Introduction

Of all the countries in the world, the Vatican City, a theocratic

state i.e., an ecclesiastical sovereign city-state to be exact, and the

Philippines are the only two states that reject the legality of divorce─

the legal dissolution of a lawful union for a cause arising after the

marriage1. Being the headquarters of the Roman Catholic Church,

Vatican City has no procedure for the same. As for the Philippines,

the country prohibits the grant of divorce to its citizens as well. This

paper will argue why the Philippines is better-off by maintaining the

legal prohibition of divorce. But before that, there are few things to

note. Initially, it must be noted that the Philippines only allows legal

separation, the nullity, and annulment of marriage. Next, while that is

true, Presidential Decree No. 1083 institutes the Code of Muslim

Personal Laws of the Philippines which provides the creation of

Shariah Courts in which divorce among Muslims, or when the

husband is Muslim, and the marriage was celebrated under Muslim

rites2 is granted. Thus, this (relative divorce) is the only divorce law

that is in full force and effect in the Philippines.

Inconsistency to the Constitution

Divorce should remain illegal for it contradicts the value that

the Constitution puts in the family. Article XV, Section 2 states that

the State ought to protect marriage, an inviolable social institution,

because it is the foundation of the family3, the basic unit of society.

Strong families make great nations and the disintegration of the same

1
Republic of the Philippines vs. Manalo, G.R. No. 221029, April 24, 2018.
2
Pres. Decree No. 1083 (1977).
3
Const., 1987, Art. XV, §. 2.

1
is the root cause of the fall of cultures as attested by wisdom, common

sense, and history. Furthermore, the mentioned provision has been

preexisting in all previous constitutions of the Philippines thus, the

legalization of divorce does not only go against the paramount law but

at the same time, dismisses the foundation of the same.

Existing Remedies

Albeit the premium value that the law places on marriage, the

Philippines, nevertheless, recognizes the problems arising after

marriage. Under the Family Code, Filipino spouses who do not wish

to stay married for any longer have the options of 1) declaration of

nullity of marriage─ declaring that the marriage was null and void ab

initio because the same lacks any of the essential and formal requisites

of marriage4, the other spouse is psychologically incapacitated to

comply with the essential marital obligations of marriage, it is an

incestuous marriage, it is a marriage against public policy 5, one of the

parties remarried, invoking the absolute nullity of a previous

marriage, however, there was no final judgment declaring such

previous marriage void, the marriage is bigamous or polygamous, or

is a subsequent marriage as defined under Article 41 of the Family

Code where both spouses acted in bad faith, 2) annulment─ where

marriage is valid but voidable due to causes existing at the time of the

marriage e.g., failure to obtain parental consent in case any of the

parties was 18 years of age or over but below 21, insanity or

psychological incapacity of either party, the vitiation of person’s

consent to marry such as through fraud, force, intimidation, or undue

4
The Family Code of the Philippines, Exec. Order No. 209 (1987), Art. 4.
5
Id., Arts. 36-38, 40-41, 44.

2
influence, impotence, and affliction of serious and incurable sexually

transmitted disease6, and 3) legal separation─ where spouses are

allowed to live apart and separately own assets on the grounds of, to

wit: (a) repeated physical violence or grossly abusive conduct

directed against the petitioner, a common child, or a child of the

petitioner, (b) physical violence or moral pressure to compel the

petitioner to change religious or political affiliation, (c) attempt of

respondent to corrupt or induce the petitioner, a common child, or a

child of the petitioner, to engage in prostitution, or connivance in such

corruption or inducement, (d) final judgment sentencing the

respondent to imprisonment of more than 6 years, even if pardoned (e)

drug addiction or habitual alcoholism of the respondent (f) lesbianism

or homosexuality of the respondent, (g) contracting by the respondent

of a subsequent bigamous marriage, whether in the Philippines or

abroad, (h) sexual infidelity or perversion (i) attempt by the

respondent against the life of the petitioner; or (j) abandonment of

petitioner by respondent without justifiable cause for more than 1

year. However, the same are not permitted to remarry, since the

marriage is still considered valid and subsisting. Legalizing divorce

will not only counter the spirit of the Constitution and the Family

Code but will also put burden to already annulled or legally separated

Filipino spouses for they will be pushed to undergo the same process

again.

