2017

ADVISORY OPINION ON PROVIDING

FOR GROUNDS FOR THE DISSOLUTION

OF MARRIAGE

MEMORIAL FOR APPLICANT

 Felicia Recto 27/10/2017 4:24 PM
Deleted: 3
TABLE OF CONTENTS Felicia Recto 27/10/2017 4:24 PM
Deleted: 3
Felicia Recto 27/10/2017 4:24 PM
Deleted: 3
INDEX OF AUTHORITIES Error! Bookmark not defined. Felicia Recto 27/10/2017 4:24 PM
Deleted: 4
DEFINITION OF TERMS 4 Felicia Recto 27/10/2017 4:24 PM
Irreconcilable Differences 4 Deleted: 5
Severe and Chronic Unhappiness 5 Felicia Recto 27/10/2017 4:24 PM
Deleted: 6
SUMMARY OF PLEADINGS 6 Felicia Recto 27/10/2017 4:24 PM
Deleted: 6
PLEADINGS 7 Felicia Recto 27/10/2017 4:24 PM
Legalizing the Bill will improve the psychological well-being of the spouses aiming for the Deleted: 6
dissolution of the marriage. Error! Bookmark not defined. Felicia Recto 27/10/2017 4:24 PM
Legalizing the Bill Would Have Positive Economic Implications. 9 Deleted: 6
Felicia Recto 27/10/2017 4:24 PM
Legalizing the Bill Would Provide for a More Accessible Legal Means to Terminate
Deleted: 6
Marital Ties Error! Bookmark not defined.
Felicia Recto 27/10/2017 4:24 PM
Divorce and Womens Labor Force Participation Error! Bookmark not defined. Deleted: 6
Social changes and developments demand for an update in local family laws. 11 Felicia Recto 27/10/2017 4:24 PM
Pope Francis reforms to the Church Annulment process which took effect Deleted: 6
last 8 December 2015. Error! Bookmark not defined. Felicia Recto 27/10/2017 4:24 PM
Deleted: 6
The Shifting Perspective on Marriage from traditional and religious dogmaError! Bookmark not defined.
Felicia Recto 27/10/2017 4:24 PM
Immersed globalization and the trend towards establishing common rules of Deleted: 6
international law Error! Bookmark not defined. Felicia Recto 27/10/2017 4:24 PM
Increasing number of OFWs seeking annulment of marriagesError! Bookmark not defined. Deleted: 6
OFW Spousal Infidelity Error! Bookmark not defined. Felicia Recto 27/10/2017 4:24 PM
Deleted: 6
Loneliness of Parent-abroad Children Error! Bookmark not defined.
Felicia Recto 27/10/2017 4:24 PM
Dissolution of Marriage Beneficial to OFWs Error! Bookmark not defined. Deleted: 6
Dissolution of Marriage is in line with the States Duty to Protect Women and the Sanctity Felicia Recto 27/10/2017 4:24 PM
of Marriage. Error! Bookmark not defined. Deleted: 7
There has been legislative intent in the Philippines to make and keep as law the dissolution Felicia Recto 27/10/2017 4:24 PM
of marriage. Error! Bookmark not defined. Deleted: 7
Felicia Recto 27/10/2017 4:24 PM
Act No. 2710: An Act to Establish Divorce Error! Bookmark not defined.
Deleted: 7
Proposed Amendments on the Dissolution of Marriage in Book I of the Civil CodeError! Bookmark not defined.
Felicia Recto 27/10/2017 4:24 PM
Committee Deliberations on the Family Code in relation to Psychological IncapacityError! Bookmark not defined.
Deleted: 7
House Bill 1799: An Act Introducing Divorce in the PhilippinesError! Bookmark not defined. Felicia Recto 27/10/2017 4:24 PM
Deleted: 7
CONCLUSION 33 Felicia Recto 27/10/2017 4:24 PM
Deleted: 7
Felicia Recto 27/10/2017 4:24 PM
Deleted: 7
Felicia Recto 27/10/2017 4:24 PM
Deleted: 31

2
INDEX OF AUTHORITIES

3
DEFINITION OF TERMS 26/10/2017 10:22 PM
Comment [1]: Fix format

Irreconcilable Differences

The common ground for no-fault divorce is premised on the notion that either or both spouses

claim that the marriage cannot be saved and refuses to reconcile. Such circumstance also exists

when a significant difference between the spouses are so great that it is beyond repair as to make

the marriage work, for which the law permits a divorce.1

26/10/2017 10:24 PM
Comment [2]: Find better source. Start
The notion of marriage in based on the idea of falling in love and marrying the man or with Statutory definition or jurisprudence.

woman which one have fallen in love. However, some married couples come to learn about their

differences after some time of being married. It is a common norm that both spouses should

make all the efforts to reconcile and solve such differences; but there are instances that such

differences cannot be solved. 2

The common examples of irreconcilable differences are:

1. In-laws and extended family involvement

2. Balance between home and work

3. Communication patterns

4. Sexual Intimacy

5. Personal habits and idiosyncrasies

6. Sharing household responsibilities

7. Outside friendships

8. Political views

1
WEST'S ENCYCLOPEDIA OF AMERICAN LAW (2nd ed. 2008) Irreconcilable differences, available at
https://legal-dictionary.thefreedictionary.com/irreconcilable+differences (last accessed Oct. 26, 2017).
2
Kristina Otterstrom, Grounds for Divorce: Irreconcilable Differences, available at https://family-
law.lawyers.com/divorce/grounds-for-divorce-irreconcilable-differences.html (last accessed Oct. 26, 2017).

4
 9. Debt difficulties

10. Disciplining children

Differences between spouses are inevitable; these differences are supposed to make

marriages stronger or make marriage to crumble. The ground in which the marriage should

become stronger is lodged on the ground that love conquers all. 3 US Civil Code, section 4507:

"Irreconcilable differences are those grounds which are determined by the court to be substantial

reasons for not continuing the marriage and which make it appear that the marriage should be

dissolved."4 Reading Civil Code, sections 4506, subdivision (1) and 4507 together, irreconcilable

differences which have caused the irremediable breakdown of the marriage refers to the

existence of substantial marital problems which have so impaired the marriage relationship that

the legitimate objects of matrimony have been destroyed and as to which there is no reasonable

possibility of elimination, correction or resolution.5

Severe and Chronic Unhappiness

Part of human nature is to find happiness and remain in the state of happiness. It is the

basic assumption that humans do what will make them happy; which means that humans pursue

things that will give them pleasure and at the same time avoiding things which inflicts pain. 6

Often times, we refer falling in love and marrying the love of our life is the happiest moments of

our lives; marriage and love comes with intimacy. In our culture, relationship comes with

intimacy and the ultimate act of intimacy is making-love or sexual intercourse. Intimacy then in

3
Dr. Liz Hale, 10 Irreconcilable Differences in Marriage, available at http://www.drlizhale.com/10-irreconcilable-
differences-in-marriage/ (last accessed Oct. 25, 2017).
4
CAL. CIV. CODE, 4507.
5
In re Marriage of Walton, No. 11952, 28 Cal. App.3d 118, 119 (CA 1972) (U.S.)
6
David Sack, M.D., Are You Addicted to Unhappiness?, available at
https://www.psychologytoday.com/blog/where-science-meets-the-steps/201403/are-you-addicted-unhappiness (last
accessed Oct 26, 2017).

