You are on page 1of 16

SBC- HRA DEBATE CUP 2018

MOTION: Let it be resolved that the divorce bill shall be passed

NEGATIVE POSITION PAPER

Submitted by: 1-E

Debaters:

De Jesus, Aijeen P.

Peña, Roselle D.

Udedike, Damian C.

Head Researcher: Angelica B. de Leon

Beadle: Miguel Cabalquinto

March 10, 2018

San Beda College of Law

Mendiola, Manila
BACKGROUND

In greek mythology, Zeus, the King of the Gods, was walking at the landscapes of

Hesperides, when suddenly he spotted Hera, the goddess of women, marriage, family and

childbirth, and fell head over heels in love with her. Zeus, in turn, anxious with the thought of

being unnoticed by Hera’s beauty, transformed himself into a cuckoo and placed himself outside

her window, pretending to be frozen by the cold. Hera felt sorrow and pity and took the bird

inside her house. Once inside, Zeus revealed his true identity and made love to Hera. Then, he

grabbed Hera and brought her to the mountain of Cithaeron to make her his legal wife, so that

she could cover her shame.

The marriage of Zeus and Hera was celebrated with exceptional and sacrifices coupled

with singing hymns and praises. One of the invited guests was Gaea, the Goddess of the Earth,

who gave the couple a symbol of love and a tree with golden apples. Hera planted the said tree

in her garden, on the shores of the ocean.

Romantic as it may sound, as such in the case of celebration of most marriages in the

Philippines, there are opinions in which romantic love is not an enough motive for upholding the

sanctity of matrimony while others view marriage where partners should be carefully chosen.

Among the resolutions amidst the rising issues on these is the proposed House Bill No.

7303, otherwise known as “An Act Instituting Absolute Divorce and Dissolution of Marriage in the

Philippines”. It is a proposed preventive means by the legislature “to give the opportunity to

spouses in irremediably failed marriages to secure an absolute divorce decree under limited

grounds and well-defined judicial procedures to terminate a continuing dysfunction of a long


broken marriage”, which might “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”. The bill further proposed under its guiding

principles that “the court proceedings for the grant of absolute divorce shall be affordable and

inexpensive, particularly for court assisted litigants or petitioners.” Meanwhile, among others, it

asserts that “the option of absolute divorce is a pro-woman legislation because in most cases, it

is the wife who is entitled to a divorce as liberation from an abusive relationship.”

On the other hand, others are in favor of the passing of House Bill No. 7303 as they claim

that “ours is a government of laws and not of men” (Lukban vs. Villavicencio). As such, they claim

that the fact that majority of Filipinos are in favor of divorce shows that the will of the people is

to reintroduce and legalize divorce in the country. The government, as representative of the

people, must act according to the needs and demands of Filipinos.

We perceive objection on this.

We strongly believe that the enactment of the divorce bill is neither necessary, nor

beneficial, and unequivocably impractical as it may one way or another disrupt the state’s

recognition on the sanctity of family life. Furthermore, as much as we consider the possible

reconciliation between relationships under Article 26 of the Civil Code, there are other forms of

solution in the form of present laws and even more are being formed in the Philippines to cater

the problem of the grounds for separation of the legal ties in a marriage.

While most young women nowadays would be in a relationship at an early age to a man

roughly twice their age, falling in love, getting married, then eventually coming up to a divorce
should not be done as though they were similar in circumstances. Marriage, as some would say,

is not easy. It takes compromise and sacrifice. Thus, divorce may merely act as an avenue for one

of the parties who agreed to such marriage to severe it under the guise of the ground of

irreconcilable differences.

I. NON-NECESSITY

“The State recognizes the sanctity of family life and shall protect and strengthen the

family as a basic autonomous social institution” (Section 13, Article II of the 1987 Constitution).

Passing of the divorce bill runs against the Constitutional policy of protecting the family.

Section 13, Article II and Article XV of the Constitution provides for the promotion and

protection of the family, as an inviolable social institution and the foundation of the nation. Mr.

