(Speech delivered by Rep. Edcel C. Lagman during the National Conference on Sexual and Reproductive Health and Rights [SRHR] Updates at Novotel, Cubao,
Quezon City on 30 May 2023)
I am happy to announce that the substitute bill on the “Act Reinstituting Absolute Divorce as an Alternative Mode for the Dissolution of Marriage” is now with Majority Floor Leader Manuel Jose “Mannix” Dalipe for deliberation by the Committee on Rules and eventual referral to the Plenary for sponsorship and debates, hopefully when we resume in July after the SONA.
There is less opposition to absolute divorce compared to the Reproductive Health Bill, which is now R.A. No. 10354. Even the Catholic hierarchy is less intransigent and vociferous in its opposition, possibly because it has its own “matrimonial divorce” which is officially called dissolution of marriage based on psychological incapacity of one or both spouses.
This canon law influenced the inclusion of Art. 36 in the Family Code on dissolution of marriages. There are now 69 authors of the bill and many more are in favor of the measure without being co-authors. Some of those in the House of Representatives who appear opposed to the measure have undertaken to abstain from voting.
Nonetheless, we must expect some legal challenges to the measure once it becomes a law. The expected principal challenge is that the eventual Absolute Divorce Law is unconstitutional because it defies the following provisions in the 1987 Constitution:
“The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic, autonomous and social institution.” (Sec. 12 of Art. II on State Policies).
“The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.” (Sec. 1 of Art. XV on The Family)
“Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” (Sec. 2 of Art. XV on The Family)
An absolute divorce law does not violate the foregoing constitutional edicts because:
These provisions are not cast in stone. They accept reasonable and valid exceptions like divorce or dissolution of marriage.
Countries with similar provisions in their respective constitutions have legalized divorce like Ireland, Columbia, Bolivia, Peru, Chile, El Salvador, Portugal, Brazil, Poland, France, Saudi Arabia, the Russian Federation and Cuba, among others. Some with utmost liberality like notarial and e-mail divorce.
A constitution is a living document. Way back in 1987, US Supreme Court Justice Thurgood Marshall delivered a lecture entitled "The Constitution: A Living Document". Justice Marshall underscored that a constitution must be interpreted in light of the moral, political, and cultural climate of the age of interpretation. A living constitution is one that evolves; develops; changes over time; and adapts and adjusts to new circumstances and fresh contexts, without being formally amended.
The Absolute Divorce bill provides several provisions which uphold the sanctity of marriage as a social institution, to wit:
Its Declaration of Policy provides that “while the State continues to protect and preserve marriage as a social institution and as the foundation of the family, it shall also give the opportunity to spouses in irremediably failed marriages to secure an absolute divorce decree as an alternative mode for the dissolution of an irreparably broken or dysfunctional marriage under limited grounds and well-defined judicial procedures; save the children from the pain, stress, and agony consequent to their parents’ constant marital clashes or irreconcilable differences and grant the divorced spouses the right to marry again. (First paragraph of Sec. 2 on Declaration of Policy).
To this end, the State shall adopt a divorce policy in keeping with the fundamental freedoms guaranteed under the Constitution, the rights guaranteed under R.A. No. 9710, otherwise known as “The Magna Carta of Women”, the provisions of the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and other international human rights instruments of which the Philippines is a State party. (Second paragraph of the Declaration of Policy).
“A sixty-day cooling off period is instituted after the filing of a petition for absolute divorce to ensure a final attempt at reconciliation of the concerned spouses.” (Letter “e” of the Guiding Principles).
“Even as absolute divorce is reinstituted, the State has the mandate of strengthening marriage and family life by undertaking, among others, relevant pre-nuptial and post-matrimonial programs and activities adequately funded by the government” (Letter “g” of the Guiding Principles).
“Public prosecutors in provinces, cities and capital towns are mandated to conduct investigations to find out whether or not there is collusion between the spouses in a petition for absolute divorce or a spouse has coerced the other to file the petition and shall report their findings to the proper family court within 60 days from the filing of the petition.” (Letter “f” of Sec. 9 on Procedure for Obtaining Absolute Divorce).
“If the spouses agreed to reconcile during the pendency of the divorce proceedings or before the finality of judgement of divorce, a corresponding joint manifestation under oath duly signed by them shall be filed with the same court where the petition for absolute divorce was filed.
“Upon hearing of the joint manifestation and the Court finds it in order, the petition for divorce shall be dismissed.” (Sec. 19 on Reconciliation during the pendency of the divorce proceedings).