5
our culture tends to bring partners closer and stronger together.7 However, this notion of

intimacy makes one spouse to be at the mercy of the other. We find shelter and feel empowered

with intimacy, but at the same time, a spouse rejected by the other can feel lost, rejected and to

endure unbearable pain. 8

SUMMARY OF PLEADINGS

First, Legalizing the bill will improve the psychological well being of the spouses.

Allowing the dissolution of marriage increases over all happiness to people who are unhappy in

their marriages and those who divorce have greater levels of life satisfaction, self-esteem and

overall health

Second, legalizing the bill would have positive economic implications. Simplifying the

process of dissolution of marriage would provide for a more efficient and cheaper remedy to

spouses seeking to terminate their marital ties. Thus, the dissolution of marriage will be more

accessible to the common Filipino couple. Contrary to the common belief of women being left

worse off after divorce, different studies have shown that in countries where it has been

legalized, labor force participation of women increases. Women are found to hedge the risk of

divorce by investing work experience.

Third, the development of tradition, society, and religion in the Philippine context

over the years expresses a shift in perspective. The dynamic nature of our system demands for

laws to be progressive and be evermore willing to embrace and reflect the present social views.

7
Mark Banschick, M.D., The Unhappy Marriage: Stay or Go? Is Divorce Necessary, available at
https://www.psychologytoday.com/blog/the-intelligent-divorce/201305/the-unhappy-marriage-stay-or-go (last
accessed Oct. 25, 2017).
8
Id.

6
PLEADINGS

I. Legalizing the Bill will improve the psychological well-being of the spouses aiming

for the dissolution of the marriage.

26/10/2017 10:34 PM
Comment [3]: This is not a research
The passage of H.B. 6027 has psychological implications because it can give people the paper for Psychology haha. You can use
this research, however, for justifying the
LEGAL purpose of the government in
option of ending their marriage because of irreconcilable differences and chronic unhappiness. approving the bill (for example: police
power)
This can be beneficial because it has been shown that staying in an unhappy marriage can have

negative impacts on a persons psychological well-being. Hawkins and Booth conducted a

longitudinal study over a 12-year period assessing marital happiness of several married couples,

and it showed that spouses who remained unhappily married had lower levels of overall

happiness, life satisfaction, self-esteem and overall health along with elevated levels of

psychological distress.9 Another study found that spouses in stable, unhappy marriages had lower

levels of marital satisfaction than divorced spouses, and that they showed relatively high levels

of depressive symptoms initially and over time.10

Many people see leaving a relationship as an extreme act to be avoided at all costs, and

they would only resort to it if the reasons were so intolerable to the point of emotional or

physical suffering.11 People who stay in unhappy marriages also tend to have the notion that

there is no such thing as a successful relationship, so they allow themselves to be miserable

rather than leaving the marriage.12 However, leaving the marriage might be a better recourse. It

9
Daniel N.Hawkins & Alan Booth, Unhappily Ever After: Effects of Long-Term, Low-Quality Marriages on Well-
Being, SOCIAL FORCES Volume No. 84, Issue No. 1, at 472.
10
See Joanne Davila & Thomas N. Bradbury, Attachment Insecurity and the Distinction Between Unhappy Spouses
Who Do and Do Not Divorce, 15 J. FAMILY PSYCHOLOGY 371 (2001), available at
http://www.psychology.sunysb.edu/attachment/danfords2002/documents/davila1.pdf (last accessed Oct. 26, 2017).
11
Richard B. Joelson, 5 Reasons People Stay in Unhappy Relationships, available at
https://www.psychologytoday.com/blog/moments-matter/201611/5-reasons-people-stay-in-unhappy-relationships
(last accessed Oct. 26, 2017).
12
Id.

7
was found that compared to people who remain unhappily married, those who divorce and

remarry have greater overall happiness, and even those who divorce and remain single

afterwards have greater levels of life satisfaction, self-esteem and overall health.13

If one were to consider leaving their marriage when they have reached the point of

emotional suffering or complete resignation, the entirety of their married life will be detrimental

to their mental health and well-being. This is evident in Battered Wife Syndrome (BWS), a
26/10/2017 10:34 PM
Comment [4]: Expound on this!
mental disorder that develops in victims of domestic violence as a result of serious long-term -statistics of VAWC cases
-explain why dissolution of marriages
abuse. A victim of BWS tends to feel learned helplessness, meaning she becomes so would further protect women and
children from abuse and
- why the remedies in VAWC as it
depressed, defeated, and passive to the point where she thinks she incapable of leaving the currently stands isnt enough why
dissolution of marriage has to be an
additional remedy!
abusive situation.14 She believes that there is no escape when it comes to her personal

circumstances, and the violence immobilizes her ability to act decisively making her feel trapped

in the relationship.15 These are one of the situations where staying in a marriage may do more

harm than good.

In summary, one reason why this bill should be passed is because of the psychological

effects that a harmful marriage has on the spouses. Even if a couple has exhausted all options to

make the marriage succeed, there are times when it becomes so damaging to their mental health

and well-being that the only means of recovery is to dissolve the marriage. Legalizing the bill

will give Filipinos a more speedy and efficient means of leaving an unhappy marriage, rather

than having them go through tedious and costly annulment proceedings before they can be freed

from a miserable situation.

13
Hawkins & Booth, supra note 9, 451
14
FindLaw, Battered Womens Syndrome, available at http://family.findlaw.com/domestic-violence/battered-
women-s-syndrome.html (last accessed Oct. 25, 2017).
15
LUIS B. REYES, THE REVISED PENAL CODE BOOK I 119 (2017 ed.).

8
 II. Legalizing the Bill Would Have Positive Economic Implications.

A. Legalizing the Bill Would Provide for a More Accessible Legal Means to

Terminate Marital Ties

26/10/2017 10:46 PM
Comment [5]: This is policy since
In the Philippines, the process of terminating marriage is tedious and costly. Obtaining a youre concerned about the
implementation problem of the annulment
and legal separation remedies.
judicial decree of legal separation or annulment could take several years before it reaches
POLICY if the administrative agencies
promulgation and could cost around Php 300,000 to Php 1,000,000.16 Thus, the remedies can merely issue regulations to solve the
problem.

currently available for marital dissolution are not readily accessible to the common Filipino. This LEGAL ISSUE clash of rights/ absence
in the law which leads to a violation of a
right.
is crucial taking into consideration the increasing number of couples undergoing legal separation
What is the right being violated in this
and annulment. Based on the figures from the Office of the Solicitor General (OSG), the discussion?

number of annulment and nullity of cases has been increasing since 2001, from 4,520 to 8,283 in

2010. 17 This is apart from the number of spouses who instead choose to live separately rather

than go through the complex process of filing for a case for annulment. The passage of this bill

would certainly have an impact on the household savings of the spouses prior to the dissolution

of the marriage.

