LEGAL TECHNIQUE AND LOGIC

LIBRT: The Absolute Divorce Law is Valid and Constitutional

Position Paper of Lerios and STITCH (STudents In logic and legal TeCHniques)

Agbones, Mary Cyrille

Beaniza, Marc Darryl
Dacalos, Dave Ryan
Estavilla, Karl Francis
Fernandez, Anisah Julia
Kinaadman, Karlo Mar
Melendez, Aaron James
Pino, Gilson
Trinidad, John Michael
Ypil, Melissa Angeli

EH 308
I. Questions Presented:

1. Whether or not the Absolute Divorce Law is Valid and Constitutional.

2. Whether or not the Absolute Divorce Law destroys marriage as an inviolable social institution.
3. Whether or not the institution of absolute divorce protects women and thus is inline with the
constitutional mandate of upholding equality.
4. Whether or not the Absolute Divorce Law is violative of the rights of children.

II. Statement of Facts

Have you ever been in love? Have you ever fallen out of love? If you have not
experienced the heartache that comes with the latter, then you are one of the lucky few, because
for most people, they fall short on that regard; more so, for those who are trapped by the tether
that still binds them to the person who wronged them, hurt them, and betrayed them. They are
hindered by the Shawshanked prison that keeps them from the pursuit of another chance at true
happiness. They are hindered to remarry, this time, to the right person. From the immortal words
of England Dan and John Ford Coley: “It’s sad to belong to someone else, when the right one
comes along”.

Divorce was not always prohibited in the Philippines. History shows that divorce was
actually practiced in the country long before the Spaniards, the Americans, and the Japanese
came to its shores. Divorce had already been an accepted custom of indigenous Filipinos;
wherein practiced by a number of Philippine tribes such as the Gaddang of Nueva Vizcaya, the
Igorot and Sagada of the Cordilleras, the Minobos, the Bilaans and the Tagbanwas of Palawan.

The availability of absolute divorce in the Philippines dates back to pre-colonial times.
Divorce back then was institutionalized and practiced for several reasons such as infertility,
infidelity, failure to fulfill familial obligations, and many more. Should a marriage end in
divorce, and the wife is found to be at fault, her family was obligated to return the dowry, or
bride wealth that they received from the husband, back to the husband. While on the other hand,
if the male counterpart of the marriage, or the husband, is found out to be the one at fault, then he
would lose all his rights to the dowry. In other words, on top of losing his wife, he could no
longer retrieve the bride wealth that he had already given to his wife’s family. However, each of
the couple would still have equal custody of their children.1

When the Spaniards came and colonized the Philippines, they brought with them Spanish
Law and integrated it in the livelihood of the Filipinos. The Spanish rulers in the Philippines
adopted the ​Siete Partidas ​of the Spanish Civil Code which was first compiled during the reign
of Alfonso X of Castille in the mid 1200s, and they implemented such principle to the occupants
of their colonies. However, this law only allowed legal separation. Also governing laws on
divorce were during the Spanish era were the provisions of Canon Law and of the Council of
Trent, which were implemented by the civil authorities of Spain in the Philippines. Under the
aforementioned statues, relative divorce or legal separation, may be granted if one of the spouses
wished to join a religious order with the permission of the other spouse; adultery by either the
husband or the wife; and if one of the spouses became a heretic.2

Towards the end of the 19th century, the Stars and Stripes supplanted the Spanish flag in
the country, and upon seeing the overwhelming religious influence that Catholicism had in the

​Lorna S. Torralba Titgemeyer, ‘La Mujer Indigena - The Native Woman”, University of Vienna (1997),
1

http://www.univie.ac.at/ksa/apsis/aufi/wstat/mujer.htm

2
Deogracias T. Reyes, "History of Divorce Legislation in the Philippines since 1900," ​Philippine Studies 1,
no. 1​ (1953): 45, http://www.philippinestudies.net/ojs/index.php/ps/article/viewFile/3455/6024.
Philippines, US President McKinley proclaimed the doctrine of religious freedom. Eventually,
there was a clear shift from being a purely religious society to a secular one. This lead to the
enactment of a law which legalized divorce, Act 2710, also known as “An Act Establishing
Divorce,” which was passed on March 11, 1917. Even then, absolute divorce had limited and
highly impractical grounds which are: 1. Adultery on the part of the wife or; 2. Concubinage on
the part of the husband. Moreover, absolute divorce cannot be granted except upon conviction of
the guilty party in a criminal prosecution based on the two grounds.3 When the Civil Code of the
Philippines was enacted, the divorce law was abrogated.4

In the treaty by which the Philippines was ceded to the United States of America, the
doctrine of religious freedom was proclaimed for the first time. The treaty provided among other
things that “the inhabitants of the territories over which Spain relinquishes or cedes her
sovereignty shall be secured in the free exercise of religion.”5 In line with this precept, President
McKinley, in his instructions to the Philippine Commission, laid down the inviolable rule:

No law shall be made respecting the establishment of religion or

prohibiting the free exercise thereof and that free exercise and
enjoyment of religious profession and worship without
discrimination or preference shall forever be allowed.6

These provisions regarding religious freedom and separation of Church and State, coming
as they did close upon the liberation of the Filipinos from Spanish rule were made by some the
occasion of ridicule and of expressions of antagonism against the religion and the religious
influences which Spain had brought to the Philippines, and of resentment against the dominant
position the Catholic Church enjoyed. Moreover many Filipino officials quickly took over from
their new mother country those separatist views on the relation of Church and State which
prevailed in America.

As a consequence of the new philosophy of pragmatism, and of the new atmosphere of

religious agnosticism and indifferentism which the change of sovereignty had placed in control,
the idea of legalizing absolute divorce in the country was introduced. On March 1, 1917, Act No.
2710, otherwise known as the "Divorce Law", was passed.

