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UNIVERSITY OF SAN CARLOS -MAIN CAMPUS

CEBU CITY
2ND SEMESTER A.Y 2017-2018

In Fulfillment of the Final Requirement in the


Legal Technique and Logic Course

A POSITION PAPER ON THE CONSTITUTIONALITY OF THE


DIVORCE BILL IN THE PHILIPPINES

Submitted by:
Borrata, Felix Gian Nicer, Marianne Joy
Cabacang, Baby June Ricalde, Bryan Christian
Caballes, Danica Simon, Monisa Ruth
Diaz, Archeeno Sunico, Mary Therese Claire
Guanzon, Angeli Torrefiel, Patricia Erika

LLB 1 – EH 308
Republic of the Philippines
Supreme Court
Manila

RESPONDENT’S POSITION PAPER

RESPONDENT, through the undersigned counsels and unto this


Honorable Court, most respectfully submits this Position Paper.

STATEMENT OF THE FACTS


The Absolute Divorce Law was recently passed into law. With
the Philippines being one of the most religious country, the
enactment of the divorce law created a clash of ideals concerning
its constitutionality, morality, and social justice.
Divorce is defined as the “legal termination of a marriage by a
court in a legal proceeding, requiring a petition or complaint for
divorce by one party.”1 As defined by Black’s Law Dictionary, it is the
“legal separation of man and wife, effected, for cause, by the
judgment of a court, and either totally dissolving the marriage
relation, or suspending its effects so far as it concerns the
cohabitation of the parties.”2
Before the enactment, the Philippines and Vatican City are the
only states left in the world without divorce. However, unknown to
many, absolute divorce was actually permitted in the country way
before the enactment of the Civil Code of the Philippines in 1950.
In 1917, the legislature has passed Act. No. 2710 which
recognizes divorce in the Philippines. It was later on repealed by
Executive Order No. 141 during the Japanese occupation. It was
later on revived on October 23, 1944 by Gen. Douglas MacArthur’s
Proclamation declaring “all laws, regulations and processes of any
other government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas
of the Philippines free of enemy occupation and control”.3
This was repealed by the New Civil Code:
Act No. 2710 was finally repealed by the New Civil Code, which only allowed
annulment and legal separation. Before the effectivity of the New , however, the
legislature passed Republic Act No. 394, which recognized divorce according to
Muslim practices for a period of 20 years, or from 1949 to 1969. Muslim divorce

1 US Legal Definition, sub verbo “divorce”, online: US Legal


<http://definitions.uslegal.com>.
2 Black’s Law Dictionary, 2d ed, sub verbo “divorce”.
3 Baptista v. Castañeda, 76 Phil. 461 (1946) as cited in Pacasum, Sr. v. Zamoranos, G.R.

No. 193719, March 21, 2017.


was again allowed following the promulgation of Presidential Decree No. 1083,
the Code of Muslim Personal Laws, in 1977. The Family Code of the Philippines,
which took effect in 1988, retained the policy of the New Civil Code that allows
only annulment and legal separation.4

With this repeal, absolute divorce was removed from our laws.
The only available remedies in for defective marriages are the
declaration of nullity, annulment, psychological incapacity, and
legal separation.5 In the interest of the promotion of general welfare,
and for the interest of social justice, the Divorce Law was again
enacted. As stated, it created an uproar from the citizens. They
worry that divorce will destroy families. They contend that it will have
negative effects to the spouses and especially their children. They
also raise issues on morality, among others. This prompted the
petitioners to file this case questioning the constitutionality of the
divorce law. They pray that the Divorce Law be declared null and
void for being violating the highest law of the land, the Constitution.
The petitioners allege that the Divorce Law violates Article II
Section 12 and Article XV of the 1987 Constitution. They alleged that
the Divorce Law will destroy the sanctity of family life, rather than
saving it, and of marriage as an inviolable social institution. They also
argue that divorce would be prejudicial to the development of the
child, as it will affect their right to assistance and will produce other
negative effects to the children resulting from the separation of their
parents. With the imposition of divorce, they contend that it will
increase the number of broken families which will not be good for
the country since the family is the basic social institution.
The petitioners allege that the Divorce Law is in conflict with the
provision of the Family Code on marriage. Article 1 of the Family
Code of the Philippines 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 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 Petitioners argue that since
marriage is a permanent union, no law, such as the divorce law, shall
be passed impairing such permanent union. Petitioners also raise
issues on morality, social justice, among others. They contended that
there are available remedies in the Family Code for defective
marriages. According to them, as to domestic violence, there are
available remedies to the woman and children such as the Violence