Legalizing the dissolution of marriage on the grounds of irreconcilable differences and

severe and chronic unhappiness will be more efficient for spouses undergoing the process of

terminating marital ties. It would be a more inexpensive and simplified process, especially since

the Courts need only to determine the existence of the aforementioned grounds.18 Some who are

desperate to escape their current marriage even purposely convert to Islamic faith in order to be

allowed to remarry.19 The passage of this bill would provide for grounds arising during the

16
Philippine Commission on Women, Policy Brief No. 12: Adopting Divorce in the Family Code, available at
http://pcw.gov.ph/wpla/adopting-divorce-family-code (last accessed Oct. 26, 2017).
17
Id.
18
Id.
19
http://plj.upd.edu.ph/wp-content/uploads/2012/12/5_Jumamil_Islam-as-Alternative-to-Divorce-v.-3.pdf (p. 847)

9
marriage and simplify the process for remarriage. This is more accessible and practical for the

common Filipino.

On a side note, a study show that a side effect of the legalization of divorce laws in some

countries result to an increase in household savings of married couples. An increase in the risk of

divorce may generate incentives to save more.20

B. Divorce and Womens Labor Force Participation

Legalizing the bill could benefit the economy with the increase of womens labor force in

the country. IZA World of Labor, in a study, shows that in countries after divorce is legalized,

the women in nonreligious couples are more likely to participate in the labor force than women

in religious marriages.21 Women in non religious marriages could have anticipated the negative

economic consequences in the dissolution of marriage.22 Stevenson, looking at a long run

perspective, finds that women tend to increase the value of the option outside marriage, thus

concluding that unilateral divorce increases human capital of women even before and after

marriage.23 Even in Ireland, a Christian country dominated by Catholics, shows significant

increase in female labor supply with the risk of marital breakdowns present.24

Husband as the head of the household and the breadwinner has been the norm in the

country, and the wife being dependent to what the husband can provide for the family. With the

risk of marital dissolution, women are encouraged to work to become more financially

independent. They are encouraged to invest on activities outside marriage and labor experience.

20
IZA World of Labor (p. 7)
21
Should divorce be easier or harder? IZA world of labor study page 6
22
Should divorce be easier or harder? IZA world of labor study page 6
23
http://www.nber.org/papers/w14346.pdf page 19
24
http://ftp.iza.org/dp4959.pdf page 17

10
Specialization in household may decline but the time for domestic childcare is not

compensated.25 Furthermore, women become more involved with the decisions in the

household.

III. Social changes and developments demand for an update in local family laws.

A. Pope Francis reforms to the Church Annulment process which took effect

last 8 December 2015.

26/10/2017 10:50 PM
Comment [6]: Doesnt this go against
In a revolutionary move, Pope Francis amended the process for availing of a Church your argument that annulment is hard to
obtain?
Annulment drastically shortening and simplifying this. An automatic appeal of judgements was Also, separation of Church and State.

removed from the process and, further, allows the local Bishop to render final judgement on the

case without the previous need to face a three-panel judge nor to bring the matter to Rome.26

Interestingly, the new law is said to call for the process to be completed within 45 days. The

amendment was also said to waive fees for the process except for those covering just tribunal

personnel.

The Church may be said to have taken a more liberal stance in annulment considering

that it also allows grounds not civilly available such as:

lack of faith resulting in the simulation of consent to be married or an error that

determines the will regarding one of the requirements of marriage

the brevity of married life (i.e., the couple divorced very quickly after being married)

procured abortion to prevent procreation (presumably during the marriage itself, prior to

bearing other children and thus showing an unwillingness to procreate)

25
Oliver Bargain, Female Labor Supply and Divorce: New Evidence from Ireland, 5 (2010) available at
http://ftp.iza.org/dp4959.pdf (p. 5)
26
Pope speeds up, simplifies process for marriage annulments, PHIL. DAILY INQ., Sep. 9, 2015,
available at http://newsinfo.inquirer.net/720534/pope-speeds-up-simplifies-process-for-marriage-annulments-2

11
 the stubborn persistence in an extramarital affair at the time of the wedding or at a time

immediately following

a reason for getting married that is completely foreign to married life (presumably

something like entering a legal fiction of a marriage to be able to immigrate or gain an

inheritance) or consisting of the unplanned pregnancy of the woman27

In introducing the amendments, Pope Francis continues to uphold the sanctity and

indissolubility of marriages. However, the Pope likewise takes notice of the reality of the

invalidity of a number of marriages. The intent thus is for the faithful to find justice and to

reintegrate them into the Church by providing them relief from this invalid union. It is a

merciful viewpoint in understanding the needs of the flock.28 Pope Francis has made defense of

vulnerable migrants and workers a central issue of his papacy. At an October synod on the

family, he urged bishops to find solutions to the challenges faced daily by families. 29

B. The Shifting Perspective on Marriage from traditional and religious dogma

One of the main reasons why absolute divorce was extinguished in our legal system is

due to the influence of Christianity wherein 80.6% of the population in the Philippines in 2010

are Catholics.30

27
Pope Francis Reforms Annulment Process: 9 things to know and share, available at
https://www.catholic.com/magazine/online-edition/pope-francis-reforms-annulment-process-9-things-to-know-and-share (last
accessed Oct. 25, 2017).
28
Pope speeds up simplifies process for marriage annulments, PHIL. DAILY INQ., Sep. 9, 2015,
available at http://newsinfo.inquirer.net/720534/pope-speeds-up-simplifies-process-for-marriage-annulments-2 (last accessed
Oct. 25, 2017)
29
Catholic Church struggles with social costs of labor migration, MALAYA BUS. NEWS, Jan. 16, 2015,
available at http://www.malaya.com.ph/business-news/news/catholic-church-struggles-social-costs-labor-migration (last accessed Oct. 25,
2017).
30
MAP: Catholicism in the Philippines, RAPPLER, Jan. 18, 2018, available at
https://www.rappler.com/newsbreak/iq/81162-map-catholicism-philippines (last accessed Oct. 25,
2017).

12
 But while Catholics make up majority of the Filipino population, it is likewise true that

Philippines is a home to a number of other religions whose rights, interests and belief systems

should also be taken into consideration by the State.

