Mario L. Navalez Jr. Research Essay 2

Mario L. Navalez Jr.
Juris Doctor 3
The Constitutional considerations on the enactment of a divorce law in the Philippines.
The ethnic history of the Philippines before the colonial Government of Spain
imposed their legal system, divorce was widely practiced among the indigenous of the
Philippines. The establishment of an independent Philippine Republic carry with it a
reinstated of indigenous laws. However, when the Code of Muslim Personal Laws was
passed in 1977, it allowed the Muslim marriages to be governed by the Islamic Law that
allows divorce for marriages between Muslim Filipinos. Today, the Philippines is one of
two remaining countries in the world that doesn’t have divorce law.
The Family Code is the only law which governs marriages of non-Muslim Filipinos
in the Philippines. However, the law recognizes and gives effect to divorce decree
obtained abroad provided that the following requisites are present: (a) one of the
spouses is an alien and it was the alien spouse who obtained the divorce decree, or (b)
although both spouses are Filipino, one acquired foreign citizenship, obtain the divorce
decree and remarried. The effect is that the marriage is lawfully terminated and allows
the Filipino spouse to remarry. The Family Code also provides for other reliefs such as
legal separation, annulment of marriage and declaration of nullity of marriage. One of
the frequently used ground in declaring a marriage as null and void is psychological
incapacity that provides that one or both of the contracting party is psychologically
incapacitated to perform the essential obligations of marriage and such incapacity is
grave, existed prior to or at the time the marriage was solemnized, and it is incurable.
The Constitution of the Philippines provides for the importance of Family which is
found in Article XV, Section 1 which states that: “The State recognizes the Filipino
family as the foundation of the nation. Accordingly, It shall strengthen its solidarily and
actively promote its total development”. Also in Section 2, Article XV provides that:
“Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State”. Article XV, Section 3, Paragraphs 1 and 2 also provides that the
State shall defend: “(1) The right of spouses to found a family in accordance with their
religious convictions and the demands of responsible parenthood and (2) The right of
children to assistance, including proper care and nutrition, and special protection from
all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their
development. The following provisions from the Constitution reflects the duty of the
State in promoting the welfare as well as protecting the Filipino family and their
children. Thus, giving importance in maintaining and developing the Filipino family
since they are the foundation of the nation.
Presidential Decree No. 603, as amended, entitled “The Child and Youth Welfare
Code”, provides that children are entitled to the following rights: (a) To a wholesome
family life that will provide them with love, care and understanding, guidance and
counseling, and moral and material security; (b) To be brought up in an atmosphere of
morality and rectitude for the enrichment and the strengthening of their character; and
(c) To protection against exploitation, improper influences, hazards and other conditions
or circumstances prejudicial to their physical, emotional, social and moral development.
In the United States, a person is allowed to end a marriage by filing a divorce on

the grounds of either fault or no fault. A no fault divorce can be granted on grounds
such as irretrievable breakdown of the marriage, irreconcilable differences,
incompatibility, or after a period of separation. In this case neither one of the party is
responsible for the failure of the marriage. However, in fault divorce, one person is
asking for a divorce because they claim the other party did something wrong that
justifies ending the marriage. Some of the grounds for fault divorces include adultery,
cruelty, abandonment, mental illness, and criminal conviction. Additional grounds
include drug abuse, impotency, and religious reasons.
In the Philippines, marriage is considered as a sacred union, that what God has
put together let no man put asunder, thus the notion “Till death do us part”. While the
Constitution provides for the protection of the Family as the foundation of the nation, it
also provides for the protection of their children. In a failed marriage, not only the
spouses are affected but also their children, a failed marriage can affect a child’s moral,
social, and emotional development. The children may develop a disbelief in marriage
since growing up he witnessed the effects of a failed marriage. The children in a
dysfunctional family is deprived of his rights to a wholesome family, be brought up in an
atmosphere of morality and rectitude for the enrichment and strengthening of his
character, and protection against improper influences and other conditions or
circumstances prejudicial to their physical, emotional, social and moral development. It
also becomes difficult for them; to strive and lead an upright and virtuous lives in
accordance with the tenets of their religion, the teachings of their elders and mentor,
and the bidding of a clean conscience; to love, re respect and obey their parents, and
cooperate with them in the strengthening of the family; and endeavor to keep the
family harmonious and united.
It is a common knowledge that litigation expense for the nullity of marriage in
the Philippines is costly as well as time consuming. Thus, divorce may be a good option
for parents, the parents can start a new life or remarry thus giving them a better
chance of being a role model for their children and they can show that marriage need
not be a painful experience. The second chance that a divorce gives to the parents will
be beneficial to the children as well. It would give the children a chance to have a real
family, one that is loving and can nurture their development socially, mentally,
physically and emotionally. Thus, giving the children a chance to enjoy a wholesome
family life, grow up in an atmosphere of morality and rectitude, and protection against
improper influences.
The Constitution may provide for the importance of the protection of Family as a
foundation of the nation, on the other hand, it also provides for the protection of the
children and promoting their well-being. Keeping a family together demands that all of
the members commit to it, that in a family everyone must be accounted for and not left
out. It is better to be separated when the other person is not committed in keeping the
family together than to stay as family without love and commitment to each other.
Divorce may be considered as a good remedy for failing marriages given that it is easier
and affordable but most importantly, for all persons involve, it would be better and
convenient to start earlier in order to minimize the damage that will be suffered from
the failed marriage. As the law maker Edcel Lagman said that “ While the State protects
and preserves marriages, it is also duty bound to extend protection to spouses of
shattered marriages beyond repair by allowing them to secure divorce and save their
children from the agony and distress of being exposed to their interminable strife ”.
Thus, the question now lies not in the Constitutionality of divorce but more on the social
side of the story and the duty of the State to protect its people from the negative
effects of failed marriages.

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Mario L. Navalez Jr.

The Constitutional considerations on the enactment of a divorce law in the Philippines.

In the United States, a person is allowed to end a marriage by filing a divorce on

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