4 Pacasum, Sr. v. Zamoranos, G.R. No. 193719, [March 21, 2017]


5 The Family Code of the Philippines.
6 Executive Order No. 209. The Family Code of the Philippines. July 6, 1987.
Against Women and Children Law. With these remedies, they stated
that divorce is not necessary and that it is not the solution.
The respondents, however, averred that the Divorce Law does
not violate any of the provisions of the 1987 Constitution. The
constitution provides that the state recognizes the sanctity of family
life and shall protect and strengthen the family as a basic
autonomous social institution.7 Article II, Sec 12 of the 1987 Philippine
Constitution, as a state policy, is a declaratory policy. It is not a right
bearing provision; it is merely a guiding principle used in the
enactment of laws. In the same provision, it states that the state shall
equally protect the life of the mother and of the unborn from
conception.8 Consequently, the recently passed law on Absolute
Divorce does not violate the constitution. In fact, it continues to
preserve the sanctity of marriage and family. Such law also gives the
chance for victims of failed and abusive marriages to get out of their
toxic relationship which may be prejudicial to the victim spouse and
to the development of their child. According to Sec. 2 of the Act
Instituting Absolute Divorce in the Philippines:
“While the State continues to protect and preserve marriage
as a social institution, it gives the opportunity to spouses in
irremediably failed procedures to avoid abuse, save the
children from pain and stress of their parents’ marital
clashes, and grant the divorced spouses the right to marry
again for another chance to achieve marital bliss.” 9
Thus, it is fair to say that the newly enacted Absolute Divorce
Law does not really destroy the sanctity of family and marriage. It
aims to preserve the sanctity of marriage. It tries to uphold the value
of marriage by not letting abusive and toxic marriages to continue
to exist. It is evident in the newly enacted law that its objective is to
stop such destructive relationships and protect the victims of abuse.
Also, it gives the victims of failed marriages to have the right to have
a chance to achieve marital happiness. And unlike the proceedings
for legal separation and annulment, the proceedings on divorce
shall be more affordable. It would allow not just the rich, but also
those who are in the lower social class to have the chance to get
out of a failed marriage.
The remedies provided by Absolute Divorce, one of which is to
end marriages, does not really demolish the sanctity of family life.
Not allowing an abusive relationship or a failed marriage to end
does not save the sanctity of marriage and family; allowing

7 Article II, Sec 12, 1987 Philippine Constitution.


8 Ibid.
9 House Bill No. 116, “An Act Instituting Absolute Divorce in the Philippines and for other

Purposes
someone to get out of a toxic relationship and avoid further abuses
does.
“Sec. 6. Effects of Absolute Divorce.- The following shall be
the legal effects of a decree granting absolute divorce
upon its finality:
a) The divorced spouses shall have the right to contract
marriage again.
b) The conjugal partnership of gains or the absolute
community shall be dissolved and liquidated with the
legitime of the children recognized and preserved
pursuant to the pertinent provisions of the Family Code of
the Philippines.
c) The Proper court shall have the discretion to grant
alimony, child support and child custody pursuant to the
pertinent provisions of the Family Code of the Philippines
and award damages under the Civil Code of the
Philippines, and impose fines and contempt of court
against the defaulting parties.
d) The effects on the divorced spouses with respect to
intestate succession, testamentary dispositions, donations
and insurance provisions on beneficiaries in accordance
with the Family Code of the Philippines and jurisprudence
will be observed.
e) The legitimate and adopted children of the divorced
parents shall retain their legal status.”10
Before the enactment of the Absolute Divorce law, for
psychological incapacity to be a ground for annulment, it must be
established that such incapacity was already existing at the time of
the celebration of marriage. However, in the new law, it doesn’t
matter whether psychological incapacity, together with physical
incapacity, unsoundness of mind or sexually transmissible disease as
grounds, has already existed at the time of the celebration of
marriage or not. Additionally, the new law also provided that
canonical divorce, gender reassignment and irreconcilable marital
differences are also grounds for filing for Absolute Divorce.
“The following are the grounds for absolute divorce
a) The grounds for legal separation under Article 55 of the Family
Code of the Philippines.
b) Grounds for annulment of marriage under Article 45 of
the Family Code of the Philippines.
c) Psychological incapacity of either spouse as provided for
in Article 36 of the Family Code of the Philippines, whether