It is evident in the formulation of our civil laws that religion has been the primary

consideration. In 1947, Congressman Agustin Y. Kintanar filed a bill similar to the bill that he

filed to repeal Act No. 2710 or known as Divorce Law which provides absolute divorce. In the

explanatory note of the bill, it stated that The purpose of this bill is to abolish divorce in this

country, because it is unchristian and fundamentally alien to the Filipino temperament and way

of life.31

Meanwhile, Congressman Francisco A. Perfecto filed a similar bill to repeal Act No.

2710. He stated in his Explanatory Note, If the various attempts to liberalize divorce have so

far failed, it is because we are predominantly Catholic and divorce is not only foreign to our

temperament but it something scorned and looked down upon.32

By express provision in the Philippine Constitution, Article II Sec. 6 provides that there

shall be a separation of Church and State33. The Constitution intends for the State to administer

its government not on the basis of what the Church teaches but on what it actually deems right

and just for the betterment of its people.

31
Deogracias T. Reyes, History of Divorce Legislation in the Philippines Since 1990, Vol. 1 (1953)
available at http://www.jstor.org/stable/4271899
32
Id.
33
JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 1195 (2009 ed.).

13
 In fact, Jorge Bocobo, Chairman of the Code Commission, revealed that majority of the

members of the Commission wanted for the liberalization of the divorce law. However, they

needed to respect the wishes of President Roxas who was deeply concerned on this matter.34

House Bill 02380 defended its proposal by also discussing how divorce had always been

part of the legal system of the Philippines. They argued that divorce had been in existence even

before the Spanish colonized the Philippines and that it was practiced by various tribes such as

Tagbanwas, Gadang, Igorots, Manobos, Blaans and Muslims. Divorce continued to exist during

American and Japanese occupation and only ended when the New Civil Code took effect which

left out divorce from its contents.35

26/10/2017 10:53 PM
Comment [7]: Good! You should
Going through the history of divorce legislation in the Philippines, there were some who expound on this how it was actually
valid before but what changed was (insert
invoked that religion should not affect the government and laws. reasons)

Check deliberations.
During the American occupation, the treaty in which our country were ceded to the
Also, why is divorce legal in other
jurisdictions? Check their laws.
United States proclaimed the doctrine of religious freedom for the first time. Thus, President

Mckinley instructed the second Philippine Commission that the separation of the State and the

Church shall be real, entire and absolute.

Tolentino stated that Formerly, when faith predominated, it was reasonable to believe

that marriage was indissoluble because it was belief that marriage was a divine institution. But

now that reason has substituted dogmas, for what motives shall we not make laws for those who

need a remedy? In this era of spiritual regeneration control of morals should be in ourselves, in

our own will, in our sense of propriety, and not in our laws. It goes without saying that the step

34
Deogracias T. Reyes, History of Divorce Legislation in the Philippines Since 1990, Vol. 1 (1953)
available at http://www.jstor.org/stable/4271899
35
H.B No. 2380, 17th Cong., 1st Reg. Sess. (2013) available at
http://www.congress.gov.ph/legisdocs/basic_17/HB02380.pdf

14
taken by Congress in eliminating the most rigid divorce law, as our law is well known, is a

reactionary and backward step contrary to the enlightened opinion of our people.
Marian Gae Merino 26/10/2017 1:02 PM
Comment [8]: block quote?
History has it that even Roman Law, in its early years, acknowledged divorce as way of

marriage dissolution. The principles of fault, consent and breakdown were used as grounds to

justify the divorce sought by the parties.36

Relevant to this bill of marriage dissolution on the grounds of severe and chronic

unhappiness and irreconcilable differences is the principle of breakdown which provides that in

cases when marriages have deteriorated, so deep that spouses are not expected to cohabit37,

divorce between spouse may be warranted.

Had it not been for the evolving conditions of societies and traditions, divorce would

have remained effective under the Roman Law38, and its principles on divorce would have been

passed on to the present times. But such is not the case, and definitely should not be the case.

Our laws must continuously reevaluate the system and adapt to the changes the generation

demands whenever necessary.

26/10/2017 10:55 PM
Comment [9]: Whats your basis for
saying laws should be continuously
C. Immersed globalization and the trend towards establishing common rules of updated? (yeah I know medyo common
sense siya but its stronger if theres a
legal basis)
international law
You can also say the Constitution was
enacted 1987; Civil Code, 1950; family
Trade liberalization and economic globalization have ushered a borderless world. The code 1987 soooo many years ago

domestic economy has seen growth driven by increased participation in world trade.39 From a

tradition of protecting local economies, the past decades moved towards the opposite with the

lowering if not elimination of trade barriers on the theory that trade can be better promoted on a

36
Jeorge M. Juco, Fault, Consent and Breakdown - The Sociology and Divorce Legislation in the
Philippines, 14 PHIL. SOC. REV. 67 (1966) available at www.jstor.org/stable/23891998
37
Id.
38
Id.
39
Taada v. Angara, G.R. No. 118295, [May 2, 1997], 338 PHIL 546-606

15
regional rather than domestic level.40 Soon enough, regional economies appeared insufficient and

the Philippines membership to the World Trade Organization was ratified by the Senate and

affirmed by the Supreme Court.41

In a speech delivered by Justice Artemio V. Panganiban on Judicial Globalization, he

spoke about how major transformational shifts have been brought about by the informational and

technological revolution. He refers to this international integration of knowledge, technologies

and systems as globalization which demands the universalization of laws and judicial rulings

interpreting these.42

The Hague Conference provides precisely a venue for the development and

implementation of common rules of private international law in order to co-ordinate the

relationships between different private law systems in international situations. It counts among

its mission the promotion of international judicial and administrative co-operation in the fields of

protection of the family and children, civil procedure and commercial law.43

The Philippines remains to be one of only two countries left in the world that do not have

divorce laws. Increased mobility in a shrinking world give rise to higher incidences of mixed
26/10/2017 10:56 PM
Comment [10]: Check if other countries
marriages and international relocation short of constrains adoption of laws synchronized with cites International Law as their basis to
justify divorce in their countries.
that of the rest of the world.

