MANUEL L.

QUEZON UNIVERSITY – SCHOOL OF LAW

The Legalization of Divorce in

2021
Keziah Noelle R. Paquingan Conflict of Laws
The Legalization of Divorce in the Philippines

For a while now, the debate on whether or not divorce should be legalized in the Philippines is
still ongoing. With House Bill No. 7303, otherwise known as the Absolute Divorce Act of 2018,
netizens had reacted and shared their experiences online as to why divorce should be legalized or
not. One of them is Joy Marcial, who says that “legalizing divorce would give someone who's
trapped in an abusive and unhealthy relationship a chance to start a new life1.”
Our current laws offer two alternative avenues for Filipinos who want out in their unhappy
marriages: annulment and legal separation2. However, these two alternatives have its own
setbacks. An annulment may completely dissolve a marriage but it also may take years to
conclude and may have steep financial costs. On the other hand, legal separation only dissolves
the marital obligations and property relations of both parties, but the marital bond remains.
However, International laws allow a Filipino citizen and a foreign individual to be divorced. The
Philippines do recognize these divorces and may allow the Filipino citizen to remarry, as long as
he/she will be able to prove in court that the divorce is valid. In the recdent case of Republic vs.
Manalo (2018), a Filipina initiated a divorce with her Japanese husband in Japan, and was
granted by the Supreme Court the capacity to remarry as long as she will be able to prove to the
RTC the Japanese law on divorce3.
Counter-arguments to the legalization of divorce say that divorce is unconstitutional. Most critics
use the defense that the Philippine Constitution find that “Marriage is an inviolable social
institution, is the foundation of the family and shall be protected by the State.4” Since the
Constitution protects the family as an inviolable institution, they saw divorce as a threat to it. So,
in order to pass the law on divorce, the Constitution must first be amended.
However, if we really look into it, the 1987 Constitution of the Philippines does not expressly
prohibit divorce in the country. It does not violate anything in the Constitution, and even on other
existing laws and jurisprudence. Additionally, the divorce bill in accordance with the existing
International Laws and Principles that the Philippines is a party to.
In this paper, I will be going into depth as to why the most recent House Bill on divorce does not
violate the Constitution, Philippine and International laws and jurisprudence.

I. The Divorce Bill does not violate any of the provisions of the 1987 Constitution.
It is a well-settled doctrine that laws are presumed constitutional. For courts to declare a law void
and unconstitutional, there must be a clear and unequivocal breach of the Constitution. The
theory is that, as the joint act of the legislative and executive authorities, a law is supposed to
have been carefully studied and determined to be constitutional before it was fully enacted5.
Arguments against the Divorce Bill say that it is in conflict with the provision of the Family
Code on marriage, particularly on Article 1 of the Family Code, which states that, “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
1
https://www.rappler.com/nation/netizens-debate-divorce-philippines
2
Executive Order No. 209. The Family Code of the Philippines
3
Republic of the Philippines v. Marelyn Tanedo Manalo, G.R. No. 221029, April 24, 2018
4
Article XV, Section 2 of the 1987 Philippine Constitution
5
Estrada v. Sandiganbayan, G.R. No. 148560, November 29, 2001

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Keziah Noelle R. Paquingan Conflict of Laws
The Legalization of Divorce in the Philippines

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.6” Since marriage is a permanent
union, no law, such as the Divorce Bill, shall be passed impairing such permanent union.
This argument shall find no merit because the Constitution provides that, “All existing laws,
decrees, executive orders, proclamations, letters of instructions and other executive issuances
not inconsistent with this Constitution shall remain operative until amended, repealed or
revoked.7” This means that if any law, in this case, the Divorce Bill, does not violate the
provisions of the Constitution, it shall be considered valid and constitutional, even if this will be
found inconsistent and in conflict with other laws and jurisprudence, which is in this case, the
Family Code.
Another argument against the Divorce Bill suggests that it violates Article II Section 12 and
Article XV of the 1987 Constitution, alleging that it will destroy the sanctity of family life and of
marriage as an inviolable social institution. Another one is that this will prejudice the child’s
development because it will affect their right to assistance and will produce other negative
effects to the children resulting from the separation of their parents 8. However, as I am writing
this paper, I find that there is nothing in the Philippine Constitution that expressly prohibits the
enactment of a Divorce Bill here in the Philippines, and this can be supported by the following
provisions in the Constitution:
a. Article II Section 12 of the Constitution states that: “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.”