10House Bill No. 116, “An Act Instituting Absolute Divorce in the Philippines and for other
Purposes
the incapacity was present at the time of the celebration
of the marriage or later.
d) A divorce secured by one of the spouses in a foreign
country that it is established to be valid shall entitle the
other spouse to petition for absolute divorce as a
consequence of the said foreign divorce.
e) A canonical divorce or declaration of nullity of marriage
issued by an ecclesiastical tribunal of the Roman Catholic
Church, which was or is secured by one of the spouses,
shall entitle the other to petition for absolute divorce
based on the said canonical decree.
f) When one of the spouses undergoes a gender
reassignment surgery, the other spouse is entitled to
petition for absolute divorce with the transgender or
transsexual as respondent or vice versa.
g) Irreconcilable marital differences and conflicts which
have resulted in the breakdown of the marriage beyond
repair, despite earnest and repeated efforts at
reconciliation, shall entitle either spouse to petition for
absolute divorce.”11
The abovementioned umbrella structured grounds expand the
coverage of the bases on disintegrating marriages. It does not just
cover the grounds for legal separation and annulment, but it also
extended its breadth to newly accepted reasons like irreconcilable
marital differences. Indeed, marital differences and conflicts can be
solved. But when couples are unable to address this issue, the
conflict consumes their marriage up to the point that new problems
like serious abuses arise.
Interestingly, before the enactment of the Civil Code of the
Philippines, absolute divorce was permitted in the country. In the
history of Philippine laws, it was only on 1950, when the Civil Code of
the Philippines was enacted, when the laws on absolute divorce
were repealed.
But now, the current conditions of the society demand that the
suspension of the law on Absolute Divorce should cease. According
to statistics, cases on Republic Act No. 9262 reported to the Police
have been increasing significantly. From 2004 to 2013, continue to
increase from 218 in 2004 to 16,517 cases in 2013. (See Exhibit A)
The increasing number of RA 9262 cases filed is a manifestation
of the growing number of incidents of physical, emotional and
sexual violence in relationships. The currently growing number of
abuses existing in relationships is one of the problems which the

11House Bill No. 116, “An Act Instituting Absolute Divorce in the Philippines and for other
Purposes
newly enacted law tries to address. Indeed, it is undisputable that
Republic Act No. 9262 is a remedy to such abuses. But Absolute
Divorce allows the victim of an abusive relationship to completely
disintegrate with such destructive relationship and also allow the
victim to have the chance to find his true marital bliss.
According to a study of the Department of Justice of Canada,
marital conflict rather than divorce per se is the major determinant
of children’s adjustment. 12 This means that as the abuses continue to
exist in a failed marriage, its effects to the development of the child
are more damaging.
It is important to note that when married life becomes cruel, its
sanctity ceases to exist. Absolute Divorce offers liberation for victims
of failed and abusive relationships. It also safeguards the value of
marriage by not letting destructive ones to continue to exist as it may
be detrimental to the sanctity of the family and to the development
of the children.

ISSUE

Whether or not House Bill 116 otherwise known as “An Act


Instituting Absolute Divorce in the Philippines and for Other Purposes”
is unconstitutional for being contrary to the Constitution and other
established laws in the Philippines?

SUMMARY OF ARGUMENTS

The enactment of the Divorce Law here in the Philippines


created uproar in the country which prompted the petitioners to file
this present case. The petitioners assail the validity of the Divorce Law
on the grounds that it is unconstitutional.

We the respondents strongly submit that the Divorce Law is


valid and constitutional. Nothing in the 1987 Constitution of the
Philippines expressly prohibits divorce in the country. The divorce law
is not against the constitution, and other existing laws and
jurisprudence. The law enjoys the presumption of constitutionality,
absent a clear and unequivocal breach of the constitution. The
framers of the Philippine Constitution also did not intend to prohibit
divorce in our country.

As reiterated in the Family Code, there are already existing


remedies for dissolution of marriage, namely: declaration of nullity,
annulment, and legal separation. The Divorce law is an addition to

12 Department of Justice Canada, “Effects of Divorce on Children”, October 1997.


these remedies. It also furthers it scope by including grounds that are
not yet existent or remedied in the Family Code.

The Divorce Law is also in accord with the existing International


Laws and Principles. These laws consider marriage as a human right
as such it mandates the protection of these rights which the
international community aspire to integrate in a global scale.

With the foregoing, the Divorce Law is legal and constitutional.

DISCUSSIONS
I. The Divorce Law is legal and constitutional since the law does
not clearly and unequivocally violate any of the provisions of
the 1987 Constitution.

a. Presumption of Constitutionality
The police power is the power vested in the legislature by the
Constitution to make, ordain, establish all manner of wholesome and
reasonable laws for the good and welfare of the State and its
people.13 Vast as the power is, however, it must be exercised within
the limits set by the Constitution, which requires the concurrence of a
lawful subject and a lawful method. Thus, our courts have laid down
the test to determine the validity of a police measure as follows: (1)
the interests of the public generally, as distinguished from those of a
particular class, requires its exercise; and (2) the means employed
are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals.14 As long as there is a
valid purpose and valid means, the legislature can validly enact laws
for the promotion of general welfare. This includes the power to
enact a divorce law here in the Philippines.
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 enacted.15
In Farias v. The Executive Secretary,16 the Court held that:
“Every statute is presumed valid. The presumption is that the
legislature intended to enact a valid, sensible and just law and one
which operates no further than may be necessary to effectuate the
specific purpose of the law. Every presumption should be indulged in
favor of the constitutionality and the burden of proof is on the party

