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Divorce: Its Legality and Morality

By:
Amparo, Nestle M.
Dulay, Francis Roel L.
Group 8
I Estrellado
6:00 7:00 PM

MARCH 2016
Ateneo de Davao University College of Law

DIVORCE: ITS LEGALITY AND MORALITY

INTRODUCTION
Divorce, as understood by a layman, is the separation of the spouses
and the cancellation of their marriage. However, this is not absolutely true.
Divorce, as defined by The Law Dictionary: Featuring Black's Law Dictionary
Free Online Legal Dictionary 2nd Ed. means:
the legal separation of man and wife, effected, for cause, by the judgment of
a court, and either totally dissolving the marriage relation, or suspending its
effects so far as concerns the cohabitation of the parties. The dissolution is
termed divorce from the bond of matrimony, or, in the Latin form of the
expression, a vinculomatrimonii the suspension, divorce from bed and
board, o mensa et thoro. The former divorce puts an end to the marriage;
the latter leaves it in full force.1

Simply stated, in the legal sense, not all divorce cancels the marriage
between spouses as divorce may be absolute or conditional. It is absolute
when it is a divorce from the bond of matrimony and it is conditional when it
is a divorce from bed and board. In the Philippines, there is no such thing as
divorce except for our Muslim brothers and sisters when the marriage is
conducted in accordance with their culture. Such divorce is allowed by the
adoption of the Code of Muslim Personal Laws.2
What is allowed in the Philippines is annulment of marriage and legal
separation. The former cancels the effect of marriage and declare such as
not having been entered into, consequently allowing the spouses to marry
again and the latter will just allow the parties to live separately without
declaring their marriage null and void, thus not allowing the spouses to
marry again. However, it is very hard to get an annulment decree because
there are limited grounds and such ground must exist at the time of
marriage. One of the grounds is when one or both party in incapable of
giving a valid consent by reason of minority, insanity, or that is was obtained
through force, intimidation, undue influence or fraud. In the aforementioned
situation, annulment can no longer be obtained when incapacity or vice of
consent ceases and the one whose consent was not perfectly valid freely
cohabited with the other as husband and wife. Other grounds are when
either party was physically incapable of consummating the marriage with the
1 The Law Dictionary: Featuring Black's Law Dictionary Free Online Legal Dictionary
2nd Edition.
2 Presidential Decree No. 1083, otherwise known as Code of Muslim Personal Laws
of the Philippines.
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DIVORCE: ITS LEGALITY AND MORALITY

other, and such incapacity continues and appears to be incurable and when
either party was afflicted with a sexually-transmissible disease found to be
serious and appears to be incurable.3 With those limited grounds that must
exist at the time of marriage, very few annulment cases prosper.
As of the moment there are only two States that does not allow divorce
to its citizens. Those are the Philippines and the Vatican City. In a sense, it
can be said that the Philippines is the only country without divorce law. It is
because the Vatican has of very little use of such law. It has only about 450
citizens and most of them are in the vocation of priesthood and bound by the
vow of celibacy.4
In the next part of this paper will be a discussion about some
arguments on the legality and morality of the divorce law in the Philippines.

DIVORCE IS LEGAL
Divorce should be made legal for the main reason of convenience: not
only for the couple, but also for their families and children as well. The next
part will show how convenient would it be if divorce is made legal.
First, the dissolution of marriage would be hastened. The only way to
dissolve a marriage in the Philippines is to have it annulled. The amount of
time it takes will greatly depend on the schedule of the court on which it was
filed. In Quezon City, around four years will be needed to have a marriage
annulled, while in Makati, Caloocan, Pasay, and, Pasig, it would last for
around two years.5 If divorce is made legal, this time frame could be very
much shortened. For instance, it only lasts for three to six months in
Malaysia.6
Second, the courts would have more time for more important cases.
This is basic. If divorce is made legal, the resolution of a case dissolving a
3 Executive Order No. 209, otherwise known as The Family Code of the Philippines,
Article 45.
4 Vatican City State: Population (2014). Retrieved at
http://www.vaticanstate.va/content/vaticanstate/en/stato-e-governo/notegenerali/popolazione.html.
5 How much do annulment cost in the Philippines (2015). Retrieved from
http://www.imoney.ph/articles/annulments-cost-philippines/.
6 Ibid.
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DIVORCE: ITS LEGALITY AND MORALITY