The Existence of Judicial Recognition of Divorce

6
Id., Art. 45.

3
 In the case of Republic of the Philippines vs. Manalo, the

Supreme Court ruled that the divorce that was validly obtained abroad

by the alien spouse capacitating him or her to remarry 7 8. Furthermore,

the same ruling applies to mixed marriages where the divorce was

obtained by the foreign spouse, obtained jointly by the Filipino and

foreign spouse, or obtained solely by the Filipino spouse 9. This rule

adheres to Article 26 (2) of the Family Code. Thus, in addition to the

legal remedies of nullity, annulment, and legal separation, the

Philippines judicially recognizes the status of divorce, under mutual

agreement and adherence to the laws of the foreign country, in mixed

marriages. While that is the case, judicial recognition of a foreign

divorce does not conflict with the Constitution for the eligibility

dictates that at least one of the spouses is a non-Filipino at the time of

the divorce; thus, the law is still binding to citizens of the Philippines

even if one is a dual citizen i.e., going to abroad to end a Filipino

marriage does not work. In addition, under the law, the foreign

divorce degree is a presumptive evidence of a right rather than an

absolute evidence of the same10. Therefore, the capacity to remarry is

not applied automatically. The Filipino spouse must, first, get the

foreign divorce decree recognized through filing a Petition for

Recognition of Foreign Divorce11.

The Protection of the Child

7
Republic, supra note 1.
8
The Family Code, supra note 4, Art. 26, as amended by Exec. Order 227.
9
Galapon vs. Republic of the Philippines, G.R. No. 243722 (Formerly UDK-16060), January 22,
2020.
10
Rules of Court (1997), § 48 (b).
11
Minoru Fujiki vs. Maria Paz Galela Marinay et al., G.R. No. 196049, June 26, 2013.

4
 Aside from the reasoning that the Philippines is predominantly

Catholic, the law, as aforementioned, values the sanctity of marriage

in the pursuance of safekeeping the family as a vital social institution.

In connection, the law, through the intent of preserving the family,

aims to protect the child. In cases of annulment and legal separation,

the child/children remain to be legitimate even after the grant of the

petition. While divorce also maintains the legitimacy of a child

conceived before obtaining a legal divorce, the authorization to

parents to remarry leaves the child in between especially when both

parents built a new family after the dissolution of their marriage.

When this happens, parental responsibilities are more likely to be

neglected. More than this, studies regarding the effects of parental

separation on children reveal common implications inducing

arguments that the law should discourage divorce, the same should

protect the child’s interest to be with their parents through joint

custody, and reduce parental conflicts12. While it is true that the

proposed divorce bills provide financial support for the child, they do

not ensure safeguard to the mental and emotional aspect of the same 13

for in the settlement of child custody, visitation, child support, and

issues of sexual identity and orientation are not a factor in deciding

awards.

Assertion of Dominant Culture

As stated, the Philippines is predominantly Catholic. It would

be too shallow to say that Filipinos take pride in being the only

12
Robert Cochran Jr. & Paul Vitz, “Child Protective Divorce Laws: A Response to the Effects of
Parental Separation on Children”, Family Law Quarterly
Vol. 17, No. 3 (Fall 1983): 1-2.
13
House Bill 100, 838 and 2263.

5
country, aside from Vatican City, where divorce is not legalized.