13 Ermita Malate Hotel v. City Mayor of Manila, G.R. No. L-24693, July 31, 1967.
14 National Development Company v. Philippine Veterans Bank, 192 SCRA 257 [1990].
15
Estrada v. Sandiganbayan, G.R. No. 148560, November 29, 2001.
16 463 Phil. 179, 197 (2003).
alleging that there is a clear and unequivocal breach of the
Constitution.”
This is supported by the Doctrine of Constitutional Supremacy. If
a law or contract violates any norm of the constitution, that law or
contract whether promulgated by the legislative, or by the
executive branch or entered into by private persons for private
purpose is null and void and without any force or effect.17
The petitioners allege that the Divorce Law is in conflict with the
provision of the Family Code on marriage. Article 1 of the Family
Code of the Philippines 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 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.” 18(emphasis supplied) Petitioners
argue that since marriage is a permanent union, no law, such as the
divorce law, shall be passed impairing such permanent union.
This argument must fail. According to Article XVIII Section 3 of
the Constitution: “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.”19
So long as it is does not violate the provisions of the
Constitution, the law is to be considered valid and constitutional,
even supposing that it is inconsistent and in conflict with other
existing laws and jurisprudence. Applying this, the allegation that the
Divorce Law is in conflict with the provision of the Family Code on
marriage will not affect the constitutionality of the former.
With the foregoing, the petitioners have the burden of proof in
establishing that the Divorce Law is inconsistent and in conflict with
the provisions of the Philippine Constitution. Unless there is a clear
and unequivocal breach, the Divorce Law is presumed to be valid
and constitutional.

b. There is nothing in the Philippine Constitution that expressly


prohibits the imposition of Divorce in the country.
The petitioners suggest that the Divorce Law violates Article II
Section 12 and Article XV of the 1987 Constitution. They alleged that
the Divorce Law will destroy the sanctity of family life and of
marriage as an inviolable social institution. They also argue that
divorce would be prejudicial to the development of the child, as it

17 Manila Prince Hotel v. GSIS, G.R. No. 122156, Feb. 3, 1997.


18 Executive Order No. 209. The Family Code of the Philippines. July 6, 1987.
19 The 1987 Constitution of the Republic of the Philippines.
will affect their right to assistance and will produce other negative
effects to the children resulting from the separation of their parents.
However, we the respondents strongly believe that there is nothing in
the Philippine Constitution that expressly prohibit the enactment of a
divorce law here in the Philippines.
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.” 20
Furthermore, Article XV Section 2 states that: “Marriage, as an
inviolable social institution, is the foundation of the family and shall
be protected by the State.” Section 3 of the same Article states that,
among others, 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.21
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
law.22
Section 12 of Article II merely recognizes the sanctity of family
life and the family as a basic autonomous social institution. Nothing
in this provision expressly prohibits the imposition of divorce.
Furthermore, the Supreme Court 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 rights.” 23 This means that the
provisions under this article are not self-executing. It does not confer
a right, nor does it impose duties. To give them 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
Constitution.24
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

20 The 1987 Constitution of the Republic of the Philippines.


21 Id.
22 J. Jihan. Reintroduction of Divorce into Philippine Law. 2013.
23 Magallona v. Ermita, G.R. No. 187167, July 16, 2011.
24 Nachura, A. E. (2014). Outline Reviewer in Political Law. Manila: VJ Graphic Arts, Inc.
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 ballot." 25
It was further discussed by the court in the case of Angara that,
“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.26 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." 27
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."28 Mr. Justice Florentino P. Feliciano in his concurring opinion
in Oposa vs. Factoran, Jr., explained these reasons as follows:
"My suggestion is simply that petitioners must, before the trial
court, show a more specific legal right — a right cast in
language of a significantly lower order of generality than
Article II (15) of the Constitution — that is or may be violated by
the actions, or failures to act, imputed to the public respondent
by petitioners so that the trial court can validly render judgment
granting all or part of the relief prayed for.
xxx xxx xxx
It seems to me important that the legal right which is an
essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or statutory
policy, for at least two (2) reasons. One is that unless the legal
right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be
unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.” 29

25 Basco v. PAGCOR, G.R. No. 91649, May 14, 1991.


26 Tanada v. Angara, G.R. No. 118295, May 2, 1997.
27 G.R No. 118910, July 17, 1995.
28 Tanada v. Angara, G.R. No. 118295, May 2, 1997.
29 Oposa v. Factoran, G.R. No. 101083, July 30, 1993.
Hence, the provisions in Article II and Article XV of the
Constitution are not sufficient grounds to assail the constitutionality of
the Divorce Law. Furthermore, if, indeed, the Divorce Law is against
the State Principles and Policies enshrined in the Constitution, then it
is for the Executive Department to recommend to Congress its
repeal or amendment.30 "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." 31
Article XV Section 2 of the Constitution does the same thing on
marriage. The provision recognizes marriage as an inviolable social
institution but nothing in the provision implies that divorce is
prohibited. It merely recognizes marriage as an inviolable social
institution and as the foundation of the family. 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 law.