D. Increasing number of OFWs seeking annulment of marriages

In a report by Quatar-based newspaper, Gulf Times, Ed Alcantara, one of the advisers of

Foundation for Family and Life (FFL) migrant workers, told Gulf Times that at least five out of

40
Panganiban, Artemio. Judicial Globalization. Lecture delivered by Supreme Court Justice Artemio V. Panganiban before the First
Australasia Judicial Educators Forum (AJEF) on February 14, 2003 at the New World Renaissance Hotel, Makati City
http://archives.cap.anu.edu.au/cdi_anu_edu_au/CDIwebsite_1998-2004/philippines/philippines_downloads/PhilJudgolbal.pd
41
Taada v. Angara
42
Panganiban, Artemio. Judicial Globalization.
43
http://www.ehu.eus/cursosderechointernacionalvitoria/ponencias/pdf/2002/2002_1.pdf

16
10 overseas Filipino workers (OFWs) who had been separated from their partners would want

their marriage nullified. They seek annulment of marriage but the tedious and expensive process

prevent them from doing so. There were many instances where it reached the court, these were
Gianina Dimayuga 25/10/2017 1:24 PM
44 Comment [11]: better if we can cite
rejected because the prosecutor found collusion between the parties. These cases would really jurisprudence
(maybe for the 2nd draft)
be prone to collusion because the grounds in the Family code are limited. The tendency is for the

parties to result to fabricate evidence to force annulment. The Family Code only provides

annulment grounds, existing at the time of marriage. The law does not provide for grounds

existing during marriage, such as the OFW spousal infidelity. The Family Code took effect in
26/10/2017 11:01 PM
Comment [12]: are you sure?
August 3, 1988. Come the 1990s new issues have arised including OFW spousal infidelity.
Why cant it be via legal sep?
Therefore, H.B. 6027 would be the proper remedy as it provides grounds for dissolution of
But possibly a good area to focus on!

marriage. Social costs of migration, such as OFW spousal infidelity and loneliness of parent-

abroad children, are possible grounds based on irreconcilable differences and chronic

unhappiness.
26/10/2017 11:02 PM
Comment [13]: Did the proposed bill
contemplate OFW Spousal infidelity to fall
1. OFW Spousal Infidelity under irreconcilable differences and/or
chronic unhappiness?

Illicit love affairs among OFWs are existent. These are OFWs having affairs abroad,

although they having legal spouses in the Philippines. Truly its natural that loneliness pushes

some of our kabayan to seek a companion who can they talk to and share their time with. There

are frequent meetings. It may come to pass that they fall in love with each other.45 Working

abroad, loneliness becomes a natural response of OFWs.46

44
http://www.gulf-times.com/story/353859/Filipinos-seeking-annulment-on-the-rise
45
Susan Andes, Problematic love affairs overseas, PHIL. DAILY INQ., Oct. 16, 2011, available at
http://globalnation.inquirer.net/15457/problematic-love-affairs-overseas (last accessed Oct. 25, 2017).
46
Weiss, R. S., Loneliness: The experience of emotional and social isolation, Cambridge, MA: The MIT Press.
(1973) available at http://psycnet.apa.org/record/1974-22306-000

17
 In a study of Rossi (2008) of Harvard University Kennedy School of Government,

Migrants may start having dual families relationships: one in the country of origin and one in

the country of destination; this phenomenon may actually reduce the amount of remittances sent

home (Nyiri and Saveliev 2002).47 Since 2007, there have been reports to the Philippine

Embassy in Saudi Arabia of OFWs in Saudi Arabia who had stopped sending remittances to their

families in the Philippines.48 Out of the 1,000 complaints that the Overseas Workers Welfare

Administration (OWWA), 500 reports are on OFWs, most working the in the Middle East,

stopped sending remittances to their families in the Philippines. According to the report of GMA

News, "Majority of those who are not sending their remittances are male OFWs and the usual

reason is that they are having extra-marital affairs," said Gloria Taule of the OWWA Workers'

Assistance Unit (WAU).The overseas lovers may want to live together. They will rent a house.

Buy appliances. There are monthly expenses like payment on electric, water, telephone bills, etc.

In the end, the OFW father or mother may have problems sending money to his family in the

Philippines.49

2. Loneliness of Parent-abroad Children

In the report of The Manila Times (2016), according to Father Resty Ogsimer, executive

secretary of the Catholic Church-based migrant welfare group, Catholic Bishops' Conference of

the Philippines Episcopal Commission for the Pastoral Care of Migrants and Itinerant People

(CBCP-ECMI), said that infidelity and marriage annulment cases have increased over the years.

Alienation of parents from their children and breakdown of parents were identified as the social

47
http://globalnetwork.princeton.edu/bellagio/Rossi.pdf
48
http://www.gmanetwork.com/news/news/content/68951/rising-cases-of-illicit-affairs-among-ofws-in-
saudi-worrying-envoy/story/
49
Susan K, Problematic Love Affairs Overseas, available at
http://globalnation.inquirer.net/15457/problematic-love-affairs-overseas (last accessed October 26, 2017)

18
costs of migration.50 Different societal needs are brought about by non-traditional families.51 In

the Philippines, large-scale overseas migration has raised concerns about left-behind children,

who are perceived to be most affected by the absence of fathers, mothers or both. Without their

real parents (especially mothers) to rear and guide them, left-behind children are perceived to

bear the brunt of the social costs of migration.52 The burden of transnational families also puts

the onus on the female labourer when the family becomes dysfunctional. When husbands commit

infidelity and when children turn to drugs or early marriage, the family and society blame the

absent mother.53

In the Social Science and Medicine journal by information analytics company, Elsevier, it

said that, The parentabroad adolescents reported a high level of missing their parent(s) and felt

emotionally lonelier than the parent-at-home group. Emotional loneliness and stress due to

parental absence were associated with poorer health While Lazarus and Folkmans (1984)

cognitive stress model is generally applicable for migratory separation, cultural aspects need

attention, both in theoretical implementation and interpretation.54

50
The Manila Times, Is going abroad the only way, available at http://www.manilatimes.net/is-going-
abroad-the-only-way/259621/ (last accessed October 26, 2017)
51
Maria Caridad H. Tarroja, Revisiting the Definition and Concept of Filipino Family: A Psychological
Perspective, available at http://lynchlibrary.pssc.org.ph:8081/handle/0/1530 (last accessed October 26,
2017)
52
Maruja M. B. Asis, Living with Migration, available at
http://www.tandfonline.com/doi/abs/10.1080/17441730600700556 (last accessed October 26, 2017)
53
Lily Rose Tope. 2016. Glocalising cultural desire: Texts on the overseas Filipina worker (OFW).
KEMANUSIAAN the Asian Journal of Humanities 23(Supp. 2): 119136,
https://doi.org/10.21315/kajh2016.23.s2.7 available at
http://web.usm.my/kajh/vol23_s2_2016/kajh23s22016_07.pdf (last accessed October 26, 2017)
54
Chantal Smeekens, Margaret S. Stroebe, Georgios Abakoumkin, The impact of migratory separation
from parents on the health of adolescents in the Philippines available at
http://www.sciencedirect.com/science/article/pii/S0277953612006326 (last accessed October 26, 2017)

19
 3. Dissolution of Marriage Beneficial to OFWs

OFW spousal infidelity and loneliness of parent-abroad children, are possible

grounds based on irreconcilable differences and chronic unhappiness. Infidelity leads to

dysfunctional families with a spouse having a live-in partner abroad and a legal spouse in the

Philippines. The OFWs living together with a paramour abroad, leads to failing to send

remittance to the family of the OFW abroad, the reason of which why he ought to work abroad.

