SBC- HRA DEBATE CUP 2018

MOTION: Let it be resolved that the Divorce Bill should

be passed.

AFFIRMATIVE POSITION PAPER

Submitted by: 1-D

Debaters:

Garcia, May

Riñon, Jerome

Santos, Jamila Arianne

Surigao, Andre Jose

Head Researcher: Rubio, Viktor Kevin

Beadle: Quijano, Nathanael

March 9, 2018

San Beda College of Law

Mendiola, Manila
 Let it be resolved that the Divorce Bill should be passed.

BACKGROUND

The Philippines, alongside the Vatican City, are the only two countries in the world where

divorce is not an option to sever marital ties1. However, divorce is not an alien concept to

Filipinos. During the Pre-Colonial period of the Philippines, divorce had already been a practice

among ancestral tribes. Such practice was observed in tribes throughout the whole archipelago,

be it Luzon, Visayas, or Mindanao2. It was only during the Spanish Colonial Rule that absolute

divorce was prohibited. Under the Spanish Civil Code, only legal separation was allowed. The said

Code is a product of a theocracy, where laws are largely based not on secular or humanitarian

considerations, but on sectarian and dogmatic ones3. During the American Colonial Rule,

absolute divorce was once again introduced in our statute books. This reappearance was due to

principle of separation of Church and State, a value enveloped in Western philosophy that came

together with the American colonizers. It was only until the enactment of the New Civil Code 4

that divorce was again disallowed in law. With the enactment of the Family Code, the concept of

psychological incapacity as a ground for a declaration of nullity of a marriage was introduced, but

all the same disallowed absolute divorces.

Recognizing the existence of divorce both as practice and as law in the history of the

Philippines, the framers of the 1987 Constitution left it to the discretion of Congress whether or

1
Emery, R.E. (2013). Cultural sociology of divorce: An encyclopedia
2
Abalos, Divorce and separation in the Philippines: Trends and correlates
3
Walton, The Civil Law in Spain and Spanish-America: Including Cuba, Puerto Rico, and ...
4
NCC, pls cite
not divorce should be allowed5. This premise is further given credence by the fact that the

Framers were “very much influenced by the declaration of principles found in the US Constitution

about the inalienable rights of every human being6;” one such right being that of absolute

divorce.

Under current Philippine laws, only void ab initio and voidable marriages may be

completely dissolved. However, the nullification and annulment of the respective said marriages

require that the grounds therefor exist either prior or at the time of the celebration of marriage.

For grounds which exist after the celebration of marriage, only legal separation is allowed. Legal

separation, however, does not sever the marital tie unlike the two former remedies—leaving the

spouses still bound and without the capacity to remarry.

Today, House Bill 60277 seeks to reintroduce the option of divorce under our laws. Rep.

Edcel Lagman, one of bill authors, has stated on record8 that one of the policies which the bill

seeks to implement is to “protect the family by healing them from broken marriages” and “giving

[the people] the opportunity to have a second chance at marital bliss, with full protection of the

children considered.”

The State recognizes the sanctity of family life and that of marriage, the latter being the

foundation of the former. According to certain lawmakers, allowing for the dissolution of

marriages through divorce is the opposite of protecting the family8.

5
https://jlp-law.com/blog/proposed-divorce-law-in-the-philippines/
6
Villegas, http://opinion.inquirer.net/84204/let-us-not-bastardize-marriage
7
Cite the divorce bill
8
http://www.manilatimes.net/house-panel-approves-divorce-bill/381863/
 To this end, we disagree.

While it is a mandate of our fundamental law to uphold the sanctity of marriage9, it does

not follow that the only way to abide thereby is to completely disallow the dissolution of

marriage. In many instances, it is the freeing of the spouses from the vinculum that keeps them

in a broken, irreparable marriage which is the better option. Thus, in Kalaw v. Fernandez10, the

Court rationalized:

“In dissolving martial bonds on account of either party’s psychological incapacity,

the Court is not demolishing the foundation of families, but it is actually protecting

the sanctity of marriage, because it refuses to allow a person afflicted with a

psychological disorder, who cannot comply with or assume the essential marital

obligations, from remaining in that sacred bond.

xxx xxx xxx

To stress, our mandate to protect the inviolability of marriage as the basic

foundation of our society does not preclude striking down a marital union that is

ill-equipped to promote family life”

Though the afore-quoted was the Court referencing a case of a void ab initio marriage on the

ground of psychological incapacity, it nevertheless encapsulates the idea that the preservation

of the sanctity of family and marriage need not be to force a broken marriage to subsist.