Act No. 2710

AN ACT TO ESTABLISH DIVORCE.

Section 1. A petition for divorce can only be filed for adultery on the part of the
wife or concubinage on the part of the husband, committed in any of the forms
described in article four hundred and thirty-seven of the Penal Code.

SEC. 2. No person shall be entitled to a divorce who has not resided in the
Philippine Islands for one year prior to the filing of the petition, unless the cause
for which the divorce is claimed has taken place in said Islands.

SEC. 3. The divorce may be claimed only by the innocent spouse, provided there
has been no condonation of or consent to the adultery or concubinage, as the case

3
​Act 2710. An Act Establishing Divorce. March 11, 1917
4
Deogracias T. Reyes, "History of Divorce Legislation in the Philippines since 1900," ​Philippine Studies 1,
no. 1​ (1953): 45, ​http://www.philippinestudies.net/ojs/index.php/ps/article/viewFile/3455/6024​.

5
​Article X. Treaty of Paris. concluded between the United States and Spain on Dec. 10, 1898.
6
Acts of the Philippine Commission (Manila; Bureau of Printing, 1908) p. 10, par. 12 and 13.
may be. Where both spouses are guilty, a divorce can not be claimed by either of
them.

SEC. 4. An action for divorce can not be filed except within one year from and
after the date on which the plaintiff became cognizant of the cause and within five
years from and after the date when such cause occurred; but if such cause
occurred prior to the date on which this Act takes effect, then only within one year
from and after such date.

SEC. 5. An action for divorce shall in no case be tried before six months shall
have elapsed since the filing of the petition.

SEC. 6. After the filing of the petition for divorce, the spouses shall be entitled to
live separately from each other and manage their respective property.

The husband shall continue to manage the community property; but if the court
deem it proper, it may appoint another to manage said property, in which case the
administrator shall have the same rights and duties as a guardian and shall not be
allowed to dispose of the income or of the capital except in accordance with the
orders of the court.

SEC. 7. During the pendency of divorce proceedings the court shall make
provision for the care of the minor children, in accordance with the circumstances,
and may order the community property or the income there from to be set aside
for their support; and in default thereof said minor children shall be cared for in
conformity with the provisions of the Civil Code; but the court shall abstain from
making any order in this respect in case the parents have, by mutual agreement,
made provision for the care of said minor children and these are, in the judgment
of the court, well cared for.

SEC. 8. A divorce shall not be granted without the guilt of the defendant being
established by final sentence in a criminal action.

SEC. 9. The decree of divorce shall dissolve the community of property as soon as
such decree becomes final, but shall not dissolve the bonds of matrimony until
one year thereafter.

The bonds of matrimony shall not be considered as dissolved with regard to the
spouse who, having legitimate children, has not delivered to each of them or to the
guardian appointed by the court, within said period of one year, the equivalent of
what would have been due to them as their legal portion if said spouse had died
intestate immediately after the dissolution of the community of property.

SEC. 10. The reconciliation of the spouses shall stop the proceedings and annul
the decree, provided it takes place prior to the expiration of the period of one year
mentioned in the last preceding section.

SEC. 11. The dissolution of the bonds of matrimony shall have the following
effects:

First. The spouses shall be free to marry again.

Second. The minor children shall remain in the custody of the innocent spouse
unless otherwise directed by the court in the interest of said minors, for whom
said court may appoint a guardian.

Third. The children shall, with regard to their parents, retain all rights granted to
them by law as legitimate children; but upon the partition of the estate of said
parents they shall bring to collation everything received by them under the
provisions of the second paragraph of section nine.
 SEC. 12. This Act shall take effect on its approval.

Effective, March 11, 1917.

xxx

Absolute divorce or divorce a ​vinculo matrimoni​i was allowed under this act on the
ground of criminal conviction for:

1. Adultery on the part of the wife; or

2. Concubinage on the part of the husband.

After the passage of this Act No. 2710 there was considerable disagreement among legal
authorities whether relative divorce was still allowed. The Philippine Supreme Court was divided
on the question. In the case of Chereau vs. Fuentebella7 the court, following the ruling in the case
of Valdez vs. Tuazon8 ruled that absolute divorce was the only kind of divorce available at the
time in the Philippines.

Act No. 2710 continued in force until the Japanese occupation of the Philippines. And on
March 23 1943, the Chairman of the Philippine Executive Commission, pursuant to the authority
conferred on him by the Commander-in-Chief of the Japanese Imperial Forces in the Philippines,
issued Executive Order No. 141 providing a new divorce law. E.O. 141 therefor expanded the
grounds for divorce, thus including: attempt of one spouse against the life of the other;
contagious diseases contracted by either spouse; incurable insanity, repeated bodily silence;
abandonment for three consecutive years, among others.

And finally reaching the year 1950, the Civil Code of the Philippines took effect and
abrogated all laws pertaining to absolute divorce. It only provides for legal separation or relative
divorce, with the exception of Republic Act No. 394 which allowed absolute divorce among
Muslims residing in non-Christian provinces for a period of 20 years from the date of its
approval.

In deference to Islam which recognizes divorce, Presidential Decree No. 1083 on the
“Code of Muslim Personal Laws” was enacted in 1977 giving Muslim Filipinos the right to
obtain absolute divorce. The allows divorce only if both parties are Muslim or wherein the male
party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in
any part of the Philippines.

But acceptance of divorce has not been confined Islam, Judaism, Buddhism and the other
faiths. Divorce has also been recognized by Christians and the issue of divorce has been
discussed in the bible.