marriage would take less time than when divorce is not allowed. Spending
less time in marriage dissolution cases means more time for more important
cases. According to the Office of the Solicitor General, for the year 2012, a
total of 10,528 cases for annulment of marriage were filed, or an average of
28 couples a day.7 If those cases could be solve in a matter of six months
rather than the usual two or four years, just think how much time would the
judges save and have to attend for more pressing matters.
Lastly, the parties would spend less if divorce is made legal. According
to Atty. Alexander Llanes Acain Jr. of Guzman Tanedo & Acain Law, an
annulment case would cost P165,000 to P200,000. The said amount,
however, can still went up to around a million if the process drags on,
especially when it is contested, due to additional pleadings, appearances and
fees. As compared to a divorce case in Malaysia that would only cost for
RM2,500 to RM5,000 (P30,600 to P61,00), it is beyond doubt that divorce
would cost less than annulment especially because it will take only three to
six months.8

DIVORCE IS ILLEGAL
The great debate on divorce is nothing new and it is eminent that the
world has been losing ground to fight against it. After Vatican took a forgiving
position toward the issue of divorce among Catholics, Philippines is the only
UN-member which remains on record that divorce is not an option, as of the
moment. As we can recall, divorce was lawful in the country during the
American and Japanese occupations but became illegal after the enactment
of the old Civil Code in 1949. 9 Since then, there were already two divorce
bills passed by Gabriella womens group that have languished the Philippine
Congress.10 Despite of that, many still wanted to pursue the passage and
legalization of divorce in the country.
7 Ibid.
8 Ibid.
9 De Leon, S. (2014). CNN: The fight to make divorce legal in the Philippines.
Retrieved at http://edition.cnn.com/2014/10/06/world/asia/philippines-legal-divorcebattle/
10Musico, J. (2015). Interaksyon: Senators not in favor of legalizing divorce in the
Philippines. Retrieved at http://interaksyon.com/article/107605/senators-not-infavor-of-legalizing-divorce-in-the-philippines
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DIVORCE: ITS LEGALITY AND MORALITY

In the inquiry of validating divorce in the Philippines, it is vital to stress


that all laws must conform to its Constitution, and no law shall be valid if it
contradicts with it. The Philippine Constitution itself which is the basic and
paramount law of the land protects the sanctity of marriage as couched in
Section 2, Article XV of the 1987 Philippine Constitution, to wit: Marriage, as
an inviolable social institution, is the foundation of the family and shall be
protected by the State.11 Moreover, this is supported by the Family Code,
the law that governs family matters and domestic relations in the Philippines,
which provides that 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.12
Philippine law does not recognize divorce, save in cases of Muslim
minority who practice divorce in accordance with the Code of Muslim
Personal Law and under Article 26 of the Family Code where a marriage
between a Filipino citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating him or
her to remarry, the Filipino spouse shall have capacity to remarry under
Philippine law.13 This would seem to apply if, and only if, the spouse who
obtained the divorce is the alien spouse. Otherwise, the divorce will have no
effect and the marriage still subsists. Outside of these situations, divorce is
not an alternative for Filipino couples who wish to separate aside from
annulment, which absolutely nullifies their marriages, and partially by legal
separation, a separation from bed and board which remains the marriage
bond intact.
It could be gleaned from the aforesaid provisions that Philippine law
classifies marriage as a special contract as distinguished from an ordinary
contract which can be terminated at spouses will. As an inviolable
11 1987 Philippine ConstitutionSection 2, Article XV.
12Executive Order No. 209, otherwise known as The Family Code of the Philippines,
Article 1.
13Executive Order No. 209, otherwise known as The Family Code of the Philippines,
Article 26.
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DIVORCE: ITS LEGALITY AND MORALITY

