Republic of the Philippines

SUPREME COURT
Manila

ERVIN MICHAEL B. CAVALIDA, KRISTINE Y. CENTINO,

CARLOS S. VILLARIN, et al.
Petitioners,
-versus-

REPRESENTATIVES EDCEL C. LAGMAN, ROBERT ACE S.

BARBERS, EMMI A. DE JESUS, ARLENE D. BROSAS, TEDDY
BRAWNER BAGUILAT, JR., RODEL M. BATOCABE, ARIEL “KA
AYIK’ B. CASILAO, FRANCE L. CASTRO, NANCY A. CATAMCO,
PIA S. CAYETANO, SARAH JANE I. ELAGO, GWENDOLYN F.
GARCIA, ANA CRISTINA GO, PANTALEON D. ALVAREZ,
ANTONIO L. TINIO, CARLOS ISAGANI T. ZARATE, FELICIANO
BELMONTE, JR., KAKA J. BAG-AO, DOY C. LEACHON, AND
ELEANOR C. BULUT-BEGTANG
Respondents.

x----------------------------------------------------/

PETITION
(for Certiorari and Prohibition)

NATURE OF THE PETITION

1. This is a petition for certiorari and prohibition under Rule 65 of

the 1997 Rules of Civil Procedure to declare the Absolute Divorce Act of 2018
passed by Congress and signed into law by the President as unconstitutional.

2. The petitioners submit that this petition is cognizable by this

Honorable Court under its traditional and expanded power of judicial review
under Section 1, Article VIII of the Constitution which provides that:

The judicial power shall be vested in one Supreme Court and in

such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle

actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.

3. The petitioners submit that this instant petition also falls under the
original jurisdiction of the Supreme Court under Section 5(1), Article VIII of
the Constitution which provides that:

The Supreme Court shall have the following powers:

1
 1) Exercise original jurisdiction over cases affecting ambassadors, other
public ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus…

4. The law on absolute divorce would have a tremendous irreversible

effect on Philippine society by weakening marriages and families. This is not to
say that the Constitution turn a blind eye on broken marriages. However, there
are more foundational principles grounded upon the Constitution, statutes and
treaties that we have to preserve even if there are broken marriages.

5. The petitioners submit that the law violates Sections 12, Article II
of the Constitution which states that:

State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution.

6. It also violates Sections 1 and 2, Article XV of the

Constitution which stipulates that:

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.

Section 2. Marriage, as an inviolable social institution, is the

foundation of the family and shall be protected by the State.

7. The law also violates certain principles enshrined in the

Constitution such as the Doctrine of Separation of the Church and the State and
the Equal Protection clause.

8. The Constitution, being the supreme law of the land should not be
violated. By allowing the Divorce Law to stand, then there should be an
amendment or a revision in our Constitution.

9. The petitioners submit that aside from the assailed law violating
the Constitution, the same also contravenes Articles 1 and 149 of the Family
Code, which states that:

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.

Article 149. The family, being the foundation of the nation, is a

basic social institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no custom,
practice or agreement destructive of the family shall be recognized or
given effect.

2
 10. Lastly, the petitioners submit that the law is inconsistent with
Section3, Article 16 of the Universal Declaration of Human Rights (UDHR),
which states that:

The family is the natural and fundamental group unit of society

and is entitled to protection by society and the State.

THE PARTIES

11. The petitioners herein are the members of the EH 307 Anti-
Divorce Association of the Philippines (ADAP)-Cebu City Chapter. They are
now assailing the constitutionality of Republic Act No. 7303, otherwise known
as the Absolute Divorce Act of 2018.

12. The Respondents are the members of the House of the

Representatives of the 17th Congress who proposed the said law.

STATEMENT OF FACTS

13. On February 28, 2018, the Absolute Divorce Law was passed by
the Congress of the Philippines and was signed by President Rodrigo
Duterte. On March 15, 2018, 15 days thereafter, the said law has gained
effectivity after complying with the publication requirement in the Official
Gazette and newspapers of general circulation.

14. There had already been three attempts to pass a divorce bill into
law in the Philippines, namely, House Bill No. 116 of 2013, House Bill No.
2380 of 2016, and House Bill No. 6027 of 2017. After countless debates and
discourse regarding the pros and cons about the matter, such attempts never
prospered into law. Verily, only the present law has been deemed successful.

15. In this petition for certiorari and prohibition, the ADAP,

represented by herein petitioners, assails the constitutionality of the
aforementioned law. The said association is one composed of determined
members committed to safeguard and protect the sanctity of marriage and the
basic institution of the society: the family. It maintains that in the cost-benefit
analysis on how an Absolute Divorce Law affects the country, the costs still
outweigh the benefits. In opposing the Absolute Divorce Law, the ADAP avers
that it contradicts the principles on marriage and family set forth under
Philippine statutes, treaties, and most especially, the Philippine Constitution.

ARGUMENTS AND DISCUSSION

PROCEDURAL ISSUES

A. Jurisdiction

16. The petitioners submit that this petition is cognizable by this

Honorable Court under its traditional and expanded power of judicial review
under Section 1, Article VIII of the Constitution which provides that:

3
 The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle

actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.

17. The instant petition also falls under the original jurisdiction of the
Supreme Court under Section 5(1), Article VIII of the Constitution which
provides that:

The Supreme Court shall have the following powers:

1) Exercise original jurisdiction over cases affecting ambassadors,

other public ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus…

B. Propriety of Rule 65 of the 1997 Rules of Civil Procedure

18. The petitioners submit that under Rule 65 of the 1997 Rules of
Civil Procedure, assailing the constitutionality of a statute is proper and
appropriate in light of the absence of a specific legal remedy. This is supported
by this Honorable Court's pronouncement in the case of Magallona, et al. vs.
Executive Secretary, et al.1 that:

“When this Court exercises its constitutional power of judicial

review, however, we have, by tradition, viewed the writs of certiorari and
prohibition as proper remedial vehicles to test the constitutionality of
statutes, and indeed, of acts of other branches of government.”

19. This Honorable Court has also reiterated such rule in Araullo, et al.
vs. Aquino, et al.2 stating:

“With respect to the Court, however, the remedies of certiorari

and prohibition are necessarily broader in scope and reach, and the writ
of certiorari or prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or officer exercising
judicial, quasi-judicial or ministerial functions but also to set right, undo
and restrain any act of grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the Government,
even if the latter does not exercise judicial, quasi-judicial or ministerial
functions. This application is expressly authorized by the text of the second
paragraph of Section 1, supra.

Thus, petitions for certiorari and prohibition are appropriate

remedies to raise constitutional issues and to review and/or prohibit or
nullify the acts of legislative and executive officials.”

1
G.R. No. 187167, August 16, 2011.
2
G.R. No. 209287, July 1, 2014.

4
 20. That being said, the petitioners respectfully submit that until this
Honorable Court provides a legal remedy by virtue of its constitutional rule-
making powers, availing of a petition for certiorari and prohibition under Rule
65 of the 1997 Rules of Civil Procedure to assail the constitutionality of
statutes is proper and appropriate.