While the State continues to protect and preserve marriage as a social institution, it gives
the opportunity to spouses irremediably failed marriages to secure an absolute divorce decree
under limited grounds and well defined procedures to avoid abuse, save the children from the
pain and stress of their parents’ marital clashes, and grant the divorced spouses to marry again,
for another chance to achieve marital bliss.

7
43 Phil. 216.

8
40 Phil. 943.
 The State shall assure that the petition and proceedings for the grant of absolute divorce
shall be inexpensive and affordable. Upon application by the petitioner, the proper court may
waive the payment of filing fees and other costs of litigation.
III. Summary of Arguments

Sec. 2, Art. XV of the 1987 Constitution provides:

Marriage, as an ​inviolable social institution, is the foundation of

the family and shall be protected by the State.

The Family Code echoes this constitutional edict on marriage and the family and
emphasizes their permanence, inviolability and solidarity under Article 1.

The term inviolable under the Section 2, Article XV is not absolute. In the case of
Republic vs. Molina9, It decrees marriage as legally "inviolable," thereby protecting it from
dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the
state.

By its very title, Article II of the Constitution is a "declaration of principles and state
policies." The provisions of Declaration of Principles and State Policies10 are not intended to be
self-executing principles ready for enforcement through the courts. They do not embody
judicially enforceable rights, but guidelines for legislation. The reasons for denying cause of
action to an alleged infringement of broad constitutional principles are sourced from basic
considerations of due process and lack of judicial authority to wade into the uncharted ocean of
social and economic policy-making. As held in the case of​ ​Tañada v. Angara11

In essence, Philippines does offer remedies for the dissolution of marriage, which in
effect, already contradict the concept of “permanency of marriage” as so strongly protected by
the Philippine Constitution. The Divorce law thus, actually gives a remedy which is more in tune
with the tenets of the Constitution. It is less oppressive and gives more opportunities.

The remedy for social injustice suffered by woman is to dissolve their marriage. Marriage
has to be terminated because it is not a reasonably possible view that a marriage must continue
even though the husband misbehaves, or unable to perform his obligation or for no fault of the
wife it would be cruel to continue it.

Under Article III, the CRC intends to provide better protection for the children at greatest
risk because it was drafted for precisely that purpose. Equally important, it identifies children as
right-holders and active subjects and not merely pawns. It would benefit children of divorce to
re-situate this argument, from the context of divorce, a proceeding in which they are not even
parties, to the context of human rights, where they are recognized as subjects and as rights
holders.

Lastly, the CRC intends to provide better protection for the children at greatest risk
because it was drafted for precisely that purpose. It provides for both civil (political) and
socio-economic rights. Equally important, it identifies children as right-holders and not merely as
“object of protection”. It would benefit children of divorce to re-situate this argument, from the
context of divorce, a proceeding in which they are not even parties, to the context of human
rights, where they are recognized as subjects and as rights holders.

9
Id.

10
Article II, Id.

11
G.R. No. 118295, May 2, 1997.
IV. Arguments

Absolute Divorce Does Not Destroy Marriage as an Inviolable Social Institution

Sec. 2, Art. XV of the 1987 Constitution provides:

Marriage, as an ​inviolable social institution, is the foundation of

the family and shall be protected by the State.

The Family Code echoes this constitutional edict on marriage and the family and
emphasizes their permanence, inviolability and solidarity12:

Article 1. Marriage is a special contract of permanent union

between a man and a woman entered into in accordance with law
for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution whose
nature, consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided
by this Code.

The term inviolable under the Section 2, Article XV is not absolute. In the case of
Republic vs. Molina13, the Court ruled:

Thus, our Constitution devotes an entire Article on Family, recognizing it

“as the foundation of the nation.” It decrees marriage as legally
"inviolable," thereby protecting it from dissolution ​at the whim of the
parties​. Both the family and marriage are to be "protected" by the state.

The Constitution allows dissolution of marriage as embodied in the Family Code. It must
be based on legal and justified grounds such as Article 36 on Psychological Incapacity and
Article 45 of the Family Code:

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.

Art. 45. ​A marriage may be annulled for any of the following

causes, existing at the time of the marriage:

(1) That the party in whose behalf it is sought to have the marriage
annulled was eighteen years of age or over but below twenty-one,
and the marriage was solemnized without the consent of the
parents, guardian or person having substitute parental authority
over the party, in that order, unless after attaining the age of
twenty-one, such party freely cohabited with the other and both
lived together as husband and wife;

12
Republic v. Court of Appeals and Molina, G.R. No. 108763, February 13, 1997.

13
Id.
 (2) That either party was of unsound mind, unless such party after
coming to reason, freely cohabited with the other as husband and
wife;

(3) That the consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facts constituting
the fraud, freely cohabited with the other as husband and wife;

(4) That the consent of either party was obtained by force,

intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited with
the other as husband and wife;

(5) That either party was physically incapable of consummating the

marriage with the other, and such incapacity continues and appears
to be incurable; or

(6) That either party was afflicted with a sexually-transmissible

disease found to be serious and appears to be incurable.

xxx

Further, while indeed marriage must be regarded as an inviolable social institution, the
legal intendment of Section 2 is not to lay down a blanket prohibition of divorce, as what
transpired during the deliberation14 of our Constitution:

FR. BERNAS: Just one question, and I am not sure if it has been categorically
answered. I refer specifically to the proposal of Commissioner Gascon. Is this to
be understood as a prohibition of a general law on divorce? His intention is to
make this a prohibition so that the legislature cannot pass a divorce law.