c. The deliberations of the Constitutional Commission never


intended to prohibit divorce in the Philippines.
Our constitution recognizes the sanctity of family life as a basic
autonomous social institution,32 in which it is seen as the most basic of
society’s human collectives. It is found to be the foundation of the
nation while marriage is treated to be the foundation of the family.
The 1987 Constitution protects and strengthens the family and its
members. It provided the rights of spouses and their children in
Article XV of the Constitution. These principles and doctrines uphold
the institution of marriage and the family. The intent of the framers to
protect the sanctity of marriage is shown in the deliberations below:

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;

30
Basco v. PAGCOR, G.R. No. 91649, May 14, 1991.
31 Valmonte v. Belmonte, Jr., 170 SCRA 256.
32 Philippine Constitution, 1987, Art. 2 Sec 12.
encouragement of these basic traditions which we connect
with the term “marriage.”33

The word “inviolable” is generally defined as “secure from


violation or profanation.” This notwithstanding, it does not prohibit
the right of the people to enact a State-recognized divorce law. As
furthermore shown below, the framers did not intend to prohibit
divorce law as discussed during the deliberations on Article XV of the
Constitution regarding family:

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. 34

As stated by Mr. Gascon, in enacting the provisions of family


and marriage in the Constitution, the framers meant to encourage
marriage but not to prohibit divorce. Doubts as to the literal meaning
of the provisions is resolved by looking into the intent of the framers
or the Constitutional Commission. A statute is susceptible of several
interpretations or where there is ambiguity in the language, there is
no better means of ascertaining the will and intention of the
legislature than that which is afforded by the history of the statute. 35
Given the intent of the framers, it is clear that the 1987 Constitution
does not prohibit the enactment of the Divorce Law.

II. The Divorce Law is a legislative regulation of marriage which


safeguards the integrity of marriage against ill-unions by
providing grounds for dissolution of marriage in addition to that
provided for in the Family Code.

a. The Family Code is a Legislative Regulation of Marriage

33
Records of the Constitutional Commission, 1986, Vol. 1.
34 Id.
35 Agpalo, R. E. (2009). Statutory Construction. Manila: Rex Book Store.
The 1987 Constitution devoted a separate Article on the Family
thereby acknowledging the fact that “the family is a basic
autonomous social institution and, therefore, the State shall uphold
the sanctity of family life, protect the stability of marriage and the
right to found a family in accordance with one's religious beliefs and
convictions, and responsible parenthood.”36 (emphasis supplied)
This recognition clearly emphasizes the State’s interest over the
solemnization of marriage. Then “in a real sense, there are three
parties to every civil marriage: two willing spouses and an approving
State.”37 Despite this recognition, the Constitution did not provide the
parameters of State protection to the marriage and family.38
As such, the Family Code was enacted to ensure that the
sanctity of the family and the solemnity of marriage are further
protected. As provided for by Article 1 of the same Code:
Art. 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. (emphasis supplied)

By establishing the Family Code, the solemnization, validity,


limitations, and effects of marriage is now within the ambit of
control of the Legislature. As reiterated in Maynard v. Hill 39:

“Marriage, as creating the most important relationship in life, as


having more to do with the morals and civilization of a people
than any other institution, has always been subject to the
control of the legislature.”40 (emphasis supplied)
The reason for this Legislative Control is that State has an
interest not only to the validity of marriages but as well as with the
“sustainability and maintenance of a harmonious and healthy family
life brought about such marriage.” 41 Accordingly, in the case of In
Re: Barbara Haven42 it was held that:
“The social aspects of marriage have become so impressed
upon us that law-making bodies everywhere have seen fit to
impose safeguards against ill-advised unions. Thus waiting

36 Records of the Constitutional Commission No. 109, October 15, 1986.


37 Manuel v. People, G.R. No. 165842, November 29, 2005.
38 STA. MARIA, MELENCIO JR., PERSONS AND FAMILY RELATIONS, PERSONS AND FAMILY

RELATIONS LAW, 106 (6th ed., 2015).


39 125 US 190, 8S. Ct. 723, 31 L. Ed. 654 as seen in Ibid.
40 Id.
41 STA. MARIA, MELENCIO JR., PERSONS AND FAMILY RELATIONS, PERSONS AND FAMILY

RELATIONS LAW, 107 (6th ed., 2015).