Nolledo (1986) agreed with Mr. Suarez' observation during the Constitutional deliberations that

Article 216 of the New Civil Code is also the thrust of the Family Rights and that Article 218 of the

same Code which provides that "no custom, practice or agreement which is destructive of the

family shall be recognized or given any effect" can be very effective.

Although the status quo is not perfect, the problem arising from irreparable marriages can be

solved under our paradigm.

“Even presuming that absolute divorce would minimize the occurrence of the querida

system, there is no guarantee that it will eliminate it,” says Juco J.M (1966).

The negative side believes that divorce is not necessary. The Philippine laws allow forms

of marital separation through legal separation and annulment of marriage as provided in the Civil
Code and such laws could be further amended to suit the necessities of the Philippine society.

The grounds of the divorce bill also include the grounds for legal separation and annulment of

marriage with the exception of gender reassignment and irreconcilable differences. Grounds for

legal separation and annulment of marriage may be added making it so that divorce may not be

needed or be of immediate necessity to pass. Filipinos married to foreigners or those

subsequently obtaining foreign citizenship shall likewise have capacity to remarry under

Philippine law when a divorce is validly obtained abroad by the alien spouse capacitating him or

her to remarry, as provided for in par.2 Art.26 of the Family Code.

There are other forms of solution in the form of present laws in the Philippines to cater

the marital problems including those enumerated as grounds in the annulment of marriages and

legal separation provided in the Family Code. Special laws such as the R.A. 9262, otherwise known

as “Anti-Violence Against Women and Their Children Act of 2014” recognizes the need to protect

the family and its members particularly women and children, from violence and threats to their

personal safety and security. The Act punishes the abusive spouse through imprisonment and a

fine. A protection order is also available under this Act to prevent further acts of violence against

a woman or her child and granting other necessary relief. Furthermore, the Revised Penal Code

punishes bigamy, concubinage and adultery.

The Philippine society

The Filipinos are family-centered, which trait has been a real strength of the nation. The

framers of the Constitution noted the deep concern of Filipino parents for their children's

welfare, education and future, and in turn, the children take good care of their elderly parents
with personal sacrifice. (Records of the 1986 Constitutional Commission) Consequently, the

maintenance of the family system should be preserved in order that gradual collapse in the family

to which this society depends would not materialize.

Furthermore, Congressman Elpidio Barzaga Jr., expresses his opposition to the divorce bill

by upholding the intent of the framers of the Constitution to preserve the sanctity of family life

for which is founded by marriage. "To have a strong nation we must have a strong society, which

depends on a strong family. We can have this only if there are laws that solidify and strengthen

it," he says (Lichauco, 2014).

The Constitution explicitly provides for the protection of the family as foundation of the

nation. Atty. James Imbong listed five (5) grounds for divorce which are:

1. If the couple has been separated at least 5 years and there is no more chance of

reconciliation;

2. If the couple has been legally separated for at least 2 years at the time of the filing for

divorce;

3. Psychological incapacity;

4. Abandonment, marital infidelity or domestic violence or any of the grounds for legal

separation; and

5. Irreconcilable differences.

These five (5) possible grounds for divorce will be easily availed of by any of the spouses

involve. Thus, it is violative of the Constitution where it protects the marriage. He further added
that his work experience in Office of the Solicitor General opened his eyes to all circumstances

to which legal practitioners and psychologist would abuse the grounds needed to grant

annulment or legal separation (Dizon, 2013).

“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.”

Marriage is a civil contract, in the sense that it is entered into by agreement of the parties.

(Stevens vs. U.S.) However, it is a special contract as it is established in accordance with the law

wherein certain rights and duties incident to the relationship come into being, regardless to the

stipulations of the parties (Graham vs. Graham).

Marriage in this country is an institution in which the community is deeply interested. The

state has surrounded it with safeguards to maintain its purity, continuity and permanence. The

security and stability of the state are largely dependent upon it. It is in the interest and duty of

each and every member of the community to prevent the bringing about of a condition that

would shake its foundation and ultimately lead to its destruction. The incidents of the status are

governed by law, not by will of the parties (G.R. No. L-12790, 109 PHIL 273-277).