b. Article XV Section 2 states that: “Marriage, as an inviolable social institution, is the

c. Article XV, Section 3, states that the State shall defend “the right of spouses to found a
family in accordance with their religious convictions and the demands of responsible
parenthood;” and “the right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation, and other
conditions prejudicial to their development.
The State recognizes all of these protections to the family and marriage. However, none of these
provisions actually prohibit or curtail the right of the people to enact a State-recognized Divorce
Bill9.

6
Executive Order No. 209. The Family Code of the Philippines
7
Article XVIII, Section 3 of the 1987 Philippine Constitution
8
Commission on Human Rights, Position Paper on H.B. No. 6993 or the Act of Legalizing Divorce in the Philippines
9
J. Jihan. Reintroduction of Divorce into Philippine Law. 2013.

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Keziah Noelle R. Paquingan Conflict of Laws
The Legalization of Divorce in the Philippines

In Section 12, Article II of the Constitution merely recognizes the sanctity of family life and the
family as a basic autonomous social institution but clearly, this provision does not expressly
prohibit the imposition of divorce. Furthermore, the Supreme Court in various jurisprudence has
made it clear that most of the provisions stated in Article II of the Constitution are to be
considered as “mere legislative guides, which absent enabling legislation, do not embody
enforceable constitutional rights10,” meaning, these provisions are “not self-executing, does not
confer a right, nor does it impose duties11”. In order for these provisions to be given effect,
legislative enactment is required. It merely indicates authorship of the Constitution, enumerates
the primary aims and aspirations of the framers, and serves as an aid in the construction of the
Constitution12.
In the case of Basco v. PAGCOR, the petitioners assailed the constitutionality of P.D. 1869 on
the ground that it violates, among others, Sections 11, 12 (Family) and 13 of Article II of the
1987 Constitution. The court held that, “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. If the executive and the
legislature failed to heed the directives of the articles the available remedy was not judicial or
political. The electorate could express their displeasure with the failure of the executive and the
legislature through the language of the ballot13.”
Hence, the provisions in Article II and Article XV of the Constitution are not sufficient grounds
to criticize the constitutionality of the Divorce Bill. If the Divorce Bill does go against the State
Principles and Policies enshrined in the Constitution, then the Executive Department will be the
one to recommend to Congress its repeal or amendment14.
“The judiciary does not settle policy issues. The Court can only declare what the law is and not
what the law should be. Under our system of government, policy issues are within the domain of
the political branches of government and of the people themselves as the repository of all state
power.15”
Given that, Article XV, Section 2 of the Constitution does the same thing on marriage, which
recognizes marriage as an inviolable social institution but does not imply that divorce is
prohibited. Furthermore, Section 3 of the same Article provides rights to spouses and children,
but nothing in the said provision expressly prohibit the state to enact Divorce Bill.
II. Divorce Bill is simply an addition to the remedies for dissolution of marriage in
the Family Code.
In a general sense, the Family Code seeks to protect the integrity of marriage by providing
remedies to those who contracted into an ill-union. These remedies, as I have stated on the first
part of this paper, are a) annulment and b) legal separation. However, these remedies,
specifically annulment, usually do not accept the reasons of infidelity, physical abuse or

10
Magallona v. Ermita, G.R. No. 187167, July 16, 2011.
11
Kilosbayan, Inc. v. Morato, G.R No. 118910, July 17, 1995.
12
Nachura, A. E. (2014). Outline Reviewer in Political Law. Manila: VJ Graphic Arts, Inc.
13
Basco v. PAGCOR, G.R. No. 91649, May 14, 1991.
14
Basco v. PAGCOR, G.R. No. 91649, May 14, 1991.
15
Valmonte v. Belmonte, Jr., 170 SCRA 256.

