Keziah Noelle R.

Paquingan
Conflict of Laws Atty. Jose Samson

Thought Paper:
Divorce and its Implication to Philippines laws

The Philippines has a constitutional, democratic and republican government. It is a party to major
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international human rights treaties and “adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and
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amity with all nations.”

In this thought paper, I will be discussing the topic of divorce. Recently, this topic has raised arguments
and debates in social media because the Philippines because of a bill proposing the legalization of
divorce presented last February 4, 2020. The bill considers divorce as a women‟s rights issue as it states
that “[n]ot being able to get out of an eventual loveless, unhappy, even abusive marriage is a human
rights concern for women.” Also, in Section 3(4) of the bill, it provides that the proposed divorce law is
“pro-woman legislation” because it would allow Philippine wives to be liberated from abusive relationships
and “regain dignity and self-esteem.”

Divorce cases are a messy ordeal. It is especially messy in the Philippines because it raises the question
whether or not a divorce obtained abroad is valid, and therefore, recognized, and also, whether or not a
divorced spouse will be able to remarry here in the Philippines. Some examples of cases involving
divorce are:

a) Republic vs. Manalo (2018), wherein a Filipina initiated a divorce with her Japanese husband in
Japan, and was granted by the Supreme Court the capacity to remarry as long as she will be able
to prove to the RTC the Japanese law on divorce; and

b) Philippines vs Orbecido III (2005), wherein Orbecido‟s wife became a naturalized citizen of
America, and had obtained a decree of divorce on said country. The SC ruled that the Philippines
recognizes divorces when one of the Filipino spouses becomes naturalized. The Filipino spouse
should likewise be allowed to remarry as if the other party were a foreigner at the time of the
solemnization of the marriage. However, since he was not able to prove his wife‟s naturalization,
he was still barred from remarrying.

1
Ratification of International Human Rights Treaties - Philippines, online: iHumanRights Project <http://www.ihumanrights.ph> for a
full list of ratified international human rights treaties by the Philippines [iHumanRights].
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Philippine Constitution, 1987, a II, s 6.
Keziah Noelle R. Paquingan
Conflict of Laws Atty. Jose Samson

Going through various cases of divorce in the Philippines, I was plagued with thoughts like, “Will these
cases be easier resolved if divorce has been made legal in the Philippines?” or “Will divorce protect and
strengthen the family unit of the concerned parties, given the underlying issues why a separation between
the spouses is being considered?” Therefore, I have thought of the following reasons as to why Divorce
should be passed into law in the Philippines:

1. Divorce may be able to protect and strengthen the family;

The Philippine Constitution and international law mandate that family should be protected by the State,
and it must be done so in the various types it consists of. To add, there seem to be no legal provisions or
principles that limits that family into “one father, one wife, oneNo existing legal provision or principle limits
the meaning of family to one composed merely of “a male head, the instrumental father, the breadwinner,
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and the dependent wife, mother, and housekeeper, and their children.”

The Philippines has adopted a broad definition of the Filipino family, composing of a husband and wife,
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parent and child, among other descendants, and also, siblings . This implies that the drafters of the
Constitution did not intent to limit the concept of bond in the family. Furthermore, the Human Rights
Committee also expressed the thought that “in giving effect to recognition of the family in the
context of [protecting the family], it is important to accept the concept of the various forms of family,
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including married couples and their children and single parents and their children.”

This means that divorce does not go against the mandate of the State because the family continues to
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exist long after the marriage has formally terminated . In this instance, only the husband and the wife is
affected by the termination of the marriage.

Despite the stigma that divorce has a negative impact on the affected family, especially the children,
many studies have countered that and has claimed that divorce can even be beneficial. They are as
follows:
1. No long-term negative effects were observed on the psychological well-being of children borne to
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divorced parents . This is supported by another study which revealed that children are more likely

3
Kari Moxnes, “What are Families After Divorce?” (1999) 28 (3/4) Marriage and Family 105 at 107 (citation omitted) [Moxnes].
4
Record of Proceedings and Debate of the Constitutional Commission (1986), v 1, at 39; See Family Code, supra note 22, a 50
(defining family relations as including those between husband and wife; between parents and children; and among brothers and
sisters, whether of the full or half-blood).
5
Human Rights Committee, General Comment 28: Equality of rights between men and women, UN Doc CCPR/C/21/Rev.1/Add.10
(2000), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,
UN Doc HRI/GEN/1/Rev.6 at 179 (2003), at para 27. 277
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ICCPR, supra note 270, a 23
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Yongmin Sun & Yuanzhang Li, “Children‟s well-being during parents‟ marital disruption process: A pooled time-series analysis”
(2002) 64 (2) Journal of Marriage and Family 472.
Keziah Noelle R. Paquingan
Conflict of Laws Atty. Jose Samson

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to consider divorce as a challenge for self-development and an opportunity for personal growth .
In another study, maturity, self-esteem, and empathy for others were identified as the positive
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traits honed by the experience .
2. For a child conceived or born during the second union, his or her interests will be served for he or
she will be considered a legitimate child of his or her biological parents instead of the estranged
spouses. If there is no divorce, the child from the second union will be legally considered a child
from the first union unless lawfully impugned. Therefore, divorce eliminates any confusion on
paternity and filiation and removes any threat on the child that his or her legitimate status may be
impugned.
3. When divorce is legalized and accepted, the stigma of being the „second‟ family or „anak as labas‟
is eliminated. The child from the subsequent union will be “free to develop the natural bonds of
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normal family life.”