The House Bill 7303 or the Divorce Bill, however, allows the parties to severe the legal ties

of the marriage under the ground of irreconcilable differences referring to the existence of

overriding conflicts between a married couple that are so pronounced and beyond repair as to

make the marriage unworkable. Such irreconcilable differences have not been defined narrowly

enough and may be subject to the parties’ own definitions therefore giving them the power to

severe marriage ties.


II. NON-BENEFICIALITY

Divorce hinders society by dissolving families and weakening belief in the family as an

essential social unit. According to sociologists, the family does more than unite people by

marriage and blood or adoption; it provides the educational, financial and emotional support its

members need to thrive socially. Without such support, divorced adults and their children are

mentally and physically weakened, becoming less productive social participants. More broadly,

divorce leads people to question whether having a family is worthwhile. The Heritage Foundation

reports that children of divorced households tend to enter high-risk marriages. Even worse, says

researcher Patrick Fagan, these children often do not marry and start families of their own, a

phenomenon that can disturb social harmony.

Divorce and its negative impact on children

According to Juco, J.M. (1966), divorce prejudices the normality of the lives of the

children. It may be a source of social embarrassment or insecurity, not necessarily for the

spouses, but for their children. In the countries where divorce is allowed, the system of divorces

has been subjected to grave abuse.

Young children whose parents were divorced can develop anxiety disorder where there

they experience overwhelming fear of being abandoned. Such could lead other problems such as

eating disorders. Divorce causes irreparable harm to all involved, but most especially to the

children. This was supported by a study of Wallerstein, J. (1991), wherein children six years after

a parental marriage breakup revealed that even after all that time, these children tended to be

“lonely, unhappy, anxious and insecure. Furthermore, Amato (2000) states that though it might

be shown to benefit some individuals in some individual cases, over all it causes a temporary
decrease in an individual’s quality of life and puts some “on a downward trajectory from which

they might never fully recover.

Meanwhile, when it comes to having their own family, children whose parents divorced

are slightly less likely to marry. According to Popenoe, the father of marriage in the United States,

they are much more likely to divorce when they do marry. Moreover, research says that divorce

risk nearly triples if one marries someone who also comes from a home where the parents are

divorced. The increased risk is much lower, however, if the marital partner is someone who grew

up in a happy, intact family. This is further proved by Hill (1993), in his study that teenagers in

single-parent families and in blended families are three times more likely to need psychological

help within a given year. Statistical comparisons of the mean moral maturity scores suggested

that male delinquents whose fathers were present attained higher moral maturity scores than

those whose fathers were absent, as Bieliauskas & Daum (1993) says.

Vrouvas states, on the other hand, In most functioning societies, an intact family helps

children develop strong moral character. Lacking such guidance, children of divorce are more

likely to behave as social deviants. Specific findings reported by The Heritage Foundation are that

these children are more likely to commit minor and serious crimes, run away from home, be

suspended from school, smoke cigarettes, abuse alcohol, carry weapons, engage in physical

fighting, and use marijuana and cocaine. And both male and female adolescents living in single-

parent households have experimented with sex by age 11.

Effects of Divorce on Women

According to Conger, R.D., Elder Jr., G.H., Lorenz, F. O. & Wickrama, K.A.S. (2006), in the

years immediately after their divorce (1991–1994), divorced women reported significantly higher
levels of psychological distress than married women but no differences in physical illness. A

decade later (in 2001), the divorced women reported significantly higher levels of illness, even

after controlling for age, remarriage, education, income, and prior health. Compared to their

married counterparts, divorced women reported higher levels of stressful life events between

1994 and 2000, which led to higher levels of depressive symptoms in 2001.

Furthermore, Vrouvas (insert year) states that, divorce breeds poverty, particularly for

women and children. In the first 18 months following divorce, between 77 and 83 percent of

mothers and their children live in poverty. With fewer economic resources, most children of

divorce experience disruptions – changes in child care, living arrangements and schools – that

create turmoil in their lives.