9
Sec 2 Article XV consti
10
G.R. No. 166357
 Finally, while we recognize the availability of declaration of nullity, annulment, and legal

separation in our laws, it is our view, presented hereafter, that these options are now inadequate

to remedy the social ills plaguing the societal institution of marriage.

I. NECESSITY

Under the status quo, the only modes of completely severing the marital tie between spouses

are through declaration of nullity and annulment11. The data on numbers of nullity and

annulment cases filed with the Office of the Solicitor-General show that in 2014, of the 11,135

cases filed for the same purposes, the 61% majority were filed by women12. In one survey

involving those who have petitioned for nullity and annulment, most common reasons were: 1)

adultery and desertion; 2) substance abuse, usually with verbal or physical/sexual abuse; 3)

immaturity; 4) conflicts about in-laws and finances; 5) psychiatric disorders and sexual

dysfunctions13.

It is both interesting and suspect that none of the common grounds cited for nullity or

annulment directly include spousal abuse, whether physical or psychological. While the 2nd most

common reason as above stated indirectly mentions abuse, it should be noted that it is only

incidental to the supposed root cause: substance abuse. The suspect absence is specifically

because spousal abuse, no matter the degree of violence, is not a ground for dissolution of

marriage.

11
Family code
12
Abalos, supra
13
Ibid
 It is at this junction that we raise the highly important matter of spousal abuse, more

specifically when directed to the women in our society. Data from the Philippine National Police

– Women and Children Protection Center show that violation of RA 9262, or the Anti-Violence

against Women and Children Act, ranks highest in number of cases filed—followed by physical

injuries and rape14. To cite precisely, there were 16,517 cases of RA 9262 violations in 2013 alone.

To compare, there were 3,564 and 1,259 cases filed for physical injuries and rape respectively. In

another survey conducted by the Philippine Statistics Authority, it was shown that among

married women who have experienced physical violence, they identify their current

husband/partner as the main perpetrators of the physical violence against them 15. Both data

observations clearly show that spousal abuse is an existing social malady plaguing married

females. More importantly, this malady is without cure. Spousal abuse, as aforementioned, is not

a ground for nullity or annulment. While it is a ground for legal separation, it is a daunting fact to

the women aggrieved that legal separation does not cut their marital ties—they remain married

to their abuser.

Worth noting also is that the physical abuse of spouse, while not explicitly a ground for nullity

or annulment, may be a cause for a declaration of nullity on the ground of psychological

incapacity. In Kalaw16, supra, the Court stated that infliction of physical violence, inter alia, are

manifestations of psychological incapacity. It would seem at this point that hope is not all lost for

spouses who are stuck abusive marriages, because case law has it that such kind of abuse may

14
Philippine National Police – Women and Children Protection Center (see kung san nakuha ni mommy lani)
15
(http://psa.gov.ph/sites/default/files/Women%20and%20Men%20Handbook%202016.pd
f
16
Kalaw, supra
be a ground for nullity. However, as with all other grounds for nullity and annulment of marriages,

it is a condition sine qua non that the psychological incapacity already exist at the time of the

marriage.

Per our case law, the ground of psychological incapacity requires that there be, to wit: 1)

gravity, enough to bring about the disability of the party to assume marital obligations; 2)

incurability, where the cure is beyond the means of the party; and 3) juridical antecedence, such

that the psychological incapacity already exists prior or at the time of the celebration of the

marriage. Here lies the problem. We believe that juridical antecedence, as a requirement for

nullification under this ground specifically, defeats the intent of the provision; that is, to curtail

the evils of psychological incapacity in a marriage.

While it is only logical and axiomatic that there be juridical antecedence for the other nullity

and annulment grounds, such as when a marriage is void for lack of marriage license, we cannot

say the same is a sound requirement so that marital ties may be severed due to psychological

incapacity. At this point, we direct the discussion towards the bane that is the requirement of

juridical antecedence. Under the status quo, it is necessary for a nullity petition that the ground

therefor be proved to have existed before or at the time of the marriage. The same is true for a

nullity petition on the ground of psychological capacity. Failure to prove the ground antecedent

necessarily means the failure of the petition. As said, it is our position that this requirement

defeats the intent of the law. Once again, in Kalaw17, the Court explained that Article 36, Family

Code, should be given application so that “diagnosed sociopaths, schizophrenics,

17
Kalaw, supra
nymphomaniacs, narcissists and the like” will not be allowed to “continuously debase and pervert

the sanctity of marriage.”