However, even with the separation of the Church and State 14, why is it

in the best interest of the country to keep divorce illegal? It must be

understood that the law is a product of culture i.e., culture shapes how

people perceive the society they live in and defines their place in it,

thus, defines how people what the society ought to be and the rules it

should adhere to15. Using this analysis, since Catholicism is the

predominant culture in the country, Catholics view that it is right and

just to keep the status of illegality of divorce. This is also why despite

a more than a decade-long attempt of jousting the New Civil Code

which is still ongoing in contemporary time, proponents of divorce

bill are yet to succeed. In history, after the Philippines was granted

independence from the American colonial rule and few years after the

end of the second World War, the country readopted the Spanish rule

by repealing any absolute divorce, restoring the Catholic mores in the

facet of marriage and family16. Taking these into account, legalizing

divorce can be interpreted as going against our firmly implanted

culture and may result to backlash. Proposition may argue that even

Spain, the one who injected Catholicism into us, grants divorce to its

citizens so why cannot we? Even if divorce is available to the majority

of countries in the world, it does not mean that the Philippines is

running things the wrong way and it is alright to be a little

conservative and preserve our accustomed ways even if liberalism is

the trend in the contemporary world. Would that mean that the

Philippines is under Catholicism? No. The Roman Catholic Church

6
can neither impose its beliefs and convictions on the State and the rest

of the citizenry nor can it demand that the nation follow its beliefs,

even if it is sincerely believes that they are good for country. 17 While

marriage is considered a sacrament, it has civil and legal

consequences which are governed by the Family Code.18 The State is

bereft of any theocratic influences but has the legitimate right and

interest to regulate.

A Mismatched Solution

Proponents of divorce argue that the same is an elixir that

curbs domestic violence, protects children and spouses, and provides a

second shot at marriage. However, this may not be the case for even

with the existing remedies, domestic abuse still exists and even in

countries where divorce is an option. Without the fangs of laws that

protect children and spouses from domestic abuse, divorce will not

solve the same. Moreover, aside from the effects of parental

separation to children, families in general, especially the children, are

impacted by the fracturing of the family and connotations of the same

are not positive in the Philippine society due to its conservative

attribute. Stigmas of being separated from the spouse, divorced, or a

broken family is harmful especially to the children.

Divorce Does Not Really Cater the Vulnerable

While in the proposed Divorce Act of 2019, introduced by

Senator Hontiveros, it was stated that the State shall assure that court

proceedings for divorce cases shall be affordable and inexpensive 19, it

17
Sps. Imbong , et al. v. Hon. Ochoa , Jr. et al., 732 Phil. 1, 167 (2014).
18
Tilar v. Tilar G.R. No. 214529, July 12, 2017.
19
Sen. Bill 356 (2019)

7
does not really cater the majority of cases of irremediably broken

marriages i.e., the population of the poor and marginalized. Realize

that poor families are twice as likely to breakup 20, and the Philippines,

as a developing country, faces poverty as one of its most pressing

issues. The reason why divorce cannot give the second chance for

love and in life for people is, even if divorce will cost less than legal

separation or annulment, it will still cost because of legal expenses

and poor families’ priority is to get food on the table at the end of the

day. Therefore, the concurrent stereotype of annulment being a

“divorce for the rich” will also be applied to divorce itself because the

only fraction of population that divorce will be accessible to is that of

those who are financially capable in the first place and who are more

likely to afford annulment and legal separation as well.

Conclusion

As the court views love which happens to everyone─ it is

deemed as boundless as it goes beyond the expectations people tagged

with it, one of which is marriage hitting rocks. However, people love

in order to secure that one who will share their life with another and

that they will not die alone. Individuals who are in love had the power

to let love grow or let love die─ it is a choice one had to face when

love is not the love they expected21 and implicitly, though the

premium value on the family, the Philippines stands that it is better to

let love stay and grow in trying times of marriage for it outweighs the

benefits of divorce especially the harms that mar the welfare of

children. The Philippines, despite the prevalent manifestation of

20
The Journal Times, “Poor families more likely to break up”, (1993).
21
Rumbaua vs. Rumbaua, G.R. No. 166738, August 14, 2009.

8
Catholic influence or as the proponents of divorce claim, remains

secular and bereft of any ecclesiastical overtone and only sincerely

believes that its ways are good for the rest of citizenry, in this context,

for spouses and their children, the family. After all, it is its inherent

purpose to do so. The historical failed attempts to push for the

legalization of divorce proves that it is in the interest of the

Philippines to maintain status quo and albeit the claim it is in high

time to finally grant the same, this paper proved its practicability

otherwise and justified that protecting the sanctity of marriage is ideal.

SUBMITTED BY:

9
LADY BELLE V. TUMALIUAN, JD1A

10