Having two families is against morals and public policy by Philippine Law, which would

constitute irreconcilable differences. Loneliness of parent-abroad children shows that chronic

unhappiness extends to the children due to the absence of either or both parents working abroad.

IV. Dissolution of Marriage is in line with the States Duty to Protect Women and the

Sanctity of Marriage.

According to the World Health Organization, the global prevalence of physical and/or

sexual intimate partner violence among all ever-partnered women was 30.0%. Among the

highest counts of sexual and/or physical violence was in South East Asia where 37% of women

stating that they encountered violence committed by their partners in their lifetime. 55

In the Philippines, the increase in physical and sexual violence committed against women

is still a point of major concern.56 In a survey conducted by the National Demographic and

Health Survey (NDHS) in 2008-2003, one out of five women between the ages of 15-49 years

old has experienced physical violence. Among those who reported experiencing physical and

55
World Health Organization, Global and regional estimates of violence against women: prevalence and health effects of
intimate partner violence and non-partner sexual violence available at
http://apps.who.int/iris/bitstream/10665/85239/1/9789241564625_eng.pdf (last accessed October 26, 2017)
56
Philippine Statistics Authority, 2016 Statistical Handbook on Women and Men in the Philippines by the
Philippines Statistics Authority available at
https://psa.gov.ph/sites/default/files/kmcd/WAM%20Women%20and%20Men%20Handbook%20in%20the%20Philippines%2
02016.%20Final.pdf (last accessed October 26, 2017)

20
sexual violence, it was shown that 54.7% of the abuse occurred during the marriage of the wife

with her husband.57 The Philippine National Police (PNP) documented a total of 1,100 to 7,383

cases of VAW from 1996 to 2004. The highest record was in 2001 at 10,343. Cases reported

included physical injuries, wife battering and rape (incestuous and attempted).58

Unfortunately, more cases of abuse remain unreported because of the possible effects it

would have in the family. In the Philippines, where marriage is viewed as an inviolable social

institution59, there is an existing obligation upon the parties involved to preserve it or, in the case

of disagreements, achieve reconciliation. Such can be seen with the States preference for Legal

Separation60 over Dissolution of Marriage. The same is also emphasized in the case of Lacson v.

San Jose, 24 SCRA 837, which states that

[The Court] would like to douse the momentary seething of emotions of couples who, at

the slightest ruffling of domestic tranquility- brought about by mere austerity of temper,

petulance of manners, rudeness of language, a want of civil attention, and accommodation, even

occasional sallies of passion without more- would be minded to separate from each other.61

It should be noted, however, that majority of the grounds for Legal Separation

enumerated under Article 55 of the Family Code are acts that are contemplated under Republic

Act. 9262, also known as the Anti-Violence Against Women and their Children in which the

57
same
58
University for Peace, A Deeper Look at Violence Against Women (VAW): The Philippine Case,
available at
http://www.monitor.upeace.org/pdf/Violence%20Against%20Women%20in%20the%20Philippines.pdf
(last accessed October 26, 2017)
59
The Family Code of the Philippines [FAMILY CODE], E.O. 209, art. 1 (1988)
60
A decree of legal separation only allows for a dissolution of bed and board, provided that the grounds
are those provided under Article 55 of the Family Code
61
Melencio S. Sta. Maria, Persons and Family Relations Law, sixth ed

21
State recognizes the need for immediate resolution due to the urgency of the threat against the

victims62.

In this regard, by refusing to allow the dissolution of the marriage, the State, in

preserving the sanctity of the marriage, continues to attach the victim of the offense to their

offender through the continued existence of the marital bonds. In the worst case scenario, the

State, because of its premium for reconciliation, would allow for a continuous cycle of abuse

between the spouses further exacerbating the state of the marriage. By providing another

recourse for the victim in the form of the dissolution of marriage, the State empowers the victim

to leave,63 and protects the individual rights as provided for in Article 2 of the 1987

Constitution.64
26/10/2017 11:05 PM
Comment [14]: Vs. obligation to
It should be the right of every citizen to have security within their family and the option preserve sanctity of marriage

to leave should reconciliation prove to be impossible or dangerous even. The State, aside from its So which one is more important? Find
jurisprudence wherein the State has a
greater obligation to the protection of
obligation to promote family life- which in this context proves to be destructive, also has a duty individuals rights rather than protect an
institution
to protect the quality of life, property, in order to promote general welfare.65 The notion of

protecting the family should not be construed to the number of existing marriages but rather on

protecting the equal rights of both spouses.66

62
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 20014, Republic Act No. 9262, 19 (2004)
63
See Nurith Aizenman, Alarming Number of Women Thinks Spousal Abuse is Okay available at
http://www.npr.org/sections/goatsandsoda/2015/03/18/392860281/alarming-number-of-women-think-
spousal-abuse-is-sometimes-ok (last accessed October 26, 2017)
64
PHIL. CONST. art. 2, 11.
65
PHIL. CONST. art. 5, 2.
66
Jaomay Laurente Pamaos Law Offices, Proposed Divorce Laws in the Philippines available at
https://jlp-law.com/blog/proposed-divorce-law-in-the-philippines/ (last accessed October 26, 2017)

22
 V. There has been legislative intent in the Philippines to make and keep as law the
26/10/2017 11:08 PM
dissolution of marriage. Comment [15]: Still, they were
rejected. Find out why they were rejected.

The dissolution of marriage, while a taboo subject in The Philippines, is not a unique While it is good to narrate what were the
previous attempts, HIGHLIGHT what
topic in the legislative sphere. In fact, House Bill 6027 is the most recent legislative act to tackle changed NOW that makes it necessary to
approve THIS SPECIFIC BILL. What is its
added value and did the
this particular topic. Before it, Gabriella, a womens advocate party, represented by then Rep. circumstances/reasons for denying
previous bills change?

Liza Maza, spearheaded a divorce bill during the 13th Congress back in 2005. It was later re-

filed in 2010 and 2011.67 These numerous attempts, evidently shows a clear intention of bringing

divorce back in the country. There are also multiple statutes, bills, and committee deliberations

that have expressed a clear intent to make and keep as law the dissolution of marriage before

and, even after, the enactment of the Family Code.

A. Act No. 2710: An Act to Establish Divorce

Enacted in 1917, Act No. 2710 is not the first divorce law in the country. Prior to its

enactment, divorce was governed by the Las Siete Partidas and the Canon Law, which was

accepted as law during the Spanish Period.68 However, the Las Siete Partidas only provided

grounds for legal separation or relative divorce. It was not until the American period were

divorce was officially established through Act No. 2710.69

The American period gave rise to views that deviated from the dominance of the Catholic

Church, which is actually how Act No. 2710 was formulated.70 The first section of the act reads:

67
http://www.congress.gov.ph/press/details.php?pressid=9716
68
Deogracias T. Reyes, Philippine Studies: History of Divorce Legislation in the Philippines since 1900,
available at https://www.scribd.com/document/253284435/History-of-Divorce-Law-in-the-Philippines (last
accessed Oct. 26, 2017).
69
Id.
70
Id.

