PROTECTING WOMENS RIGHTS: A MOVE FOR THE

INSTITUTIONALIZATION OF ABSOLUTE DIVORCE AS AN

ALTERNATIVE MODE OF DISSOLVING MARRIAGES OF
NON-MUSLIMS AND FOR THE AMENDMENT OF THE
PROVISIONS ON DIVORCE OF THE CODE OF MUSLIM
PERSONAL LAWS
---------A Thesis
Presented to
The Ateneo de Manila University School of Law

---------In Partial Fulfillment

Of the Requirements for the Degree
Master of Laws

----------By
Atty. Ma. Veronica Abutan
December 2013

Atty. Ma. Veronica Abutan

PROTECTING WOMENS RIGHTS: A MOVE FOR THE
INSTITUTIONALIZATION OF ABSOLUTE DIVORCE AS AN
ALTERNATIVE MODE OF DISSOLVING MARRIAGES OF
NON-MUSLIMS AND FOR THE AMENDMENT OF THE
PROVISIONS ON DIVORCE OF THE CODE OF MUSLIM
PERSONAL LAWS
Marriage is viewed as a lifetime commitment. It is designed to last forever.
But the attribute of permanency of marriage does not hold true for every couple.
Disputes and disappointments between couples arise from differences in
personalities, temperaments and attitudes which lead married couples to seek
dissolution of their marriage. Love may then be superseded by animosity. Couples
think of separation as the best solution to the situation.
In the Philippines, the modes by which married couples can separate or
dissolve their validly existing marriages are legal separation and annulment. These
are the legal remedies provided for under the Family Code. Absolute divorce is still
not recognized in the country except in these two cases: 1) when the foreign spouse
obtains a divorce decree in a foreign country; and, 2) when the couples involved are
Muslims. Muslims are governed by a different law which is called the Sharia law
which provides for absolute divorce.
The proponent perceives the nonavailability of absolute divorce as a
remedy to non-Muslim spouses as a violation of the human rights of women.
Furthermore, despite the fact that a divorce law exists for Muslims, the said law
still failed to completely satisfy womens human rights because the Sharia law
negates the bedrock principle of equality between men and women.
It is then the legal position of the proponent that absolute divorce should be
made available to non-Muslim spouses as an alternative or additional mode of
dissolving marriage and that the Sharia law on divorce must be amended in order
to establish equality between Muslim men and women.

TABLE OF CONTENTS
CHAPTER
PAGE
I. Introduction
A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
B. Statement of the Problem . . . . . . . . . . . . . . . . . . . . . . ..... . . .. .. . 5
C. Significance of the Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
D. Scope and Limitations of the Study . . . . . . . . . . . . . . .. . . . . . . . .8
E. Objective of the Study . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .. . . . . 8
F. Methodology . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 8
G. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II. Philippine Laws on Marriage
A. 1987 Constitution
1. Nature of the Contract of Marriage . . . . . . . . . . . .... . . . .10
2. Policy of the State Towards Marriage . . . . . . . . . . . . . . . . 11
B. Family Code
1. Background and Scope of Application . . . . . . . . . . . . . . . 12
2. Nature of the Contract of Marriage. ...... .. . . . . . . .. . . . . 13
3. Legal Remedy Available to Spouses
a. Annulment . . . . . . . . . . .. . . . . . . . . . . . . .. . . . . . . . . .15
b. Legal Separation . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .20
4. Foreign divorce . . . . . . . . . . . . . . . . . . . . . ... .. . . . . . .. . . .26
5. Psychological Incapacity . . . . . . . . . . . . . . . . . . . . . . . . . 30
6. Presumptive Death . . . . . . . . ............... . .. . . . . . . . . . . 38
C. Code of Muslim Personal Laws
1. Background and Scope of Application . . .. . . . .... . . . . . . . 40
2. Nature of the Contract of Marriage. . . . . . .. .. . . . . . . . . . 43
3. Legal Remedy Available to Spouses
a. Absolute Divorce . . . . . . . . . . . . .......... . . . . ... . . . . . . 45
III. A Human Rights Framework for Resolving the Divorce Issue
A. Protection of Families . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .55
B. Right to Life . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
C. Protection Against Gender-Based Violence . . . . . .. . . . . . . 60
D. Gender Equality . . . . . . . . . . . . . . . . .. .. . . . .. . . . . .. .. . . . .61
E. Non-Discrimination . . . . . . . . . . . . . .. . . . .. . . . . . . . . .. . . . .68
F. Equal Protection Clause . . . . . . . .. . . . .. . . .. . . . . . . . . .. . . . 74
IV. Critique on the Non-Availability of Absolute Divorce as a Legal Remedy to
Non-Muslim Spouses and on the Discriminatory Provisions on Divorce
of the Code of Muslim Personal Law
A. Protection of Families . . . . . . .. . . . . . . . . . . . . . . . . . . . . ..... . . . 81
B. Right to Life. . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .86
C. Protection Against Gender-Based Violence . . . . . . . . . . . .. . . . 88
D. Gender Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . 92

E. Non-Discrimination . . . . . . . . . . . .. . . . . . . . ........... .. . . . . . . . . 94
F. Equal Protection Clause . . . . . . . . . . . . . .. . . . .. . . . . .. . . . . . . . 100
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .. . .
. . . . . .104
VI. Recommendations
A. Divorce Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106
B. Amendments to the Divorce Provisions of the Code of Muslim
Personal Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

I. INTRODUCTION
If a man doesnt like something about his wife,
He may write a letter stating that he has divorced her,
Give her the letter and send her away.
-Deuteronomy 24:1

A. Background
Marriage is the foundation of the family. At present, the family is in the
midst of controversies. The problem is the precipitous decline in family solidarity.
This decline in family solidarity in turn results in marital breakdowns. When the
ties that bind couples are eventually lost and the marital relationship turns into a
combat between the husband and wife, married couples are given remedies under
the law.
Couples can resort to either an annulment or a legal separation. Absolute
divorce is not provided for under the Family Code. Under Article 26 of the said
Code, however, it is provided:
ART. 26. All marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.

Prof. Melencio Sta. Maria, Jr. explained the rationale behind Article 26
paragraph 2.
The divorce recognized under Article 26 was prompted by the lamentable
experiences and disadvantageous position of many Filipinos who, before

the effectivity of the Family Code and though divorced by their alienspouses abroad, could not validly marry again, thereby forcing them to
live, in the eyes of Philippine law, in illicit relationships with others in the
event they decide to re-marry abroad.1

In the past, absolute divorce was allowed by the State. During the American
occupation of the Philippines, a divorce law was enacted (Act no. 2710).
In 1917, Commonwealth Act No. 2710 of the American colonial period
provided for absolute divorce with only two grounds: (1) adultery on the
part of the wife; and (b) concubinage on the part of the husband. It
implicitly ruled out relative divorce. 2

During the Japanese occupation, there was also a divorce law.

During the Japanese occupation of the Philippines (1941 to 1944),
Executive Order No. 141 provided nine other grounds for divorce aside
from adultery and concubinage, such as, attempt by one spouse against
the life of the other; or "slander by deed or gross insult by one spouse
against the other to such an extent as to make further living
impracticable. 3

No doubt, a significant number of legislators filed bills to re-introduce

divorce in the Philippines. It is interesting to note that there were four bills filed in
the House of Representatives regarding divorce. They were the following:

MELENCIO S. STA. MARIA, JR., PERSONS AND FAMILY RELATIONS LAW 167 (3rd ed. 1999)
[hereinafter STA. MARIA, PERSONS].
2
Veronica Fenix-Villavicencio, Our Right to Self-Determination: Pilipina's Position on the Issue of
Divorce (An Online Paper) available at http://library.fes.de/pdf-files/bueros/philippinen/50068.pdf
(last accessed February 27, 2013). citing Paras, Edgardo, Civil Code of the Philippines, Annotated,
13th edition, 1994, citing Garcia vs. Tuazon, 40 Phil. 943.
3
Id.

a. House Bill No. 6993 introduced by Manuel Ortega4

b. House Bill No. 878 introduced by Bellaflor Angara Castillo5
c. House Bill No. 3461 introduced by Liza Maza6

H.B. No. 6993, 11th Cong., 1st Reg. Sess. (1999). The bill was formulated to supplant the
provisions of the Family Code on legal separation. The grounds for legal separation are incorporated
in the bill as grounds for divorce with the additional ground of irreconcilable marital differences.
The bill reiterated the grounds for denial of a petition for legal separation as grounds for denial of a
petition for divorce. The bill likewise puts forward the following additional grounds for denial: (1)
where the irreconcilable marital differences are not sufficient to justify divorce; and, (2) where the
petitioner has not resided within the Philippines for at least one year prior to the filing of the
petition, unless the cause upon which the petition is based occurred within the territory of the
Philippines. The bill provides that the prescriptive period for divorce is one year from the time the
petitioner becomes cognizant of the cause. However, the action for divorce must be filed within five
years from the time of the occurrence of the cause. The author of the bill intends to give the same a
retroactive effect by allowing spouses to file actions for divorce even if the ground for the same
occurred prior to the effectivity of the bill. But such petition must be filed within one year from the
date of the effectivity of the bill and that the ground for the petition occurred within five years from
the filing of the action. The bill also allows amendment of petitions for legal separation filed before
the effectivity of the bill to petitions for divorce but the amendments must be made within one year
from the effectivity of the bill. The bill mandates that a cooling-off period be observed. The bill
enjoins the court to try their best efforts toward reconciliation of the spouses. The bill also mandates
that the court cannot place reliance on stipulation of facts and confession of judgement. Moreover,
the bill allows the spouses to live separately from each other after the filing of an action for divorce.
The bill provides for the dissolution of the marriage bond one year after the date on which the
decree becomes final. The bill decrees equal division of the net profits of the absolute community or
conjugal partnership. The bill also states that the division of net profits may be done in a manner
agreed upon by the parties. However, when there is an adjudged offending spouse, the said spouse
shall have no right to share in the net profits. The divorce decree will have no legal effect upon the
spouse who fails to comply with the delivery of the presumptive legitime of children. Reconciliation
between the spouses can still be done despite the issuance of a divorce decree. The divorce
proceedings will be terminated whenever there is reconciliation between the spouses. If there is
already a divorce decree, the same will be set aside if the spouses should reconcile. The spouses are
likewise not prevented from reviving their property regime.
5
H.B. No. 878, 12th Cong., 1st Reg. Sess. (2001).House Bill No. 878 and House Bill No. 6993
contain the same provisions.
6
H.B. No. 3461, 14th Cong., 1st Reg. Sess. (2005). The bill introduces divorce as an additional
remedy for spouses. Section 2 of the bill enumerates the grounds for divorce, to wit:
(1)The petitioner has been separated de facto from his or her spouse for at least five
(5) years at the time of the filing of the petition and reconciliation is highly
improbable;
(2) the petitioner has been legally separated from his or her spouse for at least two
years at the time of the filing of the petition and reconciliation is highly
improbable;
(3) when any of the grounds for legal separation under paragraph A of this Article
has caused the irreparable breakdown of the marriage;

d. House Bill No. 1799 introduced by Luzviminda Ilagan and Emerencia De

Jesus7
On the other hand, the Senate also produced its own version of bills on
divorce. Senator Rodolfo Biazon introduced Senate Bill No. 7828.
None of the said bills, however, was ever passed into law. Opposition to the
passing of an absolute divorce bill is strong even among lawmakers. Legal and
(4) when one or both spouses are psychologically incapacitated to comply with the
essential marital obligations;
(5) when the spouses suffer from irreconcilable differences that have caused the
irreparable breakdown of the marriage
The bill reduced the number of grounds for denial of a petition for legal separation from six
to two. The bill also provides for a cooling-off period of six months in case of legal separation
except if the ground involves acts of violence. In such case, Republic Act 9262 shall apply. The
six-month cooling-off period shall also apply to cases of divorce if the ground is irreconcilable
difference or any of the grounds for legal separation. Again, if the ground involves acts of violence,
Republic Act 9262 shall apply.The bill maintained Article 59 of the Family Code on reconciliation
efforts. The bill also adopted Article 60 of the Family Code on stipulation of facts and confession
of judgment. The bill also lifted from the Family Code the effect of filing of a petition for legal
separation. The same rule shall apply to divorce. Hence, after the filing of a petition for legal
separation or divorce, the spouses can live separately from each other. The bill provides that
Article 49 of the Family Code will apply with respect to the support of the spouses and custody and
support of common children.
The bill introduced additional effects of legal separation. First, the assets shall be divided equally
between the spouses. Second, the offending spouse shall pay the innocent spouse actual, moral, and
exemplary damages in accordance with the Civil Code provisions on Damages. Third, the innocent
spouse and the children shall be entitled to support in accordance with the provisions of this code.
Fourth, the children shall be entitled to their presumptive legitime which shall be computed as of
the date of the final judgment of the court. This is similar to the provision of the Family Code on
annulment.
In contrast to a legal separation decree, a divorce decree severs the marriage bond. The spouse who
is not gainfully employed is entitled to support from the other spouse until he or she finds adequate
employment. The support, however, is only for a period of one year from the finality of the decree
of divorce. The custody of the minor child shall be decided by the court in accordance with the best
interests of the child. The bill makes a declaration that children conceived or born before the decree
of divorce has become final and executory shall be considered legitimate.The bill adopts Article 64
of the Family Code on revocation of donations. The bill likewise adopts Articles 65 and 66 of the
Family Code on reconciliation in case of legal separation.
The bill also recognizes a divorce decree obtained by a Filipino citizen abroad if the ground for
such divorce is one of the grounds for divorce in this bill.
7
H.B. No. 1799, 15th Cong., 1st Reg. Sess. (2010). House Bill No. 1799 and House Bill No. 3461
carry similar provisions.
8
S.B. No. 782, 12th Cong., 1st Reg. Sess, (2001). Senate Bill No. 782 and House Bill No. 6993
contain identical provisions.

moral arguments on the propriety of a law on absolute divorce are carefully

considered by legislators.
While the need for a law on absolute divorce is still being debated in
Congress, Muslims have already availed of absolute divorce since 1949 when
Republic Act 394, providing divorce for Muslim couples, was approved. Justice
Jainal Rasul states that:
The law was only good for 20 years but Presidential Decree No. 793 was
subsequently issued to continue the effectivity of the divorce law beyond
the 20-year period. Later, P.D. No. 1083 or the Muslim Personal Law was
issued which became effective in 1977.9

The Muslim Personal Law institutionalized absolute divorce among

Muslims.
B. Statement of the Problem
Although there are significant and novel changes in the field of womens
human rights, the problem lies with respect to the issue of absolute divorce. Did
the prevailing laws on marriage really solve the domestic problems of women?
The prevailing laws on dissolution of marriage are grossly deficient as they did not
allow absolute divorce. The present state of Philippine laws on marriage favors the
preservation of the marital tie. Stab thrusts on marital relations negatively affect
women more than the men.

Well-entrenched in Philippine society is the

conception that wives occupy a place inferior to husbands. Indeed, there is a

cogent reason to warrant a modification of Philippine laws on dissolution of

JAINAL D. RASUL, COMPARATIVE LAWS: THE FAMILY CODE OF THE PHILIPPINES AND THE MUSLIM
CODE 111-112 (1994) [hereinafter RASUL].

marriage in view of the hapless condition of women. A law on absolute divorce

will afford women opportunity to defend themselves against violent aggressions
on the part of their husbands. It is the proponents position that there should be a
complete severance of marital ties between the husband and the wife in proper
cases.

Although the State allowed Muslims to divorce, the problem lies with
respect to the issue of unequal application of the divorce law to Muslim men and
women.

There is an apparent transgression of the equal protection clause

enshrined in the Constitution. The divorce provisions of the Muslim Code do not
apply equally to Muslim men and women. Thus, in order to be accorded with
validity, the divorce provisions of the Muslim Code must be amended.

C. Significance of the Study

The emergence on October 1, 2011 of Maltas divorce law, abetted by the
vast majority of the members of the Maltese Parliament has revolutionized the
marital laws of the said country. It has irreversibly propelled Malta towards
liberalization of marital laws. The liberalization of the marital laws of Malta
ushered in a new direction by sweeping away as mere relic of the conservative era
the traditional notion of promoting and protecting marriages by totally prohibiting
absolute divorce.

Like the Philippines, Malta is also a Catholic country. Maltas approval of

the divorce law is a challenge to the Philippines to replace its age-old policy of no
divorce for non-Muslims. The example set by Malta should inspire the legislative
branch to revisit and reassess its policy of no divorce vis--vis its concurrent
obligation to craft remedial legislation to uplift the lives of marginalized wives.

It is equally important to stress that though the State permitted Muslims to

divorce, the requirements of the equal protection clause and the policy of nondiscrimination were not observed. One can neither overemphasize nor
underestimate the significance of according utmost premium to gender equality. It
appears that this vital aspect was treated with cavalier disregard. It is frustrating
that Muslim women have been treated differently in respect of divorce.

As the nation grapples with questions regarding the need for a legislation on
divorce, it is imperative to revisit the current laws of the Philippines on dissolution
of marriage and determine whether the current laws sufficiently satisfy the human
rights of women and whether the current laws on dissolution of marriage
specifically the Sharia law on divorce comply with the equal protection clause and
the non-discrimination policy.

D. Scope and Limitations of the Study

It should be stressed that in arguing for the institutionalization of absolute

divorce for non-Muslims in the country, the proponent will not review the other
issues on absolute divorce. Rather, the proponent will determine whether or not
there is a violation of the human rights of non-Muslim women on the part of the
State in disapproving absolute divorce for non-Muslims. The proponent will also
determine whether the State violated the rule on non-discrimination and equal
protection when it allowed the unequal treatment between Muslim men and women
with respect to divorce.

E. Objective of the Study

This study endeavors to demonstrate the lack of sufficient laws that will
protect the human rights of women in the family. This study also endeavors to
establish the disparate impact of the Sharia law on divorce on Muslim womens
right to equal protection and against discrimination.

F. Methodology

The proponent determined that the appropriate method for her research is
the obtention of information from the writings and opinions of competent
authorities with a view to determining whether or not there is a violation of the
human rights of women on the part of the State in disapproving absolute divorce
for non-Muslims. Moreover, the proponent will make an analysis of the Sharia law

on divorce and evaluate its effects on the right of Muslim women to equal
protection and their right against discrimination.

G. Organization

This study consists of six (6) chapters. Chapter one (I) introduces the
subject matter of this study.

Chapter two (II) reviews Philippine Laws on

Marriage. Chapter three (III) discusses in detail the framework for resolving the
divorce issue. Chapter four (IV) contains the critique on the non-availability of
absolute divorce as a legal remedy to non-Muslim spouses and the discriminatory
provisions on divorce of the Code of Muslim Personal Laws. Chapter five (V)
contains the proponents conclusion. The recommendations of the proponent are
found in Chapter six (VI).

II. PHILIPPINE LAWS ON MARRIAGE

A. 1987 Constitution
1. Nature of the Contract of Marriage
Article XV Sec. 2 of the 1987 Constitution states that:
Section 2. Marriage, as an inviolable social institution, is the foundation of
the family and shall be protected by the State.

The Constitution considers marriage as sacred. Marriage is perceived as an

institution of a permanent character. When couples enter into marriage, there is an
expectation that they will be together for the rest of their lives.
In the case of Republic of the Philippines vs. Norma Cuison-Melgar,10 the
Supreme Court in deciding a petition for declaration of nullity of marriage
emphasized the concept of marriage, thus:
Prefatorily, it bears stressing that it is the policy of our Constitution to
protect and strengthen the family as the basic autonomous social institution
and marriage as the foundation of the family. Our Family Law is based on
the policy that marriage is not a mere contract, but a social institution in
which the State is vitally interested. The State can find no stronger anchor
than on good, solid and happy families. The breakup of families weakens
our social and moral fabric and, hence, their preservation is not the
concern alone of the family members.11

The Constitution conferred on marriage an inviolable character that makes

its dissolution the subject of scrutiny by the courts. The inviolability of marriage
does not mean that there is no way out if things do not turn out well for the couples.
10

Republic v. Cuison-Melgar, 486 SCRA 177, 184-185 (2006).

Id. citing Section 12 of Article II of the 1987 Constitution and Sections 1 and 2 of Article XV of the
1987 Constitution, Ancheta v. Ancheta, G.R. No. 145370, March 4, 2004, 424 SCRA 725,
740; Tuason v. Court of Appeals, 326 Phil. 169, 180-181 (1996).
11

Sufficient proof must be adduced before the courts could declare the marriage as
annulled.
2. Policy of the State Towards Marriage
The State recognizes the significance of the family in society.
Consequently, the State endeavors to protect Filipino Families. Article XV, Sec. 1
of the Constitution reads:
Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote
its total development.

In Republic of the Philippines vs. Lynnette Cabantug-Baguio case,12 the

Court stated that:
The Constitution sets out a policy of protecting and strengthening the
family as the basic social institution and marriage as the foundation of the
family. Marriage, an inviolable institution protected by the State, cannot
be dissolved at the whim of the parties. In petitions for the declaration of
nullity of marriage, the burden of proof to show the nullity of marriage lies
on the plaintiff. Any doubt should be resolved in favor of the existence
and continuation of the marriage and against its dissolution and nullity.13

The State secures the welfare of Filipino families by defending their rights such as
1.) the right to found a family in accordance with their religious convictions and
the demands of responsible parenthood; 2.) the right of children to assistance,
including proper care and nutrition, and special protection from all forms of

12

Republic v. Cabantug Baguio, 556 SCRA 711, 727 (2008).

