NECESSITY
The deletion of the provisions on ab solute
divorce merely reflects the trend which Filipino
Family Law has taken during the past two
decades (Juco, 1966). However, the Old Civil
Code in 1950 and the Family Code drafted in
1988 reflects a different situation in the
Philippines. Three decades after the drafting of
the New Civil Code, Philippine society and
marital relations have evolved; thus, there is a
need to revisit the necessity of divorce in the
country.
It becomes relevant to assess periodically the
state of Filipino marriage in order to ascertain
how well ( or badly) it is faring in times of stress
and change. (Vancio, 1980)
[PROVIDE STATISTICAL DATA TO SUPPORT
THE NEED FOR DIVORCE]
[PROVIDE DATA BEFORE 1988 AND AFTER
1988 TO SUPPORT CLAIM THAT THERE IS AN
INCREASE NEED FOR DIVORCE]
[REMEMER PHILIPPINES SET UP]
[REBUTTAL TO EXISTING LAWS PUNISHING
CONCUBINAGE, LEGAL SEPARATION, ETC.]
The law, in the case of the husband, is far from
fool-proof. Legally, the keeping of a querida
does not even give rise to a ground for legal
separation until it amounts to concubinage.
Thus, if he should see his mistress from time to
time without cohabiting with her openly, or if
he should have sexual intercourse with her
under circumstances which are less than
scandalous, or if he should not maintain his
BENEFICIALITY PRACTICABILITY
Section 2. Declaration of Policy. – “it shall also
give the opportunity to spouses in irremediably
failed marriages to secure an absolute divorce
decree under limited grounds and well-defined
judicial procedures to terminate a continuing
dysfunction of a long broken marriage; save the
children from the pain, stress, and agony
consequent to their parents’ constant marital
clashes; and grant the divorce spouses the
right to marry again for another chance to
achieve marital bliss.”
[REBUTTAL TO EFFECT TO CHILDREN]
Section 3(6). – A divorce decree shall include
provisions for the care and custody of children,
protection of their legitimate, termination and
liquidation of the conjugal partnership of gains
or the absolute community, and alimony for the
petitioner.
Section 3(7) – Even as absolute divorce is
instituted, the State has the role of
strengthening marriage and family life by
undertaking relevant pre-nuptial and post-
matrimonial programs and activities.
Section 10(h) – The legitimate and adopted
children of divorced parents shall retain their
legal status and legitimacy; a child conceived or
born within 300 days after the filing of a
petition for absolute divorce shall be considered
legitimate, unless the ground for divorce is the
marital infidelity of the wife.
It covers grounds which occurred during the
marriage.
[ANNULMENT V. DIVORCE]
About 95% of Filipinos need to file a nullity of
marriage or an annulment to legally terminate
their marriage. However, only a small fraction
resort to these remedies because, while the
outcome is uncertain, costs are high (usually
not less than three months of average labour
earnings, and sometimes much more) and the
legal procedures are long and complex.
Completing a matrimonial dissolution case
typically takes between six and eighteen
months but the procedure can also extend over
several years (Lopez, 2006).
[AS TO EXPENSIVE FEE]
Section 3 (2). – The State shall assure that the
court proceedings for the grant of absolute
divorce shall be affordable and inexpensive,
particularly for court assisted litigants or
petitioners.
[AS TO ABUSE OF DIVORCE]
To secure that divorce will not be abused, Sec.
3(5) and Section 9 provides a six-month
cooling-off period after the filing of a petition for
absolute divorce as a final attempt for
reconciliation. Likewise Sec. 3(1) provides that
it shall only be judicially decreed after the fact
of an irremediably broken marital union or a
marriage that is defective from the start.
mistress in the same dwelling as his legitimate
wife, the latter cannot even bring an action for
legal separation against him in court. His
conduct does not amount to concubinage as
defined by the Revised Penal Code (Juco, 1966).
Thus, the provisions in the RPC and that of the
New Civil Code are strict and limited. A remedy
has to be provided for such situation, thus, the
necessity for divorce arises.

She may, of course, as a last resort, simply

leave him and refuse to cohabit with him,
which would be a separation de facto. But this
does not solve all of her problems. There are the
custody of the children and the problem of
support to think of. In such cases, the
technicalities of the law appear to be nothing
but sheer obstructions. (Juco, 1966)

Three theories have been advanced to date

concerning the causes which may justify
divorce: the principle of fault, the principle of
consent and the breakdown principle. (Juco,
1966)

A substantial 47 percent of the males preferred

a more "drastic" action such as legal
separation, physical intervention, or for some
even divorce if such were permitted. Clearly,
the urban wife is up against a male "double
standard" with regard to extramarital relations;
the men engage in it more often than the
females, but are less tolerant of wives who
might be involved in similar sexual liaisons.
(Vancio, 1980)

[REBUTTAL TO RELIGION ARGUMENT]