23
 SECTION 1. A petition for divorce can only be filed for adultery on the part of the wife

or concubinage on the part of the husband, committed in any of the forms described in

article four hundred and thirty-seven of the Penal Code.||| (An Act to Establish Divorce,

ACT NO. 2710, [1917]71

While the grounds of adultery and concubinage for the dissolution of marriage are based

on their nature as crimes in the old Penal Code, public officials during the American period have

noted that the act is too restrictive in its grounds.72 In fact, Associate Justice Fisher wrote in the

Manila Daily Bulletin that the act was inconsistent with the modern problems of the Filipino

family, and called for its liberalization.73

Though the Civil Code expressly repealed the divorce law and substituted divorce with

legal separation,74 it does not remove the fact that there was clear intent on the part of the

government to keep the dissolution of marriage as law.

Moreover, the provisions of Act No. 2710 are not too different from the provisions House

Bill 6027. It appears that both acts similar in purpose in that it seeks to dissolve marriages that

have caused the irreparable breakdown of marriage.75 The formers grounds are only limited to

adultery on the part of the wife or concubinage on the part of the husband76; however, both

grounds can be considered as causes to the breakdown of marriage as it disrupts the marital

union of the husband and wife by engaging in acts of infidelity with third parties. The latter, on

71
An Act to Establish Divorce, Act No. 2710, (1917).
72
Deogracias, supra note 68.
73
Id.
74
Id.
75
H.B. No. 6027, 17th Cong., 2d Reg. Sess. (2017).
76
Act No. 2710.

24
the other hand, deems irreconcilable differences and chronic unhappiness as causes to the

breakdown of marriage, and therefore, justifiable grounds to the dissolution of marriage77.

The grounds of both acts seem to relate to each other, in a way, as acts of infidelity can

cause chronic unhappiness and irreconcilable differences between the spouses, contributing to

the eventual breakdown of the marriage.

Though the acts are nearly a century apart, both reveal the acknowledgement of the

Congress in the merits of the dissolution of marriage in safeguarding the interest and welfare of

the spouses from an impending breakdown in their marriage.

B. Proposed Amendments on the Dissolution of Marriage in Book I of the Civil

Code

On March 20, 1947, a Code Commission was created by Executive Order No. 48, In view of the
need for immediate revising of all existing substantive laws of the Philippines and of codifying
them in conformity with the customs, traditions, and idiosyncrasies of the Filipino people and
with modern trends in legislation and the progressive principles of law.78

The draft of the Code provided for absolute and relative divorce in Art III which reads:

Art III. Divorce may be absolute or relative, the petitioner may choose.
The grounds for absolute divorce have not been changed. Neither has the procedure for
absolute divorce been altered.
Relative divorce should be revived. Under the proposed code, divorce may be absolute or
relative as the petitioner may choose 79

Its inclusion in the said code once again roused the discussion on the dissolution of marriage. A
public hearing was held by the House Subcommittee on Book I of the Proposed Civil Code

77
H.B. No. 6027.
78
Executive Order No. 48 (1947)
79
Deogracias, supra note 68.

25
wherein the Catholic Church urged the total abrogation of absolute divorce from the Code.80 The
Catholic Church was insistent that the House of Representatives finally approved the following
as one of the amendments to the draft of the Civil Code:

On pages 34-41 delete the entire Title IV- Divorce and substitute Title IV- Legal
Separation...81

Before the above-mentioned amendments had been approved, there were last minute attempts to
relax law on divorce. Congressman Hermenegildo Atienza proposed two amendments, the first
of which sought to grant absolute divorce on the following grounds:

1. That the husband is guilty of concubinage, or his wife is guilty of adultery as defined
by the Penal Code.
2. That at the time marriage was solemnized, both parties belonged to a church, sect, or
religion that allows divorce, which fact they shall state in the marriage contract.82

The proposed amendment likewise sought to make applicable to divorce all the provisions of the
Civil Code relating to legal separation, except that when divorce was granted, both parties should
be allowed to remarry.

According to Congressman Atienza, This plan is intended to safeguard the rights of the
minority of our people constituting roughly 4,000,000 Non- Catholics and 1,000,000 non-
Christians

His second amendment was the so-called Plan Similar to the Austrian System. It sought to
amend Article 111 of the draft of the Civil Code of the Philippines thus:

Art.111. Divorce or Legal Separation may be granted as the petitioner may choose:

1. If the marriage was solemnized by any civil authority or by any ship captain,
airplane chief or military authority, mentioned in Arts 70, 88, 89, provided
neither contracting party belonged to any church, religion or sect which prohibits
divorce; or
2. If the marriage was solemnized according to the doctrines and rites of any
church, religion or sect, which does not forbid divorce.

80
Id.
81
Id.
82
Id.

26
The proposed amendments, however, were rejected. As finally approved, the Civil Code of the
Philippines repeals all laws permitting absolute divorce with the exception of the Moro law, and
provides only for legal separation or relative divorce.83

C. Committee Deliberations on the Family Code in relation to Psychological

Incapacity

Like the Civil Code, the Family Code provides an express repeal for all laws that are
inconsistent with its provisions, to wit:
ARTICLE 254. Titles III, IV, V, VI, VII, VIII, IX, XI, and XV of Book 1 of

Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as

amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential

Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended,

and all laws, decrees, executive orders, proclamations, rules and regulations, or parts

thereof, inconsistent herewith are hereby repealed84

This includes acts legitimizing the dissolution of marriage, such as Act No. 2710, which go

against the provisions of the Code.

Though the express repeal of acts legitimizing the dissolution of marriage was included

among the final provisions of the Code, it does not imply that the Family Law and Civil Code

Revision Committee, who drafted the Family Code, had absolutely no intention to include

divorce in the Code. In fact, the Committee deliberations reveal that there was indeed a proposal

to include a provision for no-fault divorce in relation to the provision on psychological

incapacity85.

83
Id.
84
Family Code of the Philippines, Executive Order No. 209 , [July 6, 1987])
(https://cdasiaonline.com/laws/23411?s_params=-Jjh4uNtsRsws_ds_Qd7
85
https://cdasiaonline.com/jurisprudences/51529?s_params=_AiVTzyvJkA8WcnneLqD

27
 In Ngo Te v. Yu-Te, the Supreme Court quoted Justice Flerida Ruth Romero in her

separate opinion in Santos v. Court of Appeals with regard to the Committee deliberations on the

concept of no-fault divorce in relation to psychological incapacity, to wit:

The letter dated April 15, 1985 of then Judge Alicia V. Sempio-Diy written in behalf of

the Family Law and Civil Code Revision Committee to then Assemblywoman Mercedes

Cojuangco-Teodoro traced the background of the inclusion of the present Article 36 in

the Family Code.

