DIVORCE IN THE PHILIPPINES:

A Human Rights Perspective On Why It Should Not Be Allowed

A Position Paper by EDCARL REALIZA CAGANDAHAN (JD-IV)

Filipinos have been described as family-centered, and families have been

observed to be closely-knit.1 Although it may be nothing close to perfect, the
Filipino family remains to “value blood and marriage relationship.”2 Verily,
Philippine laws are abundant with effective measures in resolving conflicting
matters which may arise within, among, or against members of a family, as
provided in the Family Code3 and other pertinent laws. Likewise, the right to
marry, establish a family, and have the same protected by the society and the
State are some of the human rights enshrined in the Universal Declaration of
Human Rights4 to which the Philippines is a signatory thereto. Ultimately, the
1987 Constitution of the Republic of the Philippines provides that the State
recognizes the sanctity of family life and shall protect and strengthen the family
as a basic autonomous social institution,5 and that marriage, as an inviolable
social institution, is the foundation of the family and shall be protected by the
State.6 Thus, it is mandated by law that no custom, practice, or agreement
destructive of the family shall be recognized or given effect.7

Given the aforementioned laws on the preservation of the sanctity of marriage,

can Congress then validly legislate a law that allows or recognizes the absolute
dissolution of marriage? What are the legal and moral implications of divorce in
the Philippines?

In 1999, Representative Manuel C. Ortega filed House Bill No. 69938, seeking
the legalization of divorce as another option for couples in failed and

1
Tarroja, M.C. (2010). Revisiting the definition and concept of Filipino family. Retrieved from
https://pdfs.semanticscholar.org/3180/8ac456e22d7d6608ff110b6bbd9fdb1bf8ea.pdf
2
Ibid
3
Executive Order No. 209, s. 1987, as amended by Executive Order No. 227. The family code of the Philippines.
4
Par. 1 and 2, Art. 16, Universal Declaration of Human Rights, in relation to Art. 23(1) of the International
Convention on Civil and Political Rights. Retrieved from
http://unbisnet.un.org:8080/ipac20/ipac.jsp?session=14O243550E15G.60956&profile=voting&uri=full=3100023~!
909326~!676&ri=1&aspect=power&menu=search&source=~!horizon
5
Sec. 12, Art. II, 1987 Philippine Constitution
6
Sec. 2, Art. XIV, 1987 Philippine Constitution
7
Art. 149, Family Code of the Philippines.
8
An Act Legalizing Absolute Divorce, Amending for the Purpose Title II, and Certain Provisions Thereunder, of
Executive Order No. 209, as amended by Executive Order No. 227, Otherwise Known as the Family Code of the
Philippines
irreparable marriages.9 Rep. Ortega, in his Explanatory Note, expressed that
the bill’s objective was to allow spouses in irretrievably broken marriage to
remarry and possibly succeed in attaining a stable and fulfilling family life.10
The bill seeks to amend Art. 55 to 67 of the Family Code which “is itself almost
entirely the existing laws on legal separation but for three adjustments: 1) the
inclusion of "irreconcilable differences" as additional grounds for divorce; 2)
revisions and additions with regard to matters of child custody, financial
arrangements, prescription and effectivity of the provisions, and; 3) the
dissolution of the marriage bond, thereby bestowing on the divorced couples
the right to remarry”11 However, the author believes that Rep. Ortega’s bill and
the concept of divorce in the Philippines must fail on the following reasons:

1. Divorce is unconstitutional for being contrary to law, public policy, public

morals, and good customs;

2. Divorce is a violation of the human rights of a child; and

3. Divorce breeds divorce.

Divorce is unconstitutional for being contrary to law, public policy, public

morals, and good customs.

As previously mentioned, the application of divorce in the Philippines violates

multiple laws herein, such as the 1987 Philippine Constitution, the New Civil
Code, the Family Code, and other generally accepted laws and principles of
international law. The common argument of the affirmative side is that divorce
is validly recognized and applied in multiple countries worldwide, thus it must
be valid. The author believes that such mindset is fallacious for being a
sweeping generalization.

First, a study found annual rates of depression per 100 people to increase with
the number of times a person divorces (and remarries): only 1.5/100 for
married couples, 4.1/100 for those divorced once, but 5.8/100 for those
divorced twice; also, incidence of alcoholism increases from 8.9% among intact
families to 16.2% among spouses who divorced/ separated once, up to 24.2%
for those divorced/ separated by more than once. In UK, Leete and Anthony
(1979) found out in their study that after divorce, more than ½ of all custodial

9
Philippine e-Legal Forum. (2008). Retrieved from https://pnl-law.com/blog/proposed-divorce-law-in-the-
philippines/.
10
Retrieved from http://www.congress.gov.ph/legisdocs/journals_17/J54-2RS-20180124.pdf.
11
Jungco, L., et al (1999). A house divided. Retrieved from https://www.scribd.com/doc/62206555/Divorce-
Position-Paper. Page 3
parents had remarried; second and subsequent marriage figures also rose.
Already, remarriage rates have increased from 1961 to 1983, with rates for
men 3X as high as for women; marriages in which both partners remarry rose
from 9% in 1961 to 32% in 1987. And by 1984, 21% of every 1000 divorced
couples had one or both partners previously divorced;12

Second, Art. 1 of the Family Code defines “marriage” as a permanent union.13

According to a position paper drafted by the Commission on Human Rights on
May 27th, 1999, which served as their response to the divorce bill filed by Rep.
Ortega,14 “since marriage is a permanent union, any law that allows absolute
divorce is contrary to the aforesaid provisions and destroys the very concept of
family as an inviolable social institution.”