C. Requisites of Judicial Review

21. The petitioners submit that the requisites for both the traditional
and expanded power of judicial review are present in this petition.

I. Traditional Power of Judicial Review

22. The petitioners submit that the requisites for the exercise of the
traditional power of judicial review are present.

23. The requisites of the traditional power of judicial review are:

1) an actual case or controversy calling for the exercise of judicial power;

2) the person challenging the act must have "standing" to challenge; he
must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement;
3) the question of constitutionality must be raised at the earliest possible
opportunity; and
4) the issue of constitutionality must be the very lis mota of the case.3

24. In relation to the first requirement, the petitioners submit that

there is an actual case calling for the exercise of judicial review. This
Honorable Court held in Pimentel vs. Aguirre4 that:

“[W]hen an act of the legislative department is seriously alleged to

have infringed the Constitution, settling the controversy becomes the duty
of this Court. By the mere enactment of the questioned law or the approval
of the challenged action, the dispute is said to have ripened into a judicial
controversy even without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough to awaken judicial
duty.”

25. Thus, the blatant infringement of Congress in passing the

Absolute Divorce Act of 2018 presents an actual and justiciable controversy
that merits the resolution of this Honorable Court.

26. In relation to the second requirement, the petitioners submit that

as Filipino citizens, they have the locus standi to question the Absolute Divorce
Act of 2018. In Biraogo vs. The Philippine Truth Commission of 2010,5 this
Honorable Court revisited the doctrine that:

3
Francisco, et al. vs. House of Representatives, at al., G.R. No. 160261, November 10, 2003.
4
G.R. No. 132988, July 19, 2000.
5
G.R. No. 192935, December 7, 2010.

5
 “In the first Emergency Powers Cases, ordinary citizens and
taxpayers were allowed to question the constitutionality of several
executive orders although they had only an indirect and general interest
shared in common with the public.”

27. Additionally, in the case of Coconut Oil Refiners Association, Inc.

v. Torres,6 this Honorable Court ruled that:

“[I]n cases of paramount importance where serious constitutional

questions are involved, the standing requirements may be relaxed and a
suit may be allowed to prosper even where there is no direct injury to the
party claiming the right of judicial review.”

28. In relation to the third requirement, the petitioners submit that the
question of constitutionality has been raised at the earliest opportunity. This
Honorable Court explained in Serrano vs. Gallant Maritime Services, Inc.7 that
raising a constitutional issue at the earliest opportunity “entails the
interposition of the issue in the pleadings before a competent court, such that, if
the issue is not raised in the pleadings before that competent court, it cannot be
considered at the trial and, if not considered in the trial, it cannot be
considered on appeal.” Thus, the petitioners submit that they have raised the
issue of constitutionality in this pleading before a competent court at the
earliest opportunity.

29. In relation to the fourth requirement, the petitioners submit that

the question of constitutionality is the very lis mota of the case. In
Congressman Garcia vs. Executive Secretary,8 this Honorable Court explained
that lis mota means “the Court will not pass upon a question of
unconstitutionality, although properly presented, if the case can be disposed of
on some other ground, such as the application of the statute or the general law.
The petitioner must be able to show that the case cannot be legally resolved
unless the constitutional question raised is determined.” Therefore, assailing
the constitutionality of the Absolute Divorce Act of 2018 is proper.

II. Expanded Power of Judicial Review

30. In Justice Arturo Brion‟s separate opinion in Araullo, et al. vs.

Aquino, et al,9 he reiterated the fresh approach in giving due course to and
reviewing constitutional cases. He stated:

“As I explained in Imbong, the Court under the 1987 Constitution

possesses three powers:

1) the traditional justiciable cases involving actual disputes and

controversies based purely on demandable and enforceable rights;
2) the traditional justiciable cases as understood in (1), but additionally
involving jurisdictional and constitutional issues;
3) pure constitutional disputes attended by grave abuse of discretion in
the process involved or in their result/s.
6
G.R. No. 132527. July 29, 2005.
7
G.R. No. 167614, March 24, 2009.
8
G.R. No. 157584, April 2, 2009.
9
Ibid, Separate Opinion of Justice Arturo Brion.

6
 …Under the expanded judicial power, justiciability expressly and
textually depends only on the presence or absence of grave abuse of
discretion, as distinguished from a situation where the issue of
constitutional validity is raised within a "traditionally" justiciable case
which demands that the requirement of actual controversy based on
specific legal rights must exist. Notably, even if the requirements under the
traditional definition of judicial power are applied, these requisites are
complied with once grave abuse of discretion is prima facie shown to have
taken place. The presence or absence of grave abuse of discretion is the
justiciable issue to be resolved.”

31. The petitioners also submit that the instant petition falls under the
third classification as opined by Justice Brion, as alleged in the petition that
grave abuse of discretion and violations of the Constitution attended the
Disbursement Acceleration Program (DAP) in Araullo, et al. vs. Aquino, et al.10
Thus, this falls under this Honorable Court‟s expanded power of judicial
review, as in the DAP case where Justice Brion held that:

“The third classification to the fresh approach to the Court‟s

expanded power of judicial review requires two essential requisites
namely, a prima facie showing of grave abuse of discretion and
transcendental importance. The former establishes the need for the
Court‟s exercise of expanded judicial review powers; while the latter
justifies direct recourse to the Court and a relaxation of standing
requirements.”11

32. In the case at bar, the passage of the Absolute Divorce Act of
2018 constitutes a prima facie evidence of grave abuse of discretion by the
Congress because it violates certain provisions of the 1987 Philippine
Constitution such as Section 12, Article II and Sections 1 and 2, Article XV.

33. Thus, the petitioners submit that the instant petition raises issues
of transcendental importance. The concept of transcendental importance entails
the relaxation of the recognized rules in constitutional litigation and a non-
uniform approach in exercising judicial review.

34. In various cases decided by this Honorable Court, the following

are the determinants of transcendental importance:

1) the character of the funds or other assets involved in the case;

2) the presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of the
government; and
3) the lack of any other party with a more direct and specific interest in
raising the questions being raised.12

35. In the case at bar, the second determinant was violated by the
passage of the law because it transgresses the sanctity of marriage and family
life which is protected by the Constitution. Such violation raises an issue of

10
Ibid.
11
Ibid.
12
Ibid.

7
transcendental importance which warrants the attention of this Honorable
Court.

SUBSTANTIAL ISSUES

I. The Divorce Law violates the 1987 Philippine Constitution, the Family
Code of the Philippines, and the Universal Declaration of Human
Rights

The Divorce Law violates Section 12, Article II and Sections 1 and 2, Article
XV of the 1987 Philippine Constitution

36. Section 4 of the Republic Act No. 7303 defines Absolute Divorce
as the separation between married couples that is total and final where the
husband and wife return to their status of being single with the right to contract
marriage again. Moreover, Section 10 (a) provided that the marriage bonds
shall be severed and the divorced spouses shall have the right to contract
marriage again, either by civil or religious ceremony.