Id. citing Vide 1987 CONSTITUTION, Article XV, Sections 1 and 2; Republic v. Iyoy, G.R. No.
152577, September 21, 2005, 470 SCRA 508, 526-527, Vide 1987 CONSTITUTION, Article XV,
Section 2; FAMILY CODE, Article 1, Vide FAMILY CODE, Article 1; Perez-Ferraris v. Ferraris, G.R. No.
162368, July 17, 2006, 495 SCRA 396, 403, Republic v. Court of Appeals, supra note 40 at 676.
13

neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their

development; 3.) the right of the family to a family living wage and income; and 4.)
the right of families or family associations to participate in the planning and
implementation of policies and programs that affect them.14
In consonance with the protection of the family, the State likewise
undertakes to protect marriage which is declared as the foundation of the family
under the Constitution. The protective stance adopted by the State towards the
institution of marriage helps in maintaining stability in family relations. The
concepts of marriage and family cannot be separated. The policy adopted on one
would absolutely affect the other.
B. Family Code
1. Background and Scope of Application
On July 6, 1987, then President Corazon C. Aquino signed into law
Executive Order No. 209, otherwise known as the Family Code, which took
effect on August 3, 1988. 15

The Family Code was drafted by a Committee

composed of three well-renowned civilists, namely: Justice Jose B.L. Reyes,

Justice Eduardo Caguioa and Justice Ricardo C. Puno. 16 On July 17, 1987,
Executive Order No. 227 was signed into law, amending Articles 26, 36 and 39 of

14

PHIL. CONST. art. XV, III.

STA. MARIA, PERSONS, supra note 1, at 94
16
.Id.
15

the Family Code.17 Title X of the Family Code dealing with emancipation and age
of majority was amended when Republic Act No. 6809 was passed by Congress on
October 20, 1989 and approved by President Aquino.18 The said Act took effect on
December 18, 1989.19
The Family Code is composed of eleven (11) parts, namely: 1) marriage; 2)
legal separation; 3) rights and obligations between husband and wife; 4) property
relations between husband and wife; 5) the family; 6) paternity and filiation; 7)
adoption; 8) support; 9) parental authority; 10) emancipation and age of majority;
and, 11) summary judicial proceedings in the family law.
The Family Code governs non-Muslim Filipinos.
2. Nature of the Contract of Marriage
The nature of the contract of marriage is stated under Article 1 of the
Family Code which reads:
Article 1. Marriage is a special contract of permanent union between a
man and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of the family
and an inviolable social institution whose nature, consequences, and
incidents are governed by law and not subject to stipulation, except that
marriage settlements may fix the property relations during the marriage
within the limits provided by this Code.

Marriage is regarded as a special contract for several reasons. Firstly,

because it is an inviolable social institution whereas an ordinary contract usually
17

Id.
Id.
19
Id.
18

depends on the stipulation of the parties.20 The basic rule governing ordinary
contracts is Art. 1306 of the Civil Code which declares:
Art. 1306. The contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order, or public policy.

If the contract of marriage is allowed to depend on the agreement of the parties then
the inviolability accorded to it under the law would be rendered nugatory.
Secondly, marriage is dissolved in two cases namely: 1) death; and, 2) judicial
intervention whereas ordinary contracts are dissolved by agreement of the parties. 21
Couples cannot put an end to their marriage by extrajudicial settlement. Couples
desiring to end their marital ties should resort to courts and prove before the judge
the existence of the ground for annulment. Lastly, marriage is a union and a status
whereas ordinary contracts do not involve union and status.22 In the case of Ninal
vs. Bayadog,23 the Court ruled that:
This interest proceeds from the constitutional mandate that the State
recognizes the sanctity of family life and of affording protection to the
family as a basic "autonomous social institution." Specifically, the
Constitution considers marriage as an "inviolable social institution," and is
the foundation of family life which shall be protected by the State. This is
why the Family Code considers marriage as "a special contract of
permanent union" and case law considers it "not just an adventure
but a lifetime commitment.24 (emphasis supplied)

20

RASUL, supra note 9, at 45.

Id.
22
Id.
23
Ninal v. Bayadog, 328 SCRA 122, 128-129 (2000).
24
Id. citing Section 12, Article II, 1987 Constitution; Hernandez v. CA, G. R. No. 126010, December
8, 1999, Section 2, Article XV (The Family), 1987 Constitution, Article 1, Family Code, Santos v. CA,
58 SCAD 17 (1995); 310 Phil. 21, 41 (1995), Article 34, Family Code.
21

3. Legal Remedies Available to Spouses

In answer to the couples daunting marital problems, the Family Code extends
to them the following remedies: 1) annulment; and, 2) legal separation.
a. Annulment
Annulment is a proceeding in which a valid marriage is dissolved for
reasons specified by law. In a petition for annulment of marriage, the petitioner
must prove the existence of any of the grounds for annulment. Article 45 of the
Family Code declares the grounds for annulment.
Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage
annulled was eighteen years of age or over but below twenty-one, 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, such party freely cohabited
with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming
to reason, freely cohabited with the other as husband and wife;
(3) That 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;
(4) That 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;
(5) That either party was physically incapable of consummating the
marriage with the other, and such incapacity continues and appears to be
incurable; or
(6) That either party was afflicted with a sexually-transmissible disease
found to be serious and appears to be incurable.

The abovementioned grounds must exist at the time of the celebration of the
marriage. Marriages which fall under any of the enumerated grounds under Art. 45
of the Family Code are considered as valid until annulled. If the proper party
chooses not to file an annulment case then the marriage continues to be valid.
Article 4725 of the Family Code states the proper parties who should file the
annulment case.
It must be pointed out that the action for annulment must be filed within the period
stated under the abovementioned article.
Because of the States policy of protecting marriage, the Family Code
mandates that:
Art. 48. In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecuting attorney or fiscal assigned
to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not fabricated or
suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be
based upon a stipulation of facts or confession of judgment.
25

FAMILY CODE, Executive Order No. 209, art. 47 (1987). The action for annulment of
marriage must be filed by the following persons and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or
guardian did not give his or her consent, within five years after attaining the age of
twenty-one, or by the parent or guardian or person having legal charge of the
minor, at any time before such party has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the sane spouse, who had
no knowledge of the other's insanity; or by any relative or guardian or person
having legal charge of the insane, at any time before the death of either party, or
by the insane spouse during a lucid interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by the injured party, within
five years after the discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by the injured party, within
five years from the time the force, intimidation or undue influence disappeared or
ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party,
within five years after the marriage

In order not to jeopardize the interest of the family, the support of the
spouses as well as the support and custody of the common children during the
pendency of the annulment proceeding and in the absence of adequate provisions in
a written agreement between the spouses, are provided for by the court.26
After the trial of the annulment case, the final judgment to be rendered by
the court shall provide for the liquidation, partition and distribution of the
properties of the spouses, the custody and support of the common children, and the
delivery of their presumptive legitimes, unless such matters had been adjudicated
in previous judicial proceedings.27

26

Id. art. 49. During the pendency of the action and in the absence of adequate provisions
in a written agreement between the spouses, the Court shall provide for the support of the
spouses and the custody and support of their common children. The Court shall give
paramount consideration to the moral and material welfare of said children and their choice
of the parent with whom they wish to remain as provided to in Title IX. It shall also
provide for appropriate visitation rights of the other parent.
27
Id. art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and
by Article 44 shall also apply in the proper cases to marriages which are declared ab initio
or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition and distribution
of the properties of the spouses, the custody and support of the common children, and the
delivery of their presumptive legitimes, unless such matters had been adjudicated in
previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the conjugal
partnership shall be notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be
adjudicated in accordance with the provisions of Articles 102 and 129.
Art. 51. In said partition, the value of the presumptive legitimes of all common children,
computed as of the date of the final judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual agreement judicially approved,
had already provided for such matters.
The children or their guardian or the trustee of their property may ask for the enforcement
of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the
ultimate successional rights of the children accruing upon the death of either or both of the
parents; but the value of the properties already received under the decree of annulment or
absolute nullity shall be considered as advances on their legitime.(n)

The decree of annulment would entitle the former spouses to marry again
after complying with the requirements of the law on partition, liquidation and
distribution of properties. Failure of the former spouses to do so would make the
subsequent marriage null and void.28
Annulment also produces the effect of cessation of the right to support of
the spouses. In the case of Mendoza vs. Parungao,29 the Court presented this
discussion:
The right to support between spouses arises from law (art. 143 of the Civil
Code) and is based upon their obligation to mutually help each other
created by the matrimonial bond. After the complaint for annulment of
marriage has been filed by the wife and admitted she is entitled to support
during the pendency of the suit (arts. 67 and 68, par. 4, Civil Code), but
once the nullity is decreed, the right ceases, because the mutual obligation
created by the marriage is extinguished. The marriage of the respondent
with the petitioner having been annulled on August 7, 1925, by virtue of
the rule enunciated, she was no longer entitled to support on September 14,
1925, when she filed her complaint for support. The same rule obtains in
the United States (38 C. J., 1258; 1 R. C. L., 939). This does not mean,
however, that she is not entitled to payment in advance of a part of her
undetermined share of the conjugal property if, after the liquidation sought
by her, there exists such conjugal property. In those states of the United
States where the institution of conjugal partnership prevails, it has been
held by the courts that the necessary sum may be taken from the
community property for the support of the wife (24 C. J., 246; 31 C. J.,
175).30

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons.
28
Id. art. 53. Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage
shall be null and void.
29
Mendoza v. Parungao, 49 PHIL 271, (1926).
30
Id.

The Family Code also determines the status of the children of the former spouses. It
is proper to quote Art. 54 of the Family Code.
Art. 54. Children conceived or born before the judgment of annulment or
absolute nullity of the marriage under Article 36 has become final and
executory shall be considered legitimate. Children conceived or born of
the subsequent marriage under Article 53 shall likewise be legitimate.

Notably, annulment has very limited grounds. Annulment is not sufficient

to protect the members of the family. Annulment is not a complete weapon that can
address and fully achieve the protection of the members of the family. Not all
grievances of the spouses can be subsumed under the defined grounds for
annulment. The spouses can commit misdemeanors not covered by the grounds for
annulment. Theses other misdemeanors must of course be addressed elsewhere if
they cannot be similarly addressed through annulment.
More importantly, the Family Code requires that the ground for annulment
must exist at the time of the celebration of the marriage. It bears stressing, however,
that most marital problems exist only after the marriage.
Take for instance the case of a wife who was boxed on the abdomen by her
husband which made the former cry in pain. Such circumstance does not
automatically vest the wife with the right to file an annulment case. In fact, the law
does not consider this circumstance as a ground for annulment.

It is just

unfortunate that the wife cannot invoke to her aid the remedy of annulment to
protect herself from violence.
b. Legal Separation

Legal separation is also called relative divorce. An explanation was given

by Justice Rasul as to why legal separation is also called relative divorce.
Legal separation is also termed relative divorce because it does not cut or
sever the marriage tie and therefore does not justify the parties to remarry
as opposed to absolute divorce which actually puts an end to marriage or
cut the vinculo matrimonii. 31

A period to file a petition for legal separation is provided under Art. 57 of the
Family Code. The aforesaid provision states:
Art. 57. An action for legal separation shall be filed within five years from
the time of the occurrence of the cause.

The said petition must be based on any of the grounds specified under the Family
Code. Article 55 of the Family Code provides the grounds for legal separation, to
wit:
Art. 55. A petition for legal separation may be filed on any of the
following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against
the petitioner, a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change
religious or political affiliation;
(3) 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;
(4) Final judgment sentencing the respondent to imprisonment of more
than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage,
whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
31

RASUL, supra note 9, at 113.

(9) Attempt by the respondent against the life of the petitioner; or

(10) Abandonment of petitioner by respondent without justifiable cause for
more than one year.
For purposes of this Article, the term "child" shall include a child by
nature or by adoption.

The abovestated grounds need not exist at the time of the marriage. These grounds
ordinarily arise after the marriage. The existence of such grounds will not preclude
the denial of such petition when any of the grounds for denial has been proved.32
Trial of the petition for legal separation will not be immediately held after
the filing of the petition. The Family Code imposes a cooling-off period.33 This is
to give the spouses a chance to reconcile in accordance with the States policy of
protecting marriage.
Similar to an annulment proceeding, decrees cannot be issued based upon
stipulation of facts or confession of judgment.34

32

FAMILY CODE, Executive Order No. 209, art. 56 (1987). The petition for legal
separation shall be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense or
act complained of;
(3) Where there is connivance between the parties in the commission of the
offense or act constituting the ground for legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree of legal
separation; or
(6) Where the action is barred by prescription.
33
Id. art. 58. An action for legal separation shall in no case be tried before six months shall
have elapsed since the filing of the petition.
34
Id. art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take
steps to prevent collusion between the parties and to take care that the evidence is not
fabricated or suppressed.

In the meantime, after having filed the petition for legal separation, the
spouses are entitled to live separately from each other.35 The provision on support
of the spouses as well as the support and custody of the common children during
the pendency of the annulment proceeding and in the absence of adequate
provisions in a written agreement between the spouses is the same provision used
during the pendency of the legal separation proceeding.36
The court also assigns an administrator in the absence of a written
agreement between the spouses.37 The effects of a decree of legal separation are
governed by Article 63 of the Family Code.
Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved
and liquidated but the offending spouse shall have no right to any share of
the net profits earned by the absolute community or the conjugal
partnership, which shall be forfeited in accordance with the provisions of
Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession. Moreover, provisions in favor of
the offending spouse made in the will of the innocent spouse shall be
revoked by operation of law.
35

Id. art. 61
Id. art. 62. During the pendency of the action for legal separation, the provisions of
Article 49 shall likewise apply to the support of the spouses and the custody and support of
the common children.
37
Id. art. 61. After the filing of the petition for legal separation, the spouses shall be
entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall designate either
of them or a third person to administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have the same powers and duties
as those of a guardian under the Rules of Court.
36

The right to revoke of the innocent spouse accrues after the finality of the decree of
legal separation.38 The decree of legal separation is without prejudice to the filing
of a joint manifestation of reconciliation.39 The effects of reconciliation are
provided for under Article 66 of the Family Code.
Art. 66. The reconciliation referred to in the preceding Articles shall have
the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be
terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the
separation of property and any forfeiture of the share of the guilty spouse
already effected shall subsist, unless the spouses agree to revive their
former property regime.
The court's order containing the foregoing shall be recorded in the proper
civil registries.

Applying the clear provision of Article 66, the spouses are definitely allowed to
revive their former property regime. The requirements for the revival of the former
property regime are set forth in Article 67 of the Family Code. 40

38

Id. art. 64. After the finality of the decree of legal separation, the innocent spouse may
revoke the donations made by him or by her in favor of the offending spouse, as well as the
designation of the latter as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable. The revocation of the donations shall be recorded in the registries
of property in the places where the properties are located. Alienations, liens and
encumbrances registered in good faith before the recording of the complaint for revocation
in the registries of property shall be respected. The revocation of or change in the
designation of the insurance beneficiary shall take effect upon written notification thereof
to the insurer.
The action to revoke the donation under this Article must be brought within five years from
the time the decree of legal separation become final.
39
Id. art. 65. If the spouses should reconcile, a corresponding joint manifestation under
oath duly signed by them shall be filed with the court in the same proceeding for legal
separation.
40
Id. art. 67. The agreement to revive the former property regime referred to in the
preceding Article shall be executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separate properties of each spouse; and

Legal Separation does not fully settle marital disputes considering that this
supposed legal remedy does not accord complete relief to the spouses. The
marriage of the couple who obtained a legal separation decree remains in force.
Thus, legal separation is an empty and meaningless remedy for couples who want
to remarry.
Continuing with the previous example of the wife who was boxed by her
husband, if the wife was repeatedly boxed by her husband, the wife can file a
petition for legal separation. Even if the court grants such petition, the wife does
not acquire any right to remarry. Legal Separation does not completely free the
woman from the menacing glare of her cruel husband because it does not allow the
termination of the marriage. The proponent opines that the preservation and the
maintenance of the marital bond is, without a doubt, inimical to the welfare of
women who must be protected against all forms of violence. Legal separation
unreasonably curtails the right of women to be protected from any and all forms of
violence by preserving the marital bond of the wife and the husband who is the
cause of her sufferings.

(3) The names of all their known creditors, their addresses and the amounts owing
to each.
The agreement of revival and the motion for its approval shall be filed with the
court in the same proceeding for legal separation, with copies of both furnished to
the creditors named therein. After due hearing, the court shall, in its order, take
measure to protect the interest of creditors and such order shall be recorded in the
proper registries of properties.
The recording of the ordering in the registries of property shall not prejudice any
creditor not listed or not notified, unless the debtor-spouse has sufficient separate
properties to satisfy the creditor's claim.

4. Foreign Divorce
The only instance wherein the Family Code recognizes absolute divorce is
in the case of a foreign divorce obtained by the alien spouse of a Filipino. Article
26 paragraph 2 of the Family Code provides:
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.

Essentially, Article 26 paragraph 2 of the Family Code applies when the

following requisites are present: 1) the marriage is between a Filipino and a
foreigner; 2) the divorce was obtained at the insistence of the alien; and 3) the
divorce decree must capacitate the alien to remarry.
In the case of Bayot vs. Court of Appeals41, it was held that:
To be sure, the Court has taken stock of the holding in Garcia v. Recio that
a foreign divorce can be recognized here, provided the divorce decree is
proven as a fact and as valid under the national law of the alien spouse. Be
this as it may, the fact that Rebecca was clearly an American citizen when
she secured the divorce and that divorce is recognized and allowed in any
of the States of the Union, the presentation of a copy of foreign divorce
decree duly authenticated by the foreign court issuing said decree is, as
here, sufficient. 42

41

Bayot v. Court of Appeals, 570 SCRA 472, 488 (2008).

Id. citing Garcia v. Recio, G.R. No. 138322, October 2, 2001, 366 SCRA 437, 447, Van Dorn v.
Romillo, Jr., No. L-68470, October 8, 1985, 139 SCRA 139, 143.
42

Evidently, those responsible for the second paragraph of Article 26 of the

Family Code realized the injustice of a rigid inflexite solution, as pointed out in the
1985 case of Van Dorn vs. Romillo, Jr.43 The said case involves a Nevada divorce
decree obtained by the respondent husband who is a United States citizen.
Subsequently, the husband filed suit in the Pasay City Regional Trial Court against
the petitioner wife. The husband was asking the court to order his wife to render an
accounting of the business in Ermita which according to him is a conjugal property
and to declare him as having the right to manage the conjugal property. The Court,
in deciding the case against the alien spouse, applied the nationality principle. The
Court ruled:

Thus, pursuant to his national law, private respondent is no longer the

husband of petitioner. He would have no standing to sue in the case below
as petitioner's husband entitled to exercise control over conjugal assets. As
he is bound by the Decision of his own country's Court, which validly
exercised jurisdiction over him, and whose decision he does not repudiate,
he is estopped by his own representation before said Court from asserting
his right over the alleged conjugal property. To maintain, as private
respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under
Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not
be obliged to live together with, observe respect and fidelity, and render
support to private respondent. The latter should not continue to be one of
her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be
served.44

The Court recognized the prejudicial effect of the non-recognition of a foreign

divorce decree on Filipinos. However, at the time the Van Dorn case was decided,

43
44

Van Dorn v. Romillo, 139 SCRA 139, 144 (1985).