“Even after the divorce decree is final, the former spouses may agree to reconcile by filing a joint manifestation before the proper Family Court which issued the divorce decree. Upon hearing of the joint manifestation and the court finds it in order, the court shall nullify the final decree of divorce and the parties shall live together without the need of contacting a new marriage.” (Sec. 20 on Reconciliation after the Finality of a Divorce Decree)
“A spouse who is a party to a petition for absolute divorce who is found by the court to have used threats or coercion to compel the other spouse in filing the petition, and spouses who are guilty of collusion, shall be punished with imprisonment of five years and a fine of three hundred thousand pesos (Php300,000.00).” (Sec. 22 on Penalty)
“The National Government shall, through the DSWD, implement community-based pre-nuptial, reconciliatory phase of cooling-off counseling and post-matrimonial programs and activities in strengthening the marital and family life of Filipinos.” (Sec. 25 on Community Based Pre-Nuptial and Post-Marital Activities)
Despite the adoption in the 1987 Constitution of the tenets on marriage as a social institution and as the foundation of the family, the Commissioners of the 1986 Constitutional Commission which drafted the present Constitution, where unanimous in asserting that the foregoing principles do not prevent or foreclose the Congress from enacting a divorce law.
Among the advocates of this position was the late Fr. Joaquin Bernas, a very active, articulate, and authoritative Catholic prelate.
After the late Commissioner Chito Gascon introduced the aforesaid concepts of marriage and family, Fr. Bernas rose to interpellate him in this wise:
“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.” (Underscoring supplied)
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.” (Emphasis supplied)
It should be underscored that no Commissioner posited a dissenting view.
In fact, the Constitution does not prohibit divorce.
The foregoing erases doubts on the constitutionality of this measure.
Empirical data in countries which have instituted absolute divorce document that the passage of the law did not open the floodgates to separations and divorces.
Human Rights Dimension of Divorce
The United Nations Human Rights Office of the High Commissioner stated that: “Human rights are rights we have simply because we exist as human beings - they are not granted by any state. These universal rights are inherent to us all, regardless of nationality, sex, national or ethnic origin, color, religion, language, or any other status. They range from the most fundamental - the right to life - to those that make life worth living, such as the rights to food, education, work, health, and liberty.”
The Equality and Human Rights Commission also said that: “Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death.”
While the United Nations expressed that: “Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination.”
Section 1 of Article XIII on Social Justice and Human Rights of the 1987 Constitution provides that: “The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities x x x”.
The right to divorce is not strictly a human right. It is not specifically provided for under the Universal Declaration of Human Rights, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Magna Carta of Women.
However, the Cornell University School of Law held “While married couples do not possess a constitutional or legal right to divorce, states permit divorces because doing so serves public policy.” (Emphasis supplied).
Human Rights Guide, in its “European Platform for Human Rights Education” said that “Although your right to divorce is not a human right, divorce proceedings can affect your human rights, such as the right to a private and family life x x x”.
Divorce may not be a human right but the lack of recourse to divorce directly affects other human rights like a person’s: (1) right to life and liberty (if there is violence and brutality involved), (2) the right to highest attainable standards of physical and mental well-being (if there is mental or physical abuse), (3) freedom of opinion and expression (an abusive, overbearing spouse may control the wife’s thoughts and prohibit her from expressing independent opinion), (4) freedom of movement (a husband can curtail his wife’s movements), and (5) the right to education and remunerative work (if the wife is prevented to further or finish her education or seek employment).
It is important to underscore that although the United Nations Universal Declaration on Human Rights did not include particularly the right to divorce as one of the 30 human rights, Art. 16 of said Declaration provides: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” (Emphasis supplied).
“Dissolution” can encompass a divorce decree.
My advocacy for absolute divorce is anchored on my crusade for the protection and promotion of human rights. I personally believe that the right to divorce has human rights perspectives and implications.
It must be underscored that human rights currently encompass civil, political, cultural, economic, and environmental rights. Then why should it not cover personal rights like the right to secure a divorce from a toxic and abusive relationship?
I believe that the right to divorce was institutionalized almost simultaneously with the right to marry. This is a recognition that untying the marriage knot is at par with tying the marital knot.
As a final statement to this speech, I would like to reiterate that absolute divorce in the Philippines is not for everybody. The vast majority of marriages of Filipinos are harmonious and lasting. Absolute divorce is for exceptional cases of spouses, particularly of wives, who are victims of abuse, infidelity and desertion. They need a second chance for marital bliss or principally liberation from haunting torments of a long dead marriage.
As aptly pronounced by the Supreme Court in Te v. Te (GR No. 161793, Feb. 13, 2009), the severance of a marriage bond is a decent interment of a long-dead marriage.
Thank you and more power and success to our enduring advocacy.