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NECESSITY BENEFICIALITY PRACTICABILITY

The deletion of the provisions on ab solute Section 2. Declaration of Policy. – “it shall also It covers grounds which occurred during the
divorce merely reflects the trend which Filipino give the opportunity to spouses in irremediably marriage.
Family Law has taken during the past two failed marriages to secure an absolute divorce
decades (Juco, 1966). However, the Old Civil decree under limited grounds and well-defined [ANNULMENT V. DIVORCE]
Code in 1950 and the Family Code drafted in judicial procedures to terminate a continuing About 95% of Filipinos need to file a nullity of
1988 reflects a different situation in the dysfunction of a long broken marriage; save the marriage or an annulment to legally terminate
Philippines. Three decades after the drafting of children from the pain, stress, and agony their marriage. However, only a small fraction
the New Civil Code, Philippine society and consequent to their parents’ constant marital resort to these remedies because, while the
marital relations have evolved; thus, there is a clashes; and grant the divorce spouses the outcome is uncertain, costs are high (usually
need to revisit the necessity of divorce in the right to marry again for another chance to not less than three months of average labour
country. achieve marital bliss.” earnings, and sometimes much more) and the
legal procedures are long and complex.
It becomes relevant to assess periodically the [REBUTTAL TO EFFECT TO CHILDREN] Completing a matrimonial dissolution case
state of Filipino marriage in order to ascertain typically takes between six and eighteen
how well ( or badly) it is faring in times of stress Section 3(6). – A divorce decree shall include months but the procedure can also extend over
and change. (Vancio, 1980) provisions for the care and custody of children, several years (Lopez, 2006).
protection of their legitimate, termination and
[PROVIDE STATISTICAL DATA TO SUPPORT liquidation of the conjugal partnership of gains [AS TO EXPENSIVE FEE]
THE NEED FOR DIVORCE] or the absolute community, and alimony for the
petitioner. Section 3 (2). – The State shall assure that the
[PROVIDE DATA BEFORE 1988 AND AFTER court proceedings for the grant of absolute
1988 TO SUPPORT CLAIM THAT THERE IS AN Section 3(7) – Even as absolute divorce is divorce shall be affordable and inexpensive,
INCREASE NEED FOR DIVORCE] instituted, the State has the role of particularly for court assisted litigants or
strengthening marriage and family life by petitioners.
[REMEMER PHILIPPINES SET UP] undertaking relevant pre-nuptial and post-
matrimonial programs and activities. [AS TO ABUSE OF DIVORCE]
[REBUTTAL TO EXISTING LAWS PUNISHING To secure that divorce will not be abused, Sec.
CONCUBINAGE, LEGAL SEPARATION, ETC.] Section 10(h) – The legitimate and adopted 3(5) and Section 9 provides a six-month
children of divorced parents shall retain their cooling-off period after the filing of a petition for
The law, in the case of the husband, is far from legal status and legitimacy; a child conceived or absolute divorce as a final attempt for
fool-proof. Legally, the keeping of a querida born within 300 days after the filing of a reconciliation. Likewise Sec. 3(1) provides that
does not even give rise to a ground for legal petition for absolute divorce shall be considered it shall only be judicially decreed after the fact
separation until it amounts to concubinage. legitimate, unless the ground for divorce is the of an irremediably broken marital union or a
Thus, if he should see his mistress from time to marital infidelity of the wife. marriage that is defective from the start.
time without cohabiting with her openly, or if
he should have sexual intercourse with her
under circumstances which are less than
scandalous, or if he should not maintain his
mistress in the same dwelling as his legitimate
wife, the latter cannot even bring an action for
legal separation against him in court. His
conduct does not amount to concubinage as
defined by the Revised Penal Code (Juco, 1966).
Thus, the provisions in the RPC and that of the
New Civil Code are strict and limited. A remedy
has to be provided for such situation, thus, the
necessity for divorce arises.

She may, of course, as a last resort, simply


leave him and refuse to cohabit with him,
which would be a separation de facto. But this
does not solve all of her problems. There are the
custody of the children and the problem of
support to think of. In such cases, the
technicalities of the law appear to be nothing
but sheer obstructions. (Juco, 1966)

Three theories have been advanced to date


concerning the causes which may justify
divorce: the principle of fault, the principle of
consent and the breakdown principle. (Juco,
1966)

A substantial 47 percent of the males preferred


a more "drastic" action such as legal
separation, physical intervention, or for some
even divorce if such were permitted. Clearly,
the urban wife is up against a male "double
standard" with regard to extramarital relations;
the men engage in it more often than the
females, but are less tolerant of wives who
might be involved in similar sexual liaisons.
(Vancio, 1980)

[REBUTTAL TO RELIGION ARGUMENT]


