ABSOLUTE DIVORCE IN THE PHILIPPINES

I. Introduction

Section 2 Article XV of the 1987 Constitution provides that “Marriage, as an inviolable

social institution, is the foundation of the family and shall be protected by the state.” It is the

foundation of the family whose nature, consequences and incidents are governed by law and not

subject to stipulation. However, it is undeniable that present circumstances exhibit the

impracticality of preserving some marriages in which the marital union’s integrity is no longer

reconcilable. It has been well-documented that the absence of a divorce law has had

disproportionate effects on women who are more often the victims of abuse within marriages,

and who are forced to remain in joyless and unhealthy unions because of the dearth of legal

options. Studies have shown that breaking free from such unions and being given a fresh start

result in improved health outcomes for women. Studies likewise show that it is not divorce that

creates well-being issues for children, it is bearing witness to the troubled marriages of their

parents. All the countries in the world, except the Vatican and the Philippines, have already

legalized absolute divorce. This is due to the fact that while it is in the best interest of the state to

preserve the sanctity of marriage, it is also duty-bound to promote and protect the well-being of

its citizens. If it comes to the point that such preservation would only be detrimental to the

spouses, their children, or the family as a whole, it would be in the best interest of the state to

dissolve such marriages. Indeed, the Supreme Court has consistently reiterated that although it

sympathizes to spouses who are trapped in an irreconcilable, loveless, abusive marriage,

nevertheless, due to the absence of any legislation providing absolute divorce, the Court is put

into a position where it has no choice but to preserve the marriage in accordance with the law.

Thus, the immediate passage of an absolute divorce law in the Philippines must be sought for.

II. Antecedents
 Unbeknownst to many absolute divorces is not a new concept in Philippine legal

jurisdiction. It existed in the country during the American and Japanese occupation. The

Americans introduced Act No. 2710, which allowed divorce on the grounds of adultery on the

part of the wife and concubinage on the part of the husband, upon proof of prior conviction. The

Japanese issued Executive Order No. 141, expanding the grounds for divorce. E.O. 141 included,

among others, the attempt of one spouse against the life of the other; contagious diseases

contracted by either spouse; incurable insanity; repeated physical violence; and abandonment for

three consecutive years. However, in 1950, the Civil Code of the Philippines took effect and

repealed all laws regarding absolute divorce.

Presidential Decree No. 1083 on Code of Muslim Personal Laws gives the right to

Muslim Filipinos the right to obtain an absolute divorce. The law allows divorce only if both

parties are Muslim, or wherein only the male party is a Muslim, and the marriage is solemnized

under Muslim law or this Code in any part of the Philippines.

Acceptance of divorce has not been confined to Islam. Christians have also recognized it,

and the issue has been well discussed in the Bible. References in the books of Matthew 19:9,

Matthew 5:31-32, Mark 10:2-4, 1 Corinthians 7:15, are all reflected in the canonical divorce or

declaration of nullity allowed by the Catholic Church today. Presented in this paper are

supporting legal arguments on the grounds for divorce specified in Section 5 of Senate Bill 2134.

The purpose of this legislation is: (1) to provide opportunity to spouses in irremediably failed

marriages to secure an absolute divorce decree under limited grounds and well-defined

procedures; (2) to protect children from the pain and stress resulting from their parent’s marital

problems; and (3) to grant the divorce spouses the right to marry again.

III. Ground for Divorce

2
 The grounds for divorce are: (a) those grounds for legal separation under Article 55 of the

Family Code; (b) those grounds for annulment under Article 45; (c) when the spouses are

separated in fact for more than 5 years; (d) psychological incapacity; (e) sex reassignment of one

spouse; and (f) irreconcilable difference between the spouses. The reasons elucidated under each

of the abovementioned circumstances will show that the existence of any in an existing marriage

presents circumstances where the well-being of said marriage is already compromised, and thus,

the preservation of such marriage should no longer interest the state.

Grounds for Divorce:

(a) Those grounds for legal separation under Article 55 of the Family Code of the

Philippines, provided that physical violence and grossly abusive conduct under

Article 55 (1) need not be repeated offenses to be considered as ground.

(a)(1). Those under numbers (1) Physical violence or grossly abusive conduct

directed against the petitioner, a common child, or a child of the petitioner; (2)

Physical violence or moral pressure to compel the petitioner to change religious or

political affiliation; (3) Attempt of the 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; and (9) Attempt by the respondent against the life

of the petitioner, a common child or a child of the petitioner.