42 86 Pa., D.C.CC 141 as seen in Ibid.
periods, medical examinations, age restrictions, marriage with
degrees of consanguinity and affinity and many other controls
have been universally imposed by state legislatures in order to
preserve and maintain the utmost purity and integrity of
marriage”43 (emphasis supplied)
In order to protect the integrity of marriage, its dissolution
cannot be made as a subject to stipulation between parties.44
Hence, marriage can only be dissolved within the grounds provided
by the Family Code and strict scrutiny of the Court.

b. To safeguard marriage against ill-unions the Family Code


provides grounds for dissolution of marriage.
The State having interest over matters governing marriages
enacted the Family Code to ensure its protection against ill-unions.
As such, when marriages no longer unifying, harmonious, or is
already detrimental to the family, the State through the Family
Code provides for the following remedies: (1) declaration of nullity
of marriage, (2) annulment, and (3) legal separation.
Articles 35 – 38 provides for the grounds for void and voidable
marriages:
ARTICLE 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen years
of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized
to perform marriages unless such marriages were
contracted with either or both parties believing in good
faith that the solemnizing officer had the legal authority to
do so;
(3) Those solemnized without a license, except those
covered by the preceding Chapter;
(4) Those bigamous or polygamous marriages not falling
under Article 41;
(5) Those contracted through mistake of one contracting
party as to the identity of the other; and

43Supra.
44MONTECLAR, ALEX., COMPENDIUM ON THE LAW ON PERSONS AND FAMILY RELATIONS,
46 (2011). ; Article 1 of the Family Code Art. 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. (emphasis
supplied)
(6) Those subsequent marriages that are void under
Article 53.45
ARTICLE 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.
The action for declaration of nullity of the marriage under this
Article shall prescribe in ten years after its celebration.46
ARTICLE 37. Marriages between the following are incestuous
and void from the beginning, whether the relationship
between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree;
and
(2) Between brothers and sisters, whether of the full or half
blood.47
ARTICLE 38. The following marriages shall be void from the
beginning for reasons of public policy:
(1) Between collateral blood relatives, whether legitimate
or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent
and the adopted child;
(6) Between the surviving spouse of the adopted child
and the adopter;
(7) Between an adopted child and a legitimate child of
the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry
the other, killed that other person's spouse or his or her
own spouse. 48
Similarly, the remedy for legal separation also known as
relative divorce, since it does not dissolve the marriage but
merely separates the spouses from one another,49 provides for
the following:
ARTICLE 55. A petition for legal separation may be filed on any
of the following grounds:
45 Family Code of the Philippines, Executive Order No. 209 , July 6, 1987.
46 Idem.
47 Id.
48 Id.
49 Lapuz v. Eufemio, 43 SCRA 177 as cited in STA. MARIA, MELENCIO JR., PERSONS AND

FAMILY RELATIONS, PERSONS AND FAMILY RELATIONS LAW, 106 (6th ed., 2015).
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common child,
or a child of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) 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;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article the term "child" shall include a child
by nature or by adoption.50
ARTICLE 56. The petition for legal separation shall be denied
on any of the following grounds:
(1) Where the aggrieved party has condoned the offense
or act complained of;
(2) Where the aggrieved party has consented to the
commission of the offense or act complained of;
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground
for legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to obtain
the decree of legal separation; or
(6) Where the action is barred by prescription.51
The grounds ensure that the dissolution of marriage is well-
grounded and not just made about by “mere austerity of temper,
petulance of manners, rudeness of language, a want of civil

50 Family Code of the Philippines, Executive Order No. 209 , July 6, 1987.
51 Ibid.
attention and accommodation, even occasional sallies of
passion.”52
As such, dissolution of marriages is under within the strict scrutiny
of the Courts. Accordingly, the Court promulgated the Rules on
declaration of absolute nullity of void marriages and annulment of
voidable marriages53 and Rules on Legal Separation54. Thus, only
after compliance to the rules and strict scrutiny of the Court can a
declaration of nullity, annulment, and legal separation be effected.

c. Divorce Law is not contrary to the Family Code but is an


addition to the remedies for dissolution of marriage found
under the same Code.
As aforementioned, the Family Code seeks to protect the
integrity of marriage by providing remedies to those who contracted
into an ill-union.
However, even when provided with the remedies above, the
usually acceptable reasons for ending a marriage such as infidelity,
physical abuse or "irreconcilable differences" cannot be cited as
grounds for annulment.55
Likewise, it takes an average of about four years for an
annulment case to make its way through the clogged judicial
system, and, even then, some annulment petitions are denied.56
And this is what the Divorce Law seeks to remedy, to expand
the coverage and make divorce accessible to more people.
H.B. 116 reiterates the grounds for declaration of nullity of
marriage, annulment, and legal separation, as it grounds, however,
it also expands the coverage by including grounds such as
irreconcilable differences. Thus, Sec. 4 of H.B. 116 provides that:
SEC. 4. Grounds for Absolute Divorce. – The following are the
grounds for a judicial decree of absolute divorce:
a.) The grounds for legal separation under Article 55 of the
Family Code of the Philippines, which are restated as follows:
1. Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of
the petitioner;