And finally, divorce, being an agreement addressed to the courts as consented

by both parties to dissolve the marriage due to “irreparable damage”—a custom
claimed to be validly effected in other jurisdictions, as previously discussed—
run counter with Art. 149 of the Family Code which expressly provides that no
custom, practice, or agreement destructive of the family shall be recognized or
given effect, pursuant to the constitutional mandate on the protection by the
State of the sanctity of marriage; and Art. 11 of the New Civil Code provide that
customs which are contrary to law, public order or public policy shall not be
countenanced. Thus, since Philippine law does not provide for absolute divorce;
(hence) our courts cannot grant it.15

Divorce is a violation of the human rights of a child.

The Commission on Human Rights further condemned the application of

divorce in the Philippines, inasmuch as it is a violation of a child’s right to
special protection of a family environment.16 The Commission wrote that “the
divorce of parents will have adverse effects on the children’s rights. Any dispute
of parents which will result in the absolute divorce will not only destroy the
12
Effects on Divorced People - Divorce Statistics Collection (Divorce -Economic Effects on
Divorced People). Retrieved from http://www.divorcereform.org/econ.html.
13
Art. 1, Family Code: “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.”
14
Commission on Human Rights. (1999). Position paper on House Bill No. 6993 entitled “An act legalizing divorce in
the Philippines.” page 5
15
Garcia v. Recio, GR No. 215723, July 27, 2016
16
Art.20, Convention on the Rights of Children: “A child temporarily or permanently deprived of his or her family
environment, or in whose best interests cannot be allowed to remain in that environment, shall be entitled to
special protection and assistance provided by the State. “
foundation of the family as an inviolable social institution but will adversely
affect the rights of children who are entitled to special protection of a family
environment.” According to Wallerstein (1988), the effects of divorce on children
are not short-term and transient. They are long-lasting, profound and
cumulative. Children experience divorce differently from their parents, and on
different schedules. Effects of the divorce on children may continue for decades
even if "pain" on the part of the parents has somehow been healed. Further,
Amato and Booth (1997) points out that divorce and the act itself leads to an
abundance of biological, psychological, behavioral and academic problems. All
these combined make for a less healthy and more troubled child (and with the
aggravating effects of remarriages and stepfamilies, perhaps he would be
undereducated as well) which undermines his development into an adult and
lessens his ability to build and sustain meaningful relationships in the
future.17

Divorce breeds divorce.

The Commission on Human Rights also wrote in their position paper that “one
divorce begets another divorce. Once an individual gets a divorce to get rid of
an undesirable spouse, he or she is likely to secure more divorces until he or
she finds a spouse satisfactory to him or her.”18 A repetition of this procedure,
if allowed, would lead to an unending cycle and compounding of unhappy,
unsatisfied, and unsuccessful marriages, thereby treating the same as
equivalent to a mere contract, rather than a social institution of the society.
Likewise, it does not follow that if the divorce was founded on abuse by one or
both of the spouses towards the other, the cycle of abuse would stop. In a joint
study conducted by students of the University of the Philippines-Dilliman,
Ateneo University, and University College London, it appears that “the
dissolution of marriage sets free to remarry not only the victim (women and
children) but the abuser as well. The scheme sets the stage ready for another
round of abuse, this time involving a different victim - but a case of abuse just
the same. In effect, divorce may put an end to each individual case of abuse
but it does not put an end to the social evil of women (or child) abuse.”19

17
Jungco, L., et al (1999). A house divided. Retrieved from https://www.scribd.com/doc/62206555/Divorce-
Position-Paper. page 6
18
Ibid

19
Jungco, L., et al (1999). A house divided. Retrieved from https://www.scribd.com/doc/62206555/Divorce-
Position-Paper.
IN CONCLUSION, divorce does not honor the Philippine culture of being
family-oriented, and blatantly suggests the destruction and utter disregard of
the value of blood and marriage relationship; further, divorce is
unconstitutional for being violative of the Constitution’s mandate in protecting
and strengthening of the family as a basic social institution; furthermore,
divorce violates the children’s right to a family environment; and finally, divorce
is not the answer to ending a cycle of abuse. Divorce is nothing but a guise for
the want of immoral people to temporarily enjoy the benefits of a valid
marriage, which should not be permitted in any way. Thus, divorce is both
legal and morally is unacceptable in the Philippines.