37. Divorce is unconstitutional because it is against two basic tenets

of our fundamental law. First, it violates the constitutional provision which
upholds the sanctity of marriage and family life as provided in Section 12,
Article II of the Constitution which states that:

State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution.

38. Second, it also contravenes Sections 1 and 2, Article XV of the

1987 Philippine Constitution which states respectively that:

The State recognizes the Filipino family as the foundation of the

nation. Accordingly, it shall strengthen its solidarity and actively promote
its total development.

Marriage, as an inviolable social institution, is the foundation of

the family and shall be protected by the State.

39. From these provisions, it is evident that the fundamental law itself
does not allow divorce as it would be repugnant and inconsistent with its
policies and principles.

40. First, legalizing divorce in the Philippines would result to

marriages being torn apart. Even an ordinary lay person could understand that
since divorce would obviously result in the dissolution of marriages, then it
could not be viewed as being in accordance with the Constitution which
mandates that marriage must be protected. Thus, even an ordinary reading of
the words of the Constitution would lead to the conclusion that divorce is
unconstitutional.

41. Second, allowing divorce would tragically lift the floodgates for
unconscionable abuse by couples who would now just whimsically enter into
8
marriages thinking that each marriage would have an easy way out. This would
undoubtedly be an inevitable mindset of many people, thus, distorting the very
concept of marriage and desecrating its sanctity which is supposed to be
sacrosanct and held to the highest standards.

42. Even the Supreme Court has recognized this unfortunate tendency
of legalizing divorce. In Tilar v. Tilar,13 the Court held that:

“Marriage is not only a civil contract, but it is a new relation, an

institution of which the maintenance of which the public is deeply
interested. Thus, the State is mandated to protect marriage, being the
foundation of the family, which in turn is the foundation of the nation. The
State has surrounded and protected marriage with safeguards to maintain
its purity, continuity and permanence. It is the interest of each and every
member of the community to prevent the bringing about of a condition that
would shake its foundation and lead to its destruction.”

43. Also, in the case of Republic v. Albios,14 the Court held that:

“No less than the Constitution declares that marriage as an

inviolable social institution, is the foundation of the family and shall be
protected by the State. It must be therefore safeguarded from the whims
and caprices of the contracting parties. This Court cannot leave the
impression that marriage may be easily entered into when it suits the
needs of the parties, and just as easily nullified when no longer needed.”

44. Thus, due to this unfortunate yet inevitable tendency, it is

imperative that the Divorce law being assailed be declared as unconstitutional
in toto for violating the fundamental principles to which our State stands on.

The Divorce Law violates the Doctrine of Separation of the Church and the
State.

45. The Philippines has a constitutional, democratic, and republican

government. It is a party to major international human right treaties and adopts
the generally accepted principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice, freedom, cooperation
and amity with all nations. Despite the predominance of Catholicism in the
country, the inviolability of the separation of the church and the state is
recognized.

46. The Philippine population according to religion, is divided into

Roman Catholic: (81%), Protestant (7.3%); Iglesia ni Kristo (2.3%); Philippine
Independence Church (2.0%); Islam (5.1%); and Buddhism (0.1%).15

47. The presence of the substantial population of Roman Catholic

implies that their views have an effect over the customs and norms of Filipinos.
They account for the many conservative laws in the country and the absence of
13
G.R. No. 214529, July 12, 2017.
14
G.R. No. 198780, October 16, 2013, 719 PHIL 622-638.
15
Central Intelligence Agency, “CIA World Factbook” 14 November 2012, online: Central Intelligence Agency
<https://www.cia.gov> [CIA].

9
policies that permit or regulate such matters as abortion, contraception, and
divorce.

48. The religious authority, through the Papal Nuncio to the

Philippines, describes the absence of divorce as a “point of honor” for the
country,16 given the perceived threat it poses to the Filipino Family.
Archbishop emeritus Oscar Cruz believes that “marriage is a permanent thing
and should not be treated like any other commodity,” and that “the best option
[for a married couple] would be reconciliation, for the sake of the children.”
According to Monsignor Hernando Coronel, for some breathing space, couples
should just physically separate for a while, instead of resorting to divorce
which is a “violation of the moral order and which will not contribute in any
way to the moral good.” The Catholic Bishops‟ Conference of the Philippines
(CBCP) believes that the legalization of divorce will lead to violations of the
children‟s right to a stable family as a result of the irreversible breakdown of a
family, and the right of married couples to contract an indissoluble marriage.
Fr. Melvin Castro preaches that couples should simply “seek perfection in
marriage [and] not seek a perfect husband nor wife nor a perfect marriage.”

49. In explaining the impact of divorce on the human person, then

Pope Benedict XVI declared that divorce like abortion is a “grave sin which -
in various ways and with due evaluation of subjective responsibilities - injure
the dignity of the human person, involve a profound injustice in human and
social relationships, and offend God Himself, the guarantor of the marital bond
and the architect of life.”

50. Religion is an important aspect of our society. Despite the

established separation of the church and the state, the religion clauses in the
Constitution are not meant to throw the baby out, along with the bathwater, so
to speak. They are a recognition of the important role religion plays in the
democratic polity. That each Filipino has his or her own values to upheld.
Provisions on religion in the Constitution exist to recognize the importance of
religion in the society without necessarily favoring one over the other.

The Divorce Law is in violation of equal protection clause

51. Section 1, Article III of the 1987 Philippine Constitution enshrines

the right of the Filipino people to equal protection of laws. To wit:

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
laws.

52. Under this provision, all members of the same class of persons
and things must be accorded equal treatment. However, this law has its
exceptions, which allow a distinction to be made between the members of the
same class. These are: namely, one, that the classification must be based on
substantial distinction; two, that it be germane to the purpose of the law; three,
16
Philip Tubeza, “No divorce an „honor‟ for Philippines, say Vatican envoy”, Philippine Daily Inquirer 30 July 2011 online: Inquirer
Global Nation http://globalnation.inquirernet.

10
that it not be limited to existing conditions; and four, that it apply equally to all
members of the same class. Should a distinction be made between members of
the same class of people of things adhering to these requirements, then such
classification is held valid.

53. The Divorce Law however, is violative of this right afforded to

Filipinos.

54. First, its classification is not based on a substantial distinction. It

does not even make any distinction at all. The Divorce Law is intended to be
applicable to all validly married Filipino couples.

55. Second, it also violates the requirement that it must be germane to

the purpose of the law. The Divorce Law goes against the grain of the State's
public policy, which is geared towards protecting marriage as an inviolable
social institution. It advocates the dissolution of marriage in an easier manner,
as its proponents constantly advertise to the public. It does not even provide
grounds that are manifestly graver than existing grounds for annulment and
legal separation for the severance of the ties of matrimony.