The arguments in favor of divorce refer mainly
to these lines of thought: divorce legislation for
the Philippines is a political and not a religious
issue. The state has a duty to provide solutions
for those citizens whose marriages have been
irretrievably broken so that they can enter into
a second civil marriage if they so wish.
Moreover, a divorce law would promote equality
before the law for women; such a legislation
would undercut the legal protection now
implicitly granted to the querida system and in
this sense strengthen the institution of
marriage. (Jucio, 1980)

Most Filipinos who wish to end their marriage

resort to informal separation. Ideally, couples
need to apply for a legal separation that
provides them with legal sanction to live
separately, but in reality most couples,
especially the poor, just live separately without
going through this legal procedure. Although
most Filipinos still value marriage, the
proportion who separate from their spouse,
both legally and informally, is increasing.
(Abalos, 2017)

Given these realities, couples must have the

option to avail of remedies that will pave the
way for the attainment of their full development
and self-fulfillment and the protection of their
human rights. Existing laws are not enough to
address this need. To quote the Women’s Legal
Bureau, Inc., a legal resource NGO for women:
“The present laws relating to separation of
couples and termination of marriage are
inadequate to respond to the myriad causes of
failed marriages. Particularly, the remedies of
declaration of nullity and annulment do not
cover the problems that occur during the
existence of marriage. Legal separation, on the
other hand, while covering problems during
marriage, does not put an end to marriage.”

[AS TO PROTECTION OF SANCTITY OF

MARRIAGE]
If the other side contends that it downgrades
the value of family and sanctity of marriage, we
can argue that the House Bill provides an
avenue for reconciliation (Section 11).
 NON-NECESSITY
Even presuming that absolute divorce would
minimize the occurrence of the querida system,
there is no guarantee that it will eliminate it.
(Juco, 1966)
[REBUTTAL TO THE PROTECTION OF
SANCTITY OF MARRIAGE IS PROTECTED]
The difficulty with the Principle of Faith is that
it looks upon marriage, not as an inviolable
social institution, an act or a status, but as a
mere contact. Since rescission and annulment
of contracts are allowed in case of violations of
their terms or the non-fulfillment of their
conditions, this principle assumes that
marriage, like any other contract, may be so
dissolved, and the parties freed from the effects
thereof.
[AS TO RELIGIOUS ARGUMENT]
“What God has put together let no man put
asunder”. This biblical quote is frequently
heard among Filipinos, particularly among the
older generations, to discourage young people
from leaving an unsatisfactory marriage. The
indissolubility of marriage is also strongly
advocated by the Catholic Church, to which
80% of Filipinos belong. (Abalos, 2017)
NON-BENEFICIALITY
Divorce prejudices the normality of the lives of
the children. It may be a source of social
embarrassment or hiya, not necessarily for the
spouses, but for their children. In the countries
where divorce is allowed, the system of divorces
has been subjected to grave abuse. (Juco,
1966)
[QUERIDA SYSTEM]
Divorce would be easy for the wealthy to obtain,
since they will be able to afford it in spite of the
financial obligations which it may entail. Poor
couples, on the other hand, may decide to avoid
the idea completely, in the belief that it will be
cheaper and less bothersome to maintain a
querida than to support two or more wives.
Thus, divorce would not afford an absolute and
complete cure for the ills spawned by the
querida system. (Juco, 1966)
NON-PRATICABILITY
[AS TO MUTUAL CONSENT NEEDED]
What makes difficult the actual application of
the Principle of Consent is the fact that, quite
often, the consent is not mutual, and therefore
divorce cannot take place. One of the parties
may be un willing to end the relation, whether
the reason be one of social convenience,
economic stability or even "nobler" motives. For
this reason, exponents of this principle believe
that it is most effective if combined with the
principle of fault. For even if one party is
unwilling to end the marriage, if he is the party
at fault, then the other spouse can make use of
the fault principle (the innocent spouse can
resort to divorce without consent of the spouse
at fault) to obtain a divorce. (Juco, 1966)
There is a tendency for abuse of divorce.
SOURCES:

Abalos, J.B. (2017). Divorce and separation in the Philippines: Trends and correlates. Demographic Research 36 (50): 1515-1548. doi:
10.4054/DemRes.2017.36.50.

Absolute Divorce Act of 2018, H.B. 7303, 17th Cong. (2018).

Juco, J. M. (1966). Fault, Consent and Breakdown—The Sociology of Divorce Legislation in the Philippines. Philippine Sociological Review, 14(2),
67-76. doi:128.111.121.42

Lopez, J. (2006). The law of annulment of marriage rules of disengagement: How to regain your freedom to remarry in the Philippines. Pasig City:
Anvil Publishing.

Vancio, J. A. (1980). The Realities of Marriage of Urban Filipino Women. Philippine Studies, 28(1), 5-20. doi:141.209.100.60