It is imperative that the abovementioned circumstances need to be dealt with immediately

to protect the physical, mental, and psychological well-being of the innocent spouse and the

children. The National Commission on the Role of Filipino Women (NCRFW) reported that, for

the years 2000-2003, female violence comprised more than 90% of all forms of abuse and

violence and more than 90% of these reported cases were committed mostly by the spouses of

3
women. That is why R.A. 9262 was enacted by the legislature to define and criminalize acts of

violence against women and their children (VAWC) perpetrated by women's intimate partners,

i.e, husband; former husband; or any person who has or had a sexual or dating relationship, or

with whom the woman has a common child.

Under the Family Code of the Philippines, the three aforementioned grounds would only

allow the innocent spouse file for legal separation. Although it is worth to mention that the first

two out of three objectives can be achieved by legal separation, the third one is still lacking since

the marriage is not severed. The innocent spouse must have the right to petition the court for the

dissolution of the marriage in order that she may marry again.

(a)(2) Those under number (4) Final Judgement sentencing the respondent to

imprisonment of more than six years, even if pardoned; (5) Drug addiction or

habitual alcoholism or chronic gambling of the respondent; (6) Homosexuality

or lesbianism of the respondent; (7) Contracting by the respondent of a

subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual

infidelity or perversion; and (10) Abandonment of petitioner by respondent

without justifiable cause for more than one (1) year.

The circumstances abovementioned clearly undermine the sanctity of the family. In

accordance with Article 12, the rearing of the youth for civic efficiency and the development of

moral character is the natural and primary right and duty of parents. It is also the obligation of

the spouses that they observe mutual love, respect and fidelity, and render mutual help and

support, pursuant to Article 68 of the Family Code of the Philippines. Hence, engagement of one

spouse in any of the abovementioned exhibits an utter insensitivity and incapability to preserve

the family home by besmirching its reputation. Indeed by being sentenced to imprisonment or in

4
cases of drug addiction and habitual alcoholism or chronic gambling, the parent not only disables

himself or herself from complying with his or her essential obligation to support the family, but

he or she also sets a bad example to his or her children, leaving the other spouse struggling to

keep the family home in place.

The same goes for homosexuality, sexual perversion or infidelity, and contracting a

subsequent bigamous marriage. It is essential that the husband and wife observe mutual love,

respect and fidelity. The fact that the marriage is not allowed to be severed despite the guilty

spouse’s continuing engagements in such acts constitutes a grave injustice to the innocent

spouse, trapping the latter in a loveless marriage which he or she can do nothing about under the

current laws. Thus, to protect the children from the humiliation, pain and stress, and to allow the

spouses to dissolve the marital bond which no longer has a fruitful future, an absolute divorce

may be obtained.

(b) The grounds for annulment of marriage under 45 of the Family Code, provided

that the grounds cited in numbers (2), (5), and (6) of Article 45 may either have

existed at the time of the marriage, or supervening after the marriage.

Unsoundness of mind of one party, fraud, fear, intimidation, and undue influence are

vices of consent making a marriage defective. For a marriage to be valid, it needs to have the

freely given consent of both parties, subject to the provisions governing the ratification of

marriages with such defects.

With regard to numbers (2), (5), and (6) of Article 45, for these to be a ground for

annulment, such circumstances should be existing at the time of the celebration of the marriage.

When one party is of unsound mind or absolutely impotent, whether existing at the time of the

marriage or after, said party would be inherently incapable of complying with the essential

5
marital obligations of marriage. At this point, it is already beyond the control of the incapacitated

party and not just a mere refusal. A party of unsound mind is dead weight to the family, unable

to support the other spouse leaving the latter all the duties, responsibilities, and burdens in

maintaining the household and the support of their common children. It is likewise the same if

either spouse is afflicted with a sexually transmissible disease found to be serious and continues

or appears to be incurable. The right to health is a mandated constitutional right. The spouses can

no longer have sexual access to one another without risk of infecting the healthy spouse.

Whether it was present at the time of the marriage or after is immaterial. The healthy spouse

should not be obligated to stay in a marriage where he or she is at risk of being infected with a

sexually transmissible disease if ever he or she engages in sexual relations with the afflicted

spouse.

Thus, in view of the foregoing, and in the pursuit of the objectives herein reiterated, such

circumstances falling under this subsection should be adequate legal grounds for absolute

divorce for the good of both spouses and their children, and an opportunity to remarry.

(c) Psychological incapacity of either spouse as provided for in Article 36 of the

Family Code, whether or not the incapacity was present at the time of the

celebration of the marriage or later.