56. Third, it is limited only to existing conditions. Section 3 (4) of the

assailed law states that it is geared towards women, in that women are entitled
liberation from an abusive relationship. This necessarily implies however, that
it is always the women who are the innocent parties in failed marriages. It does
not take into consideration that there are cases where it is the women in fact
who are the erring spouses in a relationship.

57. Lastly, it does not apply to members of the same class. The
Divorce Law purports to cover all married Filipino couples. However, it does
not take into consideration that the majority of Filipinos are Roman Catholics.
It is a matter of common knowledge that, according to the religious beliefs of
the Catholics, conjugal tie created by marriage is indissoluble, and no Catholic
who is a faithful believer would ask for the dissolution of their marriage tie.
When it is taken into consideration that the majority of the Filipino people at
present are Catholics, then the Divorce Law is only for a few.

58. Furthermore, the Divorce law gives preference to a certain group

in hearing divorce cases for the Divorce law is inconsistent with what the equal
protection clause guarantees. Based on Section 7 of the said law, the Overseas
Filipino Workers (OFWs) will be given priority by the Court with respect to the
hearing of their petitions. This priority is questionable as it may be interpreted
in a way that the law prefers to protect OFWs rather than those persons who are
also victims of spousal abuse or of violence. The law should ensure that all
persons should be treated alike, both as to rights conferred and responsibilities
imposed, rather than favoring OFWs over persons who are sexually, mentally
and physically abused.

11
The Constitution should first be amended before Congress can enact a law
allowing divorce.

59. The Constitution is the supreme law of the land. To accommodate

the Divorce Law would be to directly go against its provisions which are
viewed as unacceptable in our legal system. Allowing Divorce Law to stand
would be to allow a revision in our Constitution in a way that is not provided
under the law. An amendment or revision can only be affected by the steps laid
out by law.

60. Article XVII of the 1987 Philippine Constitution provides:

Section 1. Any amendment to, or revision of, this Constitution may

be proposed by:

1. The Congress, upon a vote of three-fourths of all its

members; or
2. A constitutional convention

Section 2. Amendments to this Constitution may likewise be

directly proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per centum
of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution
nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise

of this right.

61. Since we have a provision in our Constitution declaring marriage

as an inviolable social institution which must be protected by the State, 17 and a
State principle enshrined in the same document stating that the State recognizes
the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution,18 it is clear from the plain meaning of the
Constitution that divorce would be unconstitutional as the effects of divorce
would go against the very meaning of inviolability which means can never be
broken.19 Divorce would inevitably result in the breaking up not only of
perfectly valid marriages, but ultimately of families. For divorce to be viable in
our jurisdiction would necessitate that amendments be made to our
Constitution. Such action, however, is impractical, much less unwise. Doing so
would be costly and would violate the Principle of Constitutional Supremacy in
that the Constitution would have to be amended just so a mere legislation by
the Congress would become legal and would suit the mere whims and caprices
of our politicians.

17
Const. Article XV, Sec. 2.
18
Const. Article II, Sec. 12.
19
As defined in the dictionary.com.

12
The Divorce Law contravenes Articles 1 and 149 of the Family Code.

62. Divorce violates Articles 1 and 149 of the Family Code. These
articles stress the importance of the family by stating that marriage is a special
contract of permanent union between a man and a woman and an inviolable
social institution20 and that no custom, practice or agreement destructive of the
family shall be recognized or given effect21.

63. Article 1 of the Family Code states in no uncertain terms the

nature and importance of marriage, not only as a special contract, but also as
the cornerstone of the family and the foundation of the family unit. It defines
marriage as a special contract of permanent union for the establishment of
conjugal and family life, the foundation of the family and an inviolable social
institution. This rather self-explanatory article stresses that the institution and
union of marriage remain permanent and unassailable, free from stipulation,
and outside influence. It highlights the presumption that a marriage is
permanent. It is a promise to be with someone “until death do us part.” With
the assailed Divorce law, the presumption of a permanent marriage is already
inexistent. In unification with the mandate of the Constitution to protect
marriage, the courts should honor such and oppose the Divorce law.

64. In Saclolo v. CAR,22 the Supreme Court decided:

“Whether under the common law or under the civil law, upon
marriage, the husband and the wife become one single moral, spiritual,
and social being, not only for the purpose of procreation, but also for the
purpose of mutual help and protection physically, morally, and
materially.”

65. The US Supreme Court ruled in Maynard v. Hill23 that:

“… when the contract to marry is executed by the marriage, a

relation between the parties is created which they cannot change… It is an
institution in the maintenance of which in its purity the public is deeply
interested, for it is the foundation of the family and of society, without
which there would be neither civilization nor progress.”

66. Furthermore, our own Supreme Court held that marriage cannot
be restricted by discriminatory policies as stated in Philippine Telegraph and
Telephone Company v. NLRC24:

“In the final reckoning, the danger of such a policy against

marriage followed by petitioner PT&T is that it strikes at the very essence,
ideals, and purpose of marriage as an inviolable social institution and,
ultimately, of the family as the foundation of the nation. That it must be
effectively interdicted here in all its indirect, disguised or dissembled
forms as discriminatory conduct derogatory of the laws of the land is not
only in order but imperatively required.”

20
Article 1 of the Family Code of the Philippines
21
Article 149 of the Family Code of the Philippines
22
G.R. No. L-13274, January 30, 1960, 106, Phil. 1038.
23
125 U.S. 190, March 19, 1888.
24
G.R. No. 118978, May 23, 1997, 338 PHIL 1093-1112.

13
 67. These jurisprudence, both local and foreign, assert the facts which
are readily apparent and easily understandable as upheld in Article 1 of the
Family Code. Upholding the Divorce law not only destroys the presumption of
a permanent marriage, but also the sanctity and strength of the family unit and
subsequently, the underlying social structure which relies upon the family as its
foundation.

68. Article 149 of the Family Code stresses the paramount importance
of the family as the foundation of the Philippines, and absolutely prohibits
outright destructive agreements which may tend to destroy the family from
being given any effect, legal or otherwise. The Divorce law, while not
expressly giving free reign to absolute divorce for any reason at all, may be
prone to abuse which would lead to such actions, resulting in a dangerous
precedent that would be standard practice for all spouses with so-called
“irreconcilable differences.”

69. The Divorce law not only allows for the complete termination of
spousal relations, but also the complete destruction of the family unit, and,
consequently, the degradation of the family structure which Article 149
expressly protects. Even with “safeguards” installed within the Divorce law
such as a joint plan for parenthood for spouses with common children, and the
established and recognized procedures for legal separation, annulment of
marriage, and voiding of a marriage all ingrained within the law itself, these
controls alone do not alleviate concerns of abuse and do absolutely nothing to
show respect to the family as defined in Article 149.

