MAIN PROBLEM: Will the enactment of a divorce law in the Philippines be

constitutional?

What are the constitutional provisions that might clash with an enactment of a divorce
decree?

An enactment of a divorce decree in the Philippines is unconstitutional. The

provisions of the Constitution of the Philippines under Article XV, Section 1 provides
that: “The State recognizes the Filipino Family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.” Also, in the same Article, section 2 states that: “Marriage, as an
inviolable social institution, is the foundation of the family and shall be protected by the
State”, and in Section 3, the constitution enumerates the duty of the State in defending
the family in terms of social, economic, emotional and spiritual. Article 2, Section 12
also provides that, “The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. Is shall equally protect
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.”

The passing of a divorce law in the Philippines clearly violates the provisions of
the constitution on Family and it will undermine the importance of a strong family in
nation building since family is the foundation of a nation.

What were the basis for the enactment of these Constitutional provisions?

The framers during the Constitutional Commission of 1986 deliberated on the

provisions on Marriage and Family. Thus, the following have been brought up which is
quoted from the exchange of Mr. Gascon and Mr. Nolledo:

“Mr. Nolledo: My last question is with respect to the Gascon Amendment,

just inserted now. It reads: “Sec. 2(a). The institution of marriage as the
foundation of the family in effect shall be defended by the State.” Can the
Commissioner give examples of the ways by which the State may defend
the institution of marriage as the foundation of the family? Does it do
away with divorce?

Mr. Gascon. I guess it would discourage divorce. However this will be

subject to existing customary and traditional laws. In fact, it is to my
knowledge that divorce is being practiced in, let say, the Cordilleras or
Muslim Mindanao.
 Mr. Nolledo. No, excluding Muslim Mindanao or the Cordilleras. Is
Congress prevented from passing a divorce law with respect to Christian
Philippines, if we adopt the provision that the State shall defend the
institution of marriage as the foundation of the family?

Mr. Gascon. What I mean when I encourage this proposal,“ defend the
institution of marriage,” and if the proposal will push 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 the 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; encouragement of these basic
traditions which we connect with the term “marriage”.

However, this is my personal opinion: I would personally discourage

divorce in our culture.”

Given the above deliberations between Mr. Gason and Mr. Nolledo, it is clear that
the lawmakers intend to protect marriage as an inviolable social institution that cannot
be taken lightly. It is also clear to say that divorce is not outlawed but discouraged
because of the fact that our culture does not accept the idea of divorce. It may safe to
say that, the passing of a divorce law will not only undermine the importance and
sanctity of marriage which is protected by our Constitution but also it will become a tool
in promoting acts that will harm the moral fabric of our society. The passing of such law
does not only violate our Constitution, it also violates our morals and teachings on
marriage which will reflect on how the youth will perceive the importance of family and
the sanctity of marriage.

How does the prevailing jurisprudence interpret these constitutional provisions in

relation to marriage and family relations?

In the case of Republic vs. Molina, the Supreme Court has given great respect
for the interpretations of the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, as Article 36 of the New Civil Code was derived from Canon
1095 of the New Code of Canon Law. The Court ruled that because the legislative intent
was to “harmonize our civil laws with the religious faith of our people, great persuasive
weight should be given to decisions of such appellate tribunal.” Furthermore, the
Supreme Court also emphasized that, “Our Constitution clearly gives value to the
sanctity of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a
new relation, an institution, the maintenance of which the public is deeply interested.
Thus, the State is mandated to protect marriage, being the foundation of the nation.
The State has surrounded marriage with safeguards to maintain its purity, continuity
and permanence. The security and stability of the State is largely dependent upon it. It
is the interest 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.”

Thus, given the above mentioned case, it is laid down in the Constitution as well
as in the decision of the Supreme Court the importance of family and sanctity of
marriage that the State has the obligation to defend.

What are the different typologies of divorce?