The existing laws and prevailing jurisprudence set forth stringent guidelines in

determining whether or not marriages should be declared void on the ground of psychological

incapacity of either spouse. Jurisprudence points out that the root cause of the psychological

incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c)

sufficiently proven by experts and (d) clearly explained in the decision. Statistics show that most

nullity cases based on this ground have been denied, mostly because the petitions fail to establish

6
juridical antecedence, that is, the existence of such incapacity at the time of the celebration of the

marriage. Despite convincing evidence of disordered personalities clearly manifesting

psychological incapacity, the Supreme Court has consistently reiterated that if the same is not

proven to be existing at the time of the marriage, the petition for declaration of nullity of

marriage must be denied pursuant to Article 36 of the Family Code. In view of this, the Supreme

Court is constrained to deny said petition. Hence, legislative enactment is the key.

Under the proposed law on absolute divorce, such incapacity need not proven to be

existing at the time of the marriage, since such marriage where one spouse is psychologically

incapacitated makes said spouse inherently incapable of recognizing the significance of marriage

and is unable to comply with the essential marital obligations of marriage and among other

conjugal obligations that needed to be complied with.

(d) All acts mentioned under Section 5 of Republic Act No. 9262, or the Anti-

Violence Against Women and their Children Act of 2004.

(e) The commission of the crime of rape by the respondent-spouse against the

petitioner-spouse before the celebration of marriage.

(f) When one of the spouses has been sentenced by final judgement under Republic

Act No. 9262, or a permanent protection order has been issued in favour of the

petitioner spouse against the other spouse under said Act; Republic Act 9995,

and Republic Act 9775, whether or not the complaints in the criminal cases filed

under the mentioned Acts is the petitioner-spouse or their common children.

To avoid redundancy, the authors explained the constitutional and legal grounds of

subsections (d), (e), and (f) altogether since such circumstances are of similar nature.

Section 5 of Republic Act No. 9262 provides, to wit:

7
 “Acts of Violence Against Women and Their Children.- The crime of

violence against women and their children is committed through any of the

following acts:

(a) Causing physical harm to the woman or her child;

(b) Threatening to cause the woman or her child physical harm;

(c) Attempting to cause the woman or her child physical harm;

(d) Placing the woman or her child in fear of imminent physical harm;

(e) Attempting to compel or compelling the woman or her child to

engage in conduct which the woman or her child has the right to desist from or

desist from conduct which the woman or her child has the right to engage in, or

attempting to restrict or restricting the woman's or her child's freedom of

movement or conduct by force or threat of force, physical or other harm or

threat of physical or other harm, or intimidation directed against the woman or

child. This shall include, but not limited to, the following acts committed with

the purpose or effect of controlling or restricting the woman's or her child's

movement or conduct:

(1) Threatening to deprive or actually depriving the woman or her child

of custody to her/his family;

(2) Depriving or threatening to deprive the woman or her children of

financial support legally due her or her family, or deliberately providing the

woman's children insufficient financial support;

(3) Depriving or threatening to deprive the woman or her child of a legal

right;

8
 (4) Preventing the woman in engaging in any legitimate profession,

occupation, business or activity or controlling the victim's own mon4ey or

properties, or solely controlling the conjugal or common money, or properties;

(f) Inflicting or threatening to inflict physical harm on oneself for the

purpose of controlling her actions or decisions;

(g) Causing or attempting to cause the woman or her child to engage in

any sexual activity which does not constitute rape, by force or threat of force,

physical harm, or through intimidation directed against the woman or her child

or her/his immediate family;

(h) Engaging in purposeful, knowing, or reckless conduct, personally or

through another, that alarms or causes substantial emotional or psychological

distress to the woman or her child. This shall include, but not be limited to, the

following acts:

(1) Stalking or following the woman or her child in public or private

places;

(2) Peering in the window or lingering outside the residence of the

woman or her child;

(3) Entering or remaining in the dwelling or on the property of the

woman or her child against her/his will;

(4) Destroying the property and personal belongings or inflicting harm

to animals or pets of the woman or her child; and

(5) Engaging in any form of harassment or violence;

9
 (i) Causing mental or emotional anguish, public ridicule or humiliation

to the woman or her child, including, but not limited to, repeated verbal and

emotional abuse, and denial of financial support or custody of minor children of

access to the woman's child/children.”

Republic Act No. 9262, or the Anti-Violence against Women and their Children Act of

2004 addresses the violence against women and children (VAWC) committed by their partners.