MR. GASCON: Mr. Presiding Officer that was not primarily my intention. My
intention was primarily to encourage the social institution of marriage, but not
necessarily discourage divorce. But now that he mentioned the issue of divorce,
my personal opinion is to discourage it, Mr. Presiding Officer.

FR. BERNAS: No. My question is more categorical. Does this carry the meaning
of prohibiting a divorce law?

MR. GASCON: No, Mr. Presiding Officer.

xxx

MR. BENGZON: This is just a clarificatory question because there are a lot of
Commissioners who have some misgivings about the last phrase of the first
sentence: "MARRIAGE IS THE FOUNDATION OF THE FAMILY AND
SHALL BE PROTECTED BY THE STATE." Is that the wording?

BISHOP BACANI: Yes.

14
V Record 41, Record on the Constitutional Commission.
MR. BENGZON: Will this in any way preclude Congress from approving a law
on divorce?

MS. NIEVA: We discussed that yesterday and I think we reiterated that it does
not.

MR. BENGZON: It does not.

MS. NIEVA: No.

MR. BENGZON: So, even if this section or this sentence is approved, Congress
will still have every right to pass a divorce law under certain circumstances as it
may deem fit.

MS. NIEVA: That is right, Mr. Presiding Officer.

xxx

MR. NOLLEDO: My last question is with respect to the Gascon amendment, just
inserted now. It reads: "Sec. 2(e). The institution of marriage as the foundation of
the family in effect shall be defended by the State." Can the Commissioner give
examples of the ways by which the State may defend the institution of marriage as
the foundation of the family? Does it do away with divorce?

MR. GASCON: I guess it would discourage divorce. However, this will be

subject to existing customary and traditional laws. In fact, it is to my knowledge
that divorce is being practiced in, let us say, the Cordilleras or Muslim Mindanao.

MR. NOLLEDO: No, excluding Muslim Mindanao or the Cordilleras. Is

Congress prevented from passing a divorce law with respect to Christian
Philippines, if we adopt the provision that the State shall defend the institution of
marriage as the foundation of the family?

MR. GASCON: What I mean when I encourage this proposal, "defend the
institution of marriage," and if the proposal will be pushed through, "the social
institution of marriage," is to emphasize that those who wish to marry and
establish a family have the right to expect from society the moral, educational,
social and economic conditions which will enable them to exercise their right to a
mature and responsible marriage.

So, it is more a positive thing, that when we speak of defending the social
institution of marriage, the society must encourage marriage by insuring the other
conditions which will help support the basic institution or social institution of
marriage.

Furthermore, what would be emphasized is that marriage cannot be contracted,

except by free and full consent; encouragement of these basic traditions which we
connect with the term "marriage."

However, this is my personal opinion. I would personally discourage divorce in

our culture.

MR. NOLLEDO: Does the provision outlaw live-in relationship? (Laughter)

MS. NIEVA: It certainly does not encourage this, because if we are going to
encourage all kinds of unions, then we will have problems in society like the one
of delinquent children and even major criminals, most of whom come from
broken homes. Studies of psychologists and educators have really enough
empirical evidence on this. So, I think we want to save society from the ravages of
 antisocial young people and adults who come from homes that were not really the
kind of institution and environment that promote the well-being of people.

MR. GASCON: Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Colayco): Is Commissioner Nolledo through?

MR. GASCON: I would like to respond also to that. However, Mr. Presiding
Officer, although this provision does not encourage that, it is also a reality that
there are certain people who found families without the formalities of marriage
not because of anything else but primarily because of socio-economic reasons. I
was talking to Sister Christine Tan a while ago and she was mentioning to me that
it is a reality that there is the poor, who cannot even go into formal marriage
because of their socio-economic condition. But this provision does not wish to
discriminate them but rather it merely emphasizes that the State must create a
condition whereby marriage will prosper and flourish even among the poor. But,
of course, when we speak of this, it is not meant to discriminate or to antagonize
those who come from the poorer classes of society. That is the intention, Mr.
Presiding Officer.

xxx

During the deliberations, delegate Gascon stated that the purpose of Article XV Section 2
of the Constitution which states that marriage is the foundation of the family, is merely a policy
which encourages "those who wish to marry and establish a family to have the moral,
educational, social and economic conditions which will enable them to exercise their right to a
mature and responsible marriage."15

Furthermore, luminaries on Constitutional Law, acknowledged by the Supreme Court

itself, such as Fr. Joaquin Bernas, have repeatedly stated that the constitutional provisions
regarding the family does not bar any type of divorce laws.16 However, it should also be noted
that the commentary of De Leon states that divorce is constitutional except for no-fault divorce.
17

The Supreme Court stated that the dissolution of marriage is not against the Constitution.
On the other hand, the Court upheld its decree in proper cases. The Court said:

[But] the Constitution itself does not establish the parameters of

state protection to marriage as a social institution and the
foundation of the family. It remains the province of the legislature
to define all legal aspects of marriage and prescribe the strategy
and the modalities to protect it, based on whatever socio-political
influences it deems proper, and subject of course to the
qualification that such legislative enactment itself adheres to the
Constitution and the Bill of Rights. This being the case, it also falls
on the legislature to put into operation the constitutional provisions
that protect marriage and the family... While it may appear that the
judicial denial of a petition for declaration of nullity is reflective of
the constitutional mandate to protect marriage, such action in fact
merely enforces a statutory definition of marriage, not a

15
​Id.

