Till the Judge Do Them Part: The Prospect of Absolute Divorce in the Philippines

Abstract

The Philippines is the only member State of the United Nations without a general divorce law which is attributed to the influence of the Roman Catholic Church for more than 300 years of Spanish colonization. Currently, the Philippine legal regime permits legal separation, annulment, and declaration of nullity of marriage, although divorce by Muslims and indigenous people as well as one validly obtained abroad by a foreigner against a Filipino spouse, is recognized. Legal separation authorizes the couple’s separation from bed and board but leaves the marital cord unsevered. Any new relationship for either party may result in criminal prosecution in a country where marital infidelity is a crime. Annulment and declaration of nullity are concerned with validity and nullity issues. Causes of marital discord that develop after the couple take each other as husband and wife are beyond the province of the latter two remedies. The Constitution protects marriage as an inviolable social institution. It is argued that this is not an express or implied prohibition of divorce as the dissolution of marital unions where vows of love and fidelity are routinely breached and debased is also necessary to preserve the sanctity of marriage. Divorce is now customary international law which the Philippines must honor, judging from the fact all other UN member States permit it. Divorce is also an aspect of the human rights to marry and to life which the Philippines committed to respect, protect, and fulfill under its treaty obligations. Moreover, despite its strong Roman Catholic background, Philippine culture is receptive to divorce and in fact had a general divorce law for 33 years mostly as a colony of the United States. Religious dogma as basis for Congress’ phlegmatic attitude to divorce is misplaced in view of the separation of religion and State and the fact that even Canon Law authorizes annulment of marriage.