It is obvious from the ratiocinations of the Court, whether in Kalaw18, or in any other

jurisprudence dealing with the same issue, that Article 36 as applied seeks to prevent a marriage

where an aggrieved spouse is made to suffer due to the other spouse’s critical psychological flaws

the former could not have known. Elsewise stated, the evil that the provision seeks to curtail is

the debasement of the sanctity of marriage by those who are psychologically incapacitated. For

us, this begs a particular question: why require juridical antecedence? Does the evil sought to be

curtailed not exist where the psychological incapacity arises only after the celebration of the

marriage? Are you not saving the same abused spouse from the same evil effects, whether or not

such incapacity actually arose before or after the marriage? Our point simply is this—a

psychologically incapacitated spouse, whether or not such incapacity existed prior to the

marriage, has the same net effect against the aggrieved spouse. Whether the psychological

incapacity actually existed before or only after the celebration of the marriage, the aggrieved

spouse in either case would have been clueless of what terrible fate await

Estoppel as an argument may be raised. Such that the juridical antecedence requirement is

there so that a person is estopped from later on rejecting a person he or she knowingly married

despite their flaws. But even supposing that such flaws become so grave as to put his or her life

in peril, our laws, as if to punish, would require that the person continue on carrying the burden

of a failed and abusive marriage.

18
Kalaw, supra
 After nullity and annulment, it may still be suggested that legal separation 19 is available as a

recourse. Furthermore, this recourse allows for grounds which exist after the celebration of the

marriage. However, it bears repeating that in case of spousal abuse, the aggrieved spouse

remains married to the abuser in legal separation. But even outside cases of spousal abuse, legal

separation keeps the marital tie intact20. Thus, even without the danger factor found in abusive

marriages, spouses in failed and irreparable marriages are forced to avail only of legal separation.

This obviously limits their freedom of choices because they cannot remarry. Since common

causes for failed marriages are grounds only for legal separation, such spouses who suffer these

failings are left stuck in a useless marriage, without freedom to seek love anew.

We reiterate our stand that current Philippine laws, namely the provisions found in the Family

Code, are severely lacking and completely inadequate in light of present times. As it stands, the

inadequacy we heretofore have pointed out can lead to absurd scenario where a person can get

stuck in a failed marriage, reinforced by a system of laws, containing certain provisions which are

demonstrably archaic and no longer responsive to current social realities.

The situation we here envision, I.e. being stuck in a failed and hopeless marriage, is not a

mere concoction of the mind. Such was precisely the case in Republic v. Iyoy21, where the

husband was abandoned by his former Filipino wife; the latter moving to America and

establishing a new married life therein. In order to remedy his situation, he tried to avail a

declaration of nullity on the ground of psychological incapacity. His attempt failed, for as

19
Article for legal sep sa FC
20
Ibid
21
GR no 152577
previously discussed, a petition based on Art. 36 (with all its stringent requirements) can prove

to be a harrowing path to take. Since he was not able to prove the psychological incapacity, he

was left in the Philippines to stay and suffer in a marriage while his legal wife appears to have

already found new happiness in foreign lands.

Upon appeal to the Supreme Court, the husband offered a new ratiocination in an attempt

to rid himself of this predicament. He pleaded that his wife had actually gotten a divorce in

America; consequently, he should also be given the capacity to remarry under Article 26(2) of the

Family Code. Under this provision, Filipinos with foreign spouses are indirectly granted the effects

of an absolute divorce validly obtained by an alien spouse22. Things turn for the worst when it

was found by the Court that the divorce obtained by his former Filipino wife was not valid; the

wife had obtained the divorce before she was naturalized. While both the parties technically

were left to suffer the effects of the invalid divorce, the husband was all the while left without a

remedy while the abandoning wife had already built a new life for herself (complete with a new

husband). Ultimately, this lead to an absurd scenario where both parties were left in their illusory

marriage without any legal recourse. To further envision the ramifications of this case, we stress

that the abandoning wife had long been enjoying her new marriage (though technically void)

while the husband remains cureless and unable to attempt the same—for not only would his

possible subsequent marriage be void23, he likewise risks liability for the crime of bigamy24.