16
Bernas, Joaquin G. The Constitution of the Republic of the Philippines: A Commentary Vol 1. 1987.

17
​De leon, Commentary on Article XV of the Constitution 1987, Volume 2.
 constitutionally ordained decree of what marriage is... Given the
avowed State interest in promoting marriage as the foundation of
the family, which in turn serves as the foundation of the nation,
there is a corresponding interest for the State to defend against
marriages ill-equipped to promote family life. Void ab initio
marriages under Article 36 do not further the initiatives of the State
concerning marriage and family, as they promote wedlock among
persons who, for reasons independent of their will, are not
capacitated to understand or comply with the essential obligations
of marriage.18

It is the policy of our Constitution to protect and strengthen the family as the basic
autonomous social institution, and marriage as the foundation of the family. The Constitution
decrees marriage as legally inviolable and protects it from dissolution at the whim of the parties19

The Family Code under Article 48 therefore requires courts to order the prosecuting
attorney or fiscal assigned, in cases of annulment or declaration of absolute nullity of marriage,
to appear on behalf of the State in order to take steps to prevent collusion between the parties and
to take care that the evidence is not fabricated or suppressed. Indeed, only the active participation
of the Public Prosecutor or the Office of the Solicitor General (OSG) it will ensure that the
interest of the State is represented and protected in proceedings for annulment and declarations
of nullity of marriage by preventing collusion between parties, or the fabricated or suppression of
evidence.

Declaration of Principles and State Policies is not Self-Executing

Section 12, Article II20 ​provides:

The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution.
It shall equally protect the life of the mother and the life of the
unborn from conception. The natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the
Government.

Section 13, Article II21 provides:

The State recognizes the vital role of the youth in nation-building

and shall promote and protect their physical, moral, spiritual,
intellectual and social well-being. It shall inculcate in the youth
patriotism and nationalism, and encourage their involvement in
public and civic affairs.

xxx

18
​Kalaw v. Fernandez G.R. 166357, Jan 14. 2015.
19
Perez-Ferraris v. Ferraris, G.R. No. 162368, July 17, 2006.

20
The 1987 Philippine Constitution.

21
Id.
 However, the provisions of Declaration of Principles and State Policies22 are not intended
to be self-executing principles ready for enforcement through the courts. They do not embody
judicially enforceable rights, but guidelines for legislation. The reasons for denying cause of
action to an alleged infringement of broad constitutional principles are sourced from basic
considerations of due process and lack of judicial authority to wade into the uncharted ocean of
social and economic policy-making.

As held in the case of​ ​Tañada v. Angara23:

By its very title, Article II of the Constitution is a "declaration of

principles and state policies." The counterpart of this article in the
1935 Constitution is called the "basic political creed of the nation"
by Dean Vicente Sinco. These principles in Article II are not
intended to be self-executing principles ready for enforcement
through the courts. They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading case of
Kilosbayan, Incorporated vs. Morato, the principles and state
policies enumerated in Article II and some sections of Article XII
are not self-executing provisions, the disregard of which can give
rise to a cause of action in the courts. They do not embody
judicially enforceable constitutional rights but guidelines for
legislation.

In the same light, it was held in Basco vs. Pagcor24 that broad constitutional principles
need legislative enactments to implement them, thus:

On petitioners' allegation that P.D. 1869 violates Sections 11

(Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article
II; Section 13 (Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely statements of principles
and policies. As such, they are basically not self-executing,
meaning a law should be passed by Congress to clearly define and
effectuate such principles.

The reasons for denying a cause of action to an alleged

infringement of broad constitutional principles are sourced from
basic considerations of due process and the lack of judicial
authority to wade "into the uncharted ocean of social and economic
policy making.

In general, therefore, the 1935 provisions were not intended to be

self-executing principles ready for enforcement through the courts.
They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the
directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the

22
Id. Article II.

23
G.R. No. 118295, May 2, 1997.
24
G.R. No. 91649, May 14, 1991.
 failure of the executive and the legislature through the language of
the ballot.

Hence, the petitioners cannot declare the law unconstitutional for violating the State
Principle on Family in the absence of any implementing law.

Divorce does not violate Church’s Freedom of Religion

It should be noted from the start that civil and ecclesiastical marriages are different and
separate. Civil divorce laws affect the civil aspect of the marriage and do not, in any way, affect
or dictate the dissolution of the marriage in ecclesiastical marriages. The institution and
dissolution of civil marriages is completely controlled by law and merely allows religious groups
to solemnize on their behalf. Thus, for the civil marriage to be valid, it must be in accordance
with the civil law only and does not concern ecclesiastical rites. In fact, the Family Code and the
Constitution support this conclusion. To illustrate, Article 7 of the Family Code of the
Philippines states that:

Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's
jurisdiction;
(2) ​Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his church or religious sect
and REGISTERED with the civil registrar general, acting
within the limits of the written authority granted by his church or
religious sect and provided that at least one of the contracting
parties belongs to the solemnizing officer's church or religious sect;

XXX

On the other hand, Article 6 of the same Code states:

No prescribed form or religious rite for the solemnization of the

marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing
officer and declare in the presence of not less than two witnesses of
legal age that they take each other as husband and wife. This
declaration shall be contained in the marriage certificate which
shall be signed by the contracting parties and their witnesses and
attested by the solemnizing officer.

Under the 1987 Constitution, in particular Article III, Section 5, it is provided that:

No law shall be made respecting an establishment of religion, or

prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.

It must be noted that civil marriage is a universal civil right as declared under the
Universal Declaration of Human Rights of the United Nations.
 Following this reasoning, any civil law concerning the institution or dissolution of
marriage has no effect on ecclesiastical marriages and dissolutions.

Even if religious groups state that seeing dissolution of marriages affects their
congregation by having "bad examples" in the community, thus, affecting their freedom of
religion indirectly, the argument cannot stand for three main reasons. First, this argument
circumvents the Constitution's non-establishment clause" which mandates that no law shall be
made respecting an establishment of religion, or prohibiting the free exercise thereof. Second,
freedom of religion has its limits and would be weighed with other rights, in this case, public
welfare and individual rights. Third, freedom of religion is also an individual right, thus, the
change of heart by a person in a religious congregation, which is contrary to divorce, is also
protected by the Constitution.