institution, it is but a close and intimate union protected by law which the
parties are bound to respect for life and not a jest where couples get married
now and get a divorce later. With that, how could Congress pass a law that
would encroach upon marriage? To enact a law that would break the bonds of
marriages would run contrary to the express provisions of the Constitution
and other laws relating to the same subject matter. Divorce law which allows
total dissolution of marriage because of grounds not recognized by law such
as irreconcilable differences would then be, if enacted, easily challenged as
unconstitutional. Thus, divorce legislation in the Philippine society where
family is more central, is a hopeless case without amending the Constitution
first.
Notably, divorce is not the only remedy for miserable marriages. Apart
from the fact that there are already legal remedies, these are annulment and
legal separation, in the Philippines for spouses who have problems,
relationship counseling must be sought first before they could go through
these intensive and costly processes of annulling marriage which also must
accord with the specific conditions laid down by law and not just a mere
irreconcilable differences established by connivance of both parties. It is also
well illustrious that divorce has been widely abused in countries that allow
divorce as a means in dissolving marital tie which greatly encourages broken
families and disoriented children.

DIVORCE IS MORAL
Abusive and dangerous marriages are worse than how divorce
represents as a stressful event in the lives of spouses and their children.
Sexual immorality or fornication is not the only reason why marriages
become miserable but much more in cases of abuse, adultery, drugs, sexual
exploitation, and alcoholism. In these instances, divorce can be morally
necessary to cease more immoral deeds.
If a spouse is compelled to stay with a sexually immoral partner, that
would be tantamount to involuntary servitude. Involuntary servitude is
sanctioned under Section 18 (2), Article III of the 1987 Philippine Constitution
which provides that No involuntary servitude in any form shall exist except
as a punishment for a crime whereof the party shall have been duly
convicted. The innocent spouse must not bear the consequence for the

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DIVORCE: ITS LEGALITY AND MORALITY

immorality committed by his or her partner. Thus, it is but moral that the
innocent spouse must be given the option whether or not to divorce his or
her partner.
When marriage starts not to be a safe environment, divorce can be a
necessity to be free from it. To give a concrete illustration: A spouse, in order
to get out of marriage in a nick of time, has two options. One is to murder
his/her partner and the other one is to get a divorce. As we can tell, getting a
divorce would be much more moral and convenient than taking anothers life
to escape from this misery.
Finally, children will be in jeopardy. It is more immoral to let children
witness abusive and cheating parents. As they grow old, there will be great
chance that they will think and act alike their parents who suffered from a
suffocating marriage. These occurrences must be concluded as fast as
possible before it is too late to contemplate and be sorry. Therefore, divorce
can be moral when used as a means to stop more immoral conducts.

DIVORCE IS IMMORAL
Philippines is a country with a lot of religions. Some of those are Roman
Catholic, Church of God, Islam, Jehovahs Witnesses, Jesus is Lord, Jesus
Christ of Latter-day Saints, Baptists, Aglipayan, Iglesia ni Kristo and several
others. Of those mentioned, only Islam does not believe that Jesus Christ is a
God. Around 96 percent of the citizens of the Philippines are Christians. 14 And
those 96 percent believed in the contents of the Holy Bible.
The Holy Bible, in fact, allows divorce. However, this is not the general
rule but only an exception. The New International Version, English Standard
Version, and International Standard Version provides sexual immorality as an
exception; the King James Bible, American Standard Version, and English
Revised Version provides for fornication; and other exceptions from other
versions are lewdness, unfaithfulness, and adultery. In short, the general rule
is that divorce is not allowed and the exception is only when there is
infidelity or unfaithfulness of the spouse.
On 13 May 2014, the House of Representatives received a proposal
from Gabriela Womens Party Representatives Luzviminda Ilagan and Emmi
14 Miller, J. Asia Society: Religion in the Philippines (2016). Retrieved at
http://asiasociety.org/education/religion-philippines.
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DIVORCE: ITS LEGALITY AND MORALITY