70. In the book of Sta. Maria, the esteemed author cited a case
regarding an agreement to divorce which stated:

“In De Leon v. Court of Appeals, where the parties stipulated that

“in consideration for a peaceful and amicable termination of relations
between the undersigned and her lawful husband,” the parties agreed to
give properties to the wife and monthly support for the children and for
the wife to agree to a judicial separation of property plus the amendment
of the divorce proceedings (initiated by the wife in the United States) to
conform to the agreement, the Supreme Court sustained the lower court‟s
ruling the agreement is contrary to law and Filipino morals and public
policy because the consideration of the agreement was the termination of
the marriage by the parties which they cannot do on their own and without
legal basis.”25

71. Precisely because the case cited occurred before the passing of the
divorce law, the concern remains and is more prevalent than ever that future
agreements of such type which would lead to the termination of the marital
bond and the family unit would be allowed, and eventually become the norm.

72. The family unit, as the foundation of the nation must be respected,
cherished, and protected. There must be no custom, practice nor agreement

25 Sta. Maria Melencio, S., Persons and Family Relations Law 616-617 (2015 ed.).

14
which vilifies the family that shall be recognized or given effect. The Divorce
law challenges this notion and must be struck down as unconstitutional.

The Divorce Law is inconsistent with Section 3, Article 16 of the Universal

Declaration of Human Rights

73. Under the Universal Declaration of Human Rights (UDHR), the

family is at the very center of „rights‟. It recognizes family as fundamental
because it is the seedbed of all the other rights outlined in the Universal
Declaration. To make the world new following the devastation of the most
destructive war in history, the United Nations built its structure of universal
human rights squarely on the foundation of the family.

74. Apart from violating several Constitutional provisions and

statutes, the Divorce Law also violates one of the objectives of UDHR,
specifically Section 3, Article 16 thereof, which provides that:

The family is the natural and fundamental group unit of society

and is entitled to protection by society and the State.

75. Divorce will destroy the family as a social institution and will
degrade the sanctity of marriage. Instead of protecting the family and the
marriage, it will encourage spouses to find an easy way out from their
relationship whenever they are faced with problems and will influence their
mindset that the only solution to end such dysfunctional marriage is through
divorce.

II. The implementation of the Divorce Law results to negative and

downward effects towards the couple, their children, and the society

Divorce has detrimental effects to ex-couples

76. There are some divorced couples that positively adjust to a

divorce setting; however, there are others that experience effects that are not
only negative but also long-lasting. It is inevitable for adults and children to be
placed at risk for psychological, behavioral, health disorders because of the
changes and stresses accompanying divorce.26 Parents in divorced families
generally lead a more stressful life than those who aren‟t divorced. The more
negativity, the more adjustment problems happen.

a. Economic

77. Families that experience better conditions in divorce are those that
have well-established or adequate finances. (Hetherington, 1989; Simons et. al.,
1993). It is tougher on those families who have mothers as the head of the
family. These divorced mothers experience a significant decrease in their
income, which forces them to move out to a lower class neighborhood. The
demand for higher income necessitates to the mothers leaving their young at the
peak of their need for attention and stability. In general, both men and women
26
Kazdin, A. (2000). Encyclopedia of Psychology. New York : Oxford Printing Press.

15
of divorce show decline in their retainable income or economic decrement.
Furthermore, tension may rise between the single parent and the children due to
arguments involving money to accommodate their accustomed leisure and
amenities. It is unfortunate to note that only an estimated half of the parents or
ex-couples pay for child support (Sorensen, 1997).27

78. To some degree, the economic distress suffered by mothers and

children is structural. That is, given the nature of fixed costs (for example,
housing and transportation), it is cheaper to live in one household than in two.
Because two households are formed when a couple divorces, the same
resources must now cover greater fixed costs. Moreover, costs attendant to
marital disruption, such as legal fees and relocation costs, can drain either
partner‟s financial reserves. CPS data indicate that divorced women with
children have a high likelihood of living in poverty: 39% of all divorced
women with children and 55% of those with children under six were living
below poverty line after the divorce.28

b. Social

79. Highly stressed and depressed divorced custodial and non-

custodial parents experience pressure ensuring that they play a useful role in the
family‟s adjustment to the divorce. They are pressured to maintain a response
that is consistent, warm, and authoritative towards their children. Non-custodial
parents especially must exert more effort in being part of their children‟s lives
in order to prevent losing touch or contact with them. (Hetherington &
Clingempeel, 1992; Kline et. al., 1989).29

80. Furthermore, the arguments and fights between divorced couples

contribute more suffering to the custodial parent. A hostile and conflictual
relationship between parents, living in dual residences, may produce high levels
of stress and poor adjustment outcomes in the family. (Buchanan, et. al.,
1991).30 Custodial parents often feel the burden of task overload and child-
rearing. While non-custodial parents experience alienation and loss of their
children.31

c. Mental and Physical Health

81. Most adults, especially those who initiated divorce, encounter

significant changes and stresses following the breakdown of their marriage that
may take a toll on their physical and psychological status. Loneliness, failure,
reduced self-worth, and anxiety are commonly experienced by divorced men
and women. These negative feelings and changes relate to the increased rates of
alcoholism, depression, antisocial behavior, suicide, violence, and homicides.
Furthermore, studies show that not only mental health is affected but also
physical health. This is manifested by immune system breakdown along with
increased experience of morbid diseases and physical illness.
27
Shaffer, D. (1999). Developmental Psychology: Childhood and Adolescence. USA: Brooks/Cole Publishing Company.
28
Teachman, J. D., & Paasch, K. M. (n.d.). Financial Impact of Divorce on Children and their Families . University of Maryland .
29
Shaffer, D. (1999). Developmental Psychology: Childhood and Adolescence. USA: Brooks/Cole Publishing Company.
30
Ibid.
31
Kazdin, A. (2000). Encyclopedia of Psychology. New York : Oxford Printing Press.

16
 82. Divorced non-custodial fathers are prone to getting into habits or
behaviors that can jeopardize their health and wellness.32

Divorce affects the emotional, mental, psychological, and social well-being of

children

83. According to Shaffer, Divorce is not a single life event for it

represents a series of stressful and traumatic experiences that begins with the
common marital conflict before the actual separation and then a multitude of
life changes33. Such a separation is a major family alteration that does not only
affect the spouses involved but also their children. The end of a marriage is a
long process and it affects the children in every aspect of their lives from their
behavior, mentality, academic performance, to growth in general.34

84. Such a separation may be advantageous for the couples involved

but numerous studies found that it has disadvantageous effects on children and
adolescents. Divorce was proven to be stressful for most children and it
constitutes a potential developmental interference.35 Hence, the implementation
of another way to separate parents would result to children undergoing through
mental, emotional and behavioral distress which is violative of the Constitution
and the State‟s mandate to prioritize the general welfare of its people.

85. In a local study, it was stated that children were more aggressive,
less compliant, often experience difficulties in social relationship, and exhibit
more problems in school during and after the separation of their parents.36 Such
behavioral differences due to parental separation or divorce would hinder and
affect a child‟s developmental stage.