It includes, but is not limited to, the following acts: physical violence, sexual violence,

psychological violence, and economic abuse. It is evident within the State policies concerning

the rights and obligations between husband and wife that both spouses are responsible for the

institution and maintenance of the family. It is also expressly written under Article 68 of the

Family Code that the spouses should "observe mutual love, respect and fidelity, and render

mutual help and support." However; it is not the case under the instances enumerated in Section

5 of the RA 9262, where the violence towards women and their children is considered as a public

crime. Under the current provisions allowed by the law, the circumstances enumerated in the

VAWC only constitutes for the requisites under legal separation. The marital bonds still exist

and are not severed, where the spouses are barred from remarrying, regardless of how abusive

the marriage may already be. In cases where an abused spouse found a new partner and bears a

child from it, the child is illegitimate because of the previous marriage. The State should protect

the rights of the abused spouses and not contribute to the injustice they are already facing. Bad

marriages should not be a life sentence to those people who lacked luck in marriage and should

be given a chance to start again and remarry.

(g) When the spouses are legally separated by judicial decree under Article 55 of the

Family Code of the Philippines for at least two (2) years.

10
 (h) When the spouses have been separated in fact for at least (5) years at the time

the petition for absolute divorce is filed, and reconciliation is highly improbable.

It is only reasonable that this be included as a ground for divorce. As to the belief of

many, legal separation is not sought by most people because it is not only expensive but it does

not actually sever the marriage bond. Under the law, the spouses are still married. The legally

separated spouses are still not able to remarry as they wish, which amounts to great absurdity,

considering of the improbability of reconciliation. It is unthinkable as to what else will the

spouses benefit from not being freed of their marriage bond. As in the case of Republic vs

Manalo, the Court granted the Filipino to be the one to initiate the divorce proceeding, and it also

noted that “there has been constant clamor from various sectors of the Philippine society to re-

institute absolute divorce.” Hence, the Supreme Court has held that without any legislative

enactment enabling Filipino spouses to dissolve the marriage, such marriage even though

impractical, subsists. It is irrational for spouses to still be bound by their marriage bond when in

fact, they are already separated and not living with each other for five years or more. Thus, the

aim now is legislative action to enable the spouses to be legally free from each other and to

remarry without prejudice to a possible reconciliation.

(i) Irreconcilable marital differences and conflicts which have resulted in the

total breakdown of the marriage beyond repair, despite earnest and repeated

efforts at reconciliation

Reiterating the decision in Republic vs Manalo (2018), the Court noted that “it is

recognized that not all marriages are made in heaven and that imperfect humans more often than

not create imperfect unions.” The term irreconcilable differences refer to an inability for two

parties to resolve their differences in order to save their marriage. In states that allow no-fault

11
divorces, irreconcilable differences are sufficient grounds for divorce. A petition filed on this

ground simply states that the spouses’ marital problems are beyond repair and cannot be brought

back into harmony. Moreover, the spouses may want to avoid costly divorce trials by reaching a

divorce settlement through mediation or on their own. The spouses may then amicably resolve

property division, child custody, support, and visitation issues together and still obtain a no-fault

divorce.

Irreconcilable differences as grounds for divorce may only be used solely in no-fault

actions. By citing irreconcilable differences as grounds for divorce, the parties are essentially

telling the court that the relationship is irreparable, that they have problems that cannot be

worked out, and that there is no solution for them as a couple other than to completely dissolve

the marriage. In a petition filed on this ground, neither party engaged in or alleged the other of

committing acts which brought danger, dishonour, or injury to the petitioner-spouse or to the

family. As the title would suggest, no- fault divorces are those in which it is neither party’s fault

that the marriage is severed. Hence, a divorce based on irreconcilable differences does offer the

benefit of not having to prove someone’s fault in court, making the proceedings as amicable as

possible since there is no need to prove if there is a guilty spouse responsible for the downfall of

the marriage.

IV. Conclusion

Pursuant to Article II, Section 12 and Article XV, Sections 1 and 2 of the 1987

Constitution, the state aims to protect and strengthen the family as the basic autonomous social

institution and marriage as the foundation of the family. State policy as mandated by the 1987

Constitution aims to uphold and preserve the sanctity of marriage. While this may be so, it is also

the state’s duty to protect the physical, mental, psychological and civil well-being of its citizens.

12
The denial of legal remedies to those seeking to dissolve their union has largely been an

ineffective way of upholding the policy of the State to keep families together. If it comes to the

point that such preservation would only be detrimental to the spouses, their children, or the

family as a whole, it would be in the best interest of the state to dissolve such marriages at the

instance of those aggrieved. Spouses who are trapped in irreconcilable, loveless, abusive

marriages should therefore be entitled to a legal recourse for the circumstances abovementioned;

otherwise, it would be a great absurdity to preserve such marriages. Thus, the immediate passage

of an absolute divorce law in the Philippines must be sought for.

13