdiction over the nullity proceedings and the persons of the petitioner and respondent spouses; j) Separation refers to separation in fact, separation de jure as described in Article 61 of the Family Code, and legal separation decreed by a proper court under the grounds enumerated in Article 55 of the Family Code.

Sec. 5. Grounds. - Either spouse may seek the nullity of their marriage based

not only on the grounds enumerated in Articles 35, 36, 37, 38 and 40, or the absence of an essential or formal requisite of marriage as stated in, the Family Code, but also on the following grounds: a) Five years of separation, whether continuous or broken, without a judicial decree of separation, when the separation was a result of: 1) physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; 2) 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; 3) Drug addiction or habitual alcoholism of the respondent; 4) Lesbianism or homosexuality of the respondent which resulted in marital infidelity; 5) Contracting by the respondent of a subsequent bigamous marriage,

whether in the Philippines or abroad; 6) Sexual infidelity or perversion; 7) Attempt by the respondent against the life of the petitioner, their common child, or a child of the petitioner; and 8) The commission of the crime of rape by the respondent against the petitioner, their common child, or the child of the petitioner, whether before or after the celebration of the marriage; b) A final decree of absolute divorce, whether administrative or judicial, obtained in a foreign jurisdiction by any Filipino citizen, regardless of the nationality of their spouse, and whether or not the decree of divorce has been recognized by a court in the Philippines; c) A marriage annulment or dissolution, duly authorized by a church or religious entity, or a marriage termination duly authorized by customs and practices traditionally recognized, accepted and observed by an ICC or IP to which the parties belong, having the same effect as a decree of annulment, dissolution or declaration of nullity issued by a competent court.

Sec. 6. Procedure. - The established and recognized procedures for securing

the declaration of nullity of a marriage under the Family Code of the Philippines shall 20 continue to govern. For the recognition of customs and practices of ICC or IP having the same 22 effect as a decree of, annulment, dissolution or declaration of nullity, any independently-verifiable proof of such customs or practices, and of the membership of the spouses in an ICC or IP, will be admissible in evidence. The conduct of online filing and hearings may be available to OFWs, subject to issuances of the Court.

Sec. 7. Indigent litigants. - Upon application by the petitioner and presentation

of evidence of indigency, the court shall waive the payment of filing fees and other costs of litigation and shall appoint a counsel de oficio and assign social workers, psychologists, and psychiatrists, preferably from appropriate government agencies, to assist the petitioner and the common children of the parties.

In evaluating evidence of indigency, the court may take into consideration the 2 petitioner's independent source of income, property, and capacity to afford the services of counsel after considering the basic necessities for themselves or their family. The court may also consider if the petitioner is from a marginalized group or entity and is not financially able to afford the services of counsel under the circumstances, such as in the case of farmers, indigenous peoples, victims of gender violence, and other similar causes. Evidence of indigency shall include but is not limited to the following: a) An affidavit of indigency stating no income or insufficiency of income; b) The latest income tax return or pay slip; c) Certificate of indigency from the Public Attorney's Office; d) Certificate of Indigency from the Department of Social Welfare and Development (DSWD) having jurisdiction over the residence of the litigant; e) Certificate of Indigency and/or no income from the Office of the Punong Barangay/ Barangay Chairperson having jurisdiction over the residence of the litigant; f) Other proofs of net income. The Public Attorneys' Office may handle proceedings under this Act, provided that the petitioner meets the indigency requirements of the Office.

Sec. 8. Effects of the Nullity of Marriage on Property Relations.

a) When a marriage is declared void under Articles 35 (2), (3), (5), and (6) and Article 36 of the Family Code, the property of the parties shall be dissolved, liquidated and distributed in accordance with the provisions of Article 147 of the Family Code. b) When a marriage is declared void under Article 35 (1) and Section 6 of Rep. Act No. 11596, Article 35 (4), the second or subsequent marriage contracted in violation of Article 40, Article 37, and Article 38 of the Family Code, the property of the parties shall be dissolved, liquidated and distributed in accordance with the provisions of Article 148 of the Family Code. This provision supersedes

Section 6 of Rep. Act No. 11596 and modifies Article 50 of the Family Code.

c) When a marriage is declared void under the grounds stated in Section 5 hereof,

the property of the parties shall be dissolved, liquidated and distributed in accordance with the provisions of Article 50 of the Family Code. This provision expands and modifies Article 50 of the Family Code. All creditors of the parties shall be listed in the petition for declaration of nullity of marriage and shall be protected by the proper court. The liabilities of the spouses to the creditors shall be solidary. This provision modifies Articles 147 and 148 of the Family Code.

Sec. 9. Effects of the Nullity of Marriage on the Status of the Children. - Children

conceived and born outside a valid marriage are illegitimate, including those children 11 born out of prohibited child marriages. Children conceived or born before the judgment of annulment under Article 45 has become final and executory; or the judgment of absolute nullity of the marriage under Article 36 has become final and executory; or of the subsequent marriage under 15 Article 53 shall be legitimate as provided by Article 54 of the Family Code. Children conceived or born of marriages under Section 5 of this law before the 17 judgment of absolute nullity has become final and executory shall likewise be legitimate. This expands and modifies Article 54 of the Family Code.