86. At the time of the divorce, children are defenseless and they tend
to feel mixed emotions like anger, stress, confusion, fear, loss, and sadness. It
creates disruptions which include substantial increases in financial difficulties
and associated deprivations, changes in housing and school, substantially
reduced time or even total loss of contact with one parent and enhanced
parental distress and/or diminished quality of parenting. All of which deprive a
child of physical, mental, and emotional protection upheld by the State through
its Constitution.

87. Aside from that, a study conducted in Sweden of almost one

million children, demonstrated that children growing up with single parents
were more than twice as likely to experience a serious psychiatric disorder,

32
Ibid.
33
Shaffer, David. (1999). “Developmental Psychology: Childhood and Adolescence”. 5th Edition. pp.581.
34
Amato & Keith, (1991). Parental divorce and the well-being o f children: A Metaanalysis. Psychological Bulletin, 110, 26-46, Bray,
J.H. & Berger, S.H. (1990). Noncustodial father and paternal grandparent relationships in stepfamilies. Family Relations, 3 9 ,414-
419, Cherlin, A.J. (1978). Remarriage as an incomplete institution. American Journal of Sociology, 84, 634-650, Hetherington, E.M.
(1993). An overview of the Virginia longitudinal study of divorce and remarriage with a focus on early adolescence. Journal o f
Family Psychology, 7, 39-56.
35
Kelly, J. B., & Wallerstein, J. S. (1977) “Brief interventions with children in divorcing families.” American Journal or
Orthopsychiatry, pp 23-39.
36
Crisostomo, Golda Aira. “Personal and Psychological Profile of Separated Couples‟ Adolescent Children: A Basis for a Proposed
Proactive Values Programs”.

17
commit or attempt suicide, or develop an alcohol addiction. 37 This result was
also true to children in early adolescence under parental divorce or remarriage.
It revealed that children in this age group are more problematic, prone to
conflicts and delinquency as compared with same-aged peers in non-divorced
families.38

88. Furthermore, the child may also lose emotional security. Due to
parental separation, the child may have weakened relationship with one‟s
mother as held in a study that divorced mothers are less able to provide
emotional support.39

89. These foregoing studies are few of many which had results that
children who get caught up in their parents‟ divorce are likely to suffer greater
stresses than those who do not become involved. It should also be noted that
“the personal, social, and economic consequences of marital disruption on
former partners, their children, and American society in general are both
pervasive and continuing”40 for after the divorce, remarriage may follow.

90. A study concluded that remarriage inflicts some degree of trauma

in children. A study of 2,145 children living in households of remarriage
yielded to a result that stepchildren in their sample experience greater levels of
uncertainty of feelings, insecurity of position and strain than did children in
intact families.41 Also, children under remarried families are generally more
detached in their relationships42 because sharing the natural parent frequently
provokes competition, jealousy, or hostility in the child.43

91. All these studies proved that indeed divorce and subsequent
remarriage of the parents will have a lot of negative effects to the children.
While it may be a viable option for consenting adults, it constitutes a crisis in
the lives of children. This will contradict the aim of the law which is to save the
child from pain, stress and agony. It will violate the constitutional mandate of
the state to promote and protect the physical, moral, spiritual, intellectual and
social well-being of the youth and to protect the children from conditions
prejudicial to their development.44 It will not strengthen the solidarity of the
family. It will not promote its total development and it will destroy the family
which the constitution views as the foundation of the nation.45

37
Brown J., Cohen P., Johnson J.G., and Salzinger S. 1998. A longitudinal analysis of risk factors for child maltreatment: Findings of
a 17 year prospective study of officially recorded and self-reported child abuse and neglect. Child Abuse Negl 22: 1065–78.
38
Hetherington, E.M. (1993). An overview of the Virginia longitudinal study of divorce and remarriage with a focus on early
adolescence. Journal o f Family Psychology, 7, 39-56.
39
Miller J.E., and Davis D. 1997. Poverty history, marital history and quality of children's home environments. Journal of Marriage
and Family 59: 996–1007.
40
Mullins, L. C., Brackett, K. P., McKenzie, N., & Djamba, Y. (2012). The Impact of Median Family Income, Shared Religious
Affiliation and Region on the Divorce Rate in the United States. Journal Of The Alabama Academy Of Science, 83(1), 20-36.
41
Bitterman, C.M. The multimarriage family. Social Casework, 1968, 218-221.
42
Barber, B.L. & Lyons, J.M. (1994). Family processes and adolescent adjustment in intact and remarried families. Journal o f Youth
and Adolescence, 23, 421-436.
43
Heilpern, E. P., Psychological problems of step children. Psychoanalytical Review, 1943, 30, 163-176.
44
Ibid.
45
Ibid.

18
Divorce affects the government and the society

a. Crimes

92.One of the negative effects of divorce to society is the significant

increase of crime.46 In a study conducted by Robert Sampson as cited by Pagan
and Churchill, he concluded that areas with lower divorce rates indicated higher
formal and informal social controls (such as the supervision of children) and
lower crime rates. Furthermore, several experts have opined that individuals
(i.e. children) whose parents have undergone divorce tend to behave violently
and feels hostility (Pagan & Churchill, 2012). This is backed by a 2009 poll
commissioned by law firm Mishcon de Reya wherein it revealed that 42% of
children witnessed aggressive rows between their parents, with almost half
(49%) forced to comfort an upset mother or father. Furthermore, the study
suggested that the children whose parents go through divorce results with one
intent turned to crime, and 8% considered suicide.47

93. The likelihood of child abuse increases even after divorce. Citing
Alexandre, Nadanovsky, Moraes, and Reichenheim, 48 the authors posited:

“Abuse is much higher among stepchildren (divorced and

remarried) than among children of intact families. One study of Brazilian
families reported that higher abuse rates in stepfamilies with stepfathers
were attributable to higher incidence of mothers abusing their children.
This study reported that children in stepfamilies with stepfathers were 2.7
times more likely to be abused than children in biologically intact
households.”

94. Given the aforementioned circumstances, this shows that abuse of

children will not end if the parents will go their separate ways. It is highly
possible that even after the divorce, the abusive parent will build another family
and still retain their abusive nature towards them.

95. These effects of Divorce to children will resonate to society as a

whole and will result to rising crime rates. The studies revealed that criminality
would likely increase due to the result of divorce on children.

b. Clogged Dockets

96. The Philippines has a history of courts filled with cases, both
newly filed and those pending appeals, the entire year-round. On average, one‟s
case could take several years before it becomes final and executory. As more
laws are introduced, more cases will be filed. This will result in even more
clogged dockets.

