DIVORCE: ABSOLUTE AND RELATIVE

Legalization of divorce has been a hotly contested issue in our country. It has been the subject of
discussion among ordinary men anywhere, over the radio and television, and among students in their
English and Population Education subjects. It is an interesting, emotional subject, attractive to everyone,
but also one of the most monumental sociological problems that confront the family of today. The pros
and cons have been well publicized. Those who are in favor believe that in cases where marriage is a hell
of an experience and continued sharing of a common life is impossible, the dissolution of such marriage
is necessary. Those who are against claim that divorce is a social evil; that it has wrought havoc in the lives
of children.

What is Divorce?

Many writers on divorce claim that readers have requested them to keep on writing about it, what
does the term mean? Theodorson and Theodorson (1969) define divorce as “an institutionalized
arrangement for terminating the marriage relationship and allowing each partner the right to remarry.”
This is the absolute type of divorce.

What is Marriage?

Our own Civil Code states: “Marriages is not a mere contract but an inviolable social institution.
Its nature, consequences and incidents are governed by law and not subject to stipulation except that the
marriage settlements may to a certain extent fix the property relations during the marriage.” Marriage is
therefore regarded by law not only as a simple contract but a basic social institution in which the state
has a cherished interest to protect. The relation differs from a mere contract in that the partners cannot
dissolve it by mutual consent. The Catholic Church views marriage as “a relationship that is sacred and
indissoluble with each of the couple having different roles and functions to perform.” Mendez and Jocano
(1974) express the view that marriage is a major cultural mechanism that gives social, religious, legal, and
moral sanction to mating.

In our country, married couples who cannot get along with each other after a long time and to
whom living together becomes highly improbable because of misdeeds by one of them against the other,
may seek for final court jurisdiction to be legally separated, provided that wrongful acts committed are
one of the grounds or bases for the court to grant legal separation.

Legal Separation

Under the Civil Code of the Philippines at present, there is no provision for absolute divorce. There
is only legal separation or relative divorce which is governed by Articles 55-67, Title II, of the Family Code
of the Philippines.
 Legal separation is a type of divorce where either of the parties has no right to lawfully to marry
again. Legal separation does not dissolve marriage but merely entitles the spouses to live separately, that
is, the parties are merely separated from bed and board. Either of the party will have a continuous support
for the children.

History of Divorce in the Philippines

The term divorce is not foreign to Filipinos, whose forefathers in the pre-Spanish times, according
to some historians, practiced it. History tells us that in 1917, that is, during the American regime, Act No.
2710, was passed, providing for the granting of absolute divorce on the grounds of adultery and
concubinage, and personal violence. However, when the law was implemented, a number of safeguards
were taken to ensure the preservation of the marital bond and to prevent abuses, such as: filing for
divorce could not be done until a year after having established adultery or concubinage (as the case may
be) and within five years after the date it occurred. This measure was resorted to in order to give the
spouses a chance for reconciliation, if it was still possible, during the period of waiting.

At the time of the Japanese occupation in 1943, a new Divorce Law was passed, Executive Order
No. 141 (thus replacing Act No. 2710), but this time the grounds for absolute divorce was extended to
include an attempt by one spouse on the life of the other, repeated acts of physical violence, incurable
insanity, impotence, loathsome contagious disease, intentional or unjustifiable desertion for at least one
year, unexplained absence for three consecutive years, and imprisonment of one spouse for more than
six years.

With the return of MacArthur to the country, all laws issued by the Japanese government became
null and void including Japanese Executive Order No. 141, and imprisonment of one spouse for more than
six years.

On June 18, 1949, however, Philippine Congress approved the New Civil Code (which is still
effective today) which abolished absolute divorce, retaining only relative divorce or what is commonly
known as legal separation.