Id.

the Family Code was not yet in existence so the Court has to resort to the
nationality principle in justifying its resolution of the case. Today, the recognition
of foreign divorce decree is expressly provided for under Article 26 paragraph 2 of
the Family Code. One need only prove the existence of the requisites for the
application of Article 26.
Furthermore, it should be noted that Article 26 paragraph 2 of the Family
Code, to the mind of the Court, amply covers the case of a marriage between
Filipino citizens and where one of the spouses becomes naturalized as a foreign
citizen who subsequently obtains a foreign divorce decree.
In Republic of the Philippines vs. Orbecido,45 the Court explained:
Does the same principle apply to a case where at the time of the
celebration of the marriage, the parties were Filipino citizens, but later on,
one of them obtains a foreign citizenship by naturalization? The
jurisprudential answer lies latent in the 1998 case of Quita v. Court of
Appeals. In Quita, the parties were, as in this case, Filipino citizens when
they got married. The wife became a naturalized American citizen in 1954
and obtained a divorce in the same year. The Court therein hinted, by way
of obiter dictum, that a Filipino divorced by his naturalized foreign spouse
is no longer married under Philippine law and can thus remarry. Thus,
taking into consideration the legislative intent and applying the rule of
reason, we hold that Paragraph 2 of Article 26 should be interpreted to
include cases involving parties who, at the time of the celebration of the
marriage were Filipino citizens, but later on, one of them becomes
naturalized as a foreign citizen and obtains a divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the other party were a
foreigner at the time of the solemnization of the marriage. To rule
otherwise would be to sanction absurdity and injustice. Where the
interpretation of a statute according to its exact and literal import would
lead to mischievous results or contravene the clear purpose of the
legislature, it should be construed according to its spirit and reason,
disregarding as far as necessary the letter of the law. A statute may
therefore be extended to cases not within the literal meaning of its terms,
so long as they come within its spirit or intent. If we are to give meaning to
45

Republic v. Orbecido, 472 SCRA 114 (2005).

the legislative intent to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce
is no longer married to the Filipino spouse, then the instant case must be
deemed as coming within the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of
Paragraph 2 of Article 26 as follows:
1.
There is a valid marriage that has been celebrated between a
Filipino citizen and a foreigner; and
2.
A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is
obtained abroad by the alien spouse capacitating the latter to remarry.46

The recognition of foreign divorce under the Family Code only shows that
policy makers are not really averse to the idea of divorce in the pursuit of justice.
Disregard of fairness cannot justly be rationalized by harking on the inviolability of
marriage. The principle of inviolability of marriage is not an inflexible one. It
admits of exceptions such as the case of foreign divorce. The rule on foreign
divorce shows that it is possible to modify the law on marriage in order to have
some room for divorce in cases where it is needed.
Foreign divorce, however, is very limited in scope and application. The
distraught spouse must acquire foreign citizenship at the time he or she obtains a
divorce decree abroad before Philippine laws recognize the same. The painful
ordeal of the spouse escalated to great proportions considering that there is no
divorce law yet in the Philippines and he or she cannot simply take refuge behind
the divorce laws of other countries without acquiring foreign citizenship.

46

Id. citing G.R. No. 124862, 22 December 1998, 300 SCRA 406, G.R. No. 124862, 22 December
1998, 300 SCRA 406.

5. Psychological Incapacity
The article on psychological incapacity has become an instrument for many
couples who want to live separate lives. Article 36 of the Family Code provided as
follows:
Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential
marital obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization.

The above provision does not, however, define the term psychological
incapacity. The absence of a definition leads to the question of what the term
psychological incapacity exactly contemplates. To determine the meaning of this
term, an examination of the interpretation of this term in jurisprudence is proper. It
is significant to point out at this juncture the application of psychological
incapacity by the Supreme Court.
In the early case of Santos v. Court of Appeals 47, the Court defined the
scope of psychological incapacity. The Court cited portions of the deliberations of
the Family Code Revision Committee. The Court thus concluded that as the
deliberations of the Family Code Revision Committee shows, psychological
incapacity has not been meant to comprehend all such possible cases of
psychoses.48 Elucidating on the legal meaning of psychological incapacity, the

47
48

Santos v. Court of Appeals, 240 SCRA 20, 33-34 (1995).

Id.

Court held that psychological incapacity refers to no less than a mental (not
physical) incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to the
marriage which, as so expressed by Article 68 of the Family Code, include their
mutual obligations to live together, observe love, respect and fidelity and render
help and support.49 The Court also stressed that, as stated by Dr. Gerardo Veloso,
a former Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic
Archdiocese of Manila ( Branch 1) whose work was cited by Justice Sempio-Diy,
in

determining

whether

psychological

incapacity

exists,

the

following

characteristics must be taken into account: (1) gravity; (2) juridical antecedence;
and, (3) incurability.
The incapacity must be grave or serious such that the party would be
incapable of carrying out the ordinary duties required in marriage; it
must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage;
and it must be incurable or, even if it were otherwise, the cure would be
beyond the means of the party involved.50

The import of psychological incapacity was further explained by the Court

in the subsequent case of Chi Ming Tsoi v. Court of Appeals51. The Court extended
the coverage of psychological incapacity to include a spouses refusal to have
sexual intercourse with his or her spouse. The Court elucidated on the obligation of
spouses to procreate children.

49

Id.
Id.
51
Chi Ming Tsoi v. Court of Appeals, 266 SCRA 324, 333 (1997).
50

Evidently, one of the essential marital obligations under the Family Code
is "To procreate children based on the universal principle that procreation
of children through sexual cooperation is the basic end of marriage."
Constant non- fulfillment of this obligation will finally destroy the
integrity or wholeness of the marriage. In the case at bar, the senseless
and protracted refusal of one of the parties to fulfill the above marital
obligation is equivalent to psychological incapacity. 52

In Republic of the Philippines v. CA and Molina53, the Court laid down the
following guidelines in the interpretation of psychological incapacity; namely: (1)
The burden of proof to show the nullity of the marriage belongs to the plaintiff; (2)
The root cause of the psychological incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d)
clearly explained in the decision; (3) The incapacity must be proven to be existing
at "the time of the celebration" of the marriage; (4) Such incapacity must also be
shown to be medically or clinically permanent or incurable; (5) Such illness must
be grave enough to bring about the disability of the party to assume the essential
obligations of marriage; (6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and
their children; (7) Interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church in the Philippines, while not controlling or
decisive, should be given great respect by our courts; and, (8) The trial court must
order the prosecuting attorney or fiscal and the Solicitor General to appear as

52

53

Id.
Republic v. Court of Appeals, 268 SCRA 198, 209-213 (1997).

counsel for the state.54 The specific guidelines set forth in the Molina case define
the limits of psychological incapacity. The Santos case and the Molina case are not
inconsistent with each other. In fact, Molina complements Santos. The Molina case
seems to draw its strength from the Santos case. The Santos case laid down the
predicate for psychological incapacity in general terms while Molina provides the
necessary details. Santos and Molina, together, form a complete whole that gives
sense and meaning to psychological incapacity. In the process, however, the Court
in the Molina case disregarded the ruling in Chi Ming Tsoi when it ruled that the
illness must be shown as downright incapacity or inability, not a refusal, neglect
or difficulty, much less ill will55.

The Molina case became the prevailing jurisprudence in psychological

incapacity cases. Thus, the Court resolved to deny a petition for declaration of
nullity based on psychological incapacity for its failure to show that the spouses
habitual alcoholism, sexual infidelity or perversion, and abandonment are
manifestations of a disordered personality which make the spouse completely
unable to discharge the essential obligations of the marital state.56
In the Marcos v. Marcos case 57, the Court simply went back to the decision
in the earlier case of Molina and issued an Order denying the petition for

54

Id.
Id.
56
Hernandez v. Court of Appeals, 320 SCRA 76, 87-88 (1999).
57
Marcos v. Marcos, 343 SCRA 755, 766 (2000).
55

declaration of nullity of marriage on the ground that the petitioner failed to observe
the guidelines outlined in Molina.58
The ruling of the Court in Choa v. Choa59 sustains the proclamation of the
Court in the Molina case. The Court noted that petitioner failed to show the gravity,
juridical antecedence or incurability of the problems besetting their marital union. 60
In Republic v. Quintero-Hamano,61 the Court held that the petitioner was
not able to competently prove that the act of abandonment on the part of her spouse
is due to some kind of psychological illness. 62
In a similar vein, it was ruled in Perez-Ferraris v. Ferraris63, that
respondent's alleged mixed personality disorder, the "leaving-the-house" attitude
whenever they quarreled, the violent tendencies during epileptic attacks, the sexual
infidelity, the abandonment and lack of support, and his preference to spend more
time with his band mates than his family, are not rooted on some debilitating
psychological condition but a mere refusal or unwillingness to assume the essential
obligations of marriage.64

58

Id.
Choa v. Choa, 392 SCRA 641, 651 (2002).
60
Id.
61
Republic v. Quintero-Hamano, 428 SCRA 735, 742-743 (2004).
62
Id.
63
Perez Ferraris v. Ferraris, 495 SCRA 396, 402 (2006).
64
Id.
59

In the case of Te v. Yu-Te,65 the Court relaxed the rigid application of the
Molina case. The Court wrote that:
Lest it be misunderstood, we are not suggesting the abandonment
of Molina in this case. We simply declare that, as aptly stated by Justice
Dante O. Tinga in Antonio v. Reyes, there is need to emphasize other
perspectives as well which should govern the disposition of petitions for
declaration of nullity under Article 36. At the risk of being redundant, we
reiterate once more the principle that each case must be judged, not on the
basis of a priori assumptions, predilections or generalizations but
according to its own facts. And, to repeat for emphasis, courts should
interpret the provision on a case-to-case basis; guided by experience, the
findings of experts and researchers in psychological disciplines, and by
decisions of church tribunals. 66

65
66

Te v. Yu- Te, 579 SCRA 193, 228 (2009).

Id citing Republic v. Court of Appeals and Molina, supra note 21, at 676-680, Republic of the

Philippines v. Lynnette Cabantug-Baguio, G.R. No. 171042, June 30, 2008; Nilda V. Navales v.
Reynaldo Navales, G.R. No. 167523, June 27, 2008; Lester Benjamin S. Halili v. Chona M. SantosHalili, et al., G.R. No. 165424, April 16, 2008; Bier v. Bier, G.R. No. 173294, February 27, 2008,
547 SCRA 123; Paras v. Paras, G.R. No. 147824, August 2, 2007, 529 SCRA 81; Navarro, Jr. v.
Cecilio-Navarro, G.R. No. 162049, April 13, 2007, 521 SCRA 121; Republic v. Tanyag-San Jose,
G.R. No. 168328, February 28, 2007, 517 SCRA 123; Zamora v. Court of Appeals, G.R. No.
141917, February 7, 2007, 515 SCRA 19; Perez-Ferraris v. Ferraris, G.R. No. 162368, July 17,
2006, 495 SCRA 396; Republic v. Cuison-Melgar, G.R. No. 139676, March 31, 2006, 486 SCRA
177; Antonio v. Reyes, G.R. No. 155800, March 10, 2006, 484 SCRA 353; Villalon v. Villalon,
G.R. No. 167206, November 18, 2005, 475 SCRA 572; Republic v. Iyoy, G.R. No. 152577,
September 21, 2005, 470 SCRA 508;Carating-Siayngco, G.R. No. 158896, October 27, 2004, 441
SCRA 422; Republic v. Quintero-Hamano, G.R. No. 149498, May 20, 2004, 428 SCRA
735; Ancheta v. Ancheta, 468 Phil. 900 (2004); Barcelona v. Court of Appeals, 458 Phil. 626

The above-quoted ruling of the Supreme Court shows that the determination of
psychological incapacity must be done on a case-to-case basis. In determining
whether there is psychological incapacity on the part of either or both spouses,
particular regard must be taken of the attendant facts and circumstances of each
case.
The allegation of psychological incapacity, once proven, will result in a
void marriage. The former spouses can actually marry again later. In his Separate
Opinion in the case of Tenebro vs. CA67, the esteemed Justice Vitug, opines that
the effects of psychological incapacity are more akin to the effects of a voidable
marriage than that of the effects of a void marriage.
The effects of a marriage attended by psychological incapacity of a party or
the parties thereto may be said to have the earmarks of a voidable, more than
a void, marriage, remaining to be valid until it is judicially decreed to be a
nullity. Thus, Article 54 of the Family Code considers children conceived or

(2003); Choa v. Choa, 441 Phil. 175 (2002); Pesca v. Pesca, 408 Phil. 713 (2001); Republic v.
Dagdag, G.R. No. 109975, February 9, 2001, 351 SCRA 425; Marcos v. Marcos, 397 Phil. 840
(2000); Hernandez v. Court of Appeals, G.R. No. 126010, December 8, 1999, 320 SCRA 76, Ng,
Apruebo & Lepiten, Legal and Clinical Bases of Psychological Incapacity, 2006 ed., pp. 14-16,
Justice Padillas Dissenting Opinion, Santos v. Court of Appeals, supra note 33, at 36-37; Ancheta
v. Ancheta, supra note 49, at 917,

G.R. No. 112019, January 4, 1995, 240 SCRA 20, Article 36 of

the Family Code, Justice Carpios Dissenting Opinion, Tenebro v. Court of Appeals, G.R. No.
150758, February 18, 2004, 423 SCRA 272, 299.
67
Tenebro v. Court of Appeals, 423 SCRA 272, 288-289 (2004) (J. Vitug, separate opinion).

born of such a void marriage before its judicial declaration of nullity to be

legitimate similar to the rule on a voidable marriage. It is expected, even as I
believe it safe to assume, that the spouses rights and obligations, property
regime and successional rights would continue unaffected, as if it were a
voidable marriage, unless and until the marriage is judicially declared void for
basically two reasons: First, psychological incapacity, a newly-added
ground for the nullity of a marriage under the Family Code, breaches
neither the essential nor the formal requisites of a valid marriage; and
second, unlike the other grounds for nullity of marriage (i.e., relationship,
minority of the parties, lack of license, mistake in the identity of the
parties) which are capable of relatively easy demonstration, psychological
incapacity, however, being a mental state, may not so readily be as
evident. It would have been logical for the Family Code to consider such a
marriage explicitly voidable rather than void if it were not for apparent
attempt to make it closely coincide with the Canon Law rules and
nomenclature.68

Psychological incapacity has become a beacon of hope in the arena of

dissolution of marriage. 85% of the annulment cases are based on psychological
incapacity.69 The statistics adequately show the compelling need of spouses for a
judicial declaration of nullity of their marriages. In an effort to extricate themselves
from their marriage, wives are impelled to file a petition for declaration of nullity
of marriage based on psychological incapacity even if their situation does not
constitute psychological incapacity. There are women who cannot take shelter in
Article 36 of the Family Code. At this juncture, the proponent wishes to underscore
the fact that the difficulties encountered by couples are not always due to causes
psychological in nature. The shortcomings of one or both spouses may be attributed

68

Id.citing TSN, 11 December 1996, pp 7-8, Judge Rumoldo F. Fernandez, Rollo, pp. 156-162, Rollo,
p. 7
69
Lira Dalangin-Fernandez, More Couples Seek Annulment, INTERAKSYON. Sept. 2, 2011, available
at http://www.interaksyon.com/article/12278/more-couples-seek-annulment (last accessed
February 27, 2013) citing the records of the Office of the Solicitor General [hereinafter DalanginFernandez]

to stubborn unwillingness to comply with his or her marital obligations. It does not
necessarily follow that every conflict between husbands and wives would involve
psychological illness. And if the incessant clash between husbands and wives does
not proceed from psychological behavior then the petitioner would be confronted
with an adverse denial of his or her petition. Psychological incapacity is indeed
insufficient to satisfy the sincere desire of many women to be given the opportunity
to reconstruct their lives.

6. Presumptive Death
The most expedient means that a spouse can employ to capacitate him or
her to remarry is the judicial declaration of presumptive death. The proceeding for
the judicial declaration of presumptive death is a simple and expedient suit
because it is summary in nature. The rule on marriages subsequently contracted
after a judicial declaration of presumptive death is embodied in Articles 41 to 42
of the Family Code, to wit:
Art. 41. A marriage contracted by any person during subsistence of a
previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-founded belief that the
absent spouse was already dead. In case of disappearance where there is
danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of
the absent spouse.

Art. 42. The subsequent marriage referred to in the preceding Article shall
be automatically terminated by the recording of the affidavit of
reappearance of the absent spouse, unless there is a judgment annulling the
previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be
recorded in the civil registry of the residence of the parties to the
subsequent marriage at the instance of any interested person, with due
notice to the spouses of the subsequent marriage and without prejudice to
the fact of reappearance being judicially determined in case such fact is
disputed.

The evidence of the spouse seeking to obtain a judicial declaration of

presumptive death must engender a well-founded belief that the absent spouse is
already dead. As the Supreme Court held:
The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent
spouse and whether the absent spouse is still alive or is already dead.
Whether or not the spouse present acted on a well-founded belief of death
of the absent spouse depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the disappearance of the
absent spouse and the nature and extent of the inquiries made by present
spouse.70

The automatic termination of the subsequent marriage by the recording of

the affidavit of reappearance of the absent spouse makes the contracting of the
subsequent marriage too risky. The new spouses proceed with the marriage at their
own risk, the assumed risk pertains to the possibility of reappearance of the absent
spouse.

70

Republic of the Philippines v. Court of Appeals, 477 SCRA 277, 284 (2005) citing Derecho Penal,
Vol. II, p. 633, Tyrrell v. Prudential Insurance Company of America, 115 A.L.R., 392 (1937), citing In
re: Hurlburts Estate,35 L.R.A. 794 68 Vt.366, 35 A.77, Gall v. Gall, 69 Sickels 109, 21 NE 106 (1889),
TSN, November 5, 2001, p. 8.

In the desire of spouses to have their marriage terminated in an expeditious

and inexpensive manner, they avail of the remedy provided under Article 41 of the
Family Code.71 At times, couples act in concert to bring their case within the
coverage of Article 41 of the Family Code on presumptive death.
It cannot be denied that the traditional modes of dissolving marriage in the
Philippines caused unnecessary discomfort on the spouses. The long continued and
obstinate refusal of the State to allow divorce prompted many Filipinos to just
separate in fact.
C. Code of Muslim Personal Laws
1. Background and Scope of Application

71

Michael Gurfinkel, Presumptive death annulment could result in presumptive denial of visa, PHIL
STAR, February14, 2010, available at http://www.philstar.com/opinion/549215/presumptive-deathannulment-could-result-presumptive-denial-visa (last accessed August 28, 2013). A presumptive
death annulment is where one spouse effectively disappears, and the spouse left behind does not
have any contact nor has any idea of the whereabouts of that missing spouse for at least 4 years.
That surviving spouse must go to court and obtain an annulment based on the presumption that the
missing spouse is dead. However, the US Embassy is concerned or suspicious about presumptive
death annulments, because in many cases, the spouse who obtained that annulment knows very well
that the dearly departed spouse is very much alive. Therefore, the supposed legal basis for the
annulment is untrue. In such a case, the presumptive death annulment was improperly obtained, and
the US Embassy may not give legal recognition to that annulment for purposes of issuing a US visa
based on a subsequent marriage to a different spouse. I had one case where a Filipina was caught
by the US Embassy with a bogus presumptive death annulment. Like you, she met a US citizen,
whom she wanted to marry. She then went to court and obtained an annulment based on the
presumptive death of her first husband, whom she had supposedly not seen in several years. The
problem was, that with a court decree declaring the husband dead, some relatives thought that this
might entitle them to some form of inheritance. Other relatives, knowing that the first husband was
very much alive, filed papers in court (including a currently dated, notarized affidavit by the
deceased, and pictures of him), challenging the presumptive death annulment.The Embassy was
somehow able to obtain information and documentation that the deceased first husband was alive.
(They may have obtained records from the courthouse, the relatives who challenged the annulment
may have written a letter to the Embassy, along with a copy of the affidavits, or the Embassy may
have contacted relatives of the deceased spouse). Accordingly, the Embassy would not issue the
visa to that Filipina based on her marriage to her second husband, because she was still married to
the first husband, as he was still alive.

The Code of Muslim Personal Laws of the Philippines was promulgated into
law on February 4, 1977.72 According to Jorge Coquia, The said Code is the
response of then President Ferdinand Marcos to the Filipino Muslims aspirations
to be governed in accordance with the Islamic religion, customs and traditions.73
The main sources of the Muslim Code are: 1) Holy Quran (Holy Scripture
of Muslims) and Hadith of the Prophet of Islam (record of the sayings and deeds of
the prophet Muhammad), as the principal sources; 2) Muslim codified laws of
Malaysia, Indonesia, Singapore, Sri Lanka, Pakistan, India, Nigeria, Lebanon and
many other countries; 3) Constitution of the Philippines of 1973; 4) Civil Code of
the Philippines (Republic Act no. 386); 5) Revised Rules of Court; 6) General
Principles of Islamic Laws, as contained in Recognized Standard Books and
Treaties; and, 7) principles of legal hermeneutics (statutory construction) and
72

FLORANGEL ROSARIO-BRAID, MUSLIM AND CHRISTIAN CULTURES IN SEARCH OF

COMMONALITIES, 121 (2002). [hereinafter ROSARIO-BRAID]. The organization of the Muslim Code
principally follows the style and methodology of the Philippine Civil Code. The specific principles in
the Muslim Code were drawn from the Shafii orthodox school of law whereas the parallel
principles were lifted from the Civil Code of the Philippines. The present Muslim Code from the
point of Islamic jurisprudence may be referred to as Al Qanun Al-Huwal Al-Shakhsiyyah, meaning
Code of Muslim Personal Law. It means civil or personal law derived from Islamic principles. It is
therefore, strictly not Sharia or Islamic law proper but secular law or a code of law.
73
Jorge R. Coquia, Annotation, Jurisdiction on Marriage, Annulment, Declaration of Nullity and
Divorce Among Muslims in the Philippines, 291 SCRA 591, 592 (1998) [hereinafter Coquia]. A source
of discontentment among the Muslims in the Philippines is their apprehension that the Philippine
Constitution and statutes were meant to eliminate the Islamic laws, especially on marriage and the
family. Their impression is that the majority of the laws are based on Christian moral principles
which they maintain as not necessarily superior to those of Islam. They resent to the imposition of
Christian moral values on the Muslims. Literally, Sharia means the way or path and is found in
the Quran or specifically in the verse where Allah says to the prophet Muhammad: And now, we
have seen thee in the right way, concerning our Commandment (Quran XLV 18)-Sharia therefore
basically means a divine law and obedience to it on the part of Muslims is a religious duty.
Although absolute in the sense that it represents a divine command, it does not claim universal
applicability, since it is generally binding on Muslims. In fine, when we speak of Sharia or Muslim
law, we refer to ordinances and regulations governing Muslims as found in the Quran and Hadith.

maxims in Islamic Jurisprudence.74 The Muslim Code is divided into five Books.75
Book I of the Muslim Code deals with the General Provisions. 76 Book II of the
Muslim Code relates to Persons and Family Relations which includes Civil
Personality (Shakhsiya Madaniya), Marriage and Divorce, Rights and Obligations
Between Spouses, Paternity and Filiation, Support, Parental Authority, Custody and
Guardianship and Civil Registry.77 Book III provides for the Rule on Succession.78
Book IV deals with Adjudication and Settlement of Disputes and Rendition of
Legal Opinions.79 Book V contains the Miscellaneous and Transitory Provisions. 80
The Muslim Code consists of 190 articles.81
The first question that should be raised in the study of the Muslim Code is
when does it apply? The answer to this pivotal question posed is found in Article
13 of the Muslim Code. Article 13 indicates both what is covered by the Muslim
Code and what is not covered. Article 13 of the Muslim Code clearly sets out the
coverage of the Muslim Code, as follows:

Article 13. Application.