97. According to Acting Chief Justice Antonio Carpio,49

46 Fagan, P. F., & Churchill, A. (2012). The effects of divorce on children. Marriage & Religion Institute, 12, 1-48.
47
Divorces cause children to turn to alcohol. (2009, June 17). The Telegraph. Retrieved March 7, 2018, from
https://www.telegraph.co.uk/news/uknews/5552846/Divorces-cause-children-to-turn-to-alcohol.html.
48
Ibid.
49
A.Carpio, Judicial reform too important to fail, Rappler, June 30, 2012, Available at https://www.rappler.com/thought-
leaders/7856-judicial-reform-too-important-to-fail.

19
 “At present, 21% of trials take 2 to 5 years to finish, and 13% take
more than 5 years to finish.”

98. When laws take into effect, more cases will be filed into our
courts. In studies conducted in South East Asia, courts saw a flood of divorce
cases filed once it had been legalized in their respective countries.50 A pattern
was evident. Less developed countries had a higher divorce rate compared to
highly industrialized ones.51 This was due to the fact that women were
choosing to delay marriage in favor of getting an education and achieving
economic stability. In a country such as the Philippines with 20% - 30% of its
population below the poverty line52 and an estimated 1,135 marriages
solemnized daily53, it is likely that it will follow the trend of high divorce rates
seen in Malaysia and Indonesia who share a similar pattern in marriage,
poverty and level of industrialization. With a notoriously slow judicial system,
the Philippines does not have the capacity to take even more cases than it
already has. This will bog down the courts‟ ability to tackle cases even more as
divorce procedures are lengthy and must be carefully scrutinized.

99. Litigation is not always the answer to problems. Singapore, which

has frequently been toted as having the most reliable judicial system in the
world,54 frequently uses extrajudicial methods such as mediation. This prevents
several disputes from ever reaching courts. It ensures that cases which do reach
the courts are given full and undivided attention which will result in speedy
decisions. The Philippines could do well by following this example. Rather
than allow divorce which will simply clog up the already filled dockets of our
judicial system, counselling and mediation should be utilized in order to save
marriages.

c. Educational Performance of Children

100. In order to reach the fullest potential, children should be in a

stable environment. It is expected that a child learns the most basic values at
home. The Divorce law could result in several broken families. From 1980 –
2000, South East Asia has seen a decreasing trend of extended families living
together and the rise of nuclear family households.55 Due to this pattern,
divorce would create one-parent households which are less economically stable
than two parent households. This is due to the fact that only one parent is given
the majority of the responsibility to rear the children while earning an income
at the same time.

50
Hirschman, Charles, and Bussarawan Teerawichitchainan. "Ethnicity and Marital Disruption in Southeast Asia: A Comparative
Study of Indonesia, Malaysia, and Thailand." IUSSP Conference on Southeast Asia‟s Population in a Changing Asian Context in
Bangkok, Thailand. 2001.
51
Ibid.
52
Asian Development Bank, Basic Statistics 2017, Asian Development Bank, April 2017, Available at
https://www.adb.org/publications/basic-statistics-2017.
53
Philippine Statistics Authority, Philippine Marriages: 2015, Philippine Statistics Authorit, January 24, 2017, Available at
https://psa.gov.ph/content/philippine-marriages-2015.
54
Singapore Academy of Law, Ch. 03 Mediation, Singapore Academy of Law, 2017, Available at
http://www.singaporelaw.sg/sglaw/laws-of-singapore/overview/chapter-3.
55
Quah, Stella R., and Mr Amr Ghaleb. "Major trends affecting families in East and Southeast Asia." Major Trends Affecting
Families: A Background Document (2003): 78.

20
 101. In a study conducted amongst failing students in Arabian
countries,56 26.9% stated that one-parent households led to their low
performance in school while 27% said that it was due to the divorce of their
parents. It is not unlikely to predict that, in a country characterized with close
familial ties, Filipino children will suffer the same problems should their
parents‟ divorce. According to psychologists, children of divorce risk lower
conflict management abilities and loss of emotional support.57 Because only
one parent will be present for the majority of their formative years, this could
lead to poorly adjusted children since they will not be able to experience the
positive characteristics of two parent households which provide more stability
both financially and emotionally.

102. As a country which lags behind its South East Asian

contemporaries in terms of education, the academic performance of children
should be the main concern of the country.58 Divorce will only lead to negative
effects in the development of the child. As they are the future of society, it is
important that they be given utmost priority. Legalizing divorce will only
hinder their educational performance which will likewise slow down the
development of the country.

d. Cost inefficiency

103. Aside from Vatican City, the Philippines remains to be the only
country who has not yet legalized divorce. Annulment is the only remedy that
Filipinos resort to in severing marriage ties and in such a remedy, the filing fees
can be under P10,000 provided that you have no properties to apportion with
your spouse. There are also other costs such as acceptance fees, pleading fees,
appearance fees and doctor/ psychiatrist fees for those who will file an
annulment on the ground of psychological incapacity, publication, transcript of
records, and other miscellaneous fees.

104. A budget of P165,000 to P200,000 is also needed to cover

psychological tests. This amount can skyrocket even more if the process drags
on or one does not satisfy the requirements, leading to more pleadings and
appearances and fees.

105. As to the length of time for annulment and legal separation

proceedings in the Philippines, it is relative to various factors. Some of these
factors include the time schedule of the courts and the availability of the
witnesses and the parties. Another important factor is the issues involved in
such case. An annulment/ legal separation proceeding takes into account the
separation of the properties of the spouses as well as custodial rights over their
children. Some cases take about a year to finish while some take as much as 15
years or more.

56
Kamal, Madeeha, and Abdulbari Bener. "Factors contributing to school failure among school children in very fast developing
Arabian Society." Oman medical journal 24.3 (2009): 212.
57
Amato, Paul R. "The consequences of divorce for adults and children." Journal of marriage and family 62.4 (2000): 1269-1287.
58
W. Macha, C. Mackie, & J. Magaziner, Education in the Philippines, World Education Services, March 6, 2018, Available at
https://wenr.wes.org/2018/03/education-in-the-philippines.

21
 106. Obtaining a divorce decree is not the most practical step towards
dealing with marriage shortcomings. It would demand a substantial amount of
finances to start running. Between the haves and the have-nots, the law and
society favor the wealthy and disfavors the poor. It is the litigant‟s wealth that
will run the entire gamut.59

107. Since divorce has just been legalized in the Philippines, we can
only infer how costly it would be by looking at how much it costs in other parts
of the world where it is legal.

108. In the United States of America, one must first file a petition for
dissolution of marriage with the clerk of court of the county in which the
petitioner resides. The filing fee varies depending on the petitioners‟ location
but averages $300 nationwide. Charges are also imposed for additional
motions, pleadings and such.

109. In Australia divorce costs $5,375.00- $10,360.00 in Family Courts

and Federal Courts. In Thailand, standard divorce fees costs 30,000 baht. In
India, A mutual consent divorce is likely cost anywhere from RS 5,000 to RS
50,000, depending on the complications of the case and the experience of the
lawyer. The cost of filing a petition for divorce in India, is around RS 250.
Lawyers charge separately for appearances, consultations and paper work.