During the Constitutional Convention, the issue of absolute divorce was brought up once again,
enlivening the plenary session in March 1972. Headed by former Constitutional Convention delegate,
Amado S. Tolentino, a lawyer who served as chairman of the Special Sub-Committee on Divorce, the
proponents wanted absolute divorce adopted and incorporated into the Charter. The proponents,
however, were overruled, and the matter ended with the New Constitution not having any provision on
divorce, the delegates being of the opinion that the question should be settled by legislation instead
(Home Life Magazine, November 1975).

As of this writing, the issue on divorce has returned to the limelight the filing of two bills in the
Interim Batasang Pambansa. The first one Parliamentary Bill No. 223 authored by Assemblyman Arturo F.
Pacificador proposes the legalization of absolute divorce on the following grounds: (1) adultery on the
part of the wife, and concubinage on the part of the husband, as defined in the Revised Penal Code; (2)
an attempt by one spouse against the life of the other; and (3) incompatibility, which involves conflicts in
personalities and dispositions that are irreconcilable and irremediable as to destroy the legitimate ends
of matrimony and render it impossible for the parties to live together in a normal martial relationship.
 Section 9 of the Pacificador bill reads “that in every case, the court must take steps before granting
the divorce, toward the reconciliation of the spouses and must be fully satisfied that such reconciliation
is highly improbable.”

In addition to the three grounds for divorce, the bill has other provisions such as those involving
the custody of minor children, disposition of property, period of filing for divorce and the effectivity of
dissolution of the marriage bond.

The bill provides that only persons who have resided in the Philippines for one year prior to the
filing of the petition shall be entitled to a divorce (unless the cause upon which the petition is based
occurred within the Philippine territory). Furthermore, the bill provides that divorce may be claimed only
by the innocent spouse and collusion between parties (secret agreement for a deceitful purpose) shall
cause dismissal of the petition.

According to the Pacificador bill, an action for divorce cannot be filed except within one year from
and after the date of petitioner became cognizant of the cause and within five years from and after the
date when such cause occurred, but this shall be tried no earlier than six months after filling. No court
handling the case can make overnight decisions.

The dissolution of the marriage bond (that is, allowing the parties to remarry) takes place one year
after the divorce decree become final.

In the case of the children of the divorced couple, the bill provides that the custody of minor children
shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of the said
minors, for whom the court may appoint a guardian. If the child is fourteen years or older, his wishes shall
be taken into consideration by the court (Flores, Homelife, Jan.1979)

The other bill on divorce in the Batasan is the one authored by Assemblyman Enrique Medina of
Dumaguete. Medina`s and Pacificador’s bills have two basic differences. Medina’s bill replaces
Pacificador’s third ground of petition which is in compatibility, with abandonment for a period of three
years. It also seeks to repeal the law of legal separation and change it with absolute divorce.

Who are proponents of divorce?

The proposal of divorce was prepared by the Women Lawyers of the University of the Philippines
Law Center. The proposal has been submitted to the President. It seeks both absolute divorce and legal
separations is more acceptable to them”

The grounds for filling petition under the women lawyers’ proposal are; (1) having one paramour,
(2) attempt on the life of the other, (3) abandonment for three years without just cause, and (4) habitual
maltreatment.

The law center in cooperation with various professional and civic groups and the National
Commission on the Role of Filipino Women, conducted public hearings on the draft in barrios, towns and
cities. The surveys, that forums showed 55 percent in favor of divorce and 45 percent against.
Who are in favor in divorce and who not?

The discussion on the proposed legalization on divorce during and Constitutional Convention
generated a number of studies (published and unpublished) on the reactions and attitudes of the people
towards divorce. In an article carried by the St. Paul Publications, the pamphlet quoted Pantaleon of the
University of the Philippines as having conducted one such study.

The study was a result of a survey conducted among 100 residents (province-based) from San
Leonardo, Nueva Ecija 50 percent male and 50 percent female, selected by random sampling.