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Keziah Noelle R. Paquingan Conflict of Laws
The Legalization of Divorce in the Philippines

“irreconcilable differences” to end one’s marriage16. The process itself is tedious and time-
consuming, as it takes up to an average of four years to resolve, and even then, some of these
annulment petitions are denied by the Courts17.
That is why the passage of the Divorce Bill would be the best remedy to this current
predicament: expand the coverage in ending a marriage, and to make divorce accessible to
Filipinos. And this is what the Divorce Bill seeks to remedy, to expand the coverage and make
divorce accessible to more people.
H.B. 7303 reiterates the grounds for declaration of nullity of marriage, annulment, and legal
separation as its grounds. Not only that, but it also expands the coverage by including grounds
such as irreconcilable differences. The bill also does not degrade the integrity of marriage as it
follows the same procedure as when one secures a legal separation, annulment of marriage, or
declaration of nullity as instituted by the Court and the Family Code. It is also placed under the
strict scrutiny of the Court.

III. The Divorce Bill is not contrary to the International Principles of Protection of
Women and Children.
The Divorce Bill upholds the rights of women as contemplated in Article 2 section 14 of the
Constitution. In this provision, the Constitution recognizes women’s role in nation-building.
Similarly, Section 12 of the same article also ensures the equal protection for the life of the
mother and child18.
In a survey of the National Statistics Office (NSO) last 2008, 1 out of 7 married women are
being subjected to domestic violence in their homes, specifically physical violence19.
As emphasized in the work of Mary Jude Cantorias, domestic violence is a deep-seated issue that
is considered beyond the moral ramifications and the ethics of women as to why they avail
divorce as a remedy20. Philippine legislators may have tried to be responsive to the issues of
domestic violence through the enactment of Republic Act 9262 of 2004 but the psychology of
being legally bound to one’s abuser is beyond legal or moral issues 21. As such, “the severance of
legal ties will allow the abused spouse to henceforth take care of her affairs, and that of her
children, if any, and give her an opportunity for a peaceful existence, without being subjected to
private torture22.” Furthermore, as stated by Cantorias, Filipinos file petitions for annulment or
declaration of nullity of marriage, even if divorce is not an available remedy.23. Cantorias further
stating that, “if the right to contract marriage may be considered a civil right, so should the right

16
Santos, A. P. (2016, Aug 28). Filipinos fight for the right to depart wedlock: Activists exit web's shadow to urge legal divorce.
South Florida Sun - Sentinel Retrieved from https://search.proquest.com/docview/1814435284?accountid=50192
17
Santos, A. P. (2016, Aug 28). Filipinos fight for the right to depart wedlock: Activists exit web's shadow to urge legal divorce.
South Florida Sun - Sentinel Retrieved from https://search.proquest.com/docview/1814435284?accountid=50192
18
The 1987 Constitution. Article 12, Sections 12 and 14.
19
Statistics on Violence Against Filipino Women. http://pcw.gov.ph/statistics/201405/statistics-violence-against-filipino-women
20
“I Dos and Don’t’s”: Re-Visiting the Proposal to Legalize Divorce in the Philippines. https://arellanolaw.edu/alpr/v9n1c.pdf.
21
Ibid.
22
Ibid
23
Ibid.

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Keziah Noelle R. Paquingan Conflict of Laws
The Legalization of Divorce in the Philippines