Therefore, the Philippine laws should not hide under the guise that not legalizing divorce would protect
the interests of the family and continue to reinforce the idea that divorce is the easy way out or the
reasonable solution after a long, torturous marriage.

2. It is legal, constitutional, and in compliance with the international human rights

obligations of the Philippines

Our laws recognize the importance of family and why it should be protected by the State. The laws define
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it as “a basic autonomous social institution,” and the “foundation of the nation.” The State also defends
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 and special protection from conditions
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prejudicial to their development.” Given those, none of these principles explicitly prohibit the enactment
of a State-recognized divorce law.

Additionally, the Philippines, other than the Vatican City, is the only Catholic country that has not yet
adopted a divorce law. If we compare our Constitution with other Catholic countries, there are similarities

8
Joseph Guttmann, Divorce in psychosocial perspective: theory and research (Hillsdale, NJ: LEA, 1993); Harold Hackney & Janine
Bernard, “Dyadic adjustment processes in divorce counseling” (1990) 69 Journal of Counseling and Development 134; Constance
Ahrons & Roy Rodgers, Divorced families: A multidisciplinary developmental view, (New York, USA: Norton, 1987)
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David Gately & Andrew Schwebel, “Favorable outcomes in children after parental divorce” (1992) 18 Journal of Divorce and
Remarriage
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Kathleen Dillon, “Divorce and remarriage as human rights: The Irish Constitution and the European Convention on Human Rights
at odds on Johnston v. Johnston” (1989) 22 Cornell International Law Journal 63 at 84 [Dillon].
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Philippine Constitution, 1987, a II, s 12
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Philippine Constitution, 1987, a XV, s 3
Keziah Noelle R. Paquingan
Conflict of Laws Atty. Jose Samson

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regarding the provisions on family and recognizing it as an institution . Some countries, like Malta, have
higher rates of Catholicism. However, this has not limited them to enact and legalize Divorce and adapt it
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in their constitutions .

This implies that Philippines, being a Catholic country, cannot legally claim that the family cannot be
protected if divorce was enacted in the country. These Catholic countries have shown that divorce does
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not violate the State‟s duty to respect, strengthen and protect the family as a basic unit of society . The
Constitution or the religion of these Catholic countries never prevented them to adopt a divorce law into
their country, therefore, the Philippines should also not be stopped from doing so.

3. Divorce is in compliance with international human rights obligations

Philippines is a member of the international community, and it has expressly “adopt[ed] the generally
accepted principles of international law as part of the law of the land.” It is also a signatory to various
international human rights treaties. Given that, one of the country‟s legally binding international
obligations is the divorce law.

International treaty monitoring bodies have continuously voiced their concerns on the lack of divorce in
the Philippines. The Committee on the Elimination of All Forms of Discrimination Against Women
(CEDAW) has urged the government to “introduce and support vigorously legislation which permits
divorce, allows women to remarry after divorce, and grants women and men the same rights to administer
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property during marriage and equal rights to property on divorce.” This concern was also raised by the
Committee on Economic, Social and Cultural Rights and recommended that a “legislation recognizing the
right of men and women to divorce, to obtain the legal severance of marital ties and to remarry after
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divorce.” The observations were made pursuant to the obligation of the government to protect the
family.

Because of these concerns raised by our international partners, the Human Rights Committee
recommended that the government should enact legislation that would provide for the “dissolution of

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Constitution of the Dominican Republic, 2010, a 55; The Political Constitution of Colombia, 1991, t I, c 2, a 42; Constitution of the
Bolivian Republic of Venezuela, 1990, c V, a 75; Constitution of the Democratic Republic of Timor-Leste, 2002, p II, t II, s 39;
Constitution of the Italian Republic, 1947, t II, a 29; Constitution of the Republic of Ecuador, 2008, c 6, a 67; Constitution of Ireland,
1937, a 41 (1)
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Even in Malta where its Constitution specifically recognized the Roman Catholic Apostolic Religion as the country‟s religion,
divorce is legal. See Constitution of Malta, 1964, c I, a 2 (1); The Political Constitution of Colombia, 1991, t I, c 2, a 42; Constitution
of Honduras, 1982, c III, a 113
15
Jacon, J.A., Reintroduction of Divorce into Philippine Law, 2013, University of Toronto
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Committee on the Elimination of All Forms of Discrimination Against Women, Concluding Comments: Philippines, UN Doc
CEDAW/C/PHI/CO/6 (2006) at paras 31 & 32
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Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc E/C.12/PHL/CO/4 (2008) at
para 24
Keziah Noelle R. Paquingan
Conflict of Laws Atty. Jose Samson

marriages and ensure that it protects the rights of children, and the rights of spouses to custody of
children, and equality in the devolution of matrimonial property.” The observations were made by the
Human Rights Committee pursuant to the obligations of the government to respect, protect, and fulfill the
rights to non-discrimination equality of men and women against torture and cruel, inhuman or degrading
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treatment or punishment, and to marriage and family .

To conclude, I found that the Philippine Constitution and the international human rights law should call for
the enactment of a divorce law in the country. Various jurisprudence also show that current
circumstances can be harsh and unfair to that of the involved parties, just because the petition was
founded on the wrong grounds. there can be a harsh and unfair nature of the current circumstances of
divorce when it refused to declare a marriage void simply because the petition was founded on the wrong
grounds. Some may find divorce to be the most logical solution for grave marital predicaments, however,
as lawyers and future lawyers, our first and foremost duty is to respect and apply the law of the land, no
matter how harsh it may be.

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Jacon, J.A., Reintroduction of Divorce into Philippine Law, 2013, University of Toronto