52 Lacson v. San Jose-Lacson, 24 SCRA 837 as seen in STA. MARIA, MELENCIO JR.,
PERSONS AND FAMILY RELATIONS, PERSONS AND FAMILY RELATIONS LAW, 370 (6 th ed.,
2015).
53 Supreme Court En Banc Resolution, A.M. 02-11-10-SC.
54 Supreme court En Banc Resolution A.M. 02-11-11-SC.
55 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
56 Ibid.
2. Physical violence or moral pressure to compel the petitioner
to change religious or political affiliation;
3. 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;
4. Final judgment sentencing the respondent to imprisonment
of more than six years, even if pardoned;
5. Drug addiction or habitual alcoholism of the respondent;
6. Lesbianism or homosexuality of the respondent;
7. Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
8. Sexual infidelity or perversion;
9. Attempt by the respondent against the life of the petitioner;
10. Abandonment of petitioner by respondent without
justifiable cause for more than one year.
b.) Grounds for annulment of marriage under Article 45 of the
Family Code of the Philippines, which are restated as follows:
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 other and both lived together as husband and
wife;
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 sexually transmissible
disease found to be serious and appears to be incurable.
The grounds mentioned in numbers 2, 5, and 6 may either be
existing at the time of the marriage or supervening after the
marriage.
c.) Psychological incapacity of either spouse as provided for in
Article 36 of the Family Code of the Philippines, whether or not
the incapacity was present at the time of the celebration of
the marriage or later.
d.) A divorce secured by one of the spouses in a foreign
country that is established to be valid shall entitle the other
spouse to petition for absolute divorce as a consequence of
the said foreign divorce.
e.) A canonical divorce or declaration of nullity of marriage
issued by an ecclesiastical tribunal of the Roman Catholic
Church, which was or is secured by one of the spouses, shall
entitle the other to petition for absolute divorce based on the
said canonical decree.
f.) When one of the spouses undergoes a gender reassignment
surgery, the other spouse is entitled to petition for absolute
divorce with the transgender of transsexual as respondent or
vice versa.
g.) Irreconcilable marital differences and conflicts which have
resulted in the breakdown of the marriage beyond repair,
despite earnest and repeated efforts at reconciliation, shall
entitle either spouse to petition for absolute divorce.
From the foregoing, the law clearly do not intend to repeal,
amend, nor suspend the availability of the other remedies, but
merely expands the coverage of the invocation for an action for
divorce.
Furthermore, it does not in any manner 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. Sec. 5 of H.B. 116 thus provides:
SEC. 5. Procedure for obtaining absolute divorce. – The
established and recognized procedures for securing legal
separation, annulment of marriage and voiding of a marriage
under the Family Code of the Philippines shall govern the
process of obtaining a judicial decree of absolute divorce from
the proper Family Court.
The factors and grounds which militate against the grant of
legal separation and the annulment and voiding of marriages
as provided for in the Family Code of the Philippines shall
likewise be assessed, upon competent and credible proof,
against the grant of absolute divorce. (emphasis supplied)
Wherefore, H.B. 116 or the “Act Instituting Divorce in the
Philippines and for Other Purposes” is not contrary to the established
principles of the Family Code, nor does it repeal, amend, or suspend,
any provisions thereof, but is a mere addition to the remedies
provided for by law to safeguard the integrity of marriage from ill-
unions.

III. The Divorce Law upholds the International principles of


Protection of Women and Children.
The divorce law is constitutional for it furthers, among others,
the rights of women as contemplated in Article 2 section 14 of the
1987 Constitution which recognizes their role in nation-building.
Similarly, in Section 12 which ensures the equal protection for the life
of the mother and child.57
According to the 2008 survey of the National Statistics Office
(NSO), 1 out of 7 married women are being subjected to domestic
violence in their homes, specifically physical violence.58
As emphasized in the work of Mary Jude Cantorias, there lies a
deeper issue beyond the moral ramifications and the ethics of
availing of divorce as a remedy and that is domestic violence.59
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.60 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 torture.” 61 In
the first place, as stated by Cantorias, with or without divorce,
Filipinos file petitions for annulment or declaration of nullity of
marriage.62 Cantorias further stating that, “if the right to contract
marriage may be considered a civil right, so should the right 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 right.”63
The protection of women and children is not only considered
under the Constitution but is also reflected on international laws and
treaties which the Philippines is a signatory to. The second part of the
Article 2 of the 1987 Philippine Constitution mandates the

57 The 1987 Constitution. Article 12, Sections 12 and 14.


58 Statistics on Violence Against Filipino Women.
http://pcw.gov.ph/statistics/201405/statistics-violence-against-filipino-women
59 “I Dos and Don’t’s”: Re-Visiting the Proposal to Legalize Divorce in the Philippines.