to be released from a bad one, more so an abusive one, and be able to re-marry if one so desires,
be considered a civil right24.”
The protection of women and children is not only considered under the Constitution but is also
reflected on international laws and treaties, to which the Philippines is a signatory to. The second
part of the Article 2 of the Constitution mandates the Philippines to adopt the generally accepted
principles of international law and international jurisprudence as part of the law of the land and
adheres to the policy of peace, cooperation, and amity with all nations, or otherwise called as the
Doctrine of Incorporation. 25
As envisioned in the Universal Declaration of Human Rights (UDHR), which was adopted by
the United Nations General Assembly in 1948, Article 3 states that, “Everyone has the right to
life, liberty and security of person26.” Article 6 of the International Covenant on Civil and
Political Rights (ICCPR) also instills the protection of the right to life, while Article 9 inculcates
the right to liberty and security27.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) also addresses
the right to equal protection and the right to mental health which is commonly seen in cases of
domestic violence28. The Convention on the Elimination of All Forms of Discrimination Against
Women or commonly known as CEDAW, also agree that discrimination against women in all its
forms should be condemned. This is also interpreted as involving violence against women.
It is also noteworthy that the United Nations, to which the Philippines is a member of, “promotes
the duty of each and every state to protect women against domestic and other forms of
violence29.”
Additionally, one of the fundamental principles of human law is the right to self-determination,
which is the individual and collective right to “freely determine… political status and [to] freely
pursue… economic, social and cultural development30.” The International Court of Justice
referred to the right to self-determination as a right held by the people rather than a right held by
governments alone31. This right is indubitably a norm of jus cogens or the “compelling law”32.
Jus cogens holds the highest hierarchical position among all other customary norms and
principles, and as a result, they are deemed “peremptory and non-derogable”33. The International
Courts of Justice likewise supports the view that the principle of self-determination also has the
legal status of erga omnes, which means “flowing to all”34. With this, erga omnes obligations of
a State are owed to the international community as a whole; “when a principle achieves the status

24
Ibid.
25
Cruz, Philippine Political Law 55 (1995).
26
UN Treaties on Domestic Violence. http://www.stopvaw.org/UN_Treaties_and_Conventions.
27
Ibid.
28
The International Legal Framework. http://hrlibrary.umn.edu/svaw/domestic/laws/international.htm.
29
“I Dos and Don’t’s”: Re-Visiting the Proposal to Legalize Divorce in the Philippines. https://arellanolaw.edu/alpr/v9n1c.pdf.
30
https://unpo.org/article/4957
31
Karen Parker, Understanding Self-determination: The Basics, August 2000 (http://130.94.183.89/parker/selfdet.html)
32
M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-AUT Law & Contemp. Probs. 63, 67.
33
Carlee M. Hobbs, The Conflict Between the Alien Tort Statute Litigation and Foreign Amnesty Laws, 43 Vand. J. Transnat’l L.
505, 521 (2009-2010); citing Jeffrey L. Dunoff, et al., International Law: Norms, Actors Process 58-59 (2d ed., 2006).
34
Zyberi, Gentian, Self-Determination Through the Lens of the International Court of Justice (December 2009). Netherlands
International Law Review, Vol. 56, pp. 429-453, 2009. Available at SSRN: https://ssrn.com/abstract=1622793

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Keziah Noelle R. Paquingan Conflict of Laws
The Legalization of Divorce in the Philippines

of erga omnes, the rest of the international community is under a mandatory duty to respect it in
all circumstances in their relations with each other35.”
Therefore, Filipino women should be able to freely choose and pursue their economic, social,
and cultural development, which would include her right to choose whether or not she will stay
in a irreparable or violent marriage.
One would think that the object of any law is to protect the weak. Many women have been
suffering from domestic abuse because of their marriage, and these women seeking protection
against violence deserves protection more than any consideration of beliefs. The absolute
cutting-off of marital ties, or the proposed H.B. 7303 may be the paramount relief in this
circumstance. Marital Violence and battery is a complex issue, and a battered woman will be
empowered the right to sever marital ties against her abuser will be given to her. Giving her this
right will finally lead her to the path of recovering from the traumatic effects of marital violence.
Therefore, divorce is an empowering remedy36.
To conclude this paper, I believe that the proposed H.B. 7303, or the Absolute Divorce Act of
2018, will be able protect veracity of marriage and promote social justice. As the late President
Magsaysay once said: “He who has less in life should have more in law37.”

35
Ibid.
36
Mary Jude Cantorias, “I Dos and Don’t”; Re-visiting the Proposal to Legalize Divorce in the Philippines (November 2008).
Arellano Law and Policy Review Publications., Vol. 9, pp. 85-88. Available at https://arellanolaw.edu/alpr/v9n1c.pdf
37
As seen in Del Rosario v. Delos Santos et al., G.R. No. L-20589-90, March 21, 1968.