Contrary to the hypothesis, a significant finding of this study tells that there seems to be a direct
relationship between exposure to mass media (in number and in type) and knowledge about and attitude
towards divorce.

Other findings reveal that among the San Leonardo residents with high media exposure, 57
percent were found to have an unfavorable attitude towards legalization of divorce, as against 43 percent
who were found to have favorable attitude.

On the other hand, majority or 82 percent of the residents with low media exposure expressed
an unfavorable attitude toward divorce, as opposed to 18 percent who were found to have a favorable
attitude.

Another study which included attitudes towards divorce was undertaken by the main author of
this book the aim of which was to obtain an outlook on the prevailing attitudes if college students of
selected exclusive schools in Metro Manila and their parents towards sexual behavior. The subjects of the
study represent the “elite”, “sophisticated”, and “most intelligent group” of young people. Incidentally,
with the exception of two Aglipayans and one Islam, the subjects were all Catholics. Not one of them
belongs to the low socioeconomic bracket and their parents are generally college graduates.

Results of the study reveal that generally both students and their parents strongly believe that “it
is better for a couple to break up a home by getting a divorce than to stay together if they are not
compatible.”

A similar study was conducted in a State College of Manila where the students generally come
from the low socioeconomic group and whose parents are mostly elementary school graduates. The study
reveals that although as a whole students approve of divorce, the parents disapprove of the idea.

A replica of the author’s study was conducted by Genabe at the Mountain State Agricultural
College. The respondents were highland college students and their parents from the Mt. Province,
(Benguet, Kalinga, and Ifugao). Like the preceding study, the subjects generally belong to the high
socioeconomic group and the majority of the parents were college graduates, in Genabe’s study not one
of the respondents belongs to the high socioeconomic group; many are non-Catholics; 58.63 percent of
the parents finished in her only elementary education or below; 20.55 percent did not have any schooling.
Findings of the study are not accord with the author’s findings in her study since both the students and
their parents do not endorse the idea that it is better to break up a home by getting a divorce than to stay
together if they are not compatible.

Results of the aforementioned studies seem to contradict the general impression that the Catholic
orientation of the Filipinos seem to steer the course of events towards an apparent rejection of legalized
divorce in the country. It seems that the socioeconomic level where the individual belongs to and the
particular culture he was raised, or his educational background are influencing factors.

Both investigators used the latest available socioeconomic scale devised by the National
Coordinating Center for the Study of the Filipino Children and Youth in determining the socioeconomic
level of the subjects which is also the source of the findings that only three percent of the total population
of the Philippines belong to the high socioeconomic group.

Public opinion for and against divorce bills has been occupying space in the local press. It seems
that prominent people are divided in the their attitudes toward divorce. Although there are staunch
advocates of divorce, equally prominent and even more prominent ones are strongly opposed to it. Our
President for example, objects to divorce for the reason that divorce will only cause disunity among
families. Cardinal Sin’s argument against it was not on the theological level, but on the purely human and
natural level. As he has aptly put it:

“… among the lower animals, there is no need for marriage as we understand it. But among human
beings, precisely because of utter helplessness of the baby there is a need for a permanent, enduring
relationship between his parents to ensure that he will grow up and be fed, clothed, sheltered, and
educated. The mother cannot tackle this responsibility all by herself. Neither can the father. They must do
it together.

Divorce, therefore, can be viewed as a disrupting factor that disturbs this relationship. Even this
relationship were to turn sour, the spouses have an obligation to make a determined effort to set it aright
for the sake of the offspring” (Litonjua, Mod. Oct., 1978).

Some Views in Favor of Divorce

Dr. Lapuz, a psychiatrist, thinks that a divorce would help smooth out kinks in impossible unions
and protect children of such unions from emotional disaster.

Rev. Rigos, pastor of Ellinwood Malate Church, believes that there are cases where marriage is a
hell of experience not only to the husband and wife but also to the children and in such cases the
dissolution of such marriage is the least of all evils.