The Different Types of Divorce are the Following:

1. Fault and No-fault divorce.

In this type of divorce, one of the spouses should prove to the

court the fault of the other spouse or in case of no-fault, it just means
that both parties have contributory acts to the breakdown of marriage.

2. Uncontested divorce.

In this type of divorce, both spouse works together to draft terms

of their divorce. Both spouse files separate paperwork as to the terms of
their divorce and normally hearings and other court procedures are not
required.

3. Arbitration.

Arbitration in divorce is when both of the parties wanted to resolve

their issues outside of the court. The parties may hire a private judge as
an arbitrator in settling their issues.
 4. Mediation.

In this type of divorce, a neutral third party listens to both parties

which will serve as their mediator to come up to an agreement which will
be used by a judge in making a final divorce judgment.

5. Collaborative divorce.

This type of divorce requires both parties the aide of a counsel. It

does not also involve the court, however, the parties are required to sign
an agreement that they will work together to come to an agreement at
the beginning of the process.

6. Default divorce.

Essentially a divorce in absentia, this type of divorce occurs when

one spouses files and the other doesn’t respond. The divorce is granted
by default and without the need for the non-responsive spouse to appear
before the court at all.

7. Summary divorce.

A summary divorce or simple divorce is intended to streamline the

process for couples who are most likely to be in a position to cooperate;
that is, they lack substantial assets, have no children and weren’t married
for very long.

8. Contested divorce.

The conventional “heated” divorce, this well-known type involves

both spouses retaining separate counsels and taking contentious issues
before the court for the judge to decide.

What are the provisions of the proposed divorce law in the Philippines?

The proposed divorce law House Bill No. 0100 entitled, “An Act Instituting
Absolute Divorce and Dissolution of Marriage in the Philippines” or “Absolute Divorce
Act of 2019 introduced by Rep. Edcel C. Lagman. House Bill No. 0100 provides for the
grounds of Absolute Divorce such as the grounds for legal separation under Article 35
of the family code with modifications, grounds for annulment of marriage under Article
45 of the Family Code with modifications, spouses separated for five (5) years at the
time the petition for absolute divorce is filed, and reconciliation is highly improbable,
psychological incapacity of either spouse provided for in Article 36 of the Family Code
whether or not the incapacity was present at the time of the celebration of the
marriage or later, when one spouses undergoes gender reassignment surgery or
transition from one sex to another, and irreconcilable marital differences and conflicts
which have resulted in the total breakdown of the marriage beyond repair, despite
earnest and repeated efforts at reconciliation.

How can an enactment of a divorce decree militate for or against these constitutional
provisions?

The provisions of House Bill No. 0100 or the Absolute Divorce Act of 2019 is only
a repetition of the grounds laid down in the Family code of the Philippines especially in
Articles 35, 45 and 36. The modifications thereat are only means to make the
dissolution of marriage easier, undermining the importance of marriage. Thus, a clear
violation of Article 2, Section 12 and Article 15, Sections 1, 2, and 3 of the Constitution.
House Bill No. 0100 provides only for the convenient termination of marriages which the
framers discourage given our culture and religious inclination.

The passing of the Absolute Divorce Act of 2019 will not only be unconstitutional
but also demoralizes marriage and family life of the Filipino people. Filipino culture puts
family at the center of one’s life: the main source of financial security, the fountain of
one’s emotional, moral and spiritual nourishment. The abolishment of family life would
destroy the marital relationship and also physical would destroy the marital relationship
and also the physical advancement, the emotional growth, the moral and spiritual
development of every member of the family, especially the children.

Thus, passing a divorce law in the Philippines, not only will be contrary to our
Constitution but also contrary to public morals and customs. Family is the most basic
unit of the society; it is an inviolable social institution in nation building. Creating such
laws that will disrupt or undermine the importance of family and marriage will corrupt
the moral fabric of our society. The State is obligated by the Constitution in defending
the Filipino family and approving such laws means that the State does not performed its
obligation.