Effects of Divorce on Men

Using data from the National Longitudinal Survey of Youth (1979), research shows

unemployment before and during separation and show that men’s unemployment during

separation, rather than women’s, reduces the likelihood of divorce, independent of pre-

separation unemployment and other characteristics. For men, unemployment during a marital

separation prolongs the divorce process, creating an extended period of uncertainty in marital

relationships on the brink of dissolution.

Reiterated by Churchill and Fagan (2012), divorce leads to a decline in the frequency and

quality of parent-child contact and relationships, and it becomes difficult for non-residential

parents, 90 percent of whom are fathers, to maintain close ties with their children. For example,

children spend significantly more nights with their mother than their father. Nearly 50 percent

of the children in one study reported not seeing their non-resident father in the past year, and
the small number that had recently stayed overnight at the father’s residence did so for a special

visit, not as part of a regular routine. An analysis of the National Survey of Families and

Households found that about one in five divorced fathers had not seen his children in the past

year, and fewer than half the fathers saw their children more than a few times a year. By

adolescence (between the ages of 12 and 16), fewer than half of children living with separated,

divorced, or remarried mothers had seen their fathers at all in more than a year, and only one in

six saw their fathers once a week. Contact with the father declines over time after a divorce,

though this pattern is less pronounced the older the child is at the time of the divorce. 32

Daughters of divorced parents were 38 percent less likely than their peers in intact families to

have frequent contact with their fathers, and sons of divorced parents were 20 percent less likely.

Effects of Divorce to the Society

Divorce can save people from a bad marriage, but research has shown that it can also

debilitate a society. Divorced adults are more likely to become impoverished while their children

experience psychological and economic stress hindering their social development.

Divorce damages society, according to Amato and Sobolewski (2001), as it consumes

social and human capital. It substantially increases cost to the taxpayer, while diminishing the

taxpaying portion of society. It diminishes children’s future competence in all five of society’s

major tasks or institutions: family, school, religion, marketplace and government. Divorce also

permanently weakens the family and the relationship between children and parents.2 It

frequently leads to destructive conflict management methods, diminished social competence

and for children, the early loss of virginity, as well as diminished sense of masculinity or femininity
for young adults. It also results in more trouble with dating, more cohabitation, greater likelihood

of divorce, higher expectations of divorce later in life, and a decreased desire to have children.

Divorce and the Third-party Relationship System

Divorce would be easy for the wealthy to obtain, since they will be able to afford it in spite

of the financial obligations which it may entail. Poor couples, on the other hand, may decide to

avoid the idea completely, in the belief that it will be cheaper and less bothersome to maintain a

third-party than to support two or more wives. Thus, a study by Juco (1996) concludes that

divorce would not afford an absolute and complete cure for the ills spawned by the querida

system.

III. NON-PRACTICABILITY

Allowing divorce in the Philippines will be impracticable because it promotes separation

rather than protection and preservation. Likewise, it is not the best solution to the problems

which it seeks to resolve.

Divorce Law and Current Laws in the Philippines

The Family Code provides for three remedies on the dissolution of marriage bonds:

declaration of nullity, annulment, and legal separation (Paras, 1995). The proposed Divorce Bill

(H.B. No. 7303) has a resemblance with the provisions on legal separation. They both provide

grounds which may occur subsequent to the celebration of marriage. They provide separation of

the spouses in case of a final declaration of legal separation or divorce, as the case may be.

However, they differ in their after effect.

Legal separation is more consistent with the constitutional mandate of protection and

preservation of the sanctity of marriage and family life because its effect is just the separation in
bed and board of the spouses. It does not severe the marriage tie. In addition, legal separation is

open for the possibility of reconciliation of the spouses. The proposed divorce bill does provide

for a reconciliation period of six (6) months, however, after the expiration of this cooling off

period and the final decree of divorce, the spouses may not opt anymore for reconciliation.

