Unpopular Opinion on the proposed Absolute Divorce Bill of the Philippines

House Bill 7303 was approved on the third and final reading coming from the House of Representatives and it is now awaiting approval on the Senate side.  If the latter approves it with no further modifications, the bill will become a law and a married Filipino couple may now opt for absolute dissolution of their marriage on the following grounds:

• Physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
• Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
• Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
• Final judgment sentencing the respondent to imprisonment of more than six (6) years, even if pardoned;
• Drug addiction or habitual alcoholism or chronic gambling of the respondent;
• Homosexuality of any of the spouses;
• Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
• Marital infidelity or perversion or having a child with another person other than one’s spouse during the marriage, except when upon the mutual agreement of the spouses, a child is born to them by in vitro or a similar procedure or when the wife bears a child after being a victim of rape;
• Attempt of the respondent against the life of the petitioner, a common child or a child of the petitioner;
• Abandonment of petitioner and/or their children under the custody of the petitioner by respondent without justifiable cause for more then one (1) year. When the spouses are legally separated by judicial decree for more than two (2) years, either or both of spouses can petition the proper court for an absolute divorce based on said judicial decree of legal separation;
• The party in whose behalf it is sought to have the marriage annulled was eighteen (18) years of age or over but below twenty-one (21), and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one (21), such party free cohabited with the other and both lived together as husband and wife;
• Either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
• The consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
• The consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
• Either party was physically incapable of consummating the marriage with the other, and such incapacity continues or appears to be incurable;
• Either party was afflicted with the sexually transmissible infection found to be serious or appears to be incurable;
• When the spouses have been separated in fact for at least five (5) years at the time the petition for absolute divorce is filed, and reconciliation is highly improbable;
• Psychological incapacity of either spouse;
• When one of the spouses undergoes gender reassignment surgery or transition from one sex to another; and
•  Irreconcilable marital differences and conflicts which have resulted in the total breakdown of the marriage beyond repair, despite earnest and repeated efforts at reconciliation.

Why there is no Divorce in the Philippines?

Because the 1987 Philippine Constitution said so. Article XV – The Family, provides: “xxx Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. xxx”

According to Oxford dictionary, INVIOLABLE means “never to be broken, infringed, or dishonored”. Similar words are “absolute; unbreakable; unchallengeable; impregnable; sacrosanct; sacred; holy”. Meaning, if a marriage was validly instituted, it can never be dissolved, except by the death of any party.

What is the difference between Divorce and Annulment?

Here in the Philippines, we do not have divorce, but we do have an annulment. So how to distinguish one from the other?

In divorce, the marriage is valid only that it was severed for whatever reason; in annulment, the marriage was void from the beginning – as if it has never happened.

In annulment, you apply for a judicial declaration that the marriage was null and void from the beginning; while in divorce you apply for a judicial approval that your valid marriage will be severed.

In short, when you seek an annulment, it is as if that your marriage was a mere farce, fraudulent, null and void, and did not exist in the first place, while divorce acknowledges that there was a valid marriage only that a party wishes to dissolve it.

Constitutionality of Annulment

Annulment is constitutional because it proposes there was no valid marriage in the first place. If there is no marriage, there is nothing to be severed hence it does not violate Article XV Section 2 of the 1987 Constitution. Annulment only seeks Judicial Declaration that the supposed marriage was actually void from the beginning, as there was no marriage to begin with.

Constitutionality of the Divorce Bill

Will the Divorce Bill, should become a law, pass the Constitutionality challenge?

I do not believe so.

The 1987 Constitution is the Supreme Law of the Land, all other laws are emanating from it and should be subservient, conform, and should not deviate or contravene from it at the pain of being declared unconstitutional.

A Bill from the Congress such as the proposed Bill, once approved will become a Republic Act; the 1987 Constitution is supreme than the Republic Act, meaning the Republic Act must not deviate nor contravene against the Constitution or else the Republic Act will be declared unconstitutional by the Supreme Court as it is repugnant to the constitution.

Unconstitutional means that the subject is against the constitution and will be considered invalid, inoperable and does not create any right nor obligation, among others.

Again, 1987 Philippine Constitution Article XV – The Family, Section 2, provides: Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

If there is a law making the marriage violable, such as the proposed Absolute Divorce Bill, it will surely hit an impregnable concrete wall and will come crashing down.

So, how to make the proposed Absolute Divorce Bill constitutional? Short answer: Take down first the wall that the Bill will come crashing to.

In other words, we need to amend the 1987 Constitution in order to be able to have an Absolute Divorce here in the Philippines. But that is another story and good luck with that and may God bless the Philippines.