(1) The provisions of this Title shall apply to marriage and divorce
wherein both parties are Muslims, or wherein only the male party is a
74

Coquia supra note 73, at 594, 598-599.

A Decree to Ordain and Promulgate a Code Recognizing the System of Filipino Muslim Laws,
Codifying Muslim Personal Laws, and Providing for its Administration and for other Purposes
[CODE OF MUSLIM PERSONAL LAWS], Presidential Decree No. 1083 (1977).
76
Id. Book 1.
77
Id. Book 2.
78
Id. Book 3
79
Id. Book 4
80
Id. Book 5
81
Id.
75

Muslim and the marriage is solemnized in accordance with Muslim Law or

this Code in any part of the Philippines.
(2) In case of marriage between a Muslim and a non-Muslim, solemnized
not in accordance with Muslim Law or this Code, the Civil Code of the
Philippines shall apply.
(3) Subject to the provisions of the preceding paragraphs, the essential
requisites and legal impediments to marriage, divorce, paternity and
filiation, guardianship and custody of minors, support and maintenance,
claims for customary dower (mahr), betrothal, breach of contract to marry,
solemnization and registration of marriage and divorce, rights and
obligations between husband and wife, parental authority, and the property
relations between husband and wife shall be governed by this Code and
other applicable Muslim laws.

All civil actions and proceedings between parties who are Muslims or have
been married in accordance with Article 13 of the Muslim Code involving disputes
relating to divorce recognized under the said Code are within the jurisdiction of the
Sharia circuit courts.82
2. Nature of the Contract of Marriage

The nature of the contract of marriage is stated under Article 14 of the

Muslim Code which reads:

Article 14. Nature. Marriage is not only a civil contract but a social
institution. Its nature, consequences and incidents are governed by this
Code and the Shari'a and not subject to stipulation, except that the
marriage settlements may to a certain extent fix the property relations of
the spouses.

82

Coquia supra note 73, at 601.

The concept of marriage under the Muslim Code is in fact the same with that of the
Family Code. Justice Saaduddin Alauya describes the concept of marriage under
the Muslim Code as follows:
Marriage is recognized as a social institution because its benefit is not only
redounding to the interest of its contracting parties but also to individuals,
family or nation. 83
83

SAADUDDIN ALAUYA, QUIZZER IN MUSLIM PERSONAL LAW 4-5 (1986) [hereinafter ALAUYA].

With regard to its benefit to individual We can readily say that it gives peace to every individual
because if the relations of men and women are not sanctioned by marriage which is regulated by
the Sharia, we will surely find troubles in our midst as everybody will be eager to enjoy the human
sexual sensibilities endowed to him or her by Allah regardless of whomsoever he or she will meet
on the road or in any other place. The beautiful may be overburdened and the ugly may have less
clients. It will be funny because it will be a demonstration of the fact that what is beautiful for one
may not be so for the others. Worse above all, some other men will aspire to take the wife of
another. Still others will just run away with the daughter of anybody else. There will certainly be
troubles everywhere in our society because no husband will bear to see his wife being used by
another man and no father will tolerate to see his daughter being kidnapped by a stranger. On
account of marriage allowed by Allah and made it regulated by the Sharia, husband and wife are
loving each other, mutually helping and respecting one another and restfully contented. That is
precisely the meaning of the verse of the Glorious Quran herein below quoted:
And among His signs
Is this, that He created
For you mates from among
Yourselves, that ye may
Dwell in tranquility with them,
And He has put love
And mercy between your (hearts):
Verily in that are signs
For those who reflect.
(S.XXX, 21, Quran)
With regard to its benefit to family It is an undeniable fact that the source of the family is
marriage. The family is composed of the spouses and their offsprings. It may enlarge to include
ascendants and descendants of far degrees. The relations between the spouses and their children
in such a given marriage as well as the relations of the members of the family, however, enlarged
and created out of the said marriage are governed by the Sharia. If the spouses are faithful to each
other, in accordance with the intention of Allah expressed in the above-quoted verse of the
Glorious Quran, the family emanating from their marriage will undoubtedly be a good family. The
marriage therefore is a source of the family and redounding to its interest.

The whims of the parties are not allowed to prevail over the provisions of the law.
Otherwise, the institution of marriage would be rendered susceptible to the varying
interests of the parties. Justice Rasul characterizes marriage in Islam as follows:
Moreover, marriage in Islam is an inviolable social institution ordained for
the protection of society, so that human beings may guard themselves
against foulness and unchastity. In Islam, the union of man and a woman
without the benefit of a valid marriage is unchaste and immoral. The
practice of live-in relationship so common in non-Muslim society is
condemned in no uncertain term for it not only reduces the integrity of
womanhood to the level of a beast but also loses the worth and dignity of
human persons or of their children thereby procreated. Muslim jurists
regard the institution of marriage as partaking both the nature of Ibadat or
devotional acts and Muammalat or rightful dealings among men. This
view of Muslim jurists proves that the Islamic concept of marriage is both
religious and secular. 84

3. Legal Remedy Available to Spouses

Should the marriage of the Muslim spouses become disintegrated, the

Muslim Code allows the spouses to institute an action for absolute divorce.

a. Absolute Divorce

Divorce is defined under Article 45 of the Muslim Code.

With regard to its benefit to the nation it is a fact that nations are created out of the families. The
families are originated by a husband and a wife. If the families that compose the nation are good,
the nation will certainly stand good internally and externally. However, the goodness of the
members of the family will depend largely upon the orientations they grasped from their parents
and their family environments. Henceforth, marriage, as a source of the nation, is redounding to its
benefit.
84
RASUL, supra note 9, at 45-46.

Article 45. Definition and forms. Divorce is the formal dissolution of the
marriage bond in accordance with this Code to be granted only after the
exhaustion of all possible means of reconciliation between the spouses. It
may be effected by:
(a) Repudiation of the wife by the husband (talaq);
(b) Vow of continence by the husband (ila);
(c) Injurious assimilation of the wife by the husband (zihar);
(d) Acts of imprecation (li'an);
(e) Redemption by the wife (khul');
(f) Exercise by the wife of the delegated right to repudiate (tafwid); or
(g) Judicial decree (faskh).

The proceeding for divorce under the Muslim Code is somewhat similar to the
legal separation under the Family Code. In both actions, a possible reconciliation
between the spouses is considered. The decree is not issued until such possibility
has really become unrealizable. The effort to save the marriage is present in both
actions. This is because both the Family Code and the Muslim Code recognize the
importance of marriage and the need to protect the said institution.
As stated in Article 45 of the Muslim Code, divorce can be effected in
seven (7) ways, namely: 1) repudiation of the wife by the husband (talaq); 2) vow
of continence by the husband (ila); 3) injurious assimilation of the wife by the
husband (zihar); 4) acts of imprecation (lian); 5) redemption by the wife (khul); 6)
exercise by the wife of the delegated right to repudiate (tafwid); or 7) judicial
decree (faskh).
Pursuant to Article 46 thereof, divorce may be effected by talaq. Said
section reads:
Article 46. Divorce by talaq.

(1) A divorce by talaq may be effected by the husband in a single

repudiation of his wife during her non-menstrual period (tuhr) within
which he has totally abstained from carnal relation with her. Any number
of repudiations made during one tuhr shall constitute only one repudiation
and shall become irrevocable after the expiration of the prescribed 'idda.
(2) A husband who repudiates his wife, either for the first or second time,
shall have the right to take her back (ruju) within the prescribed 'idda by
resumption of cohabitation without need of a new contract of marriage.
Should he fail to do so, the repudiation shall become irrevocable (Talaq
bain sugra).

Divorce may also be effected by ila following Article 47 of the Muslim

Code which provides:
Article 47. Divorce by Ila. Where a husband makes a vow to abstain from
any carnal relations (ila) with his wife and keeps such ila for a period of
not less than four months, she may be granted a decree of divorce by the
court after due notice and hearing.

Divorce may likewise be effected by zihar under Article 48. The

Article reads:
Article 48. Divorce by zihar. Where the husband has injuriously
assimilated (zihar) his wife to any of his relatives within the prohibited
degrees of marriage, they shall mutually refrain from having carnal
relation until he shall have performed the prescribed expiation. The wife
may ask the court to require her husband to perform the expiation or to
pronounce a regular talaq should he fail or refuse to do so, without
prejudice to her right of seeking other appropriate remedies.

In addition, divorce may be effected by lian. Divorce by lian is enshrined in

Article 49 of the Muslim Code which provides that:
Article 49. Divorce by li'an. Where the husband accuses his wife in court
of adultery, a decree of perpetual divorce may be granted by the court after
due hearing and after the parties shall have performed the prescribed acts
of imprecation (li'an).

Moreover, divorce may be effected by khul under Article 50 of the Muslim

Code. Article 50 of the Muslim Code provides:

Article 50. Divorce by khul'. The wife may, after having offered to return
or renounce her dower or to pay any other lawful consideration for her
release (khul') from the marriage bond, petition the court for divorce. The
court shall, in meritorious cases and after fixing the consideration, issue
the corresponding decree.

Furthermore, divorce may be effected by tafwid under Article 51 of the

Muslim Code. Article 51 of the Muslim Code provides:
Article 51. Divorce by tafwid. If the husband has delegated (tafwid) to the
wife the right to effect a talaq at the time of the celebration of the marriage
or thereafter, she may repudiate the marriage and the repudiation would
have the same effect as if it were pronounced by the husband himself.

Additionally, divorce may be effected by faskh under Articles 52 to 54 of

the Muslim Code. Articles 52 to 54 of the Muslim Code state:
Article 52. Divorce by faskh. The court may, upon petition of the wife,
decree a divorce by faskh on any of the following grounds:
(a) Neglect or failure of the husband to provide support for the family for
at least six consecutive months;
(b) Conviction of the husband by final judgment sentencing him to
imprisonment for at least one year;
(c) Failure of the husband to perform for six months without reasonable
cause his marital obligation in accordance with this Code;
(d) Impotency of the husband;
(e) Insanity or affliction of the husband with an incurable disease which
would make the continuance of the marriage relationship injurious to the
family;
(f) Unusual cruelty of the husband as defined under the next succeeding article; or
(g) Any other cause recognized under Muslim Law for the dissolution of
marriage by faskh either at the instance of the wife or the proper wali.
Article 53. Faskh on the ground of unusual cruelty. A decree of faskh on
the ground of unusual cruelty may be granted by the court upon petition of
the wife if the husband:
(a)Habitually assaults her or makes her life miserable by cruel conduct
even if this does not result in physical injury;
(b) Associates with persons of ill-repute or leads an infamous life or
attempts to force the wife to live an immoral life;
(c) Compels her to dispose of her exclusive property or prevents her from
exercising her legal rights over it;
(d) Obstructs her in the observance of her religious practices; or
(e) Does not treat her justly and equitably as enjoined by Islamic Law.

Article 54. Effects of irrevocable talaq or faskh. A talaq or faskh, as soon

as it becomes irrevocable, shall have the following effects:
(a) The marriage bond shall be severed and the spouses may contract
another marriage in accordance with this Code;
(b) The spouses shall lose their mutual rights of inheritance;
(c) The custody of children shall be determined in accordance with Article
7885 of this Code;
(d) The wife shall be entitled to recover from the husband her whole dower
in case the talaq has been effected after the consummation of the marriage,
or one-half thereof if effected before its consummation;
(e) The husband shall not be discharged from his obligation to give support
in accordance with Article 67; and
(f) The conjugal partnership, if stipulated in the marriage settlements, shall
be dissolved and liquidated.

Pursuant to Article 55 of the Muslim Code, the effects of an irrevocable

talaq or faskh shall similarly apply to the other kinds of divorce. Thus:
Article 55. Effects of other kinds of divorce. The provisions of the Article
immediately preceding shall apply to the dissolution, of marriage by ila,
zihar, li'an and khul', subject to the effects of compliance with the
requirements of the Islamic Law relative to such divorces.

The grant of a petition for divorce will not instantaneously entitle the wife to
remarry. A certain period of time must first lapse before she could contract a
subsequent marriage. This is called the idda under the Muslim Code. Idda is
defined under Article 56 of the Muslim Code.

85

CODE OF MUSLIM PERSONAL LAWS, art. 78. - Care and custody.

(1) The care and custody of children below seven years of age whose parents are divorced
shall belong to the mother or, in her absence, to the maternal grandmother, the paternal
grandmother, the sister and aunts. In their default, it shall devolve upon the father and the
nearest paternal relatives. The minor above seven years of age but below the age of puberty
may choose the parent with whom he wants to stay.
(2) The unmarried daughter who has reached the age of puberty shall stay with the father;
the son, under the same circumstances, shall stay with the mother.

Article 56.Idda defined. 'Idda is the period of waiting prescribed for a

woman whose marriage has been dissolved by death or by divorce the
completion of which shall enable her to contract a new marriage.

The waiting period for women required under the Muslim Code varies
depending on the mode of dissolution of the marriage. Article 57 of the Muslim
Code provides for the required period of time, to wit:
Article 57. Period.
(1) Every wife shall be obliged to observe 'idda as follows:
(a) In case of dissolution of marriage by death, four months and
ten days counted from the death of her husband;
(b) In case of termination of marriage by divorce, for three monthly
courses; or
(c) In case of a pregnant woman, for a period extending until her delivery.
(2) Should the husband die while the wife is observing 'idda for divorce,
another 'idda for death shall be observed in accordance with paragraph
1(a).

Justice Rasul laid down the philosophy behind idda.

The philosophy or purpose behind idda in Islamic jurisdiction shall be as
follows: 1) to bring about reconciliation; 2) to avoid confusion of issues;
and 3) for the convenience, comfort or benefit of the woman, to afford her
sufficient opportunities for livelihood.86

A reading of the above quoted provisions of the Code of Muslim Personal

Laws on divorce shows the failure to observe the rule on gender equality. There is a
substantial or significant difference between the procedure and the grounds for
divorce for Muslim men and the grounds and procedure of divorce for Muslim
women. Muslim husbands, in divorcing their wives, can find a strong anchor on
several provisions of the Muslim Code. The Muslim husband can simply utter three

86

RASUL, supra note 9, at 132.

times to his wife the following words I divorce you and he will be considered
divorced from his wife. This demonstrates the apparent partiality in favor of
Muslim men. Muslim women cannot simply invoke the magical words I divorce
you to claim freedom from her husband. The Muslim wife can divorce her
husband by uttering the said words if such right was delegated to her by her
husband. The law completely ignores the fundamental principle of equality
between men and women.
Undoubtedly, the Code effectively placed Muslim husbands at a great
advantage over their Muslim wives. The Code failed to set proper parameters
governing the exercise of the right to divorce by Muslim men. According to Judge
Bensaudi Arabani Sr.87, the power of the husband to divorce his wife is not subject
to any valid and just cause. As a result, he may exercise such power whimsically
and capriciously even for the slightest cause or for his own selfish reason. 88
Judge Amin Hasan Mustafa, the Presiding Judge of the First Shariah Circuit Court
of Sulu, claims that it is the husbands sole prerogative to divorce his wife. Such is
an arbitrary act reserved for the man.89 It is undeniable that Muslim husbands tend

87

Jehan-Jehan Lepail, The Moro Woman: A Critique of the Provisions of PD 1083 on Divorce in
Light of our Treaty Obligations to CEDAW, at 66 (2007) (unpublished J.D. thesis, Ateneo de Manila
University) (on file with the Professional Schools Library, Ateneo de Manila University).
[hereinafter Lepail] Judge Bensaudi Arabani, Sr. is the District Judge of the First Shariah District
Court in Jolo, Sulu. He was a member of the Research Staff for the Codification of Philippine
Muslim Laws and became the President of the Shariah Bar Association of the Philippines. He has
written commentaries on the Shariah law.
88
Id. citing his Interview with Judge Bensaudi Arabani Sr., District Judge of the First Shariah
District (June 14, 2006).
89
Id. citing his interview with Judge Amin Hasan Mustafa, Circuit Judge of the First Shariah Circuit
(June 12, 2006).

to abuse their right to divorce.90 The following cogent observations made by Justice
Rasul are enlightening, viz:

It is one of those areas of Muslim law where reform is overdue. The very idea
of unilateral divorce militates against the real spirit behind Islamic law of
marriage and divorce. Divorce is permissible in Islam only in cases of
extreme emergency when all efforts at reconciliation have failed. It is the
Islamic law of divorce not polygamy which is the major cause of suffering to
Muslim women. The Muslim wife indeed has always lived, so far as the law
is concerned, under the ever present shadow of divorce. 91

Unlike Muslim men who are fortunate to have been given the right to divorce
their wives effortlessly and expeditiously, Muslim women must bear their
sufferings much longer because they must resort to judicial process before they can
escape from their abusive husbands. The table below lists the some of the cases of
divorce that have been filed by Muslim wives against their husbands.92
Case Title/Docket Number

Date

Ground

Darwisa Sali v. Radzmier

Sali/Shariah Civil Case
No. 2004-964
Nadzma Paradji v. Isduri
Nurani/Shariah Civil Case
No. 04-963

November 7, 2004

Drug Addiction

March 28, 2005

Non-support/Unjust

Belen Abalos v. Kennedy

Hajim/Shariah Civil Case
No. 04-985

April 4, 2005

90

treatment
Drug Addiction

Id. But when Judge Mustafa was asked whether this power is greatly abused, he replied in the
affirmative.
91
Id. citing Rasul.
92
Id. at 81.

Mayra Jumlain v. Paiji

Unad/Shariah Civil Case
No. 04-980
Adarna Asanul v.
Shezamier Akarab/Shariah
Civil Case No. 04-975
Almelyn Sabri v. Basit
Marcus/Shariah Civil Case
No. 04-969
Nursalina Ahmadul v.
Arman Amilani/Shariah
Civil Case No. 2005-993
Sulma Ajad v. Sikal
Mukarram/Shariah Civil
Case No. 2005-991

December 28, 2004

Drug Addiction

February 22, 2005

Unjust Treatment

January 22, 2005

Drug Addiction

June 1, 2005

Unusual Cruelty

August 12, 2005

Unjust Treatment

Kim Sharon Bagis v. Jose

Batausa, Jr./ Shariaah
Civil Case No. 2005-990
Perauna Akdam v. Muah
Saligan/Shariah Civil Case
No. 2005-989

August 12, 2005

Drug Addiction

February 3, 2006

Unjust Treatment

This table vividly illustrates the unbearable situation of Muslim women whose only
hope is the court.

III. A HUMAN RIGHTS FRAMEWORK FOR RESOLVING THE

DIVORCE ISSUE
Plainly, the divorce controversy revolves around the core group of
Philippine society which is the family. The spouses are the very foundation of the
family. It is significant to note that between the spouses, it is the wives who truly
belong to the marginalized sector of Philippine society. Women are considered to
have a mere passive existence in a patriarchal society like the Philippines. Indeed,
the provisions of the Family Code may be considered as the best evidence that
Philippine society has a patriarchal orientation. It is important to note that the
Family Code carries at least four (4) provisions which accord respect to the
decision of the husband in cases of disagreement between husband and wife. 93
These provisions perpetrate injustice to women.
93

FAMILY CODE, Art. 96. The administration and enjoyment of the community property shall
belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail,
subject to recourse to the court by the wife for a proper remedy, which must be availed of within
five years from the date of the contract implementing such decision. In the event that one spouse
is incapacitated or otherwise unable to participate in the administration of the common
properties, the other spouse may assume sole powers of administration. These powers do not
include the powers of disposition or encumbrance which must have the authority of the court or
the written consent of the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may be perfected
as a binding contract upon the acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors.
Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to
both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to
recourse to the court by the wife for a proper remedy, which must be availed of within five years
from the date of the contract implementing such decision. In the event that one spouse is
incapacitated or otherwise unable to participate in the administration of the conjugal properties,
the other spouse may assume sole powers of administration. These powers do not include

Human rights instruments sought to correct the manifest partiality in favor

of men by removing the roadblocks that hinder access of women to justice and
opportunities. The human rights principles on women will serve as guide in
justifying the propriety of a legislation on divorce and the amendment of the
divorce provisions of the Sharia law. Thus, it is necessary to discuss the relevant
principles on human rights of women.
A. Protection of Families

disposition or encumbrance without authority of the court or the written consent of the other
spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing offer on the part of the consenting
spouse and the third person, and may be perfected as a binding contract upon the acceptance by
the other spouse or authorization by the court before the offer is withdrawn by either or both
offerors.
Art. 211. The father and the mother shall jointly exercise parental authority over the persons of
their common children. In case of disagreement, the fathers decision shall prevail, unless there is a
judicial order to the contrary. Children shall always observe respect and reverence toward their
parents and are obliged to obey them as long as the children are under parental authority.
Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of
their unemancipated common child without the necessity of a court appointment. In case of
disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds P50,000, the
parent concerned shall be required to furnish a bond in such amount as the court may determine, but
not less than ten per centum (10%) of the value of the property or annual income, to guarantee the
performance of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the proper court of the place where the
child resides, or, if the child resides in a foreign country, in the proper court of the place where the
property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in which all incidents and issues
regarding the performance of the obligations referred to in the second paragraph of this Article shall
be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except when the child is under
substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case
the ordinary rules on guardianship shall apply.