As a consolation, the Court had only the following to say:

22
Art 26(2) FC
23
Art 35, paragraph on void for bigamy, FC
24
Bigamy in RPC
 “While this Court commiserates with respondent Crasus for being continuously

shackled to what is now a hopeless and loveless marriage, this is one of those

situations where neither law nor society can provide the specific answer to every

individual problem.”

II. BENEFICIALITY

It is a State policy that the sanctity of family and marriage be recognized, and that they be

likewise protected by the State25. Divorce, if it would become an option legally exercisable, would

benefit the State insofar as it would actually protect the sanctity of these institutions by allowing

spouses who are irreconcilable and unfit to be together to simply let go of the broken marriage.

As explained by the Court in various jurisprudence, breaking marital ties is indeed a viable

method of preserving the purity of these institutions, as people would no longer be forced to stay

in dysfunctional marriages and inevitably run afoul of these Constitutionally-protected

institutions. Furthermore, it is in line with a mandate of the Constitution which provides that the

State shall strengthen the solidarity of the family. Dysfunctional families, by nature and

definition, simply do not enjoy solidarity. By releasing spouses from broken marriages, the State

helps in effect to promote solidarity once again, by completely and absolutely separating parties

which no longer cannot live together.

As for the public at large, anyone who may enter into a marriage stands to benefit from

protections and privileges that absolute divorce would be able to grant. No longer would people

be forced to suffer being in a conflicted and irreparable marriage due to irreconcilable

25
Sec. 2 article XV consti
differences. It is noted that while being stuck in a failed marriage due to irreconcilable

differences, vexing as though it may be, stands to be one of the more benign situations one can

get trapped in under current laws. As previously illustrated, there are far more dangerous

situations a spouse may be stuck in; such as that of being in an abusive marriage. A divorce law

in the Philippines would then provide a way for people to more easily free themselves from the

shackle that binds them to such abusive marriages. This would be so because they would not be

severely limited by the strict allowances of current laws.

III. PRACTICABILITY

It is part of our position that the Divorce Bill, if passed, would be highly practicable for the

reasons following.

First, The Constitution does not proscribe absolute divorces.

As earlier stated, the framers of the 1987 Constitution left it to the wisdom of Congress

whether or not to implement in our system of laws the option for divorce26. This is an important

matter to be stressed because it appears to be a common opinion among our current lawmakers

that separation through divorce would run afoul of certain Constitutional mandates that seek to

preserve the sanctity of family and marriage. Senator Panfilo Lacson, among numerable other

senators who harbor a similar opinion27, has been quoted to say: “My primary concern is the

sanctity of marriage. Needless to say, I don't want marriage and separation to be a 'dime a dozen'

affair.” But as the rationalizations of the Supreme Court which have heretofore been provided,

26
https://jlp-law.com/blog/proposed-divorce-law-in-the-philippines/, supra
27
http://newsinfo.inquirer.net/970601/5-senators-oppose-divorce-in-ph-senate-divorce-bill-house-family-news-
civil-code
preserving the sanctity of marriage does not equate to merely forcing the subsistence of

otherwise dead marriages.

Second, a divorce law would bring an end to the inequality in mixed marriages brought about

by “partial divorce” currently allowed under Article 26 of the Family Code.

This provision grants the prerogative of divorce solely to the alien spouse28. It is not far-

fetched to imagine an absurd situation where a Filipino spouse has no legal recourse under his

or her own country’s laws and consequently be left at the mercy of the alien spouse. To illustrate,

there is Republic v. Orbecido29. The husband who was completely abandoned by his wife where

the latter had already established her new life. Meanwhile, the husband was left in the

Philippines with no legal recourse aside from relying on Art. 26. He could not have availed of the

remedies of nullification or annulment simply because abandonment is not a ground therefor.

Hence, the freedom of a Filipino in a mixed marriage to remarry is under the mercy and whim of

the alien spouse. In Orbecido, the husband was adjudged by the Court to stay in a solitary

marriage simply because he was not able to provide complete evidence of the divorce obtained

by his former Filipino wife who had long abandoned him.

Finally, a divorce law would grant the opportunity of complete separation for underprivileged

Filipinos. Since divorce is a much simpler and easier process than declaration of nullity,

annulment, or legal separation, inequity is also addressed insofar as less financially capable

Filipinos are concerned. As it stands, obtaining a declaration of nullity, annulment, or even just

28
Art 26(2) FC
29
GR No 154380
legal separation is not only difficult but also expensive. The status quo unfortunately makes it so

that these remedies be not within reach of the common people30.

30
Abalos, supra