DISCUSSION

I.

THE ASSAILED LAW SERVES PUBLIC INTEREST IN THAT THE DIVORCE

LAW DOES NOT CONTRAVENES THE CONSTITUTION ON THE
PROSCRIPTION ON THE DISSOLUTION OF MARRIAGE

Family and Marriage as public interest

The family is the basic unit of the society, but for us Filipinos, it is not only the
basic unit but it is the center of our universe. As manifested by our many traditional
customs which revolves around our family oriented society. The Philippine
Constitution continues to evolve and cater this trait of ours.

Article II, Section 4 of the 1973 Constitution states that:

The State shall strengthen the family as a basic social institution. The natural
right and duty of parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the aid and support of the
government.1

The 1973 Constitution provided the first entry of the family, as opposed to the
silence of the 1935 Constitution about the family. Furthermore, the present 1987
Constitution not only reiterated about the family, but also made Article XV which is
dedicated to the family.

Article II, Section 12 of the 1987 Constitution provides:

The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally
protect the 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.2

Article XV, Section 1 on the other hand states:

1
The 1987 Philippine Constitution
2
Ibid
 The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.3

Part of being a family is marriage, which is the cornerstone of strong families.

The 1987 Constitution protects not only the family but also the sanctity of marriage.
Under Article XV, Section 2, it is provided that:

Marriage, as an inviolable social institution, is the foundation of the family

and shall be protected by the State.4

The late-President Corazon C. Aquino, enacted Executive Order No. 209 or

the “Family Code of the Philippines” to take into account the changes and
developments that occurred since the adoption of the Civil Code.

The Philippines clearly values the family as an integral part of our society. We
are considered to be a conservative country whose values are familial in nature. But
like many, this does not mean that marriages here in our country is without flaw. A
long line of jurisprudence shows many abuses made by one party of the family to his
or her children or to the other spouse. Our laws grant remedies between spouses
facing situations like these, but sadly some are still suffering from the abuses
because of our law still constrains them to be bound together.

As marriage and the family is a social institution that the state protects so
dearly, it also includes the protection of the parties of the family and marriage. As a
common presumption that the lawmaker intended right and justice to prevail. The
government is also bound to serve and protect the people.

Divorce is not unconstitutional

The wording of Article XV of the Constitution may seem to prohibit divorce,

but further delving into the words, the makers of the 1987 Constitution did not bar
the legislature from enacting the law allowing Divorce. Article II, Section 12 and
Article XV, Section 1 of the present Constitution, protects and strengthen the family
and promotes its total development.

During the deliberations of the 1987 Constitution, it was discussed of how the
Constitution does not bar from enacting law allowing Divorce.

3
Ibid
4
Ibid
 Fr. Bernas: "Just one last question, and I am not sure if it has been
categorically answered. I refer specifically to the proposal of Commissioner Gascon.
Is this to be understood as a prohibition of general law on divorce? His intention is
to make this a prohibition so that the legislature cannot pass a divorce law.”

Mr. Gascon: "Mr. Presiding Officer, that was not primarily my intention. My
intention was primarily to encourage the social institution of marriage, but not
necessarily discourage divorce. But now that he mentioned the issue of divorce, my
personal opinion is to discourage it."

Fr. Bernas: "No. my question is more categorical. Does this carry the meaning
of prohibiting a divorce law?'

Mr. Gascon: "No, Mr. Presiding Officer." 5[emphasis supplied]

Mr. Gascon stated that the purpose of Article XV, Section 2 of the 1987
Constitution is merely a policy which encourages people to marry and exercise their
right to a mature and responsible marriage.. Furthermore Fr. Joaquin Bernas, one of
the drafters of the 1987 Constitution stated that the provisions of the family in the
Constitution does not bar the legislature from passing divorce.

The drafters of the 1987 Constitution, protects not only the State’s interest in
the institution of the family and marriage but also the parties within. As marriage
and family is sacred, it would be paramount to grant relief from the offended parties
in the marriage to further protect not only the said institution’s sanctity but also to
the party within the institution.

Divorce as a protection or relief

To reiterate, the Filipino family although conservative is not guaranteed that

intact marriages are always strong and stable. As time passed by, many marriages
fall apart but still the spouses are still bound by the marriage because our Courts still
does not sever their binds even with repeated infidelity, abuse, violence,
irreconcilable differences and conflicts to name a few.

Many decisions of the Supreme Court denies the nullity of marriage despite
the manifest of violence, infidelity or any other form of abuse because of lack of
sufficient ground or evidence, and stating that they are only entitled for legal

5
Record of the Constitutional Commission, Vol V, September 24, 1986, p.41
separation; which only separates them from bed and board and does not allow them
to remarry. Some cases which illustrates repeated abuse and violence like in the
cases of Dedel v. Court of Appeals6, Marcos vs. Marcos7, Republic vs. Iyoy8, Pesca vs.
Pesca9. In the said cases, the court sympathizes the plight of the offended party of the
marriage but did not grant the nullity of their marriage because of the insufficient
grounds for granting the nullity, and thus taking away such relief of the offended
party and continuing to dwell in a marriage where hope is nowhere to be seen.

In some cases like the landmark case of Republic vs. Orbecido10, where one
spouse applied for naturalization in the United States and subsequently applied for a
divorce in that country or some may take shelter to congregational beliefs like in the
case of Estrada vs. Escritor11, where one party is allowed to validly cohabit with
another due to her beliefs which was allowed by court. People have been doing
divorce indirectly out of desperation and the cost of litigation being too high. The
absence of divorce law, leaves many Filipinos just walk away in a shattered marital
relationship and results to common-law relationships that carries burdensome legal
rights.