Unlike in legal separation, it allows for reconciliation even if there is already a final decree of legal

separation. The period for reconciliation is not limited to just six (6) months. Thus, legal

separation is more practicable and more in line with our Constitution than having a divorce.

The Commission on Human Rights (2001) has declared divorce to be inconsistent with Article

16(3) of the United Nations Declaration of Human Rights (UDHR), for violating the rights of the innocent

spouse and children whom the guilty spouse is allowed to abandon or neglect. It will be a violation of the

children’s right to a stable family as a result of the irreversible breakdown of a family for the spouse can

resort to divorce immediately if he sees it fit do so, without considering the psychological effects to the

child.

Effects of Divorce on the Family

Divorce causes more psychological and post-divorce problems among spouses and

children. Mothers frequently experience distress and increased rates of depression after

separation and divorce. Fathers demonstrate poorer mental health and psychological well-being

as well as higher rates of depression if they are the non-custodial father. The initial period

following separation is stressful for the vast majority of children and parents although this initial

stress reaction normally diminishes over 2-3 years (Wallerstein and Kelly, 1996).

Divorce does not actually solve the problem

The solution that divorce offers is the extinguishment of the marriage tie once irreparable

conflict or marital differences and such other grounds which may arise after the contracting of
marriage. Divorce is simply a means to shy or run away from the problem rather than actually

resolving it.

Divorce causes spouses to easily give up on marriage which the State tries to protect.

Divorce is “not the answer to marital woes, as even the opportunity to separate from an

intolerable spouse and subsequently remarrying will not assure a new marriage that will

be happy and permanent (CHR, 2001).


SOURCES

1987 Philippine Constitution

Amato, P. (2000). The Consequences of Divorce for Adults and Children. Journal of Marriage and

Family 62.

Amato, P.R. & Sobolewski, J.M. (2001). The Effects of Divorce and Marital Discord on Adult

Children’s Psychological Well-Being. American Sociological Review 66.

Bieliauskas, V.J. & Daum, J.M. (1993). Fathers' Absence and Moral Development of Male

Delinquents.

Churchill, A. & Fagan, P. (2012). The Effects of Divorce on Children.

Commission on Human Rights (CHR), Position Paper on the Legalization of Divorce (2001), online:

CHR [CHR paper].

Conger, R.D., Elder Jr., G.H., Lorenz, F. O. & Wickrama, K.A.S. (2006). The Short-Term and

Decade-Long Effects of Divorce on Women's Midlife Health.

Dizon, D. (2013, January 8). Divorce Unconstitutional says anti-RH lawyer. Retrieved from ABS

CBN News: http://news.abs-cbn.com/-depth/01/08/13/divorce-unconstitutional-says-

anti-rh-lawyer

Family Code of the Philippines

Graham v. Graham. 33 F. Supp. 936 (E.D. Mich. 1940).

Hill, P. (1993). Recent Advances in Selected Aspects of Adolescent Development. Journal

of Child Psychology and Psychiatry.

House Bill 7303

Jimenez v. Cañizares. G.R. No. L-12790, [August 31, 1960]. 109 PHIL 273-277.
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

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

Judith S. Wallerstein and Joan Berlin Kelly, Surviving the Breakup: How Children and Parents Cope

With Divorce (1980; repr., New York, NY: Basic Books, 1996), 224-225. Citations are from

the 1996 edition.

Lichauco, S. (2014, October 6). The fight to make divorce legal in the Philippines. Retrieved from

CNN: https://edition.cnn.com/2014/10/06/world/asia/philippines-legal-divorce-

battle/index.html.

Paras, E. L. (1995). Family Code of the Philippines: annotated. Manila: Rex Book Store.

R.A. No. 9262 (2014). Anti-Violence Against Women and Their Children Act of 2014.

Records of the 1986 Constitutional Commission. Journal No. 091. September 25, 1986.

Stevens V. United States. 559 U.S. 460 (2010).

Vrouvas, M. (n.d.). The effects of divorce on society.

Wallerstein, J. (1991). The Long-Term Effects of Divorce on Children. Journal of the American

Academy of Child and Adolescent Psychiatry.