Sec. 10. Support. - The court shall provide for child support pursuant to the

pertinent provisions of the Family Code. The court, in its discretion, may provide for spousal support to the spouse who did not give cause for nullity. In considering the award of support, the court shall consider relevant circumstances of the case and of the parties. On application of either party, the court may decree an increase or decrease in the amount of support upon a showing of a substantial and material change of circumstances. In case the respondent is an OFW, a copy of the order to grant spousal support, 28 if any, and child support shall be furnished to the Overseas Workers Welfare 29 Administration (OWWA) and the Department of Migrant Workers (DMW).

Sec. 11. Custody and support pendente lite. - During the pendency of the

32 action and in the absence of adequate provisions in a written agreement between the

1 spouses, the court, upon application of the proper party, shall provide for the support 2 of the spouses and the custody and support of their common children. It shall also 3 provide the appropriate visitation rights of the other parent.

Sec. 12. Order to withhold and remit spousal and child support. -

6 Notwithstanding other laws to the contrary, the court shall, in the decree of nullity, 7 order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically remitted directly to the other spouse. Failure to remit and/or withhold or any delay in the remittance of support to the other spouse and/or their common children without justifiable cause shall render the respondent and/or their employer liable for indirect contempt of court.

Sec. 13. Penalties. - Any person who fails to provide court-ordered child

support and/or court-ordered spousal support, shall be punished by prision mayor and shall be fined in the amount of one hundred thousand pesos (php 100,000.00) to not more than three hundred thousand pesos (php 300,000.00).

Sec. 14. Article 40 of the Family Code is hereby amended to read as follows:

"ARTICLE 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n). A MARRIAGE CONTRACTED IN VIOLATION OF THIS PROVISION IS VOID.

Sec. 15. Articles 50, 51, and 53 of the Family Code are hereby amended to

read as follows: "ARTICLE 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are [declared ab initio or annulled by final judgment under Articles 40 and 45] ANNULLED UNDER ARTICLE 45, AND

DECLARED VOID AB INITIO UNDER SECTION 5 OF REPUBLIC ACT NO. XXXXX, BY FINAL JUDGMENT. The final judgment in [such] THE AFOREMENTIONED cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129." "ARTICLE 51. In [said] THE partition REFERRED TO IN THE IMMEDIATELY PRECEDING ARTICLE, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree [of annulment or absolute nullity] shall be considered as advances on their legitime." "ARTICLE 52. The judgment [of annulment or of absolute nullity of the marriage] REFERRED TO IN ARTICLE 50, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons."

Sec. 16. Article 55 of the Family Code is hereby amended to read as follows:

"ARTICLE 55. A petition for legal separation may be filed on any of the following grounds: (1) xxx; (9) Attempt by the respondent against the life of the petitioner, OR THEIR COMMON CHILD, OR A CHILD OF THE PETITIONER; or (10) xxx. For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)

Sec. 17. Section 3(a) of Republic Act No. 11596 is hereby amended as follows:

"Section 3. Definition of Terms. - As used in this Act: (a) Child refers to any person under eighteen (18) years of age, or any person eighteen (18) years of age or over but who [is unable], BY REASON OF HIS INABILITY to fully take care and protect oneself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, IS UNABLE TO GIVE FREE, INTELLIGENT AND SPONTANEOUS CONSENT TO MARRIAGE;"

Sec. 18. Section 6 of Republic Act No. 11596 is hereby amended as follows:

"Section 6. Legal Effect of a Child Marriage. - Child marriage is void ab initio, and the action or defense for the declaration of ITS absolute nullity [of a child marriage] shall not prescribe in accordance with Article [35 and] 39 of the Family Code of the Philippines. [Articles 50 to 54 of the Family Code of the Philippines shall govern on matters of support, property relations, and custody of children after the termination of the child marriage.] THE PROPERTY OF THE PARTIES SHALL BE DISSOLVED, LIQUIDATED AND DISTRIBUTED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 148 OF THE FAMILY CODE. CHILDREN CONCEIVED AND BORN OUTSIDE A CHILD MARRIAGE ARE ILLEGITIMATE."

Sec. 19. Repealing Clause. - Laws, decrees, executive orders, issuances, rules

and regulations, or part thereof inconsistent with this Act, including Rep. Act No. 11596, are hereby repealed or amended accordingly.

Section 20. Separability Clause. - If, for any reason, any section or provision of

this Act is declared unconstitutional or invalid, the other sections or provisions not affected thereby shall remain in full force and effect.

Sec. 21. Retroactivity Clause. This law shall have retroactive effect insofar as it

11 does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.

Sec. 22. Prescription. The action or defense for the declaration of absolute

nullity of a marriage shall not prescribe.

Sec. 23. Effectivity Clause. - This Act shall take effect after fifteen (15) days

upon publication in at least two (2) newspapers of general circulation. Approved,