Since the family is at the core of the divorce controversy, there is a need to
construe the provisions on protection of families which is found in different human
rights instruments. The protection of families clause is found in Article 16 (3) of
the Universal Declaration of Human Rights, which provides:
(3) The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.

The International Covenant on Civil and Political Rights (ICCPR) carries the
same provision. Article 23 (1) states:

Article 23
1. The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.

Substantially the same provision is incorporated in the International

Covenant on Economic, Social and Cultural Rights (ICESCR). Article 10 (1) of the
ICESCR provides:

The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded
to the family, which is the natural and fundamental group unit of
society, particularly for its establishment and while it is
responsible for the care and education of dependent children.
Marriage must be entered into with the free consent of the
intending spouses.

A reading of these provisions might lead one to a fallacious conclusion that

the individual rights of the members of the family particularly the vulnerable ones
can be sacrificed in favor of the protection of the family as a social group. The
above quoted provisions must be construed together with other provisions on

human rights particularly the rights of women. The abovequoted provisions are not
inconsistent with the other provisions protecting individual rights. The language of
the said provisions cannot be interpreted as a waiver of the human rights of the
individual members of the family. Taken in proper context, the provision on
protection of families contemplates the guarantee of protection not only to the
family as a social group but also to its members. The protection of families, in
relation to the other provisions of the abovementioned human rights instruments, in
unmistakable terms, requires protection of the individual members of the family.
Protection of families is synonymous to protection of the family members. This is
echoed in the principles underlying the International Year of the Family (IYF)
proclamation of the United Nations General Assembly.

Activities for IYF will seek to promote the basic human rights and
fundamental freedoms accorded to all individuals by the set of
internationally agreed instruments formulated under the aegis of the
United Nations, whatever the status of each individual within the family,
and whatever the form and condition of that family;
Policies will aim at fostering equality between women and men within
families, to bring about a fuller sharing of domestic responsibilities and
employment opportunities. 94

The said principles are emphasized in the slogan of the 1994 International Year of
the Family which reads: Building the Smallest Democracy at the Heart of
Society. This reflects the growing recognition of the need to recognize each

94

Social Policy and Development Division, The International Year of the Family, available at
http://social.un.org/index/Family/InternationalObservances/InternationalYearoftheFamily.aspx
(last accessed May 19, 2013).

individual family members rights, within every family and every society. 95
International human rights law geared toward family life recognizes the
fundamental need to respect all individuals within families even as the human
rights protections also recognize the need to protect families. 96 The latest
recognition of the need to develop and ensure the rights of potentially vulnerable
family members reflects much more than the need to protect and foster families; it
confirms the continued recognition that the rights of potentially vulnerable
individuals within families matters most to human rights law.97
B.

Right to Life
One of the most important functions of human rights instruments is the

protection of the right to life. The right to life is found in Article 3 of the Universal
Declaration of Human Rights, which provides:
Article 3.
Everyone has the right to life, liberty and security of person.

A similar provision is found in the ICCPR, thus:

Article 6
1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.

95

. ROGER LEVESQUE, CULTURE AND FAMILY VIOLENCE: FOSTERING CHANGE THROUGH HUMAN
RIGHTS LAW 31-33 (2001) [hereinafter LEVESQUE].
96
LEVESQUE, supra note 95, at 30.
97
Id.

The right to life pertains to the right to security of person. It means the right to be
protected from threats to their personal safety. The right to life evidently manifests
the intent to safeguard the existence of human life. The right to life necessarily
covers the protection of women against violence perpetrated by their own
husbands. Violence perpetrated by husbands against their wives obviously
constitutes threat to the life of the wives.

Gender-based violence, which impairs or nullifies the enjoyment by

women of human rights and fundamental freedoms under general
international law or under human rights conventions, is discrimination
within the meaning of article 1 of the Convention. These rights and
freedoms include:
(a) The right to life...98

It should also be mentioned that the 1987 Philippine Constitution carries a

similar provision on the protection of the right to life.

Article III
Section 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection of
the laws.

It must also be pointed out that the definition of the right to life is expanded
to encompass not only the right to be alive or to the security of ones limb against
physical harm but includes also the right to a good life.99 The right to a good life is

98

Human Rights Committee, General Comment 6 p. 3 citing CEDAW General Recommendation 19

(Eleventh session, 1992)
99
JOAQUIN G. BERNAS, SJ., THE 1987 PHILIPPINE CONSTITUTION A COMPREHENSIVE REVIEWER 24
(2006) [hereinafter BERNAS].

construed in the light of the policy of the State to promote a life of dignity.100
Viewed in this light, the right to life is the right to a dignified life.

C. Protection Against Gender-Based Violence

Gender-based violence pertains to violence that is directed against a woman

because she is a woman or that affects women disproportionately. 101 It includes acts
that inflict physical, mental or sexual harm or suffering, threats of such acts,
coercion and other deprivations of liberty.102 Gender-based violence is included
within the ambit of the phrase discrimination against women by virtue of the fact
that such violence was perpetrated against the woman because of her being female.
Acts of violence against women serve to perpetuate the negative attitude toward
women. Violence against women is based on the strained postulation that women
are under the control of men. Such assumption is pernicious. The Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW)
expressly mandates State Parties to enact laws providing for the observance of
equality of men and women.

The prohibition against gender-based violence covers all kinds of genderbased violence, whether committed by the State and its agents or by private
persons. Gender-based violence actually takes place in the very own dwelling of

100

Id.
CEDAW Committee, General Recommendation No. 19 1992.
102
Id.
101

women. A petty fight between a husband and a wife could escalate into severe
beatings repeatedly inflicted on the latter. The CEDAW Committee provides
specific recommendations to address this unfortunate incident. The Committee
recommended, among others, the implementation of necessary measures to
overcome family violence such as criminal penalties where necessary and civil
remedies in case of domestic violence.103 Divorce can be the effectual civil remedy
to relieve the wife from the pain and sorrow brought about by her own husband
because divorce liberates the wife from the bondage of a marital union that only
proved to be detrimental and prejudicial to the health and safety of the wife.

D. Gender Equality

Women have the unassailable right to equality. The text of the ICCPR
recognizes the equal right of men and women to the enjoyment of all civil and
political rights set forth in the Covenant.104 The ICESCR obligates State Parties to
ensure the equal right of men and women to the enjoyment of all economic, social
and cultural rights set forth in the Covenant.105 It should also be mentioned that
CEDAW imposes upon State Parties the duty to take all appropriate measures to
eliminate discrimination against women in all matters relating to marriage and

103

Id.
International Convention on Civil and Political Rights art. 3, adopted Dec. 16, 1966, 999 U.N.T.S.
171 and 1057 U.N.T.S. 407 [hereinafter ICCPR].
105
International Covenant on Economic Social and Cultural Rights art. 3, adopted Dec. 16, 1966,
993 U.N.T.S. 3 [hereinafter ICESCR].
104

family relations.106 The 1987 Philippine Constitution incorporated a provision

ensuring the fundamental equality before the law of women and men. What it does
is to give impetus to the removal, through statutes, of existing inequalities. 107 The
general idea is for the law to ignore sex where sex is not a relevant factor in
determining rights and duties.108
The principle of equality embraces two (2) concepts, namely: (1) formal
equality; and, (2) substantive equality. 109 Formal equality simply means that things
that are similar or alike should be treated alike and that things that are unalike
should be treated unalike.110 In formal equality, things that are similar should be
accorded the same treatment whereas things that are different should be accorded
different treatment. It bears emphasis that the validity of this concept should be
evaluated vis-a-vis the significant factual differences between individuals.
This concept views equality as something that is absolute. Formal equality
ignores the peculiar circumstances of an individual. Such a limited construction of
equality would sanction absurdity and injustice. The narrow interpretation of
equality downplays the numerous intrinsic differences of individuals. The formal

106

Convention on the Elimination of All Forms of Discrimination Against Women art 16, Sept. 3,
1981 1249 U.N.T.S. 13 [hereinafter CEDAW].
107
BERNAS, supra note 99, at 18.
108
Id.
109
Equal Rights Trust, The Ideas of Equality and Non-Discrimination: Formal and Substantive
Equality, available at
http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20N
on-discrimination,%20Formal%20and%20Substantive%20Equality.pdf (last accessed February 28,
2013).
110
Id.

concept of equality supports the position that a persons individual physical or

personal characteristics should be viewed as irrelevant in determining whether
they have a right to some social benefit or gain. 111 This concept assumes the
existence of a universal individual which can neglect the variety and diversity of
modern society.112 Human society is composed of various sectors with diverse
origins and cultures. The concept of formal equality is to ignore the personal
characteristics of an individual altogether.113 For example, in respect to racial
discrimination advocates of formal equality would proscribe a colour blind rather
than a colour conscious approach.114 Whilst the model of consistent treatment has
a role in society, the richness and complexity of modern life and modern social
relations makes the application of this concept, as a basis for integrated and
comprehensive non-discrimination laws and measures, overly simplistic.115 The
theory of formal equality is hopelessly unrealistic and far too contrary to the nature
of human beings. It would be a cruel irony if individuals would be denied certain
benefits on the trite excuse that equality of persons should be protected. Verily, the
principle of equality would then operate to prevent individuals from enjoying the
protection that should be given to them.
Worthy of note is the case of women. To follow the directive of formal
equality would be most unkind to women. The proponent emphatically calls
111

Id.
Id.
113
Id.
114
Id.
115
Id.
112

attention to the fact that women are actually different from men in so many ways.
It would be wrong to say that men and women should be extended the same
treatment to promote equality between men and women. This is totally
unacceptable considering that women are markedly different from men. Clearly, it
is inappropriate to impose on women the same standards set for men. This will not
resolve the issue of equality between men and women. The genuine difference
between men and women was not considered. Women are compelled to accept a
standard which is not appropriate for them. This is obviously unjust for women.
This leaves the status of women in an even more oppressed state than before.
To be concrete, take the example of a man and a woman who are applying
for a loan.116 The woman is a single parent who can only work part-time because
she cannot afford full-time childcare.117 Although she works part time, she has not
been unemployed at any time during the past 8 years. 118 If she is able to qualify for
a mortgage, her monthly mortgage payment will be less than her current market
rent and she will then be able to afford full-time child care and will then be able to
get a better paying full-time job, get a car, etc.119 She has a perfect rental payment
record.120 The man is a bachelor with no children.121 He works full time.122 If he
116

Equality Rights, Canadian Housing Equality Resources, available at

http://www.equalityrights.org/cher/index.cfm?nav=hr&sub=mod (last accessed February 28,
2013) [hereinafter Equality].
117
Id.
118
Id.
119
Id.
120
Id.
121
Id.
122
Id.

qualifies, he will also be able to pay less for a mortgage than he does on rent. 123
The woman and the man completed identical bank loan applications and the bank
uses an identical criterion to evaluate each application.124 The applicants must
answer questions on the application regarding job security. 125 When the bank
reviews the applications, the woman does not qualify because she is a part-time
employee.126 The single man does qualify and the woman continues to be denied
the benefits of home ownership.127
In the matter of divorce, the existence of a law on divorce is adequate
enough to fulfill the standards of the concept of formal equality as long as this
remedy of divorce is made available to both men and women. The concept of
formal equality overlooks the details of the law which could spell disaster for
women.
From these examples, it is not difficult to discern why the concept of formal
equality can be considered radical. The flagrant disregard of the fundamental
differences between the man and the woman makes this concept highly
objectionable. The wisdom of this concept is clearly disputable.
Another concept of equality is the substantive equality. Substantive equality
is principally anchored on the impression that one cannot adopt a definite standard
for all. This concept involves taking into account, when necessary, the
123

Id.
Id.
125
Id.
126
Id.
127
Id.
124

differences in characteristics and circumstances of individuals. 128 Individuals are

not subjected to the operation of a law which is not appropriate for them.
Substantive equality confronts the issue of difference between individuals. In
substantive equality, the State has the liberty to set different standards to different
cases. Different parameters are applied to different situations. This concept
proferred a new norm of equality. Similarly, this concept is an intense challenge to
the traditional notion of formal equality.
Substantive equality is best illustrated by using the example above. This
time, however, the banks mortgage loan application criteria accommodated the
very real differences in each of the applicant's lives. 129 The banks evaluation
criteria would look at each applicant's circumstances and consider the fact that
even while the single mother was employed on a part time basis, her rental and
work records were perfect.130 Moreover, while her employment was contractual,
she was consistently and steadily employed.131 The bank's criteria would recognize
that her priority, particularly because she had children to care for, was to make
sure she kept a roof over their heads.132 This illustrative example shows that
substantive equality essentially requires an extensive inquiry into the factual

128

Treasury Board of Canada Secretariat, Analytical Grid (Substantive Equality), available at

http://www.tbs-sct.gc.ca/olo/caldech/analytical-analyse-eng.asp (last accessed February 28,
2013).
129
Equality, supra note 116.
130
Id.
131
Id.
132
Id.

circumstances of each individual. This concept is clearly demonstrative of utter

sensitivity to material differences between individuals.

This second concept of equality is more viable than the first considering
that the former is consistent with reality that individuals are distinctively different
from one another.

Hence, standards applied to one may not necessarily be

applicable to another.

Substantive equality is the principle adhered to by CEDAW. Substantive

equality goes beyond mere formal equality which can place women in a more
disadvantageous condition to one which actually innovates the meaning of equality
by considering the fact that men and women do differ. Under substantive equality,
women are treated in a manner that recognizes their special needs and their inherent
difference from men. Substantive equality recognizes differences and affirms
equality between men and women.133 It encompasses de jure and de facto
equality.134 The mere fact that specific laws exist providing for equality between
women and men does not automatically amount to substantive equality. Substantive
equality necessitates delving into factual realities. Equality must be actually felt by
women. Consequently, the government must effect real and meaningful changes to
help uplift the lives of women. Substantive equality creates an obligation to correct

133

Ateneo Human Rights Center, Training Manual on Gender Sensitivity and CEDAW 23 (2007)
[hereinafter Training Manual]
134
Id.

the environment that disadvantages women.135 Substantive equality means making

the playing field even by requiring all initiatives to lead to: (1) Equality in
OPPORTUNITY; (2) Equality in ACCESS and (3) Equality in RESULTS.136
Substantive equality demands that States should strive to maintain the playing field
perfectly even for both women and men.
As to divorce, the concept of substantive equality examines a divorce
legislation with a discriminating eye. Under this concept, the consequential effects
on women of a divorce law are fully assessed. The concept of substantive equality
ensures that the hapless wive is afforded a fair and reasonable opportunity to
divorce from her husband.

E. Non-Discrimination
Indeed, even in the absence of an express grant of right to equality of
women, they can still invoke the same human rights instruments as a defense
against devastating attacks on their human rights. This is because human rights
instruments subscribe to the concept of non-discrimination. The right of every
person against discrimination is evinced in Article 7 of the Universal Declaration of
Human Rights (UDHR) which reads:

135
136

Id.
Id.

Article 7.
All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement
to such discrimination.

The same right is provided for in Article 26 of the International Covenant

on Civil and Political Rights (ICCPR) which reads:
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.

The rights provided for under the Covenant is sought to be applied to all persons
within the State Party regardless of race, color, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.137 The
ICESCR also mandates the application of the rights enumerated therein without
discrimination as stated in paragraph 2 of Article 2.

2. The States Parties to the present Covenant undertake to guarantee that

the rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status.

137

ICCPR, supra note 104, art. 2 1.

The concept of non-discrimination in both Covenants was not clearly

explained. To discover the meaning of this concept, one should start with the
search of the intent of the drafters of the conventions.

But the intent of the drafters of the ICESCR as manifested in their

discussions suggests that discrimination would refer to distinctions based
on an unjustified or arbitrary nature. Certain distinctions may be justified
to promote the position of certain backward and underprivileged sectors of
the population.138

Aside from the intent of the drafters, the usage of the word discrimination in
the other Conventions could also be looked into. Several Conventions provide for
the definition of discrimination. The ILO Convention Concerning Discrimination in
Respect of Employment and Occupation defines discrimination as including any
distinction, exclusion or preference made on the basis of race, colour, sex,
language, religion, political opinion, national extraction or social origin, which has
the effect of nullifying or impairing equality of opportunity or treatment in
employment or occupation.139 A similar definition is found in the UNESCO
Convention against Discrimination in Education.

138

MATTHEW CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT 161 (1998) [hereinafter CRAVEN]. Citing McKean W,
Equality and Discrimination under International Law. At 182. Similarly in the drafting of art. 3 it was
made clear that not all differences of treatment would be illegitimate.
Citing UN Docs. A/C.3/SR1182 at 241 (1962); A/C.3/SR. 1202, at 338 (1962); and A/C.3/SR.1203, at
341 (1962) There were also fears that the guarantee of rights without distinction would also
prevent States from placing any restrictions inter alia on the rights of aliens to take up employment
in a country. The replacement of the word distinction by discrimination was intended to avoid such
ambiguity.
139
ILO Convention Concerning Discrimination in Respect of Employment and Occupation art 1,
June 15, 1960, 362 UNTS 93, ILO No. 111.

Article 1(1): For the purposes of this Convention, the term

`discrimination' includes any distinction, exclusion, limitation or
preference which, being based on race, colour, sex, language, religion,
political or other opinion, national or social origin, economic condition or
birth, has the purpose or effect of nullifying or impairing equality of
treatment in education and in particular:
(a) Of depriving any person or group of persons of access to education of
any
type
or
at
any
level;
(b) Of limiting any person or group of persons to education of an inferior
standard;
(c) Subject to the provisions of Article 2 of this Convention, of establishing
or maintaining separate educational systems or institutions for persons or
groups
of
persons;
or
(d) Of inflicting on any person or group of persons conditions which are
in-compatible with the dignity of man.

This is substantially reiterated in Article 1(1) of the International

Convention on the Elimination of all Forms of Racial Discrimination (ICERD)
which provides:

Article 1(1): In this Convention, the term "racial discrimination" shall

mean any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise, on
an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life.

CEDAW

also

seeks

to

promote

non-discrimination

Discrimination against women is defined in the Convention, as follows:

Article I
For the purposes of the present Convention, the term
"discrimination against women" shall mean any
distinction, exclusion or restriction made on the basis
of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis

of

women.

of equality of men and women, of human rights and

fundamental freedoms in the political, economic,
social, cultural, civil or any other field.

The Convention desires to stop discrimination against women. Thus, Article 2 of

the Convention provides:
Article 2
States Parties condemn discrimination against women
in all its forms, agree to pursue by all appropriate
means and without delay a policy of eliminating
discrimination against women and, to this end,
undertake:
(a) To embody the principle of the equality of men
and women in their national constitutions or other
appropriate legislation if not yet incorporated therein
and to ensure, through law and other appropriate
means, the practical realization of this principle;
(b) To adopt appropriate legislative and other
measures, including sanctions where appropriate,
prohibiting all discrimination against women;
(c) To establish legal protection of the rights of
women on an equal basis with men and to ensure
through competent national tribunals and other public
institutions the effective protection of women against
any act of discrimination;
(d) To refrain from engaging in any act or practice of
discrimination against women and to ensure that
public authorities and institutions shall act in
conformity with this obligation;
(e) To take all appropriate measures to eliminate
discrimination against women by any person,
organization or enterprise;
(f) To take all appropriate measures, including
legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute
discrimination against women;
(g) To repeal all national penal provisions which
constitute discrimination against women.

The common definitions found in the Conventions cited have led certain
commentators to conclude that a universal composite concept of discrimination

can be discerned in the various instruments characterized by the following

elements: 1) a difference in treatment; 2) which is based upon certain prohibited
grounds; 3) and has a certain purpose or effect; and, 4) in selective fields. 140
The principle of non-discrimination covers both direct and indirect
discrimination. Direct discrimination refers to occasions where "a person treats
another less favorably than they would a person from a different group. 141 In
direct discrimination, the person virtually intends to discriminate. An example of
direct discrimination would be an employer who asks during job interviews
whether the applicant has children.142 The applicant tells the employer that he has
four children.143 The employer makes a remark that the applicant will be needing a
lot of time off from work if his child is sick and therefore he cannot consider the
applicant for the position.144 The discrimination in this case is simply too obvious
as it is patent.