The Catholic Church's own teachings support the notion that religious freedom should be
given to all the people of the world and that the people have the right to choose their religious
faith and should not be coerced into Christianity.25

Divorce Benefits Society as a Whole

Marriage, as shown in the Philippine Statistics Authority (PSA), is already in a steady

decline in the Philippines, with people deciding to forego it. Data for 2011 showed that there was
a 1.3% decline of marriages, compared to its previous year.26 Moreover, as shown in the
Philippine Statistics Authority website:

The number of registered marriages showed an erratic trend for the

past 10 years. The most notable change occurred in 2013 which
recorded a decrease of 8.2 percent from 482,399 in 2012 to
442,603. It is also interesting to note that from that year up to 2015,
the number of marriages declined continuously. Registered
marriages declined by 2.9 percent in 2014 and 3.6 percent in 2015.

In a span of 10 years, the reported marriages decreased by 20.1

percent from 2005 to 2015.27

Although, we cannot deduce from the data shown that the main reason people choose to
not get married is because of the lack of a divorce law. We do note that data has consistently
shown that in recent years, the view on divorce has vastly changed with the increasing number of
people agreeing with divorce. As provided for by a study:

The proportion ambivalent about divorce rose slightly, from 13%

to 16%. A similar but much more recent indicator, however,
reveals that Filipinos have become more open to the idea of
divorce, as evidenced by increasing agreement with the statement
“Married couples who have already separated and cannot reconcile

25
Vatican II and DignitatitesHumanae,
http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vatii_
decl_19651207_dignitatis-humanae_en.html

26
​“Marriage: Philippines 2011,” Philippines Statistics Authority, accessed March 11, 2018
https://psa.gov.ph/content/marriage-philippines-2011​.

27
Id.
 anymore should be allowed to divorce so that they can get legally
married again”. In 2005 the proportion of Filipinos aged 18 years
and over who agreed with this statement was only 43%, but this
had increased to 60% by 2014. Approval of this statement was
higher among men than women, and this gender difference
widened between 2005 and 2014. In 2005, 44% of men and 41% of
women agreed with it. Corresponding percentages in 2014 were
62% for men and 57% for women. If these figures are any
indication, it is likely that a much more liberal attitude toward
divorce is emerging, but whether this openness to divorce will
translate to legislation remains an open question.28

We may then have to seriously consider, as a society, that the concept of marriage must
change and in consequence, we need a reformation of our laws regarding marriage, if we are
truly a state that protects the family as provided by the 1987 Philippine Constitution. Dissolution
of a marriage is thus not necessarily unconstitutional as we already have laws that dissolve
marriage but, we must emphasize that these however, are insufficient to provide for the
necessary needs of the Filipino people.

Under Philippine law, there are limited options for troubled marriages. One option is
through legal separation. An effect of legal separation, as stated in article 63 (1) of the Family
Code, is that “[t]he spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed”. For some, this may not be enough as this is merely a separation of
bed-and-board. Essentially, it does not affect the marital status of the spouses since there is no
severance. More so, with legal separation, there is no possibility to remarry.

Another option is the annulment of a marriage. This alternative is available for those
marriages that are considered voidable under Article 45 of the Family code. These are marriages
that are considered valid until they are annulled.

Another legal option to remedy a troubled marriage is through the declaration of nullity
of a marriage. To declare a marriage void from the beginning, there must be the absence of the
formal and essential requisites of marriage and that the contracted marriage is incestuous and
against public policy.

In addition, our Family code has a unique feature in which, a marriage can be considered
void if either spouse is psychologically incapacitated. Under article 36 of the Family code, “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”. The reason that this
ground is used as basis for the declaration of nullity of marriage several times is because of its
pliability. According to Sta. Maria:

The law does not define what psychological incapacity is and

therefore, the determination is left solely with the courts on a case
to case basis.29

28
Jeofrey B. Abalos, “Divorce and separation in the Philippines: Trends and correlates,” Demographic
Research, Volume 36, Article 50, Pages 1515,1548 Published 9 May 2017,
http://www.demographic-research.org/Volumes/Vol36/50/​ DOI: 10.4054/DemRes.2017.36.50.

29
Melencio S. Sta. Maria, Jr., “Persons and Family Relations Law” (Manila, Rex Book Store: 2010) 204.
 In essence, Philippines does offer remedies for the dissolution of marriage, which in
effect, already contradict the concept of “permanency of marriage” as so strongly protected by
the Philippine Constitution. The Divorce law thus, actually gives a remedy which is more in tune
with the tenets of the Constitution. It is less oppressive and gives more opportunities.

Many critics of divorce say that its legislation would lead to the opening of the floodgates
to hell that is, people would start procuring divorce from left to right, however, this is an obvious
slippery slope. Numerous countries have proven that the existence of a divorce law does not
necessarily correlate to a higher occurrence of separation. To name a few this phenomenon is
seen in countries, where divorce is legal, such as Seychelles, with an 11% divorce rate;
Colombia, Jamaica, and Syria with 9%; Uzbekistan with 8%; Tajikistan with 6%; Guatemala,
Bahamas, and Libya with 5%; Vietnam with 4%; and Chile with just 3%.30 31

It is theorized that the aforementioned countries’ evident low divorce rate is due to a
mixture of their legal system, religious beliefs and culture thus, lead to strict divorce laws. One
must then emphasize that the Divorce law being envisaged is not one that provides for an
overnight procedure. Under the 1987 Philippine Constitution, dissolution of a marriage ​at the
whim of the parties is prohibited but clearly, this is not what the Divorce law embodies. The
law itself does not even allow mutual agreement for divorce. The researchers thus shall look into
Chile’s Divorce law seeing that Chile has one of the strictest Divorce laws and possibly one of
the factors as to why it has a low divorce rate.

