By Ade Fajardo

Should the Philippines finally pass a law on divorce?

Part of the ongoing debate is the question of whether such a law would contradict the 1987 Constitution which describes marriage as an inviolable social institution that must be protected by the State.

Simply put: Does the Constitution prohibit the enactment of a divorce law?

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The Supreme Court says no. Citing the deliberations of the 1986 Constitutional Commission, it says that Article 15, Section 2 of the Constitution was not intended to be a general prohibition on divorce (Republic vs. Manalo, April 24, 2018).

Former Chief Justice Diosdado Peralta declared that while a divorce law may be viewed by many of our countrymen to be contrary to customs, morals and religious traditions, “none of our laws should be based on any religious law, doctrine or teaching; otherwise, the separation of Church and State will be violated.”

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The decision went on to say that no religion can impose its beliefs and convictions on the State. While marriage is considered a sacrament, its civil and legal consequences are governed by law, principally the Family Code.

It is true that the Constitution directs that the institution of marriage must be protected by the State.

But that provision must be read in harmony with other provisions, e.g., the mandate to value the dignity of every human person, guarantee full respect for human rights, and ensure the fundamental equality before the law between women and men.

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The Manalo decision was not rendered in the context of an actual divorce law getting challenged in the Supreme Court for being unconstitutional.

The contentious issue in that case is the equitableness of Article 26 of the Family Code which grants a Filipino citizen the right to remarry under Philippine law in a situation where the foreigner divorces them under the foreigner’s law.

Since this exception for divorce is limited to that specific situation, the restrictive legal position is that it does not apply to cases where it is the Filipino citizen who divorces the foreigner spouse.

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The Supreme Court, however, widened the room for divorce by granting legal value to such a foreign divorce acquired by a Filipino citizen against the foreigner spouse.

The Court said that “marriage, being a mutual and shared commitment between two parties, cannot possibly be productive of any good to the society where one is considered released from the marital bond while the other remains bound to it.”

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Justice Leonen added an opinion, saying that the Manalo decision is a step in the right direction, clearly implying that there is a compelling need for a divorce law because it is “more consistent with the constitutionally entrenched fundamental freedoms inherent in individuals as human beings.”

The judiciary has thus practically set the groundwork for a divorce law in this country.

Any future constitutional challenge will have to surmount declarations by the 1986 constitutional commission and by the highest court of the land that divorce is not in conflict but is in sync with the duty of the State to uphold human dignity./WDJ