140

CRAVEN, supra note 138, at 163. Citing Schwelb E. The International convention on the
Elimination of All Forms of Racial discrimination (1966). 15 ICLQ 996, at 1001. The outline of such a
definition has been accepted by the HRC in its General Comment on art. 2(1) ICCPR where it is
stated that the term discrimination: should be understood to imply any distinction, exclusion,
restriction or preference which is based on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status, and which has
the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all
persons, on an equal footing of all rights and freedoms. General Comment No. 18 (37), UN Doc.
A/45/40 at 174. Para. 7. 45 UN GAOR. Supp. (No. 40) (1990).
141
Liam Healy & Associates, Direct and Indirect Discrimination: A discussion, available at
http://www.psychometrics.co.uk/discrimination.html (last accessed February 28, 2013).
142
Anti-Discrimination Commission Queensland, Direct and Indirect Discrimination, available at
http://www.adcq.qld.gov.au/Brochures07/direct.html (last accessed February 28, 2013)
[hereinafter Queensland].
143
Id.
144
Id.

Indirect discrimination essentially relates to facially-neutral laws that in

reality have discriminatory effect.145 An example is a policy of not allowing any
staff to work part-time.146 This policy will deprive people with children the
opportunity to gain employment. The lawmaker may not have intended to
discriminate but nonetheless the law brought about discrimination.

F. The Equal Protection Clause

The right of Filipino citizens to equality is protected under the 1987

Constitution. This right is enshrined in Section 1, Article III of the 1987 Philippine
Constitution which reads:
Section 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection
of the laws. (emphasis supplied)

As pointed out by Fr. Bernas, equal protection of the law means:

The equal protection clause is a specific constitutional guarantee of the

equality of the person. The equality it guarantees is legal equality or, as it
is usually put, the equality of all persons before the law. Under it, each
individual is dealt with as an equal person in the law, which does not treat
the person differently because of who he is or what he is or what he
possesses. The goddess of justice is portrayed with a blindfold, not
because she must be hindered in seeing where the right lies, but that she
may not discriminate against suitors before her, dispensing instead an even
handed justice to all. 147

145

Training Manual supra note 133, at 23.

Queensland supra note 142.
147
BERNAS, supra note 99, at 33-34.
146

The equal protection clause of the 1987 Constitution takes its roots from the
Philippine Bill of 1902.148 Section 5 of the Philippine Bill of 1902 states:

Sec. 5. That no law shall be enacted in said Islands which shall deprive
any person of life, liberty, or property without due process of law, or deny
to any person therein the equal protection of the laws.

Such provision was based on the Fourteenth Amendment of the United States
Constitution149.

It must be noted that as early as 1937, there were already cases filed
pertaining to disputes arising from alleged violation of the right to equal
protection. The early case of People v. Vera150 follows the anti-classification
principle.151 The subject of litigation in the Vera case is the probation law which is
being assailed for infringing on the Equal Protection clause. In the said decision,
the Court viewed discrimination as wrong because it involves arbitrary or
irrational treatment.152

Another case involving the interpretation and application of the Equal

Protection clause has reached the Supreme Court in 1939. This is the case of
148

REYNATO S. PUNO EQUAL DIGNITY & RESPECT THE SUBSTANCE OF EQUAL PROTECTION AND
SOCIAL JUSTICE 185 (2012) [hereinafter PUNO].
149
U.S. CONST. 14th Amendment, 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
150
People v. Vera, 65 PHIL 56 (1937).
151
PUNO supra note 148, at 285.
152
Id.

People v. Cayat 153. The Cayat case involves a dispute concerning an Act
prohibiting non-Christian tribes from possessing and drinking intoxicating liquors
other than native liquors.154

The Court used the four-fold test of reasonable

classification, namely: (1) must rest on substantial distinctions; (2) must be

germane to the purposes of the law; (3) must not be limited to existing conditions
only; and (4) must apply equally to all members of the same class.155 Equal
protection does not necessarily rule out classification. However, the classification
must be reasonable. The test applied in the Cayat case has been reiterated in a
number of cases later decided.
The decisions of the Court apply the concept of formal equality things
that are similar or alike should be treated alike and that things that are unalike
should be treated unalike.

A remarkable development in Philippine jurisprudence on Equal Protection

was made by the Court when it decided the case of Philippine Association of
Service Exporters, Inc. (PASEI) v. Drilon156. The PASEI case presents a dispute
involving Department Order No. 1 Series of 1998 of the Department of Labor and
Employment which suspends deployment of female Filipino domestic and

153

People v. Cayat, 68 PHIL 12 (1939).

Id.
155
Id.
156
PASEI V. Drilon, 163 SCRA 386, 389 (1988).
154

household workers.157 The case was decided in favor of the Department. The
policy of Social Justice formed part of the decision of the Court. Certain portions
of the Decision were allotted to a discussion on protection of women.

The Court through Justice Cruz reiterated the same principle in the case of
Association of Small Landowners in the Philippines v. Secretary of Agrarian
Reform158. The subject of the controversy is the challenge on the constitutionality
of the Comprehensive Agrarian Reform Law on the ground of violation of the
Equal Protection clause. The Court upheld the constitutionality of the law. The
Court particularly took into account the Social Justice provisions of the
Constitution specifically the provision on Agrarian Reform.

In a decision penned by Justice Paras, the Court upheld the

constitutionality of a Resolution of the City of Makati confirming and/or ratifying
the ongoing burial assistance program to a bereaved family. 159 The Court applied
the concept of social justice in this case. The Court took notice of the unbearable
situation of paupers who are the beneficiaries of the burial assistance program of
the City of Makati.

157

Id.
Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, 175
SCRA 343, 355-375 (1989).
159
Binay and the Municipality of Makati v. Domingo, 201 SCRA 508, 516 (1991).
158

The Court was confronted anew with the question on equal protection in
the case of JMM Promotion and Management, Inc. v. Court of Appeals160. The
case involves a dispute on the constitutionality of Department Order No. 3 of the
Department of Labor and Employment which establishes various procedures and
requirements for screening performing artists.161 Reference was made by the
Court to the provisions of the Constitution on protection of labor.
Equally important is the case of Central Bank Employees Association v.
Bangko Sentral ng Pilipinas162. The constitutionality of Republic Act 7653 was
assailed as violative of the right to equal protection of the Central Bank
employees. Reference was made to subsequent laws amending the Charter of
seven other government financial institutions. In essence, the Central Bank
employees are asserting that the last proviso of Republic Act 7653 makes an
unconstitutional distinction between two classes of employees in the BSP, viz: (1)
the BSP officers or those exempted from the coverage of the Salary
Standardization Law (SSL) (exempt class); and, (2) the rank-and-file (Salary
Grade [SG] 19 and below), or those not exempted from the coverage of the SSL
(non-exempt class).163 The Court struck down the said proviso for being contrary
to the right to equal protection of the Central Bank employees. The Court noted
the change in the circumstances.
160

JMM Promotion and Management, Inc. v. Court of Appeals, 260 SCRA 319, 332 (1996).
PUNO, supra note 148 citing JMM Promotion and Management, Inc. v. Court of Appeals.
162
Central Bank Employees Association v. Bangko Sentral ng Pilipinas, 446 SCRA 299, 347-348
(2004).
163
Id.
161

A statute valid at one time may become void at another time because
of altered circumstances. Thus, if a statute in its practical operation
becomes arbitrary or confiscatory, its validity, even though affirmed by a
former adjudication, is open to inquiry and investigation in the light
of changed conditions.164

The Court also deemed it necessary to promote the welfare of Central Bank
rank and file employees whom the Court considers as belonging to a
disadvantaged class.
Considering that majority, if not all, the rank-and-file employees consist
of people whose status and rank in life are less and limited, especially in
terms of job marketability, it is they - and not the officers - who have the
real economic and financial need for the adjustment. This is in accord
with the policy of the Constitution "to free the people from poverty,
provide adequate social services, extend to them a decent standard of
living, and improve the quality of life for all. Any act of Congress that
runs counter to this constitutional desideratum deserves strict scrutiny by
this Court before it can pass muster. 165

The common thread that runs through these decisions is their mutual
reference to social justice provisions of the Constitution. The Court applied the
concept of substantive equality. The Court deemed it proper to uphold the
constitutionality of laws which set a different standard for individuals who have
different needs and are differently situated.

164

Id. citing Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949
(1935); Atlantic Coast Line R. Co. v. Ivey, 148 Fla. 680, 5 So. 2d 244, 139 A.L.R. 973 (1941); Louisville
& N. R. Co. v. Faulkner, 3 G.R. No. L-29646 07 S.W.2d 196 (Ky. 1957); and Vernon Park Realty v. City
of Mount Vernon, 307 N.Y. 493, 121 N.E.2d 517 (1954)., Murphy v. Edmonds, 325 Md. 342, 601
A.2d 102 (1992).
165
Id citing 1987 Constitution, Article II, Section 9.

IV. CRITIQUE ON THE NON-AVAILABILITY OF ABSOLUTE

DIVORCE AS A LEGAL REMEDY TO NON-MUSLIM SPOUSES AND
ON THE DISCRIMINATORY PROVISIONS ON DIVORCE OF THE
CODE OF MUSLIM PERSONAL LAWS
The proponents critique on the non-availability of absolute divorce as a
legal remedy to non-Muslim spouses and on the provisions on divorce of the Code

of Muslim Personal Laws is anchored on the provisions of human rights

instruments which guarantee the enjoyment of women of their human rights. The
divorce controversy should be viewed through the lens of the basic purpose of
human rights instruments to uplift the marginalized sectors of society such as
women.
A. Protection of Families
As explained in Chapter III of this thesis, the requirement of protection of
families is far-reaching in scope. It is broad enough to encompass the positive duty
of every State to give full recognition and effect to the rights of the individual
members of the family particularly the most vulnerable ones such as the wives.
The 1987 Philippine Constitution actually subscribes to the same policy of
protecting families. In its Section 12, Article II, the 1987 Philippine Constitution
states:

Section 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social institution.
It shall equally protect the life of the mother and the life of the unborn
from conception. The natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government.

However, the clause protection of families is strictly construed in the light

of Section 2, Article XV of the 1987 Constitution reading:
Section 2. Marriage, as an inviolable social institution, is the foundation
of the family and shall be protected by the State.

The phrase protection of families is interpreted in the context of the

constitutional provision on protection of marriage. Protection of families is deemed
as synonymous to protection of marriage. Protection of marriage is construed in a
manner that promotes the objective of preserving the marriage. Consequently, the
concept of protection of families is interpreted to preclude or limit the opportunity
to seek relief from a distressful marital relationship. Indeed, protection of families
is construed as an absolute ban on absolute divorce. The proponent is of the view
that the Constitution by providing for the protection of the family does not prohibit
absolute divorce.

The Constitutional provisions on marriage, however, do not imply that the

legislature cannot enact a law allowing absolute divorce. While it is
fundamental that marriage must be protected, it is likewise to be
acknowledged that there may be certain cases where the parties might have
undergone a marriage ceremony to bind themselves together but,
subsequently, no functional marital tie would exist. Hence, there is no
marriage to preserve at all. The legislature has the plenary power to decide
what sort of situations allowing absolute divorce may be recognized within
the limits allowed by the Constitution.166

The provision on protection of families cannot be read to completely disallow the

institutionalization of absolute divorce in the Philippines. The framers of the 1987
Constitution pointed out that the adoption of this provision is not equivalent to an
outright rejection of absolute divorce.

The following exchange, during the

deliberations of the 1986 Constitutional Commission, between Fr. Bernas and

Commissioner Gascon, clearly established this:

166

STA. MARIA, PERSONS, supra note 1, at 101-102.

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. 167

Commissioner Gascon, in reply to Fr. Bernas query whether the provision

prohibits the legislature from passing a law on divorce, answered that it was not his
intention. Commissioner Gascon expressed his personal opinion on the issue of
divorce. The initial response of Commissioner Gascon is vague. When Fr. Bernas
persisted in his line of inquiry on whether the provision carries the meaning of
prohibiting a divorce law, Commissioner Gascon finally answered no.
Obviously, Fr. Bernas wanted it clarified whether the provision prohibits divorce,
and to which Commissioner Gascon categorically stated, no. Thus, whatever
doubts remained on whether the provision prohibits divorce were removed
completely when Commissioner Gascon categorically declared no. There is no
doubt whatsoever that the framers of the 1987 Constitution do not forbid Congress

167

Record of the 1986 Constitutional Commission, Vol. V, September 24, 1986. p. 41.

from creating a law on divorce. Logically, and as clearly and emphatically intended
by the framers of the 1987 Constitution, the provision on marriage does not bar the
Congress from passing a law on divorce.
The interpretation of the phrase protection of families should therefore
not be restricted to preservation of marriage. There is no evidence whatsoever of
the intent to make such protection of families equivalent to absolute preservation of
marriage. The aforequoted exchange between Fr. Bernas and Commissioner
Gascon belies the notion that the protection of marriages and families is tantamount
to a wholesale rejection of divorce. Protection of families should involve the
consideration of the welfare of the members of the family.

The interest of the State in preserving the marital relationship should be

weighed against the right of estranged spouses to free themselves from a bond that
has become insufferable in some cases.168 The State should consider that these
spouses also have individual rights which cannot be sacrificed in order to promote
stability in family relations. Otherwise, the individual rights of these spouses would
be violated.
Human rights law now focuses on the importance of recognizing the
centrality of every individual in every family and every society. It also
recognizes the importance of family life for individual fulfillment. Thus,
the international approach views family life in terms of individual rights
and personal fulfillment. This conception of family life may seem
paradoxical; especially when applied to an institution historically viewed
in terms of obligation and of the need to erase most of its members
168

JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW 304 (1995).

individuality. Yet international human rights law now clearly recognizes

the significance of families for individuals and even views family life as a
necessary source for individual fulfillment.169

The State must take note of the observation of the Committee on Economic,
Social and Cultural Rights. The Committee on Economic, Social and Cultural
Rights made the following observation. Thus:
The Committee notes with concern the absence of legislation on divorce.
(Article 10)
The Committee recommends that the State party adopt legislation
recognising the right of men and women to divorce, to obtain the
legal severance of marital ties and to remarry after divorce. 170

In support of its observation, the Committee cited Article 10 the ICESCR providing
protection to families. Thus, divorce is consistent with the policy of the ICESCR of
according protection to families.
The States professed commitment to protecting families should not lead to
an absurd situation where the wife remains married to her husband despite
constant threats to her personal safety. The interest of the family cannot be
considered separately from the interests of the members. The word family is a
mere abstract concept without the members comprising it. It is therefore wrong to
disregard the human rights of the members of the family especially the most
vulnerable ones in favor of the preservation of the family as a social institution.
B. Right to Life
169

LEVESQUE, supra note 95, at 30.

Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee
on Economic, Social and Cultural Rights November 24, 2008.
170

The absence of a divorce legislation in the Philippines did not prevent

domestic disunion. Unhappy couples decide to live under separate roofs. Later on,
the separated couple would start cohabiting with another person without the benefit
of marriage. They are unable to marry the person they are cohabiting with because
they are still married to their legal husband or wife. And in cases of cohabitation
without the benefit of marriage, it is the women who actually suffer. This is
because of the existing double standard of treatment in Philippine society. One
standard for the men and another standard for the women. Cohabitation without the
benefit of marriage elicits a bad impression on the woman. Such situation adversely
affects the integrity and honor of the woman.
Thus, whereas mans infidelity is acceptable, the woman is expected at all
times to be faithful. Filipino wives unfaithfulness is stigmatized and
devalues them socially while their husbands unfaithfulness is socially
condoned. This is another indication of womens subordinate position in
society and of mens power and dominance. 171

Her ordeal at the hands of her incorrigible husband is painful enough and to
lose her honor because of her extra-marital relationship would be even more
painful. The construction of the right to life as including the right to a good life
finds relevance in this wrongful attitude towards women who are cohabiting with
another man who is not her husband. Women have the unassailable right to a good
life. A law on absolute divorce would give women a meaningful opportunity to

171

Josefina V. Cabigon, Filipino Wives in Foreign Lands, University of the Philippines Diliman
Journals Online 72 available at http://journals.upd.edu.ph/index.php/pssr/article/view/1714/1654
(last accessed August 31, 2013).

seek legal recognition of their subsequent amorous relationship. Such legal

recognition would evidently create an atmosphere that would facilitate the
attainment of the woman of a dignified life.
It should also be mentioned that as a result of the lack of divorce, many
women cohabit with their current partners without having their marriage nullified
and some women are dismissed from government service precisely because of
these immorality issues. 172 Such dismissals for immorality do not take into
consideration the fact that there are many married women who were previously in
abusive relationships and now may have found comfort in their current loving
relationships.173 Significantly, the right to life is interpreted to cover the right to
livelihood.174 Such dismissal of women by reason of immorality is a direct
affront to the right to livelihood of these women. Such dismissal causes untold
embarassment and inconvenience to women which could have been avoided had
the State promulgated a law on divorce.
C. Protection Against Gender-Based Violence
Regardless of the presence of a human rights instrument protecting women
against violence, the fact still remains that infraction of such right is an
unasssailable reality. Filipinos are not unfamiliar and nave to pulse-pounding
scenarios of violence in the family home. It is noteworthy to point out the earlier
172

Clara Rita A. Padilla, A Call for Philippine Implementation of Womens Rights under CEDAW, 53
Ateneo L.J. 765-803 (2008).
173
Id.
174
Amparita S. Sta. Maria, International Human Rights System citing Olga Tellis & Ors v Bombay
Municipal Council July 10, 1985.

case of Marivic Genosa.175 The case of Marivic Genosa refers to an unbearable

situation of the wife who recounted her cruel fate at the hands of her own husband.
The attention of the trial court was called to the fact that the wife is suffering from
a battered woman syndrome. The wife, who was plagued with festering problem
with her husband, has gone to the extent of killing her husband to prevent the latter
from causing the former harm and injury. The Genosa case is not the first and only
case involving violence in Filipino homes. 14.4 percent of married women have
experienced physical abuse from their husbands; and more than one-third (37%) of
separated or widowed women have experienced physical violence, implying that
domestic violence could be the reason for separation or annulment.176 Overall, 4
percent of women who are pregnant have experienced physical violence during
pregnancy.177 One in seven married women experienced physical violence by their
husbands while 8 percent experienced sexual violence by their husbands.178 One in
three women who experienced physical/sexual violence is reported to have physical
injuries such as cuts, bruises or aches.179 More than 10 percent are reported to have
suffered eye injuries, sprains, dislocations or burns, and about the same proportion
reported that they attempted to commit suicide.180 Three in five women who have
experienced physical/sexual violence reported having experienced psychological
175

People v. Genosa, 419 SCRA 537, 563-566 (2004).

Philippine Commission on Women, Statistics on Violence against Filipino Women, available at
http://pcw.gov.ph/statistics/201210/statistics-violence-against-filipino-women (last accessed March
1, 2013).
177
Id.
178
Id.
179
Id.
180
Id.
176

consequences like depression, anxiety and anger. 181 The sad statistics shows that
womens right to protection against violence continue to be ignored.
Indisputably, there were laws enacted to promote the safety of women. In
2008, Congress enacted Republic Act No. 9710 (RA 9710) providing for the
Magna Carta of Women. In its Section 9, RA 9710 states:
SEC. 9. Protection from Violence. The State shall ensure that all
women shall be protected from all forms of violence as provided for in
existing laws. Agencies of government shall give priority to the defense
and protection of women against gender-based offenses and help women
attain justice and healing. Towards this end, measures to prosecute and
reform offenders shall likewise be pursued.
(a) Within the next five (5) years, there shall be an incremental increase in
the recruitment and training of women in the police force, forensics and
medico-legal, legal services, and social work services availed of by women
who are victims of gender-related offenses until fifty percent (50%) of the
personnel thereof shall be women.
(b) Women shall have the right to protection and security in situations of
armed conflict and militarization. Towards this end, they shall be
protected from all forms of gender-based violence, particularly rape and
other forms of sexual abuse, and all forms of violence in situations of
armed conflict. The State shall observe international standards for the
protection of civilian population in circumstances of emergency and
armed conflict. It shall not force women, especially indigenous people, to
abandon their lands, territories, and means of subsistence, or relocate
them in special centers for military purposes under any discriminatory
condition.
(c) All government personnel involved in the protection and defense of
women against gender-based violence shall undergo a mandatory training
on human rights and gender sensitivity pursuant to this Act.
(d) All local government units shall establish a Violence Against
Womens Desk in every barangay to ensure that violence against women
cases are fully addressed in a gender-responsive manner.

181

Id.

