Position Paper On Absolute Divorce in PH

The Policy on Absolute Divorce should be Allowed in the Philippines
I. Introduction
Marriage is a special contract of permanent union and an inviolable social
institution.1 However, what if the hopes and dreams of being together with someone
based on mutual love, respect and fidelity and the promise of mutual help and
support are different from what is happening in reality? What if such marriage
eventually brings the person nothing but physical, mental and psychological
anguish? Will that person be able let go of the past and start afresh?
Currently, the Philippines has three legal remedies relative to marriage:

annulment, nullity and legal separation or relative divorce. The Philippines is the
only country, aside from the Vatican, where absolute divorce is not legal. The State
fervently protects marriage as matter of constitutional concern and stands on a
zealous presumption that the marriage is valid2. Thus, the parties must provide proof
so strong and unequivocal as to produce a moral conviction of the existence of the
impediment that will move the court, on the authority given by the State, to render
the marriage null and void.3 For a petition for annulment or nullity of marriage, such
impediment must be proven to have existed at the time of celebration of marriage.
On the other hand, impediment as a ground for legal separation or relative divorce
can exist during the subsistence of marriage but it does not render the marriage null
and void. The State only allows the parties to live separately but it does not sever the
marriage ties and the parties cannot remarry other people.
Absolute divorce, is the process of terminating a marriage or marital union

resulting to changing back of both parties' statuses to single.4 It is different from
annulment or nullity of marriage because the impediment can exist during the time
marriage and different from legal separation because it can sever the marriage bonds
and allow the parties to remarry. Thus, the policy on absolute divorce should be
allowed in the Philippines because: 1) it will protect the person’s right to life and
liberty and provide a remedy for the parties to escape an unhappy, toxic or abusive
marriage; 2) it will provide equal protection of the law; and 3) it will resolve bias
against Non-Muslim Filipinos since divorce is applicable to Filipino Muslims under
the Code of Muslim Personal Laws of the Philippines.
II. Arguments
Section 1 under Article III- Bill of Rights of the 1987 Constitution states that
“No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws”. The right to marry
is a fundamental right inherent in the life and liberty of the person, and under the due
process and equal protection clauses, a person should not be deprived of that right
and liberty. Even though the Constitution considers marriage as an inviolable social
institution, the foundation of family and needs to be protected, it does not clearly
prohibit absolute divorce as one of the legal remedies on the dissolution of marriage.5
The citizens should have the right to dissolve marriages that negatively affects
their mental, physical, psychological and physiological health. The general
availability of the absolute divorce will allow people to seek new happiness and
fulfilment with more compatible partners. 6 This would mean that divorce promotes
and enables relief for victims of an already broken family by providing opportunities
to form new and real relationships. While the State continues to protect and preserve
marriage as a social institution and as foundation of the family, it shall also give the
opportunity to spouses in irremediably failed marriages secure an absolute divorce
decree under limited grounds and well-defined judicial procedures to terminate a
continuing dysfunction of a long broken marriage; save the children from the pain,
stress, and agony consequent to their parents’ constant marital clashes; and grant the
divorced spouses the right to marry again for another chance to achieve marital
bliss.” 7
Regardless of what the law provides, there are Filipinos who get married, bear
children, separate and get into other relationships. A study conducted in 2017 shows
that there is a declining proportion of males and females who are legally married.
Those who do get married do so at an older age than before. This, along with higher
educational attainment provide women with jobs and economic resources to pay for
legal fees of separation, as well as to provide for herself and her family. There is also
an increase in the nonmarital cohabitation wherein one or both parties are already
married to another person outside of the relationship. Additionally, Filipinos living
in urban areas are more likely to dissolve unions compared to those living in rural
areas with traditional values. 8
The lack of law on absolute divorce further complicates the marital and family
life of Filipinos. The circumstance may create a social stigma for children to be born
out of wedlock resulting from lack of opportunity of the parents to remarry.
Moreover, children expose to intimate partner violence in the home are more likely
to be abuse themselves, not receive health care and have behavioral, emotional and
schooling problems.9 Filipino adolescents who witnessed familial aggression and
violence self-reported higher aggression, regardless of gender.10 The right of the
parents to remarry safeguards children and families and thus draws meaning from
related rights of childrearing, procreation, and education. Without the recognition,
stability, and predictability marriage offers, children suffer the stigma of knowing
their families are somehow lesser. They also suffer the significant material costs of
being raised by unmarried parents, relegated to a more difficult and uncertain family
life. 11
The current legislation and jurisprudence on the dissolution of marriage do

not provide equal protection to all married couples. Nullity and annulment of
marriage can only be availed by those well-to do couples because of the hefty cost
on attorney fees, court docketing fee, filing fee, etc. Moreover, typical annulment or
nullity cases can drag on for one to two years. Thus, couples who cannot afford to
annul or nullify their marriage will resort to separation de facto and nonmarital
cohabitation.
The law also fails provide equal protection to married women who suffers
from domestic violence. Based on the 2008 National Demographic and Health
Survey conducted by the National Statistics Office, one out of five women, aged 15-
49, has experienced physical violence, 14.4% of married women have experienced
physical abuse from their husbands and 37% of separated or widowed women have
experienced physical violence. Moreover, in 2011 some 15,104 cases of domestic
violence were recorded by the Women and Children Protection Center of the
Philippine National Police. 12 These women and their children are the ones who need
the most protection from the State. However, with the current legal system, they
have no opportunity to escape their marriage bonds and start a new life as a whole
and independent person.
A new Supreme Court ruling13 now recognizes absolute divorce filed by

