Title: The time for the re-enactment of a divorce law into the Philippine Law.
The Philippines is now the only nation in the world that does not allow most of its residents (though Muslims in the Philippines have the right to divorce) to divorce, except Vatican City, an ecclesiastical sovereign city-state, which has no procedure for divorce. Whilst we acknowledge relative divorce or coined as legal separation under our Family Code, this has not provided us an absolute divorce except for Muslims and Filipinos whose spouses received a divorce decree, capacitating them to remarry. Before the Spanish colonization and Japanese occupation absolute divorce is already legally and widely practiced. The thesis argues the reintroduction of the divorce law into Philippine law on a legal and rights based approached. It argues that is now the time to have divorce to protect and strengthen the family; it is legal; in accordance to our constitution and in compliance with the international human rights. This thesis seeks answers to the inadequacies of our existing legal framework on nullity, annulment, and legal separation; it is one the solutions to decrease domestic violence and to protect the children from pain and agony from their parents irreconcilable differences; and not having divorce law is a failure on upholding our own constitution.
The Philippines is one of the world’s largest archipelago nations. It is situated in Southeast Asia in the Western Pacific Ocean. Its islands are classified into three main geographical areas – Luzon, Visayas, and Mindanao , composed of 7,100 islands and according to the Philippines Statistical Authority and the World Bank, as of 2017, had a population of at least 100 million; populated by 51.9 million women and 52.9 million men . Of these figures, more than 34.7 million are single while roughly 32 million are married . Together, they make up a predominantly Roman Catholic population . Under the 2018 United Nations Development Programme’s Human Development Index, the country is in the medium human development category ranking 113 out of 187 countries and territories . The Philippines has a constitutional, democratic and republican government . Philippines is a partner to a number of international human rights treaties and “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. ” Despite the predominance of Roman Catholicism in the country, the inviolability of the separation of the church and state is recognized.
Philippines was a Spanish colony from 1521 until the Philippine revolution and declaration of independence in 1898. As a result of more than 300 years of Spanish colonization, Spanish influence is very evident in the Filipino culture. The influences are apparent particularly on the language, cuisine, and religion of the country. The views of the Roman Catholic Church weigh heavily over the customs and norms of Filipinos; they account for the many conservative laws in the country and the absence of policies that permit or regulate such matters as abortion , contraception , and divorce. Divorce was recognized in the Philippines before the enactment of the Civil Code of the Philippines (Civil Code) . At present, it is not recognized in the country save for some exceptions . The Philippines and Vatican City are the only remaining states in the world without divorce.
Divorce is the “legal termination of a marriage by a court in a legal proceeding, requiring a petition or complaint for divorce by one party.” It is 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. Atherton v. Atherton, 181 U. S.155, 21 Sup. Ct. 544, 45 L. Ed. 791; Miller v. Miller, 33 Cal. 355; Cast v. Cast, 1 Utah, 112.The dissolution is termed “divorce from the bond of matrimony,” or, in the Latin form of the expression, “a vinculo matrimonii” the suspension, “divorce from bed audboard,” “o mensa ct thoro.” The former divorce puts an end to the marriage; the latter leaves it in full force. 2 Bish. Mar. & Div.” It can also refer to termination of a marriage that is without any fault on the part of either parties and without “need to find out if any misconduct occurred.”There are two kinds of divorce: (1) absolute divorce or divortio a vinculo matrimonio, and (2) relative divorce or divortio a mensa et thoro . The first is used to refer to dissolution or “divorce from the bond of matrimony” and the latter is used to refer to the “suspension or divorce from bed and board.” Marriage bonds are severed under absolute divorce while they subsist under relative divorce or legal separation .
The type of divorce argued for in this discussion is absolute divorce as differentiated from relative divorce or legal separation. The term ‘divorce’ as used refers to absolute divorce unless otherwise indicated.