During its early meetings, the Family Law Committee had thought of including a

chapter on absolute divorce in the draft of a new Family Code (Book I of the Civil Code)

that it had been tasked by the IBP and the UP Law Center to prepare. In fact, some

members of the Committee were in favor of a no-fault divorce between the spouses after

a number of years of separation, legal or de facto. Justice J.B.L. Reyes was then

requested to prepare a proposal for an action for dissolution of marriage and the effects

thereof based on two grounds: (a) five continuous years of separation between the

spouses, with or without a judicial decree of legal separation, and (b) whenever a married

person would have obtained a decree of absolute divorce in another country...considering

the Christian traditional concept of marriage of the Filipino people as a permanent,

inviolable, indissoluble social institution upon which the family and society are founded,

and also realizing the strong opposition that any provision on absolute divorce would

encounter from the Catholic Church and the Catholic sector of our citizenry to whom the

great majority of our people belong, the two Committees in their joint meetings did not

pursue the idea of absolute divorce and, instead, opted for an action for judicial

declaration of invalidity of marriage based on grounds available in the Canon Law. It was

28
 thought that such an action would not only be an acceptable alternative to divorce but

would also solve the nagging problem of church annulments of marriages on grounds not

recognized by the civil law of the State.86

Based on the foregoing, it is clear that the Family Code Revision Committee had the

intent to include the provision of no-fault divorce, but conceded, instead, to convert it into an

action for a judicial declaration of nullity to prevent conflict with the Catholic Church and the

majority of the Filipinos who were Catholic. However, the fact that the Committee considered,

and, through the request of Justice Reyes, prepared a proposal for absolute divorce on the ground

of psychological incapacity implies that the Committee did find merit in the dissolution of

marriage in this regard.

The intent of the Committee can also be understood by looking into the context of

psychological incapacity itself, the ground to which no-fault divorce was considered.

Psychological incapacity is defined as the inability to comply with the essential marital

obligations87. In a way, this can be a cause for irreconcilable differences, which is also defined

as a no-fault marriage as mentioned earlier and is contemplated as a ground by House Bill

6027, due to the hardship caused by the spouses inability to comply with his or her marital

obligations.

D. House Bill 1799: An Act Introducing Divorce in the Philippines

One of the more recent legislative acts on the dissolution of marriage filed before House

Bill 6027 is House Bill 1799 or An Act Introducing Divorce in the Philippines. This was first

86
Ngo Te v. Yu-Te, G.R. No. 161793, [February 13, 2009], 598 PHIL 666-710
(https://cdasiaonline.com/jurisprudences/51529?s_params=_AiVTzyvJkA8WcnneLqD
87
Persons and Family relations, Sta. Maria citation

29
filed in Congress by Gabriela Womens Party-list representative Liza Maza in 2005, and refiled

again by the Gabriela Womens Party-list.88

The bill, according to Maza in the bills explanatory note, is premised on the number of

failed, unhappy marriages in the country who separate without taking advantage of court

proceedings due to the inaccessibility of courts.89 Maza also mentions that many couples invoke

Article 36 of the Family Code, or the provision on psychological incapacity, just for them to be

able to terminate the marriage given the provisions flexibility. Hence, Maza proposes to have a

bill to dissolve marriages so that couples do not need to resort to invoking the same provision to

fit their case in order to terminate their marriage.90

The bill provides five grounds for the dissolution of marriage, to wit:

(B) A petition for divorce may be filed on the following grounds:

(1) The petitioner has been separated de facto from his or her spouse for at

least five 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;

88
Full text: Bill filed in Congress that would legalize divorce, GMA News Online, June 9, 2011, available
at http://www.gmanetwork.com/news/news/specialreports/222970/full-text-bill-filed-in-congress-that-
would-legalize-divorce/story/ (last accessed Oct. 25, 2017).
89
cite bill, http://www.gmanetwork.com/news/news/specialreports/222970/full-text-bill-filed-in-congress-
that-would-legalize-divorce/story/
90
http://www.gmanetwork.com/news/news/specialreports/222970/full-text-bill-filed-in-congress-that-
would-legalize-divorce/story/

30
 (4) When one of 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 marriage91

According to Maza, the grounds for the dissolution of marriage revolve around the

irreparable breakdown of the marriage and the total non-performance of marital

obligations.92 The bill, according to Maza, also retains respect to religious beliefs in the country,

as it retains legal separation and annulment as options to terminate the marriage depending on

the Filipinos beliefs. Divorce, she claims, is just one of the remedies Filipinos can avail of.93

The bill also appears to be in line with the provisions of the Family Code in that it not

only retains the provisions for legal separation, but also patterns the grounds for divorce around

the grounds for legal separation. This is evidenced by the fact that the bill includes in its grounds

for divorce the separation de facto and legal separation for a period of time,94 which are also

included in the provisions for legal separation.95 The bill also incorporated Article 36 of the

Family Code, or psychological incapacity, into the grounds for divorce; though it is a ground for

91
(cite bill, http://www.gmanetwork.com/news/news/specialreports/222970/full-text-bill-filed-in-congress-
that-would-legalize-divorce/story/
92
http://www.gmanetwork.com/news/news/specialreports/222970/full-text-bill-filed-in-congress-that-
would-legalize-divorce/story/
93
(http://www.gmanetwork.com/news/news/specialreports/222970/full-text-bill-filed-in-congress-that-
would-legalize-divorce/story/
94
http://www.gmanetwork.com/news/news/specialreports/222970/full-text-bill-filed-in-congress-that-
would-legalize-divorce/story/
95
(see Family Code Legal separation unjust abandonment)

31
nullity and not legal separation, it can still be used to terminate the marriage in line with Canon

Law.96

In short, Mazas bill yet another example of the legislative intent to pass a law for the

dissolution of marriage as a means to safeguard the welfare and interest of spouses in failed

marriages. Not only does it provide remedies for these spouses, but these remedies are also in

line with religious beliefs and existing laws. This too is reflected in House Bill 6027, as it not

only hopes to achieve a peaceful and productive co-existence between the former spouses, but

also keeps the processes of the Family Code in the termination of the property regime and

support and custody of the common children.97

96
Full text: Bill filed in Congress that would legalize divorce, GMA News Online, June 9, 2011, available
at http://www.gmanetwork.com/news/news/specialreports/222970/full-text-bill-filed-in-congress-that-
would-legalize-divorce/story/ (last accessed Oct. 25, 2017).
97
An Act Providing for Grounds for the DIssolution of a Marriage, H.B. No. 6027, 17th Cong., 2d Reg.
Sess. (2017).

32
CONCLUSION

The applicant respectfully request for the Court to make final judgement on allowing for

dissolution of marriage on the grounds of irreconcilable difference and chronic unhappiness with

reasons of:

1.

2. Legalizing the Bill Would Have Positive Economic Implications.

3.

33