https://arellanolaw.edu/alpr/v9n1c.pdf.
60 Ibid.
61 Ibid.
62 Ibid.
63 Ibid.
acceptance of international law as part of the law of the land. 64 This
follows what is called the Doctrine of Incorporation.
As envisioned in the Universal Declaration of Human Rights
(UDHR) adopted by the United Nations General Assembly in 1948
under Article 3 “Everyone has the right to life, liberty and security of
person.”65 It is also inculcated in the International Covenant on Civil
and Political Rights (ICCPR) manifested in Article 6 protecting the
right to life as well as Article 9 in the right to liberty and security.66 The
International Covenant on Economic, Social and Cultural Rights
(ICESCR) also addresses the right to equal protection and the right to
mental health commonly exhibited in cases of domestic violence.67
The Convention on the Elimination of All Forms of Discrimination
Against Women commonly known as CEDAW agrees as well in
condemning discrimination against women in all its forms,
interpreted as involving violence against women. All of these
catering to the protection, although not expressly indicated, against
domestic violence.
It is worth noting 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
violence” signed and recognized for the enactment and
enforcement of the signatory States back in 2002.68
A fundamental principle of human law, is the right to self-
determination. It is the individual and collective right to “freely
determine… political status and [to] freely pursue… economic, social
and cultural development.” The International Court of Justice, the
principal judicial organ of the United Nations referred to the right to
self-determination as a right held by the people rather than a right
held by governments alone. 69 This right is indubitably a norm of jus
cogens. The term jus cogens means the “compelling law”.70 It holds
the highest hierarchical position among all other customary norms
and principles and as a result they are deemed “peremptory and

64 Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: a


commentary, 2009 ed. (Manila:Rex Book Store) at 61.
65 UN Treaties on Domestic Violence.

http://www.stopvaw.org/UN_Treaties_and_Conventions.
66 Ibid.
67 The International Legal Framework.

http://hrlibrary.umn.edu/svaw/domestic/laws/international.htm.
68 “I Dos and Don’t’s”: Re-Visiting the Proposal to Legalize Divorce in the Philippines.

https://arellanolaw.edu/alpr/v9n1c.pdf.
69Karen Parker, Understanding Self-determination: The Basics, August 2000

(http://130.94.183.89/parker/selfdet.html)
70 M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-

AUT Law & Contemp. Probs. 63, 67.


non-derogable”.71 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”.72
Accordingly, erga omnes obligations of a State are owed to the
international community as a whole: when a principle achieves the
status 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 other73
The right to self-determination can also be said to be an
inherent right of all, aside from being internationally recognized as a
jus cogens and gaining the status of an erga omnes obligation of a
State. Therefore, a Filipino should be free to to choose and purse her
economic, social, and cultural development. This would therefore
include the right whether to choose or to say in a irreparable or
violent marriage. Moreso, the increasing rate of Violence Against
Women as shown in Exhibit A calls for an exercise of this right to self-
determination. Domestic violence comprises all acts of intimidation
and aggression which forces a woman to seek redressal
The object of any law, one would think, is to protect the weak.
The number of battered women seeking protection against violence
deserves protection more than any consideration of beliefs. The
absolute cutting-off of marital ties, or the Divorce Bill proposed is the
paramount relief in this circumstance. Marital Violence is not a
simple issue. Battery is a complex problem and giving the battered
woman that right to sever marital ties against her abuser is the
empowerment needed to recover from the traumatic effects of
marital violence. Divorce is an empowering remedy.74

CONCLUSION

With the foregoing facts, laws and jurisprudence, it is clear that


the “Act Instituting Divorce in the Philippines and for Other Purposes”
otherwise known as Divorce Law does not violate any
Constitutionally upheld principles nor is it contrary to the existing local
and international laws governing family relations.

71 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).
72 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
73 Supra.
74 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
As such, it safeguards the integrity of marriage, as respected in
the Constitution, against ill-union. It serves as an additional remedy
that may be availed of by those who have less in the society.

Divorce Law, therefore, does not only protect the veracity of


marriage but also promotes social justice. As the late President
Magsaysay once said: “He who has less in life should have more in
law.”75

RESPONDENT’S PRAYER

WHEREFORE, premises considered, it is respectfully prayed to this


Honorable Court that after due consideration of this case, judgment
declaring the “Act Instituting Divorce in the Philippines and for Other
Purposes” otherwise known as Divorce Law, CONSTITUTIONAL be
granted.

75
As seen in Del Rosario v. Delos Santos et al., G.R. No. L-20589-90, March 21, 1968.
Exhibit A
Rising Cases of R.A. 9262 otherwise known as Violence Against
Women and Children.

Source: Philippine Commission on Women (2013)