Filipino spouses against their foreign spouses as valid in the country. Prior to the
ruling and as provided in Article 26(2) of the Family Code, only divorce validly
obtained by the alien spouse is recognize as valid in the Philippines and not those
divorce filed by the Filipino spouse under the nationality principle. This creates a
presumption that it is favorable to marry a foreigner rather than fellow Filipinos
since Filipinos can now file for divorce against foreign spouses if ever the marriage
fails. Such scenario produces a demoralizing effect to couples who are suffering
from failed marriages because they could not file for divorce due to both being
Filipinos. It also leaves an impression that the State can protect its citizen against
foreign nationals but could not protect its own citizens from one another, that is, the
innocent spouse against the guilty spouse.
The ethno-linguistic communities of the Philippine archipelago before the

Spanish conquest practiced divorce. The Philippines had a divorce law from 1917
until August 30, 1950, when the Civil Code of 1950 took effect. The latter law
prohibited divorce for Filipinos, and the prohibition continues under the present
Family Code. But Muslim Filipinos have always practiced divorce, which Philippine
law allowed. Today, divorce continues to be available to Muslim Filipinos under the
Code of Muslim Personal Law of the Philippines.14
The Family Code is biased against Non-Muslim Filipinos with respect to

dissolution of marriage since the State allows absolute divorce to Muslim Filipinos
under the Muslim Code of Personal Laws. There is no difference between marriage
of Non-Muslim Filipino couples and Muslim Filipino couples. Thus, their
dissolution should be treated the same in the eyes of the law. The law should be
secular, and the State should promote the welfare and common good of its citizens.
Every citizen, regardless of religion must be equally protected under the rule of the
law.
III. Conclusion
No person, unless acting in bad faith or for convenience, wants to enter a
marriage with a definite time limit and separation as an end goal. Everyone hopes of
finding that one person to share a life with, all the joy, pain, success and heartaches
that life has an ample supply of. Although marriage is a sacrosanct institution where
a man and a woman come together as one, each party is still an individual, has a
personal identity and capable of having his or her own thoughts, feelings and dreams.
A person can change, as what Malcolm David Eckel states that "the self changes at
every moment and has no permanent identity"15 − it is a "constant process of
changing or becoming", a "fluid ever-changing self".16 His or her character, thoughts,
feeling, dreams and source of happiness can also change. The marriage and the
person whom one once thought will be the source of strength, happiness and love
may unluckily be the source of one’s own nightmare and hell in the end.
The legal remedies available in the Philippines are not enough to protect a
person’s life, liberty and happiness and equal protection under the law when one
enters marriage. Legal separation is insufficient as a remedy on the grounds provided
under Article 55 of the Family Code which could hinder the person to comply with
the essential marital obligations. There are marriages that cannot be repaired
regardless of the State’s effort to protect its sanctity. Absolute divorce will provide
the person with means out of an abusive, toxic and unhappy union, minimize
nonmarital cohabitation and give a chance to start anew a marriage and a family
recognized and protected by the State.
Every person deserves to be happy. Life only happens once and therefore
should be live to the fullest. If one wants to be happy, one ought not to dwell in the
past and worry about the future but to focus on living fully in the present.
Footnotes
1. Art 1, Family Code of the Philippines
2. Balogbog vs. CA, 269 SCRA 269, 267 (1997)
3. Ching Huan vs. Cheng, L-3018, July 18, 1951
4. Divorce. In Wikipedia. Retrieved August 22, 2019 from
https://en.wikipedia.org/wiki/Divorce
5. Section 2, Art XV, 1987 Philippine Constitution
6. Section 2, House Bill No. 7303, Absolute Divorce Act
7. Amato, P. R. (2010). Research on Divorce: Continuing Trends and New
Developments. Journal of Marriage and Family.
8. Abalos, J. B. (2017, May 9). Divorce and separation in the Philippines:
Trends and correlates. Demographic Research. Retrieved August 22, 2019
from https://www.demographic-research.org/volumes/vol36/50/36-50.pdf
9. Violence Against Women: The Health Sector Responds"who.int. World
Health Organization.
10.Maxwell, C. D., & Maxwell, S. R. (2003, December 1). Experiencing and
witnessing familial aggression and their relationship to physically aggressive
behaviors among Filipino adolescents.
11.Schneider, Kirk J.; Pierson, J. Fraser; Bugental, James F. T. (2014-02-14).
The Handbook of Humanistic Psychology: Theory, Research, and Practice.
SAGE Publications.
12.SMS (2012, November 26). 1 OUT OF 5 WOMEN IS ABUSED – DSWD
Retrieve August 22 2019 from https://www.dswd.gov.ph/1-out-of-5-women-
is-abused-dswd/
13.Republic of the Philippines v. Manalo, GR No. 221029, April 24, 2018
14.Presidential No. 1083, s. 1977
15.Obergefell v. Hodges, 576 U.S. (2015)
16.Eckel, Malcolm David. Buddhism: Origins, Beliefs, Practices, Holy Texts,
Sacred Places. Oxford University Press.

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The Policy on Absolute Divorce should be Allowed in the Philippines

Currently, the Philippines has three legal remedies relative to marriage:

Absolute divorce, is the process of terminating a marriage or marital union

The current legislation and jurisprudence on the dissolution of marriage do

A new Supreme Court ruling13 now recognizes absolute divorce filed by

The ethno-linguistic communities of the Philippine archipelago before the

The Family Code is biased against Non-Muslim Filipinos with respect to

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