The arguments in favor of divorce refer mainly
to these lines of thought: divorce legislation for
the Philippines is a political and not a religious
issue. The state has a duty to provide solutions
for those citizens whose marriages have been
irretrievably broken so that they can enter into
a second civil marriage if they so wish.
Moreover, a divorce law would promote equality
before the law for women; such a legislation
would undercut the legal protection now
implicitly granted to the querida system and in
this sense strengthen the institution of
marriage. (Jucio, 1980)

Most Filipinos who wish to end their marriage


resort to informal separation. Ideally, couples
need to apply for a legal separation that
provides them with legal sanction to live
separately, but in reality most couples,
especially the poor, just live separately without
going through this legal procedure. Although
most Filipinos still value marriage, the
proportion who separate from their spouse,
both legally and informally, is increasing.
(Abalos, 2017)

Given these realities, couples must have the


option to avail of remedies that will pave the
way for the attainment of their full development
and self-fulfillment and the protection of their
human rights. Existing laws are not enough to
address this need. To quote the Women’s Legal
Bureau, Inc., a legal resource NGO for women:
“The present laws relating to separation of
couples and termination of marriage are
inadequate to respond to the myriad causes of
failed marriages. Particularly, the remedies of
declaration of nullity and annulment do not
cover the problems that occur during the
existence of marriage. Legal separation, on the
other hand, while covering problems during
marriage, does not put an end to marriage.”

[AS TO PROTECTION OF SANCTITY OF


MARRIAGE]
If the other side contends that it downgrades
the value of family and sanctity of marriage, we
can argue that the House Bill provides an
avenue for reconciliation (Section 11).
NON-NECESSITY NON-BENEFICIALITY NON-PRATICABILITY
Even presuming that absolute divorce would Divorce prejudices the normality of the lives of [AS TO MUTUAL CONSENT NEEDED]
minimize the occurrence of the querida system, the children. It may be a source of social
there is no guarantee that it will eliminate it. embarrassment or hiya, not necessarily for the What makes difficult the actual application of
(Juco, 1966) spouses, but for their children. In the countries the Principle of Consent is the fact that, quite
where divorce is allowed, the system of divorces often, the consent is not mutual, and therefore
[REBUTTAL TO THE PROTECTION OF has been subjected to grave abuse. (Juco, divorce cannot take place. One of the parties
SANCTITY OF MARRIAGE IS PROTECTED] 1966) may be un willing to end the relation, whether
the reason be one of social convenience,
The difficulty with the Principle of Faith is that [QUERIDA SYSTEM] economic stability or even "nobler" motives. For
it looks upon marriage, not as an inviolable this reason, exponents of this principle believe
social institution, an act or a status, but as a Divorce would be easy for the wealthy to obtain, that it is most effective if combined with the
mere contact. Since rescission and annulment since they will be able to afford it in spite of the principle of fault. For even if one party is
of contracts are allowed in case of violations of financial obligations which it may entail. Poor unwilling to end the marriage, if he is the party
their terms or the non-fulfillment of their couples, on the other hand, may decide to avoid at fault, then the other spouse can make use of
conditions, this principle assumes that the idea completely, in the belief that it will be the fault principle (the innocent spouse can
marriage, like any other contract, may be so cheaper and less bothersome to maintain a resort to divorce without consent of the spouse
dissolved, and the parties freed from the effects querida than to support two or more wives. at fault) to obtain a divorce. (Juco, 1966)
thereof. Thus, divorce would not afford an absolute and
complete cure for the ills spawned by the There is a tendency for abuse of divorce.
[AS TO RELIGIOUS ARGUMENT] querida system. (Juco, 1966)
“What God has put together let no man put
asunder”. This biblical quote is frequently
heard among Filipinos, particularly among the
older generations, to discourage young people
from leaving an unsatisfactory marriage. The
indissolubility of marriage is also strongly
advocated by the Catholic Church, to which
80% of Filipinos belong. (Abalos, 2017)
SOURCES:

Abalos, J.B. (2017). Divorce and separation in the Philippines: Trends and correlates. Demographic Research 36 (50): 1515-1548. doi:
10.4054/DemRes.2017.36.50.

Absolute Divorce Act of 2018, H.B. 7303, 17th Cong. (2018).

Juco, J. M. (1966). Fault, Consent and Breakdown—The Sociology of Divorce Legislation in the Philippines. Philippine Sociological Review, 14(2),
67-76. doi:128.111.121.42

Lopez, J. (2006). The law of annulment of marriage rules of disengagement: How to regain your freedom to remarry in the Philippines. Pasig City:
Anvil Publishing.

Vancio, J. A. (1980). The Realities of Marriage of Urban Filipino Women. Philippine Studies, 28(1), 5-20. doi:141.209.100.60