De Jesus docketed as House Bill No. 4408 for the enactment of a law
introducing divorce in the Philippines. It provided five grounds for the grant
of a divorce decree. Those are the following:
1. The petitioner has been separated de facto from his or her spouse
for at least five years at the time of the filing of the petition and
reconciliation is highly improbable;
2. The petitioner has been legally separated from his or her spouse for
at least two years at the time of the filing of the petition and
reconciliation is highly improbably;
3. When any of the grounds for legal separation has caused the
irreparable breakdown of the marriage; The grounds for legal
separation are the following:
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 six 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 one year.
4. When one or both spouses are psychologically incapacitated to
comply with the essential marital obligations;
5. When the spouses suffer from irreconcilable differences that have
caused the irreparable breakdown of the marriage.15
Out of all those grounds mentioned above, only nos. 3(c), 3(f), 3(g) and
3(h) may be considered as included as exception to the general rule that
divorce is not allowed as written in the Bible. That is four out of fourteen
provisions. That is way below half of the grounds provided for by the
proposed law.
15 House Bill No. 4408 (2014). Retrieved at
http://www.congress.gov.ph/download/basic_16/HB04408.pdf
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DIVORCE: ITS LEGALITY AND MORALITY

Therefore, if such a law will be adopted as it is, it would be immoral as


it goes against the teachings in the Holy Bible.

CONCLUSION
After careful consideration of the arguments as to the legality and
morality of the divorce law, we concluded that there really is no hard and fast
rule to decide on that matter and that the said law could not be said to be
absolutely legal nor absolutely moral. However, we are inclined to prefer
that, as of the moment, it is illegal and immoral.
It is Illegal because it runs contrary to the mandate of the Constitution.
As of the moment, any law adopting the divorce law, as implemented
elsewhere in the world, will and must be declared void for being repugnant to
the inviolability of family clause. Before such law can be adopted, there has
to be a constitutional amendment beforehand. Together therewith will be
amendments, if not repeal, of some of the provisions in the Family Code.
Moreover, mere convenience can never overcome the mandate of the
Constitution. Nowhere in the Constitution does Congress is mandated to
enact law for the convenience of the citizens. What Congress ought to do is
to enact laws that will promote public welfare but never contrary to the
mandate of the constitution. Mere convenience does not always amount to
public welfare more so, in this case, because it is in contrast with the
provisions in the Constitution.
Furthermore, the divorce law is immoral: immoral in a sense that is
runs contrary to the teachings of the Holy Bible. The Holy Bible teaches us
that marriage is sacred. To enact a law allowing married couples to separate
at whim will devalue the sanctity of marriage. If divorce would be allowed,
more and more persons will marry without thinking about the consequences
too much because when time comes that they find it inconvenient, they can
just get a divorce decree. As a consequence, fewer people will remain
responsible in his decision of getting married. In addition, most grounds for
divorce are not related to sexual immorality the only ground allowed by the
Holy Bible in divorcing a spouse. As such, it is immoral for going against the
scriptures.
Also, Divorce is not the only solution from escaping an inhumane
situation. As what an old saying says, prevention is better than cure. The
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fact that a persons marriage is miserable is due to his negligence in not


knowing deeply first the one he or she is going to marry. If only he or she had
been keen enough in scrutinizing the characteristics of his or her partner,
then their marriage would not be miserable. Failed marriages are mostly due
to rush decisions. Divorce will not be absolutely moral just because it is less
moral than another immoral act. The most moral thing to do with regard to
marriages is to deeply know first whom you are going to marry.
In conclusion, we believe that as long as there is no Constitutional
amendment, divorce law will remain illegal and as long as there are grounds
not sexual immorality in nature, divorce will always be immoral.

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