IN RE: THE PROPOSED DIVORCE BILL

By Erlano Francisco R. Gacias

Is divorce against the existing laws of the Republic of the Philippines?

Article 1 of the Family Code states thus:

Art. 1: 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. It is the foundation of the family and an inviolable social institution
whose nature, consequences, and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the property relations during
the marriage within the limits provided by this Code.

The proposed Divorce Bill directly contravenes and in fact violates the above-quoted
Article 1 of the Family Code. Since marriage is a permanent union, any law that allows to
transgress this principle of permanence is contrary to the aforesaid provision and destroys the
very concept of family as an inviolable social institution.

Is divorce against the 1987 Constitution of the Republic of the Philippines?

Article XV, Sections 1 and 2 of the 1987 Constitution of the Republic of the Philippines
state thus:

Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its
total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the

family and shall be protected by the State.

Likewise, Article II, Section 12 of the 1987 Constitution of the Republic of the
Philippines reads thus:

Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution.

Compared with nullity or annulment of marriage and legal separation, divorce is a

completely different animal. The final object of nullity or annulment of marriage is the absence
of a valid marriage; the final object of legal separation is the separation of the spouses
wherein the bond of marriage subsists; the final object, however, of divorce is the complete
breaking up of marriage.

This breaking up of marriage directly runs counter to the principle of the inviolability of
marriage.

The Constitution is very clear in this respect: the sanctity of marriage should be protected
by the State. Hence, I humbly submit that passing the proposed absolute divorce bill goes against
the inviolability of marriage, which, as guaranteed by the Constitution, should never be broken,
infringed or dishonored.

The sanctity and inviolability of marriage is at the very core of our society and culture.
This is the very reason why it found expression in our Constitution. It defines us and the values
that we want to preserve as Filipinos. That it is an inviolable social institution means that it is
declared by the Constitution as unassailable and free from assault or trespass and from any
violation or profanation.

Hence, my main objection against the proposed divorce bill is that it is violative of the
1987 Constitution. Any law that allows absolute divorce is contrary to the aforesaid provisions
and destroys the very concept of family as an inviolable social institution.

The reasons thus far advanced for an absolute divorce law fail to convince. Divorce, its
advocates argue, is a solution to failed, oppressive and dehumanizing unions. The terms are
powerful, but they invite visceral rather than rational reactions. Hence, it would be helpful to
revisit some of the reasons why divorce will not help us and our society at large.

First, a failed marriage is not an argument for divorce. If indeed a spouse proves to be
overbearing, oppressive and cruel, there are sufficient provisions in the Family Code, specifically
those that provide for the legal separation of the spouses, and, in some cases, even annulment of
voidable marriages. There are furthermore the salutary provisions of Republic Act No. 9262, or
the Anti-Violence Against Women and their Children Act for the protection of women and their
children. Philippine laws are abundant with effective measures in resolving conflicting matters
which may arise within, among, or against members of a family, as provided in the Family Code
and other pertinent laws. We do not need a Divorce Law to be able to avail of the protection and
remedies that Republic Act No. 9262 provides. Hence, the supposed suffering that a spouse must
bear owing to a failed marriage comes only upon one who does not make use of the remedies
already available under existing law.

Second, divorce only allows an already married person to have another go at it,
despite failing at the first. While one can reasonably test-drive a car and replace it with a better
one should the test-drive prove unsatisfactory, it is plainly dehumanizing to both spouses to
allow for a test-run, through a first marriage, and then grant the possibility of a replacement of
spouses should the test fail. The dissolution of marriage sets free to remarry not only the victim
(women and children) but the abuser as well. This scheme sets the stage ready for another round
of abuse, this time involving a different victim, but a case of abuse just the same. In effect,
divorce may put an end to each individual case of abuse but it does not put an end to the social
evil of women or child abuse.

Divorce breeds divorce. Once an individual gets a divorce to get rid of an undesirable
spouse, he or she is likely to secure more divorces until he or she finds a spouse satisfactory to
him or her. This is in fact what is happening in countries that allow absolute divorce. A repetition
of this procedure, if allowed, would lead to an unending cycle and compounding of unhappy,
unsatisfied, and unsuccessful marriages, thereby treating the same as equivalent to a mere
contract, rather than a social institution. It does not follow that if the divorce was founded on
abuse by one or both of the spouses towards the other, the cycle of abuse would stop.

Third, divorce is a deterrent to working on differences. Marriage is and ought to be a

work in progress. Psychology, sociology and other behavioral sciences will bear this out. There is
no such thing except in the limp imagination of mediocre and starry-eyed writers of romance
novels as “a couple meant for each other” or a man and a woman who are a “perfect match,” or a
“relationship that is made in heaven.” Matches are worked out on earth, not pre-fabricated in
heaven or, heaven forbids, in hell. When the expedient of divorce is readily available, a couple
will be less likely to work on differences, dialogue and reasonably work out solutions because
there is a quick fix to incompatibilities. While the blending of different tempers, attitudes and
perspective should be enriching, although a challenge to harmonize, a token effort at ‘making the
marriage work’ is all that can be expected when the possibility of ending the union by divorce is
offered by the State.

Fourth, divorce victimizes children. The separation of parents is traumatic on the part

of the children who must choose between mother and father when custodial rights are judicially
resolved. Visitation rights are a poor substitute for living with one’s parents. Divorce, however,
compounds the trauma by allowing a total stranger to the children to enter into their lives – the
new spouse.

Divorce is a violation of the human rights of a child. The Commission on Human Rights
has even condemned the application of divorce in the Philippines, declaring that it is a violation
of a child’s right to special protection of a family environment. There have in fact been studies
showing that the effects of divorce on children are not short-term or transitory. They are long-
lasting, profound and cumulative. Effects of the divorce on children may continue for decades
even if the pain on the part of the parents has somehow been healed.

Fifth, society should be able to count on some promises as irrevocable. The promise

of a physician to serve life and not to destroy it, the promise of a public official to serve and
defend the Constitution, the promise of a lawyer to defend and promote the ends of justice, the
promise of spouses to be faithful to each other – all these are promises that society has a right to
rely on and that those who so promise have no right to renege on. If you cannot keep the
promise, do not make it at all. Do not claim its privileges while refusing to own up to its
demands.

Filipinos have been described as family-centered, and families have been observed to be
closely-knit. Although it may be nothing close to perfect, the Filipino family remains to value
blood and marriage relationship.

While we do agree that there needs to be protection for people who wish to get out of bad
marriages, we cannot support a legislation that is violative of the Constitution and could
potentially devalue marriage and family as institutions. Legal separation is enough since it allows
for the protection of both parties, their property, and even their children while still preventing re-
marriage. Even in cases where the marriage in itself is invalid due to factors that make it
impossible for one or two parties to consent, we still have annulment and we can work to make
the process more efficient and accessible to the masses. Pope Francis himself, in a recent papal
declaration, introduced reforms in Canon Law that make nullity of Catholic marriage on valid
and moral grounds less tedious and less costly. We can follow suit and make our laws of
annulment and legal separation more accessible, less tedious and less costly.

Divorce has often been said to be a remedy for the disease of marital breakdown. It is,
however, a remedy only in the sense that amputation is a cure for an infected limb.

Divorce, with the right to remarry, is a remedy which creates the opportunities for the
recurrence of the disease.