The Family Code of the Philippines (Family Code) provides for three remedies on the dissolution or suspension of marriage bonds: nullity, annulment, and legal separation. Unlike divorce, the grounds for nullity and annulment must exist before or at the time of the celebration of marriage to terminate marriage bonds. In contrast to divorce, legal separation merely grants spouses the right to live separately from each other but does not dissolve marriage bonds .
Gabriela Women’s Party has been pushing for the legalization of divorce since the 13th Congress, a party-list General Assembly Binding Women for Reforms, Integrity, Equality, Leadership, and Action (GABRIELA) which is a national coalition of women’s organizations. Women’s groups claim that petitions for declaration of nullity of marriage, annulment, and legal separation are inadequate options for an abused spouse . They maintain that spouses who want to separate from each other and terminate their marriages are met with rigid limitations in the present laws’ response to the countless causes of failed marriages. These groups claim that remedies of declaration of nullity and annulment do not cover the problems that occur after the celebration of the marriage while legal separation does not put an end to marriage . The lack of divorce is questioned as a “discriminatory policy and religious imposition” on non-Muslim Filipinos.
On the other hand, opposition led by the Catholic Church treat the concept of divorce with disdain and contempt primarily because it destroys Filipino families. “The fact that we’re one of the last few countries without a divorce law until now speaks volumes about us as a nation. No doubt, those who associate divorce with being progressive would laud our legislators who are currently raring to pass a divorce bill in Congress. With due respect to them, we beg them to make room for more reasoned debates on the issue. Since they act as representatives of the people who elected them in office, we humbly suggest that they submit their personal opinions to a further consultation with their constituents. Perhaps they can also consult experts in various fields in order to consider the many implications of the issue, not just on families but on the Philippine society as a whole.”
Why is there no divorce law in the Philippines?
“Across the globe, the Philippines and the Vatican are the only states without divorce but allow the annulment of marriages. The Vatican is an independent state headed by the pope, who also heads the Catholic Church. The Philippines, meanwhile, is a predominantly Catholic country. Majority of couples also opt to marry in church”.
I see this is the biggest hurdle why we still do not have a divorce law. We are still under the influence of religion as such as being a shackle for our law makers to take a more liberal approach in looking into this matter. Predominantly Catholics and Christians believe in biblical verse “So then they are no longer two, but one flesh. Therefore what God has yoked together, let man not separate”.
They view the negative effects of divorce as it destroys the family which is the nucleus of our society. What we are missing out is that there is also the other side of the coin. If there is a negative side, why are we not looking into another perspective and look into the positive side of it?” If a marriage is in high conflict and creating a toxic living environment for the children, exposing them to violent actions like physical and or verbal abuse, a divorce can be a positive for the children being exposed to such behaviour. It is unhealthy for children to witness their parents showing each other a lack of respect and decency. Children that are victims of domestic violence are more likely to grow up and engage in acts of domestic violence towards their family.” Being forced to stay in a failed marriage because the society tells you that the right thing to do. It will not help you as a person in the long run. “Choosing to stay together for the children only increases this tension and stress. Feeling trapped makes you feel like a caged animal, and it does not give you as much of a chance to be the attentive parent you want to be ” In this you will not be able to focus on proper parenting.”Divorce can be complicated, messy, and very emotionally taxing. Once you survive the transition, you will feel alive with the confidence that you made a decision to better your life. This esteem will lead to a sense of empowerment and deep self-knowledge that you are in control your happiness” . According to SWS surveys Filipinos now are taking are more liberal approach in the issue of divorce, The poll, conducted on December 8 to 16, 2017, showed an average 53 percent of adult Filipinos nationwide agree with the statement, “Married couples who have already separated and cannot reconcile anymore should be allowed to divorce so that they can get legally married again.”
House Bill 7303 aims to make divorce more accessible to a wider range of couples seeking liberty from irreparable marriage.
It provides that the “State shall assure that the court proceedings for the grant of absolute divorce shall be affordable and inexpensive, particularly for court assisted litigants and petitioners.”