Nowhere in the present 1987 Constitution and the previous 1935 and 1972 Constitution, and even in the Malolos Constitution, is there a provision which prohibits the Congress from enacting an absolute divorce Law.
Despite the constitutional precepts on the sanctity and inviolability of marriage and protection for the family, the Constitution by not prohibiting absolute divorce recognizes that marriage is basically a social institution which is vulnerable to human frailties which destroy beyond repair marriages.
No less than the commissioners of the 1986 Constitutional Commission led by Fr. Joaquin Bernas had a unanimous consensus that Congress can enact an absolute divorce law.
Following are the relevant proceedings in the Constitutional Commission:
“FR. BERNAS. Just one question, and I am not sure if it has been categorically answered. I refer specifically to the proposal of Commissioner Gascon. Is this to be understood as a prohibition of a general law on divorce? His intention is to make this a prohibition so that the legislature cannot pass a divorce law?
“MR. GASCON. Mr. Presiding Officer, that was not primarily my intention. My intention was primarily to encourage the social institution of marriage, but not necessarily discourage divorce. But now that he mentioned the issue of divorce, my personal opinion is to discourage it, Mr. Presiding Officer.
“FR. BERNAS. No. My question is more categorical. Does this carry the meaning of prohibiting a divorce law?
“MR. GASCON. No, Mr. Presiding Officer.
“FR. BERNAS. Thank you.”
In a subsequent proceeding, the following exchange transpired between Commissioners Jose Bengzon and Maria Teresa Nieva:
“MR. BENGZON. Will this in any way preclude Congress from approving a law on divorce?
“MS. NIEVA. We discussed that yesterday and I think we reiterated that it does not.
“MR. BENGZON. It does not.
“MS. NIEVA. No.
“MR. BENGZON. So, even if this section or this sentence is approved, Congress will still have every right to pass a divorce law under certain circumstances as it may deem fit.”
It should be underscored that no Commissioner posited a dissenting view. This was the contemporaneous construction of the Commissioners on allowing the Congress to enact a divorce law despite the postulates on marriage and the family under the Constitution.
In fact, Muslim Filipinos who are covered by the Constitution are granted the right to divorce and remarry. Moreover, the Family Code itself provides for relative divorce by judicially recognizing the separation of spouses from bed and board without the right to remarry. The ban on absolute divorce with the right to remarry spawns sinners, criminals and crimes as separated spouses cohabit with other partners in adultery and concubinage and give birth to hundreds of thousands of illegitimate children.
The sanctity of marriage does not institute an iron-clad union which fetters, impairs and destroys.
Couples who are married under Catholic rites who separate do not commit sacrilege or sin.
Moreover, even the Catholic Church has its own its canonical divorce, which is euphemistically called “dissolution of marriage” based on psychological incapacity.
The fact that all Catholic countries worldwide, expect the Philippine and the Vatican, have legalized divorce is a veritable testament that divorce does not infringe on the doctrine of the Catholic Church.
No less than Jesus Christ in the Bible allowed a husband to divorce an unchaste wife, and St. Paul permitted a believer to divorce a non-believer who has deserted him.
In considering giving the Sacrament of Communion to divorced and remarried Catholics, the exact words of Pope Francis in his footnote 351 in Amoris Laetitia (The Joy of Love) are relevant: “the Eucharist is not a prize for the perfect, but a powerful medicine and nourishment for the weak.”
The Philippine Catholic hierarchy must not be more popish than the Pope.
Divorce is not the monster which destroys marriages and families. It is marital abuse, infidelity and abandonment, among other mortal causes, which constitute the culprit. In a divorce proceedings, it is not a vibrant marriage but the cadaver of a dead marriage that lays prostate before the Family Court.
The Supreme Court has held in Te v. Te that the dissolution of a marriage is a merciful interment of a long-dead marriage.
A divorce law is a more comprehensive, affordable and expeditious mode of giving opportunity to seriously aggrieved spouses, like a battered wife, to regain freedom, self-respect, agency and happiness.
Divorce is not for every Filipino. The overwhelming majority of Filipino couples have happy and enduring marriages. They do not need a divorce law. Divorce is a new lifeline for unfortunate couples whose marriages have been irremediably destroyed exposing their children to physical and psychological trauma. It is an option in addition to dissolution of marriage, legal separation and annulment of marriage under the family Code, all which are essentially different from the proposed absolute divorce law.
Divorce rescues unfortunate spouses and their suffering children from a house on fire by having their marriage dissolved under strict judicial scrutiny and awarding custody and support for their children’s benefit.
The same worn-out argument on unconstitutionality was leveled against the Reproductive Health Law, and the Supreme Court debunked the argument and unanimously upheld the constitutionality on the whole of the Reproductive Health Law in Imbong v. Ochoa.
EDCEL C. LAGMAN