Chile’s divorce Law was passed in 2004. In Chile’s Divorce law, there are mainly three
grounds for application of divorce which are:

First, by mutual agreement of the spouses. The spouses must have

lived apart for at least one year, assuming that the spouses' mutual
relations are regulated in a complete and sufficient manner. For a
court to be able to declare a divorce after one year has passed, a
postnuptial agreement is required in addition to the mutual consent
of the parties. The court must review this agreement, to verify that
the rights that are inalienable by law are respected, and to declare
that it complies with the requirements of completion and
sufficiency required by law. The post-nuptial agreement is not
required if all of the matters set out in Article 21 matters were
previously regulated in a judicial procedure.

Second, unilateral request. A request can be made by one of the

spouses once they have lived apart for at least three years and no
marital reconciliation between the parties took place. In this case,
every family matter must also be regulated, and if there is no
previous agreement or judicial judgment, it must be solved in the
same judgment that declares the divorce.

Third, by fault. Request by one party attributing fault to the other

spouse, when it is a serious violation of the duties and obligations
that marriage imposes, or of the duties and obligations with respect
to their children, which makes life together intolerable (Article 54,

30
“Marriages and crude marriage rates" (PDF). United Nations Statistical Division (UNSTAT) 2011.
Accessed March 11, 2018.

31
"Marriage and divorce statistics". Eurostat 2017. Accessed March 11, 2018.
 Civil Marriage Law). This is a subjective ground, because a
violation on its own is not enough (it must be serious and
recurrent). The personal consequences of the violation for the other
spouse must be considered. In this type of divorce, time of
separation is not required.32

It is then possible to enact a Divorce Law which does not necessarily contradict
basic Filipino traits and the Constitution. Clearly the Divorce law has to go through
procedural safeguards before divorce may be granted.

The Absolute Divorce Law Addresses Problems Relating to Social Injustice

Article 13 Section 1 of the 1987 Philippine Constitution states that:

The Congress shall give highest priority to the enactment of

measures that protect and enhance the right of all the people to
human dignity, reduce social, economic, and political inequalities,
and remove cultural inequities by equitably diffusing wealth and
political power for the common good.

Article 1 of the Universal Declaration of Human Rights states that:

All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.

Marriage is a social justice issue. If you are concerned about the welfare of the kids but
also if you are concerned about forging a more equal, more humane, more just society. When
families break down and stratify, that is a manner for not just economic inequality but also social
inequality. which is profoundly unfair and unjust.

The remedy for social injustice suffered by woman is to dissolve their marriage. Marriage
has to be terminated because it is not a reasonably possible view that a marriage must continue
even though the husband misbehaves, or unable to perform his obligation or for no fault of the
wife it would be cruel to continue it.

In the case of Khurshid Bibi v Muhammad Amin, the Supreme Court, the highest
judicial authority in Pakistan, declared that Khurshid Bibi was entitled divorce upon returning
her dower to her husband . Thus, while the right of the man to repudiate his wife has remained
unfettered, the granting of a unilateral Khul divorce to a woman in case of incompatibility
represents significant headway in achieving a balance of rights.

The basic tenet of social justice is that those who have less in life must have more in law.
Social justice commands the protection by the State of the needy and the less fortunate members
of society. Hence, if the financial state of the victim spouse does not permit him or her to file for
annulment, then divorce should be the remedy which is less costly.

32
​Daniela Horvitz Lennon, “Family law in Chile: overview,” accessed March 11, 2018,
https://uk.practicallaw.thomsonreuters.com/9-568-3568?transitionType=Default&contextData=(sc.Default)&firstPa
ge=true&bhcp=1
Divorce Does Not Violate Rights of Children

Human rights law is a powerful and growing international system of treaties and customs.
By incorporating human rights law, domestic law accedes to an international bottom line.
Domestic law incorporating human rights norms, accordingly, is likely to be compatible with a
broad range of foreign law similarly incorporating these norms. International human rights
norms have been adopted in a broad range of contexts to provide normative guidance, from
adoption by States to the adoption by multinational corporations of Model Codes of Conduct,
both to signal support for human rights and, it has been suggested, to pre-empt binding
regulation.

Human rights law is well on grounded in the Universal Declaration of Human Rights, as
drafted in 1948.33 Under the Universal Declaration, for example, States parties recognized that,
"The family is the natural and fundamental group unit of society and is entitled to protection by
society and the State."34

With respect to the the rights of children, the Convention on Rights of the Child (CRC)
was adopted on November 20, 1989 with the Philippines becoming a signatory on January 20,
1990 and subsequently ratifying such on August 21, 1990. The CRC provides for the following:

Article II

(1) States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any
kind, irrespective of the child's or his or her parent's or legal guardian's race,
colour, sex, language, religion, political or other opinion, national, ethnic or social
origin, property, disability, birth or other status.

(2) States Parties shall take all appropriate measures to ensure that the child is
protected against all forms of discrimination or punishment on the basis of the
status, activities, expressed opinions, or beliefs of the child's parents, legal
guardians, or family members.

Article III

(1) In all actions concerning children, whether undertaken by public or private

social welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.

The CRC intends to provide better protection for the children at greatest risk because it
was drafted for precisely that purpose. It provides for both civil (political) and socio-economic
rights. Equally important, it identifies children as right-holders and not merely as “object of
protection”. It would benefit children of divorce to re-situate this argument, from the context of
divorce, a proceeding in which they are not even parties, to the context of human rights, where
they are recognized as subjects and as rights holders.