Prior to RA 9710, Congress passed Republic Act No. 9262 (RA 9262)
which provides, among others, protective measures for women who are victims of
violence perpetrated by her husband or by persons with whom she has a sexual or
dating relationship.182 But these laws are not enough to assuage the difficult
predicament of wives because these laws do not free the wives from the marital
bond. Consequently, the wife remains married to her uncaring husband. The State
has taken a very limited and superficial action against violence on women. Instead
of severing the marital bond between the perpetrator and the victim, the State
merely builds a dividing wall to physically separate the perpetrator and the victim.
Consider the case of a non-Muslim wife who is habitually assaulted by her
non-Muslim husband. She can escape from such a lamentable condition by
obtaining a decree of legal separation or by obtaining a protection order. In the
event that this non-Muslim woman subsequently meets a man who would be
willing to be her husband, she cannot enter into a subsequent marriage because the
decree of legal separation or the protection order she obtained does not capacitate
her to remarry. If she decides to pursue her relationship with the said man then she
would be engaging in extra-marital affair. Should her cruel husband discover her
relation with this man, then she could be held guilty of adultery. The State does not
permit a complete relief to the wife.

182

An Act Defining Violence Against Women and their Children, Providing for Protective Measures
for Victims, Prescribing Penalties Therefore, and for other Purposes [Anti-Violence Against Women
and Their Children Act of 2004], Republic Act No. 9262 3(a) (2004).

In the Concluding Comments of the Committee on the Elimination of

Discrimination against Women, the Committee noted the absence of a divorce law
in the Philippines. The Committee actually called for the adoption of a law
allowing absolute divorce. The Committee stated:

31. The Committee expresses its concern about the lack of a law on
divorce, making it impossible for women to obtain legal divorce.
32. The Committee urges the State party to introduce and support
vigorously legislation which permits divorce, allows women to remarry
after divorce, and grants women and men the same rights to administer
property during marriage and equal rights to property on divorce. It also
recommends that women be granted the right to initiate divorce on the
same terms as men. 183

Regrettably, however, the Comment of the Committee remained unacted upon.

This clearly shows the States indifference and utter disregard of the Committees
directive.

The State cannot pay mere lip service to its duty to protect women against
violence. The State should show its sincere desire to protect women against
violence by addressing the root cause of domestic violence. The State should
dissociate the distraught victim from her unrepentant offender by allowing absolute
divorce.
D. Gender Equality
A cursory reading of the provisions on divorce of the Code of Muslim
Personal Laws unmistakably shows a flagrant transgression of womens
183

Committee on the Elimination of Discrimination against Women. Concluding comments of the

Committee on the Elimination of Discrimination against Women: Philippines 7 (2006).

fundamental right to substantive equality. It is glaringly apparent from the Code

that it applied the concept of formal equality. While it is true that the Code
facilitated the access of Muslim wives to divorce, the provisions of the Code on
divorce, however, have unfavorable and serious impact on women. The
permanence of the marital relationship is essentially left to the will of the Muslim
husband. The Code contains provisions which are repugnant to the right to
equality of the women. The Code specifically denies to women the application of
certain grounds for divorce. The Muslim husband can simply say to his wife I
divorce you and he just needs to repeat the same thrice to divorce his wife (talaq).
The Code does not accord the same right to Muslim women. The Code poses a
limitation to the right of women to dissolve their marriage. Muslim women can
only obtain a divorce through court hearing or if the right to effect a talaq was
delegated to her by her husband. The Code also requires a woman to comply with
the waiting period before contracting a subsequent marriage. The waiting period
does not apply to the husband. Thus, the Muslim husband can immediately
contract a subsequent marriage after the divorce. The provisions on divorce of the
Code of Muslim Personal law hardly meet the noble ends of CEDAW. Article 16
of CEDAW, in unmistakable terms, requires State Parties to take all appropriate
measures to eliminate discrimination against women in all matters relating to
marriage and family relations and in particular shall ensure, on a basis of equality
of men and women the same rights and responsibilities during marriage and at its
dissolution. The Philippines failed to completely comply with the provisions of

CEDAW. The provisions of the Code constitute de jure discrimination against

women. Muslim women are not given equal opportunity to dissolve their
marriage.
Moreover, the Philippine government expressed no reservations to
CEDAW. Accordingly, any claim for exemption from the provisions of CEDAW
must fail. The Philippine cannot assert the defense of religion considering that it
did not make any reservations to CEDAW.
Even in the absence of CEDAW, women would still be entitled to equality
because of the constitutional policy on equality of men and women. Moreover, the
Magna Carta of Women requires the State to take steps to review and, when
necessary, amend and/or repeal existing laws that are discriminatory to women
within three (3) years from the effectivity of this Act.184 The Magna Carta became
effective on September 15, 2009. It is unfortunate that to this date, the Philippine
government miserably failed to amend the discriminatory provisions on divorce of
the Muslim Code.
E. Non-discrimination
In order to determine the existence of discrimination, the proponent will
apply the four elements of discrimination, namely: (1) a difference in treatment; (2)

184

An Act Providing for the Magna Carta of Women [The Magna Carta of Women] Republic Act No.
9710, 12 (2009).

which is based upon certain prohibited grounds; (3) and has a certain purpose or
effect; and, (4) in selective fields.185
(1)

Difference in treatment
The Committee on Economic, Social, and Cultural Rights utilizes the

common terms to describe differential treatment, namely, distinctions,

exclusions, restrictions, or preferences.186 Clearly, there is a distinction made by
the Code between Muslim men and women insofar as the right to divorce is
concerned. The Code grants to Muslim men the power to initiate effortlessly the
dissolution of the marriage. In contrast, Muslim women can obtain a divorce only
after a painstaking court hearing. Muslim women can also obtain a divorce if her
husband is kind enough to delegate to her the right to effect a talaq.
There is also disparity in treatment between Muslim men and women with
respect to the right to remarry. The Code incorporated a provision prohibiting the
woman from remarrying without observing the waiting period. Muslim men,
however, can already get married after the divorce.
(2) Which is based upon certain prohibited grounds
Both the ICCPR and the ICESCR provide for an enumeration of prohibited
grounds for differential treatment, namely: (1) race; (2) colour; (3) sex; (4)
language; (5) religion; (6) political or other opinion; (7) national or social origin; (8)

185
186

CRAVEN, supra note 138, at 163.

Id. at 164.

property; and, (9) birth or other status. The enumerated grounds in both
Covenants are the same. The Covenants do not proscribe a reasonable
classification.
This does not mean that all distinctions drawn upon those grounds will
necessarily be discriminatory, rather they are suspect classifications. At
most, distinctions drawn upon these suspect grounds could be said to
amount to prima facie discrimination, depending upon whether or not
there is any reasonable justification.187

Thus the State has the burden to prove that the classification made based on the
specifically stated prohibited grounds is appropriate. Failure to do this, the
classification would be declared as discriminatory and the State would be
pronounced as violating its obligations under the Covenants.
The classification between Muslim men and women is based on sex. Sex is
one of the prohibited grounds specifically stated under the Covenants. Hence, the
classification made by the State is a prima facie discrimination. There is no legal or
equitable justification for distinguishing between Muslim men and women.
International and local laws expressly recognize the equality of men and women.
Consequently, they should enjoy the same rights and privileges with respect to
marriage and divorce.
(3)

Purpose or effect
The effect of the differential treatment adopted by a particular State

would signify whether such approach is indeed reasonable. Other than effect, the
187

Id. at 167.

purpose of the differential treatment is likewise examined. Purpose pertains to

policies which have been designed to impair or nullify the enjoyment of the rights
concerned.
Hence, a State is held responsible for intentional but ineffective
discriminatory measures. The presence of discriminatory legislation
would amount to a breach of the Covenant even if it were not enforced.
In practice, the actual intention of the State concerned seems to be of
little importance. The emphasis on the effect of policies rather than their
intention also means that neutral measures will be considered
discriminatory if in fact they negatively affect a group in society that has
been singled out for protection.188

Under Article 2 of the Muslim Code, the purposes for which the said law
was enacted are as follows:

Article 2. Purpose of Code. Pursuant to Section 11 of Article XV of the

Constitution of the Philippines, which provides that "The State shall
consider the customs, traditions, beliefs and interests of national cultural
communities in the formulation and implementation of State policies," this
Code:
(a) Recognizes the legal system of the Muslims in the Philippines as part
of the law of the land and seeks to make Islamic institutions more
effective;
(b) Codifies Muslim Personal Laws; and
(c) Provides for an effective administration and enforcement of Muslim
Personal Laws among Muslims.

188

CRAVEN, supra note 138, at 166 citing Bayefsky A. The principle of Equality or nondiscrimination in International Law (1990) 11 HRLJ 1, at 1-2. As regards the ICCPR, there is some
evidence that the practice of the Human Rights Committee suggests that a notion of forseeability
has been incorporated in which some results would not be considered as the true consequences of
discriminatory rules.

The intent of then President Marcos in enacting the said Code is to

recognize the customary law of the Muslims as gleaned from the Whereas Clauses
of the Code.

WHEREAS, pursuant to the spirit of the provision of the Constitution of

the Philippines that, in order to promote the advancement and effective
participation of the National Cultural Communities in the building of the
New Society, the State shall consider their customs, traditions, beliefs and
interests in the formulation and implementation of its policies;
WHEREAS, Islamic Law and its principles of equity and justice, to
which the Filipino Muslim communities adhere, provide an essential
basis for the fuller development of said communities in relation to the
search for harmonious relations of all segments of the Filipino nation to
enhance national unity;
WHEREAS, the enforcement, with the full sanction of the State, of the
legal system of the Filipino Muslims shall redound to the attainment of a
more ordered life amongst them;
WHEREAS, it is the intense desire of the New Society to strengthen all
the ethno-linguistic communities in the Philippines within the context of
their respective ways of life in order to bring about a cumulative result
satisfying the requirements of national solidarity and social justice;

Apparently, there is no intention on the part of then President Marcos to

discriminate. But as previously stated, it is the effect of the policy which is the
deciding factor. The provisions on divorce of the Code of Muslim Personal Laws
directly contravene the policy on non-discrimination. The Code explicitly confers
upon Muslim men a superior right over the dissolution of the marriage. The Code,
however, adopts a different policy for Muslim women. Women must pass through a
strict scrutiny before they can get a divorce. The Code, however, is overly lenient
to Muslim men with respect to getting a divorce. It is also remarkable that Muslim
men can automatically remarry after the divorce whereas the women have to

observe a waiting period before they can contract a subsequent marriage. It is a

direct affront to the statutory right to divorce and remarry of the Muslim women.
(4)

Selective fields
Selective fields refer to the rights sought to be protected by a particular

Covenant. In the ICCPR, the right against discrimination of every person is not
confined to the rights provided for under the Covenant which are civil and political
rights. Civil and political rights are defined in the case of Simon v. Commission on
Human Rights189 as follows:
The term "civil rights," has been defined as referring (t)o those (rights)
that belong to every citizen of the State or country, or, in wider sense, to
all its inhabitants, and are not connected with the organization or
administration of the government. They include the rights of property,
marriage, equal protection of the laws, freedom of contract, etc. Or, as
otherwise defined civil rights are rights appertaining to a person by virtue
of his citizenship in a State or community. Such term may also refer, in its
general sense, to rights capable of being enforced or redressed in a civil
action. Political rights, 33 on the other hand, are said to refer to the right to
participate, directly or indirectly, in the establishment or administration of
government, the right of suffrage, the right to hold public office, the right
of petition and, in general, the rights appurtenant to citizenship vis-avis the management of government. 190

The right against discrimination in the ICCPR is deemed as free-standing or

autonomous.191 Thus, a person can invoke the right against discrimination under the
189

Simon v. Commission on Human Rights, 229 SCRA 117, 132-133 (1994).

Id. citing Black's Law Dictionary, Sixth edition, 1324; Handbook of American Constitutional Law,
(4th ed., 1927), p. 524., Malcolm, The Constitutional Law of the Philippine Islands, (2nd ed., 1926),
pp. 431-457., Black's Law Dictionary, Ibid., p. 1325., Anthony vs. Burrow, 129 F. 783, 789 [1904].
191
CRAVEN, supra note 138, at 178. Art 26 ICCPR has been interpreted as operating as an
autonomous right whose application was not limited to those rights which are provided for in the
Covenant. See General Comment 18/37, supra, n. 57, para.12. Thus, in practice, the HRC has dealt
with matters outside the strict context of civil and political rights, see e.g. Broeks vs. Netherlands, 2
Selected Decisions HRC, 196 (1987); Cf. Scott C. The Interdependence and Permeability of Human
190

ICCPR even though the right involved is not a right explicitly stated under the
Covenant.

Matthew Craven made the following significant observations with respect

to the non-discrimination principle in the ICESCR:

In the ICESCR, the guarantee of non-discrimination operates in relation to

all the economic, social and cultural rights. However, the approach of the
Committee on Economic, Social and Cultural Rights shows that while it
will not concern itself with matters that do not fall within the general scope
of economic, social and cultural rights, it will not confine itself to
combating discrimination only in those areas where a violation of the
substantive rights occurs. 192

The issue of discrimination against Muslim wives involves the right to marry
and found a family of Muslim women which is a civil right. Hence, the ICCPR can
be invoked. In the ICCPR, there is a provision that the rights enumerated therein
apply to all people without distinction as to race, sex, religion and others.
In the Philippines, a distinction was made with respect to the availability of
the statutory right to divorce. Muslim men have the unassailable right to divorce
and remarry while Muslim women must make a painstaking effort to prove a valid
cause for divorce. This is in violation of the non-discrimination clause of the

Rights Norms: Towards a partial Fusion of the International Covenants on Human Rights, (1989) 27
Osg. HLJ 769, at 851-9; Opsahl T., Equality in Human Rights law with Particular Reference to article
26 of the International Covenant on civil and political rights, in Nowak M., Steuerer D., and Tretter
H. (eds.), Progress in the Spirit of Human Rights (1988), 51
192
Id. at 177-180. It is submitted that this is a suitable and balanced approach. To extend the scope
of the provision beyond economic, social and cultural rights would not only lead to possible
conflicts with other human rights organs, but would impose too great a burden of work upon the
Committee. On the other hand, to restrict the provision to a subordinate status would deprive it of
any substantive value.

ICCPR which provides for equality of the spouses as to marriage and its
dissolution.

F.

The Equal Protection Clause

The primary tool used by the Court to determine whether there is violation

of the Equal Protection Clause is the four-fold test of reasonable classification,

namely: (1) must rest on substantial distinctions; (2) must be germane to the
purposes of the law; (3) must not be limited to existing conditions only; and, (4)
must apply equally to all members of the same class.193
There is no substantial distinction between Muslim husbands and wives.
Mere difference in sex is not a material difference to distinguish Muslim men from
Muslim women for the purpose of divorce and remarriage. Sex does not affect or
determine the right to divorce and remarry. The divorce provisions in the Code give
Muslim husbands a unique advantage the simplicity and ease of being able to
divorce from their wives and remarry another woman as against their wives who
cannot easily secure a divorce decree and remarry another man. Clearly, as worded
the divorce provisions found in the Code of Muslim Personal Laws, violate the
equal protection clause.
.

The proponent takes note of the recent decisions of the Supreme Court

considering social justice as a guiding principle on the matter of violation of equal

protection. Reference was made to other provisions of the Constitution to safeguard
193

Quinto v. Commission on Elections, 606 SCRA 258, 291 (2009).

the well-being of the disadvantaged groups. The divorce provisions of the Code
further marginalized the already marginalized group in this country - the women.
Indeed, the sad reality is that women are perennially beset with problems of
discrimination. Women continue to struggle to protect themselves from
discrimination. The Code perpetrates such unfair treatment accorded to women.
Such grave injustice to women is what the 1987 Constitution seeks to prevent. That
is why Section 14 of Article II of the 1987 Constitution provides that: The State
recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men. It is within this textual milieu that the
divorce provisions of the Code should be examined. The divorce provisions of the
Code must be assessed in the context of the constitutional provisions on women.
Between a Muslim husband and a Muslim wife, the latter is oftentimes on
the losing or inferior position. Muslim women are all the more unjustly
discriminated against because of the divorce provisions of the Code, effectively
losing their statutory right to divorce and remarry. Depriving Muslim wives equal
opportunity to divorce and remarry essentially amounts to a manifest partiality in
favor of Muslim husbands. The State must show compassion and afford protection
to those who are in most need the women. Knowing that gross inequality is
among the major problems of women in the Philippines, then laws should aim at
alleviating those problems instead of aggravating the same. The divorce provisions
of the Code thwart the laudable objective of the Constitution which is to promote
equality of men and women.

The foregoing human rights are affirmed in the different international

instruments embodying the same. Significantly, the Philippines is a signatory to
these different international instruments. Hence, the Philippines recognizes the
rights embodied therein and, accordingly, commits itself to the fulfillment of the
obligations attached thereto.194 As a signatory of the human rights instruments, it
behooves the Philippines to honor its obligations thereunder. Pacta sunt servanda, a
basic international law postulate that every treaty in force is binding upon the
parties to it and must be performed by them in good faith.195 The exacting
imperative of this principle is such that a State may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty. 196

Interestingly, the Philippine government strayed from its sacred duty to

observe and comply with the requirements of the human rights instruments. The
Philippine government refused to give the option of divorce to non-Muslims in
violation of the human rights of women. The Philippine government likewise
permitted the discrimination against Muslim women. These manifest the nonobservance of the pacta sunt servanda principle.

194

Id.
Vienna Convention on the Law of Treaties art. 26, adopted May 22, 1969, 1155 U.N.T.S. 331.
196
Declaration of Rights and Duties of States Adopted by the International Law Commission, art.
13, 1949.
195

V. CONCLUSION

The Constitution and various international human rights instruments advance

and safeguard the rights of women. It is therefore the duty of the State to ensure
that the rights guaranteed under the said instruments are respected. The State is
expected to comply with the directives contained in the said instruments.
The State, however, failed to comply with the mandates of these instruments.
Non-Muslims are not given the option of divorce. The State should have considered
the effects of the absence of a legislation on divorce on the welfare of women. It is
the interests of women that should be considered by the State. The welfare of
women should be the overriding consideration of the State.
The State likewise failed to comply with its obligations under the domestic
and international laws when it prejudiced the human rights of Muslim women. The
right to equal protection found in the Constitution and the right against

discrimination upheld in several human rights instruments were not observed by the
State. A discrimination based on sex was created by the State and there is no
sufficient justification given for the distinction made.
The proponent is of the view that the option of absolute divorce should be
given to non-Muslim couples. This is to address the predicament of wives whose
marriage has become desperately unhappy, or brutally or violently oppressive. 197
The proponent likewise maintains that amendments to the divorce provisions
of the Code of Muslim Personal Laws should be effected in pursuance of the policy
of giving due recognition to women as equal in rights with men.

197

MICHAEL KIMMEL, THE GENDERED SOCIETY 138 (2000).