As the law cannot provide every answer to every problem due to the the
inadequacy of legal separation and the tedious proceedings of annulment of
marriage. The Bill passed allowing divorce, would answer the plight of the offended
parties in an abusive marital relationship, where the Courts in the past would deny.
This would grant relief to people in a hopeless and irreconcilable relationship. This
law provides opportunity to spouses to secure divorce, to protect not only to the
offended party of the marriage, but also to their children and as a whole the sanctity
of the Family which the state protects so dearly. This also grants the petitioner the
capacity to remarry again. This law ensures well-defined procedures, grounds an an
inexpensive proceedings for divorce.

This concurs the state’s mandate to protect and strengthen the family and its
development by nullifying marital relationships which are deemed to be abusive
and hopeless and may result to graver consequences. It is not an end to marital
relationships but a mean for evolving marital relationships; it is not a conclusion of
marital union but a call to evaluate marital relationships and the defects and

6
G.R. No. 151867, January 29, 2004
7
G.R. No. 136490, October 19, 2000
8
G.R. No. 152577, September 21, 2005
9
G.R. No. 136921, April 17, 2001
10
G.R. No. 154380, October 5, 2005
11
A.M. P-02-1651, August 4, 2003
inequalities occurring therein and also to strengthen and develop the state’s
protection for the family and marriage institution.

Divorce in International Law

International laws: The Law does not discriminate

The creation of an area of freedom, security and justice has as one of its main
objectives: the promotion of mobility of citizens between the Member States of the
United Nations. The possibility and conditions of divorce differ widely from
country to country. The most stringent is Malta, where divorce is not possible at all.
On the other hand, we have Sweden, wherein parties do not have to adduce any
reason to support a divorce claim. A divorce will simply be granted. Both Malta and
Sweden would automatically apply their own law to a divorce. From this
perspective, it is not surprising that member states would want to have a
harmonized law on divorce which does not aim to discriminate.

Being a signatory of the United Nations, the Philippines is bound to adhere to

the law of the International Declaration of human rights.

Article 16 states that:

Men and women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to
equal rights as to marriage, during marriage, and its dissolution.

Marriage shall be entered into only with the free and full consent of the
intending spouses.

The family is the neutral and fundamental group unit of the society and is
entitled to protection by the society and states.

In the book of Morsink on the origins, drafting and intent of the Universal
Declaration of Human Rights, he posits that the right to divorce is an inherent effect
of the Declaration stating that “the drafters treated the issue of divorce as one of non-
discrimination rather than as a basic and independent human right.”
 Much of the opposition to explicit mention of divorce came from delegates
from Christian countries and organizations. This opposition, however, is heavily
based on religious doctrines and practices. Human rights cannot be settled based on
religious grounds. The drafters did not think that in order to accept the existence of
any one of the rights, one had to be adherent of a certain faith. Nevertheless, under
the Code of Muslim Personal Laws in the Philippines contain provisions on divorce.
The said Code has different ways of effecting divorce that is legally binding on the
spouses. Therefore, the allowance of divorce to Muslims but not to non-Muslims is
discriminatory and positions the Philippines as non-compliant with the International
Law. Contrary to primary goal which is Non-discrimination.

Divorce and its effects on the basic unit of the society

With regard to the contention of the divorce law as a catalyst on tearing

families apart, according to a book by Shannon Grant on Divorce: Risk factors,
Patterns and Impact on Children’s Well-being states that “Children of divorce
behaviors have focused largely on risk and protective factors under parental control;
for example, the positive impact of inter-parental cooperation and conversely, the
negative consequences on involving children in ongoing conflicts between separated
parents”. An increasing number of children are affected by their parents‘ separation
and divorce(Stats Canada, 2008). These children show large variability in their
adjustment (Lansford, 2009; Afifi & Schrodt, 2003).
Therefore, effects of divorce rely primarily on how the parents deal with the
circumstance and not on the divorce itself.

Conclusion of the first issue

“The life of law has not been logic; it has been experience. The felt necessities of the time , the
prevalent moral and political theories, institutions of public policy, avowed or unconscious,
even the prejudices which judges are with their fellow-men, have had a good deal more to do
than the syllogism in determining the rules by which men should be governed.”

- Oliver Wendell Homes, Jr.

The evolving norms of the society like family and marriage are the reason
why law is not all about logic. It’s about experience, the needs and the standard of
the time which they exist. It depends of changing circumstances that ebb and flow
with time. Yesterday cannot govern today, no more than today can determine
tomorrow.12 We shape our laws based on the time we live in.

12
Republic of the Philippines vs. MERALCO, G.R. No. 141314, April 9, 2013
 The Family Code was passed into law to consider the customs, values and
ideals reflecting contemporary trends and conditions brought about by many
changes.13

The rising number of offended parties who are still bound in an abusive
marital relationships without adequate relief is the call for the passage of the law
allowing divorce. This is another point in our society, to address this change and
give a sufficient legal remedy for this problem.

The drafters of the 1987 Constitution did not bar the legislature in passing a
law allowing divorce. The State aims to protect and strengthen the family and its
development by protecting not only the institution but the ones subject to it. The law
allowing divorce answers the inadequacy of our existing legal remedies for
irreconcilable differences during the marriage.

This is also an adherence of the International Declaration of Human Rights

which our country is a signatory that every person are entitled to equal rights as to
marriage, during marriage, and its dissolution.

13
WHEREAS Clause, Executive Order 209 or the “Family Code of the Philippines”, July 6, 1987