However, the focus on divorce exacerbates the risks facing children of divorce
themselves. Leading experts have focused on the risks to children posed by warring parents. For

33
Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948).

34
​Declaration of Human Rights, supra note 58, art. 16.3.
example. Andrew Schepard initiated and founded the P.E.A.C.E. project to educate parents
regarding the harm they caused their children by treating them as pawns in divorce.35

The CRC explicitly addresses the child's situation at divorce in two of the four articles
that are generally referred to as "general principles:" 1) "the child's right to be heard in matters
affecting him or her" and 2) the "best interest of the child" standard.36

On the other hand, children’s exposure to physical abuse, though they may not be the
victims, it may also lead to psychological distress. They are forced to grow up faster than usual
and to take on responsibilities at home. They also experience isolation from other children as
normal activities much as having friends over at the house can be an impossibility. Their eating
and sleeping patterns can be affected, as well as their academic performance. They may develop
behavioral patterns such as violent outburst or aggression. Studies show that 60-80 percent of
batterers come from homes where domestic violence occur.37

It must be emphasized that the aforementioned rights are owed to each child, by the State,
regardless of the parent's marital status. The child's "right to be heard" is not dependent on the
strategy of the parent's divorce lawyer; it is an ongoing right of the child so as the right to the
child’s best interests. Its significance is reflected in the growing number of children's advocates
who have shifted the focus from domestic family law to the more far-reaching protections of
international human rights law.

Therefore, divorce does not violate human rights and children are, in fact, to be protected
by the CRC at all times irrespective of divorce.

Divorce is not the exclusive cause of conflict

There is danger in dysfunctional families but it is neither caused by divorce nor limited to
children of divorce. In fact, focusing on those children not only erases most of the children at
grave risk in this country, but also distorts basic understanding of such risks. Situating the
"protection" of children in the context of divorce leaves out the growing number of children
unlikely to ever be affected by divorce because their parents are not married.

The focus should then shift to behavioral problems. According to Professor Robert
Hughes of Ohio State:

On the one hand, the majority of children from divorced families

did not have serious problems requiring professional help. On the
other hand, a larger percentage of children from divorced families
than intact families did have serious problems. Another way to say
this is that most children in divorced families do not need help, but
more children in this group than in intact families are likely to need
help.38

More specifically, Professor Hughes notes:

35
​Andrew Schepard, Planning for P.E.A. C.E.: The Development of Court Connected Education Programs
for Divorcing and Separating Families,2 3 Hofstra L. Rev. 845 (1995).

36
​Kilbourne, American Context, supra note 69, at 27.

​Edward W. Gondolf and ellen R. Fisher, ​Wife Battering​, in case studies in Family Violence 282 (Robert
37

T. Ammerman, Michael Hersen eds., 1991)

38
Robert Hughes, Jr., The Effects of Divorce on Children, (1996).
 90% of adolescent boys and girls in intact families were within the
normal range on [behavioral] problems and 10% had serious
problems that would generally require some type of help. The
percentages for divorced families were 74% of the boys and 66%
of the girls in the normal range and 26% of the boys and 34% of
the girls were in the problematic range.39

Assuming for the purposes of argument that these "serious problems" can be effectively
addressed by existing programs or treatment regimes, it remains that it is not isolated to children
of divorce. It cannot be assumed that divorce is the exclusive cause of such problems, since such
problems also occur in intact families. Nor can it be assumed that divorce causes the incremental
increase, since it may in fact be the other way around; that is, children with serious problems can
impose strains on families that may cause some couples to separate. Evidently absent is the data
on children with “serious problems” in single-parent families, unmarried families, families
without parents, and other such family compositions.

V. Conclusion

“​Do you take each other as husband and wife? Do you promise to ​observe mutual love,
respect and fidelity, and render mutual help and support to one another? To have and to hold, in
sickness and in health, until death do you part?” No such words hold greater meaning than those
uttered during the vows of matrimony. But as mere mortal men, we are not perfect; we fail, we
fall, we falter. We break promises and we break hearts.

Thus, what is the consequence of such tragic commonality: a loveless marriage, filled
with regret, sorrow, and hate. And the people who are affected the most, are not just the spouses
themselves, but also the children who witness firsthand the emotional and physical abuse that
comes with a failing or failed marriage. The law must protect the rights of all men, women and
children against any form of harm; and the people in whose hands have the power to enact such
law, must not hesitate in taking action. It should be stressed that the State does not cease to
protect these rights upon divorce as the State must protect all individuals regardless of their
marital status.

And with regards to constitutionality, even the authors of the Constitution in their
deliberations, expressly stated that the wording, ​"MARRIAGE IS THE FOUNDATION OF THE
FAMILY AND SHALL BE PROTECTED BY THE STATE.", will not in any way preclude
Congress from approving a law on divorce.

Divorce was a well accepted institution in the Philippines even before pre-colonial
Filipinos were able to grasp an intricate concept such as a codified system of law. Our ancestors,
in their wisdom, saw the peace that could be attained through an absolute dissolution of
marriage. And such vision of peace was not lost when the masters of law wrote the Constitution.
They foresaw a future of which Filipinos would be ready for divorce to be incorporated in
society as a legal remedy. That future is now.

Therefore, we submit with firm resolve that the Absolute Divorce Law in the Philippines
is constitutional and valid. Finally, in light of all the aforementioned, we humbly pray to this
Court for the dismissal of the petition to declare such as void for being unconstitutional.

39
Id. (citing findings of Mavis Hetherington (1993)).