VI. RECOMMENDATIONS
A. Divorce Law
To address the issue of violation of human rights of women, it is
recommended that a bill be introduced in Congress that will legalize absolute
divorce.
In proposing the legalization of absolute divorce, the proponent does not
intend to supplant the existing provisions on legal separation in the Family Code.
The proponent believes that legal separation should still remain as a legal remedy
for married couples. In the light of the recommendation of the proponent, legal
separation will still have the effect of relative divorce wherein the couples are
entitled to live apart but the marital bond is not severed. The petitioner is given the
option of choosing between legal separation and divorce. Legal separation should
remain as a remedy because there are spouses who may have no intention of
remarrying.
The proponent does not also intend to amend the provisions of the Family
Code on legal separation, psychological incapacity and foreign divorce. The bill of

the proponent would be in addition to the present legal remedies under the Family
Code. The proponent does not find it necessary to amend the provisions on legal
separation, psychological incapacity and foreign divorce in the Family Code since
the absolute divorce bill of the proponent is entirely separate and distinct from the
aforementioned legal remedies.
The power to initiate an absolute divorce case belongs to the innocent
spouse. The bill aims to promote the protection of the innocent party. The
offending spouse does not deserve preferential consideration because it is he or she
who significantly contributed to the dismal state of their marriage. Thus, where
both the husband and the wife are at fault, neither of them would be entitled to the
benefit of divorce.
In a divorce case, it is incumbent upon the petitioner to first establish facts
proving the existence of a ground for divorce. The failure of petitioner to discharge
that burden would result in a denial of the petition. The burden of proving the
existence of the ground for divorce rests on the petitioner because of the timehonored maxim that marriage is entitled to great respect. It is settled that
dissolution of marriages is the exception rather than the general rule.
All the grounds for legal separation must be included as grounds for absolute
divorce. The grounds for legal separation are the common concerns of couples. The
proponent likewise adopts additional grounds for divorce. The proponent puts
forward the following additional grounds for divorce; namely: (1) incurable
insanity which has reached such a stage that the intellectual community between

the spouses has ceased; (2) impotency; and, (3) incurable disease which could make
the continuance of the marriage relationship injurious to the family. When one
spouse is completely deprived of reason, he or she cannot be expected to think
clearly. Consequently, he or she can display an uncontrollable violent behavior
which is inimical to the interests of the family. An impotent spouse cannot comply
with an essential marital obligation which is to consummate his marriage. Thus, the
wife should be given the choice to resort to divorce. When the husband or the wife
suffers from an incurable disease, he or she would undoubtedly cause undue
prejudice to the other members of the family. Hence, the healthy spouse may seek
relief from health distress by availing of divorce. Those who are separated in fact
may avail of divorce provided they can prove the existence of any of the grounds
for divorce. Those spouses who are legally separated from each other can likewise
avail of divorce considering that the grounds for legal separation are the same
grounds for divorce under this bill. The petitioner must likewise prove that it is
very unlikely that they will reconcile and that the grounds he or she is raising
contributed to an irreparable marital collapse.
A petition for absolute divorce should be denied when there is condonation,
consent, connivance, recrimination, collusion and prescription. The existence of
any of the enumerated grounds shall prevent the spouses from availing of absolute
divorce. Condonation of the offense means that the offended spouse is forgiving
the offending spouse. The offending spouse is given the chance to correct his or her
mistakes. The marriage can still be saved in this case. When a spouse consented to

the commission of the offense, he or she should therefore be barred from using that
same offense as a ground for divorce. When there is connivance or collusion
between the husband and the wife, he or she is barred from raising the issue of
existence of a ground for divorce, estoppel having already set in. The petitioner
must file his or her petition for divorce within the prescribed period. The
prescriptive period for absolute divorce shall be five (5) years from the time of the
occurrence of the cause. Failure to present a petition for absolute divorce within the
prescriptive period shall result in the denial of the petition. It is only actions for
declaration of nullity of marriage which should be imprescriptible. One should not
benefit from sleeping on his or her rights.
A six-month cooling-off period shall be provided. The spouses should be
given time to reconsider their decision. This period should be utilized for the
reconciliation of the spouses. However, this cooling-off period will not apply in
cases of violence against women. Republic Act 9262 will apply in such case. The
court should exert earnest efforts towards the reconciliation of the spouses.
The decree of absolute divorce shall not be based on stipulation of facts or
confession of judgment. There should be other evidence sufficient to establish the
existence of the ground for absolute divorce. The intervention of the State through
the public prosecutor shall be mandatory. The latter shall ensure that there is no
collusion between the parties and that the evidence is not fabricated or suppressed.
The filing of the petition for absolute divorce shall entitle the spouses to live
separately from each other. This is to prevent the offending spouse from pressuring

or influencing the petitioner to withdraw the case. The pressure or influence of the
offending spouse would at least diminish if they live separately. Also, it would
prevent the offending spouse from further committing violence against the
offended spouse. The offended spouse would also have the time to consider his/her
decision carefully when he/she is made to live separately from the person who
offended him/her.
During the pendency of the suit and in the absence of a written agreement
between the spouses, the court shall appoint an administrator of the absolute
community or the conjugal partnership. The administrator could be either of the
spouses or a third person who is believed by the court to be fit for the task of
administration. The support of the spouses as well as the custody and support of the
common children shall be provided by the court in the absence of adequate
provisions in the written agreement between the spouses. The best interests of the
child should be considered in determining the custody and support of the said child.
The visitation rights of the other parent should also be addressed by the court.
The effects of a decree of legal separation except the provision on nonseverance of the marital tie shall likewise apply in the case of a decree of absolute
divorce. Furthermore, the decree shall have the effect of terminating the obligation
of support between the spouses. The right to receive support arises from the marital
bond. When a divorce decree is issued, the marital bond is severed. Hence, the
obligation to give support ceases.

Children who are conceived or born before the finality of the divorce decree
are legitimate children. This is just and appropriate considering that the marriage is
still valid and existing prior to the finality of the divorce decree.
The bill does not provide for reconciliation after a divorce decree has been
issued considering that in filing an action for divorce, the petitioner must prove that
reconciliation is very unlikely. If a divorce decree has been issued, it only means
that the petitioner was able to prove that reconciliation is very unlikely. The
divorce decree and reconciliation after such decree has been issued are necessarily
antithetical to each other.
Payment of damages to the innocent spouse in a divorce case is not
necessary. The offending spouse will no longer have a share in the net profits of the
absolute community or conjugal partnership. That would be an enough punishment
for the offending spouse.
.

The proponent has thus drafted a bill on absolute divorce, incorporating the

provisions on legal separation in the Family Code, and taking into account the
following 1) recommendation of the Code Commission concerning absolute
divorce after it was abolished in the New Civil Code; 2) the proposal of the
committee formed by the University of the Philippines Law Center; 3) previous
laws on absolute divorce; 4) the provisions on annulment in the Family Code; 5)
the provisions on psychological incapacity in the Family Code; 6) the provisions on
legal separation of the Family Code; and, 7) bills on absolute divorce.

EXPLANATORY NOTE
The provisions on protection of families of the different international
human rights instruments are not solely for the benefit of the family as an
institution. Such provisions also afford full protection to individual family
members. It is undeniable that women are the vulnerable members of the family.
They are usually the victims of cruelty and abuse. Such unfortunate circumstance
of women tests the Philippines commitment to protecting their human rights.
The solution provided by the State on the matter of abusive acts towards
wives unmistakably takes on the character of mere physical restraint. The State, by
issuing protection orders, essentially creates a dividing wall between the husband
and the wife. The State does not however sever the marital bond between the
perpetrator and the victim. The wife has to concoct an illusion of psychological
disorder to make it appear that the negative marital behavior of the husband is due
to causes psychological in nature in order to secure a judicial declaration of nullity
of marriage.
Protection of the human rights of women contemplates termination of the
marital bond if necessary. Viewed in this light, absolute divorce should be made
available.
Approval of this bill is earnestly sought.

AN ACT LEGALIZING ABSOLUTE DIVORCE

Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:
Section 1. Title of the Act. This Act shall be known as the Divorce Law.
Section 2. Declaration of Policy. The Philippines shall give paramount
consideration to the welfare and interests of the most vulnerable member of the
family, namely: women. Toward this end, the rules under this Act shall be applied
and administered in the promotion of their interests.
Section 3. Definition of Terms. As used in this Act, the following terms are
defined as follows:
(a) absolute divorce a judicial process that terminates a marriage and capacitates
the spouses to remarry.198
(b) Impotency is the inability to sustain an erection sufficient for sexual
intercourse.199
(c) Insanity refers to the unsoundness of mind or derangement of the mind.200
Section 4. A petition for absolute divorce may be filed only by the innocent
spouse. Where both spouses are offenders, absolute divorce cannot be obtained by
either of them.201

198

Farlex, The Free Dictionary, available at http://legal-dictionary.thefreedictionary.com/divorce

(last accessed April 9, 2013).
199
Medicine Net, Definition of Impotence, available at
http://www.medterms.com/script/main/art.asp?articlekey=3946 (last accessed April 9, 2013).
200
Dictionary, Insanity, available at http://dictionary.reference.com/browse/insanity (last accessed
April 9, 2013).

Section 5. The burden of proof to show the existence of the ground for absolute
divorce belongs to the petitioner. Any doubt should be resolved in favor of the
existence and continuation of the marriage and against its dissolution and nullity. 202
Section 6. A petition for absolute divorce may be filed on any of the following
grounds:
1. Repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner,
2. Physical violence or moral pressure to compel the petitioner to change
religious or political affiliation,
3. 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,
4. Final judgment sentencing the respondent to imprisonment of more than 6
years, even if pardoned,
5. Drug addiction or habitual alcoholism of the respondent,
6. Lesbianism or homosexuality of the respondent,
7. Contracting by the respondent of a subsequent bigamous marriage, whether
in the Philippines or abroad,
8. Sexual infidelity or perversion,

201
202

Id.
Id.

9. Attempt by the respondent against the life of the petitioner, a common child
or a child of the petitioner,
10. Abandonment of petitioner by respondent without justifiable cause for more
than 1 year,
11. Incurable insanity which has reached such a stage that the intellectual
community between the spouses has ceased,
12. Impotency,
13. Incurable disease which could make the continuance of the marriage
relationship injurious to the family.
Those spouses who are legally separated from each other can likewise avail
of divorce considering that the grounds for legal separation are the same grounds
for divorce under this bill. The petitioner must likewise prove that it is very
unlikely that they will reconcile and that the grounds he or she is raising
contributed to an irreparable marital collapse. For purposes of this Article, the
term child shall include a child by nature or by adoption.203
Section 7. The petition for absolute divorce shall be denied on any of the
following grounds:
1. Where the petitioner has condoned the offense or act complained of,
2. Where the petitioner has consented to the commission of the offense or
act complained of,

203

FAMILY CODE, art. 55 and H.B. No. 1799 2,.

3. Where there is connivance between the parties in the commission of

the offense or act constituting the ground for absolute divorce,
4. Where both parties have given ground for absolute divorce,
5. Where there is collusion between the parties to obtain the decree of
absolute divorce,
6. Where the action is barred by prescription.204
Section 8. An action for absolute divorce shall be filed within 5 years from the
time of the occurrence of the cause.205
Section 9. An action for absolute divorce shall in no case be tried before 6
months shall have elapsed since the filing of the petition. However, this cooling-off
period will not apply in cases of violence against women. Republic Act 9262 will
apply in such case. 206
Section 10. No absolute divorce may be decreed unless the court has taken steps
towards the reconciliation of the spouses and is fully satisfied, despite such efforts,
that reconciliation is highly improbable.207 If the spouses should reconcile, the
divorce proceeding will be terminated.
Section 11. No decree of absolute divorce shall be based upon a stipulation of
facts or a confession of judgment.

204

Family Code, art. 56.

Id. art. 57.
206
Id. and H. B. No. 1799 2.
207
House Bill No. 1799 2.
205

In any case, the court shall order the prosecuting attorney or fiscal assigned to it
to take steps to prevent collusion between the parties and to take care that the
evidence is not fabricated or suppressed. No decision shall be handed down unless
the Solicitor General issues a certification, which will be quoted in the decision,
briefly stating therein his reasons for his agreement or opposition, as the case may
be to the petition. The Solicitor General, along with the prosecuting attorney, shall
submit to the court such certification within 15 days from the date the case is
deemed submitted for resolution of the court. 208
Section 12. After the filing of the petition for absolute divorce, the spouses shall
be entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute community or
conjugal partnership property. The administrator appointed by the court shall have
the same powers and duties as those of a guardian under the Rules of Court.209
Section 13. During the pendency of the action for absolute divorce, and in the
absence of adequate provisions in a written agreement between the spouses, the
Court shall provide for the support of the spouses and the custody and support of
their common children. The court shall give paramount consideration to the best
interests of the child and his/her choice of the parent with whom he/she wishes to

208
209

Family Code, art. 60.

Id. art. 61.

remain as provided to in Title IX of the Family Code. It shall also provide for
appropriate visitation rights of the other parent.210
Section 14. The decree of absolute divorce shall have the following effects:
1. The marriage bond shall be severed.
2. The spouses shall be entitled to remarry after compliance with section 18 of
this Act.
3. The obligation of mutual support between the spouses ceases.
4. The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net
profits earned by the absolute community or the conjugal partnership which
shall be forfeited in favor of the common children or if there are none, the
children of the guilty spouse by a previous marriage or in default of children,
the innocent spouse. All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of the proceedings
for liquidation.
5. Unless otherwise agreed upon by the parties, the conjugal dwelling and the
lot on which it is situated shall be adjudicated to the spouse with whom the
majority of the common children choose to remain. Children below the age
of 7 years are deemed to have chosen the mother, unless the court has

210

Id. art 62.

decided otherwise. In case there is no such majority, the court shall decide,
taking into consideration the best interests of said children.
6. The value of the presumptive legitimes of all common children, computed as
of the date of the final judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual agreement
judicially approved, had already provided for such matters. The children or
their guardian, or the trustee of their property, may ask for the enforcement
of the judgment. The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of the children
accruing upon the death of either or both of the parents; but the value of the
properties already received under the decree of absolute divorce shall be
considered as advances on their legitime.
7. The innocent spouse may revoke the donations made by him or her in favor
of the offending spouse, as well as the designation of the latter as a
beneficiary in any insurance policy, even if such designation be stipulated as
irrevocable. The revocation of the donations shall be recorded in the
registries of property in the places where the properties are located.
Alienations, liens and encumbrances registered in good faith before the
recording of the complaint for revocation in the registries of property shall
be respected. The revocation of or change in the designation of the insurance
beneficiary shall take effect upon written notification thereof to the insured.

The action to revoke the donation must be brought within 5 years from the
time the decree of absolute divorce has become final.211
Section 18. The judgment of absolute divorce, the partition and distribution
of the properties of the spouses, and the delivery of the childrens
presumptive legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise the same shall not affect third persons. 212
Section 19. Either of the former spouses may marry again after complying
with the requirements of the immediately preceding section; otherwise, the
subsequent marriage shall be null and void.213
Section 15 Children conceived or born before the judgment of absolute
divorce has become final and executory shall be considered legitimate.214
Section 16. Separability Clause. If any part or provision of this Article is
declared invalid, the remainder or any provision hereof unaffected shall
remain in force and effect.
Section 17. Repealing clause. The provision of any law, executive order,
presidential decrees or other issuances inconsistent with this Act is hereby
repealed or modified accordingly.

211

Id. and H. B. No. 1799 2.

Family Code, art. 52.
213
Id. art. 53.
214
Id. art. 54.
212

Section 18. Effectivity. This act shall take effect 15 days after its complete
publication in the Official Gazette or in at least 2 newspapers of general
circulation.

B.Amendments to the Divorce Provisions of the Code of Muslim Personal

Laws
The divorce section of the Code of Muslim Personal Laws contains
provisions which are repugnant to various international human rights instruments
as well as to the Constitution. Such failure of the divorce provisions to comply with
human rights instruments virtually resulted in the outright denial of womens rights
to equality. Hence, amendments to the divorce provisions of the Code of Muslim
Personal Laws is called for.
Divorce by talaq will not solely apply to men. The provision on divorce by
talaq unmistakably grants to Muslim husbands the power to automatically dissolve
the marital bond between them and their wives. Such provision is manifestly
oppresive to women. Women should also be given the option of divorce by talaq.
The wives should be able to repudiate their husband without waiting for the latter
to delegate such right to the former. Accordingly, the provision on divorce by
tafwid will be repealed.
Women may now also accuse their husband in court of concubinage. A
divorce decree may be issued by the court after due hearing. The husband should
not have the sole power to accuse his wife of adultery. The provision on divorce by
lian completely disregarded and utterly failed to consider the fact that marital
infidelity can be committed not only by the wife but also by the husband. Thus, the
wife must also be accorded the right to divorce in case of concubinage.

Divorce by khul will be repealed. The issuance of a divorce decree should

not hinge on the payment by the wife of her dower. The requirement of payment of
dower is essentially equivalent to a punishment to the wife for exercising her
statutory right to divorce. Such provision on divorce constitutes an affront to the
statutory right of the wife to divorce. A Muslim wife who cannot actually pay her
dower would naturally be reluctant to exercise her statutory right to divorce. Such
provision can easily undermine the womens efforts in pursuing their action for
divorce.
Moreover, the provision on idda or waiting period will apply to both men
and women. The waiting period currently applies only to Muslim wives. It is
essentially an unreasonable restriction on the right to remarry of the wife
considering that men are not required to observe the waiting period. Thus, both
Muslim men and women should be directed to observe and comply with the
waiting period.

EXPLANATORY NOTE

The 1987 Philippine Constitution specially enjoins the fundamental

equality before the law of women and men.215 The Philippines ratified the
Convention on the Elimination of All Forms of Discrimination Against Women
which grants to women the right to equal treatment. Thus, to grant women such
right is not optional but obligatory for the State. States are required to secure the
rights of women.

Although there is a legal prohibition against discrimination of women,

nevertheless, certain laws sanction discrimination. In view of such circumstance,
the requirement of equality is not followed. The right to equality conferred by law
on women appears to be disregarded.

It is imperative that certain laws be rectified to be consistent with the just

precept that men and women are equal before the law. In particular, the divorce
provisions of the Code of Muslim Personal Laws unmistakably show the existence
of discrimination against women.
By virtue of the Code of Muslim Personal Laws, Muslims were allowed to
divorce. It appears, however, that these codal provisions on divorce became
instruments of gender discrimination. The manner and circumstances by which a
Muslim husband can divorce his Muslim wife are too markedly different from the
acceptable grounds that warrant the Muslim wifes resort to divorce. Such

215

PHIL. CONST. Article II, 14.

discrimination patently violates the 1987 Philippine Constitution and the

Convention on the Elimination of All Forms of Discrimination Against Women.
No sufficient basis exists to justify the different treatment between men and women
with respect to divorce. Thus, it is but right to effect the necessary amendments to
the divorce provisions of the Code of Muslim Personal Laws in order to reflect the
will of the State to grant equality of treatment to women.
Approval of this bill is earnestly sought.

AN ACT AMENDING ARTICLES 45, 46, AND 49 OF SECTION 1

AND ARTICLES

56 AND 57 OF SECTION 2 AND REPEALING

ARTICLES 50 AND 51 OF SECTION 1 CHAPTER 3, TITLE II OF P.D.

1083, OTHERWISE KNOWN AS THE CODE OF MUSLIM PERSONAL

LAWS, ELIMINATING GENDER BIAS IN THE DIVORCE PROVISIONS
OF P.D. 1083
Be it enacted by the Senate and House of Representatives of the Philippines
in Congress assembled:
Section 1. Article 45 of Section 1, Chapter 3, Title II of P.D. 1083, otherwise
known as the Code of Muslim Personal Laws, is hereby amended to read as
follows:
Article 45. Definition and forms. Divorce is the formal dissolution
of the marriage bond in accordance with this Code to be granted
only after the exhaustion of all possible means of reconciliation
between the spouses. It may be effected by:
(a) Repudiation of the wife by the husband OR
REPUDIATION OF THE HUSBAND BY THE WIFE
(talaq);
(b) Vow of continence by the husband (ila);
(c) Injurious assanilation of the wife by the husband (zihar);
(d) Acts of imprecation (li'an);
[(e) Redemption by the wife (khul');]
[(f) Exercise by the wife of the delegated right to repudiate
(tafwid); or]
(g) Judicial decree (faskh).

Section 2. Article 46 of Section 1, Chapter 3, Title II of P.D. 1083, otherwise

known as the Code of Muslim Personal Laws, is hereby amended to read as
follows:
Article 46. Divorce by Talaq.

(1) (1) A divorce by talaq may be affected by the husband OR THE WIFE
in a single repudiation of his OR HER [wife ] SPOUSE during [her]

THE non-menstrual period OF THE WIFE (tuhr) within which he OR

SHE has totally abstained from carnal relation with her OR HIM.
Any number of repudiations made during one tuhr shall constitute only
one repudiation and shall become irrevocable after the expiration of
[the prescribed 'idda] A REASONABLE PERIOD OF TIME.
(2) (2) A husband OR WIFE who repudiates his OR HER [wife] SPOUSE
, either for the first or second time, shall have the right to take HIM OR
her back (ruju) within [the] A REASONABLE PERIOD OF TIME
[prescribed 'idda] by resumption of cohabitation without need of a new
contract of marriage. Should he OR SHE fail to do so, the repudiation
shall become irrevocable.
Section 3. Article 49 of Section 1, Chapter 3, Title II of P.D. 1083 otherwise
known as the Code of Muslim Personal Laws, is hereby amended to read as
follows:
Article 49. Divorce by li'an. Where the husband accuses his wife
in court of adultery OR WHERE THE WIFE ACCUSES HER
HUSBAND IN COURT OF CONCUBINAGE, a decree of
perpetual divorce may be granted by the court after due hearing and
after the parties shall have performed the prescribed acts of
imprecation (li'an).
Section 4. Articles 50 and 51 of Section 1, Chapter 3, Title II of P.D. 1083
otherwise known as the Code of Muslim Personal Laws, are hereby repealed.

Section 5. Article 56 of Section 2, Chapter 3, Title II of P.D. 1083 otherwise

known as the Code of Muslim Personal Laws, is hereby amended to read as
follows:
Article 56. Idda defined. Idda is the period of waiting prescribed
for a man and a woman whose marriage has been dissolved by
death or by divorce the completion of which shall enable them to
contract a new marriage.

Section 6. Article 57 of Section 2, Chapter 3, Title II of P.D. 1083 otherwise

known as the Code of Muslim Personal Laws, is hereby amended to read as
follows:
Article 57. Period.
(1) Every husband and wife shall be obliged to observe 'idda as follows:
(a) In case of dissolution of marriage by death, four months and
ten days counted from the death of the husband or the wife;
(b) In case of termination of marriage by divorce, for three monthly
courses; or
(c) In case of a pregnant woman, for a period extending until her delivery.
(2) Should either of the spouses die while the idda for divorce is being
observed, another idda for death shall be observed by the surviving spouse
in accordance with paragraph 1(a).

Section 7. Separability Clause. If any part or provision of this Article is declared

invalid, the remainder or any provision hereof unaffected shall remain in force and
effect.
Section 8. Repealing clause. The provision of any law, executive order,
presidential decrees or other issuances inconsistent with this Act is hereby repealed
or modified accordingly.
Section 9. Effectivity. This act shall take effect 15 days after its complete
publication in the Official Gazette or in at least 2 newspapers of general circulation.

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ACKNOWLEDGMENT
The proponent would like to express her thanks and gratitude to God for His
Guidance.
The proponent also wishes to express her appreciation to her thesis adviser,
Dean Sedfrey M. Candelaria. The proponent appreciates his concern and admires
his efforts in seeing to it that the proponents thesis satisfies the requirements for a
masteral thesis.
The proponent wishes to thank, likewise, her parents and relatives for their
love and support.
The proponent would also like to thank her friends for their continued and
unrelenting help and support.