110. On the other hand, the legal costs of divorce in Hong Kong vary
from case to case. However, it is generally believed that if the divorce is a
straightforward matter between two consenting parties, a divorce can be
obtained for approximately $15,000 HKD to $20,000 HKD.

111. An inference from the abovementioned survey and the cost of

divorce in some parts of the world is in constancy with our contention that
obtaining such decree would prop up unnecessary financial burden on the part
of the applicants. Instead of spending so much on severing the marriage bond,
the state should rather encourage more the amicable settlement of a couple‟s
differences.

e. Multiple Divorces

112. Despite divorce being a solution to unhappy marriages, it will not

be the solution that the Philippines is looking for. The argument that the
introduction of divorce to the Philippines will not actually violate and destroy
marriages because it merely provides a remedy to separate marital bonds for
those who are only bonded legally but not in reality does not hold water. While
it may be true at the outset that divorce may be the remedy most available for
couples to dissolve their marital bonds, this is only half of the story.

113. According to a study made by Palsey and McBride in 1999, the

projected divorce rate is even higher for second and subsequent marriages, with

59
Albert Yoon,The Importance of Litigant Wealth, 59 DePaul L. Rev. 649 (2010).

22
60% of them being dissolved often within the first five years60. This bolsters
the argument that the introduction of divorce will not guarantee a second, more
successful marriage. In fact, such an introduction may even lead to higher rates
of multiple divorces as provided by studies.

114. Thus, one cannot successfully argue that the introduction of

divorce in Philippine society does not actually violate the Constitution. In
reality, such an implementation would violate the constitutional mandate of
protecting and strengthening marriages. Rather, such an implementation
incentivizes destroying and weakening marriages – a completely perverse
action resulting in the violation of the Constitution. By allowing divorce, the
State allows even more unhappy marriages and the impending destruction of
such a supposedly “state-protected” matrimony.

III. Customs and Traditions of Filipino Society vis-a-vis Divorce

115. Marriage is regarded as a sacred union and the family founded on

marriage is considered as a fount of love, protection and care. Philippine
society generally frowns upon and discourages marital break-ups and so
provides cultural and legal safeguards to preserve marital relations.

116. The Philippines has a constitutional, democratic and republican

government. It is a party to major international human rights treaties and
“adopts the generally accepted principles of international law as part of the law
of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations”. Despite the pre-dominance of
Catholicism in the country, the inviolability of the separation of church and
state is recognized.

117. The views of the Catholic Church weigh heavily over the customs
and traditions of Filipinos; they account for the many conservative laws in the
country and absence of policies that permit or regulate such matters as divorce
among others.

118. During a regular session in the Congress, it was revealed that the
dissolution of marriage will not have to go through tedious legal processes in
order for spouses to attain it. Lawmakers have always made it a point for
divorce in the Philippines to be cheaper and more efficient than annulment. It is
clear with the following words from the Committee Report recommending the
approval in substitution of House Bills numbered 116, 1062, 2380 and 6027:

„The “indigents,” defined under the law are those who do not have
real property of more than P5 million can avail of the court‟s services for
free. Section 6 (c) of the bill states that “Upon application of a qualified
indigent petitioner, the proper court shall waive the payment of filing fees
and other costs of litigation, and shall appoint a counsel de oficio for said
petitioner and assign social workers, psychologists, psychiatrists
preferably from appropriate government agencies to assist the said
petitioner and the court‟.

60
Pasley, K., & McBride, J. (1999). The new American (step)family: Insights from a synthesis of research findings.

23
 119. Under the assailed law, one of the grounds enumerated is
irreconcilable differences. However, this ground is too broad and ambiguous
that can lead only to misunderstanding of the law and laxity in dissolving
marriages. Because of this vagueness, those who will file for divorce can make
presumptions that would allow them to magnify the definition of this ground
since there is no express provisions defining such. This vagueness can be
likened to the vagueness in the controversial term “psychological capacity”
listed under Article 36 of the Family Code. The Court only provided guidelines
on this ground, as declared in decision in the case of RP v Molina.

120. Under the Civil Code, there are enumerated grounds or causes in
order to nullify a marriage. When the family code took effect on August 3,
1988, it carries with it an entirely new ground for nullity of marriage, i.e.
psychological capacity. Article 36 provides for such. In an explanation of the
rationale of Article 36, the Civil Code Revision Committee, through Justice
Sempio-Dy61 said that:

“…because of the strong opposition that any provision on absolute

divorce would encounter from the Catholic Church and the Catholic
Sector of our citizenry, the two Committees 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.”

121. It should be noted that under the said article, it did not give any
examples nor a tight definition of psychological incapacity, for doing such
would limit the applicability of the provision under the principle of ejusdem
generis. Hence, the Committee left it to the individual judges to interpret the
provision on a case-to-case bases. However, the Philippine justice system has
been known to have many biases. There persists in the Philippines a belief that
justice serves only those who can afford it. As J.J Rousseau said, “[l]aws are
always useful to those who have and harmful to those who have nothing.”

122. Real divorce in that it is a fast remedy, however, this feature may
open wider chances for married couple to simulate grounds, which are in
themselves, easier compared to those of the annulment and nullity of marriage.
Divorce may be taken in advantage, especially for those who can easily afford
to look for grounds that will absolutely dissolve their marriage.

123. Absolute divorce destroys the very concept of family as an

inviolable social institution. The purpose of the said law is to give an
opportunity for the spouses to separate from an intolerable spouse and by
entering into a new marriage is not altogether an assurance that the new
marriage will be a happy and permanent one. The experience in countries
where divorces are allowed and easily obtained, such as the United States, is
that people divorces have experienced multiple divorces and have remarried
several times in their selfish desire to get rid of unwanted spouses by
intentionally creating the cause of the divorce.

61E. Sales, Breaking the Bond of Marriage (The Case of Psychological Incapacity), Issue No. 5, De La Salle University Center for
Business and Economics Research and Development (1997).

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 124. According to Section 5(c) of the Divorce Act of 2018:

When the spouses have been separated in fact for at least five (5)
years at the time of the petition for absolute divorce is filed, and
reconciliation is highly improbable.

125. Furthermore, according to Section 8(a):

The following grounds for absolute divorce may be subject to

summary judicial proceeding as defined in Section 4: when the spouses
have been separated de facto for at least five years…

126. The law allows absolute divorce on the ground that the spouses
have been separated in fact for at least five years and reconciliation is highly
improbable, and the process will be in the form of a summary judicial
proceeding. Considering how summary judicial proceedings do not constitute a
full-blown trial, the specified ground can easily be subjected to abuse. Spouses
may opt to use separation in fact to simply get out of marriages quickly. It is
against the Filipino custom and tradition of the preservation of the sanctity of
marriage and the importance of family. In fact, such a tradition is embodied in
the very Constitution itself.

127. Eventually, the divorce law will encourage more married couples
to use separation in fact to get out of their dysfunctional marriage. This clearly
runs contrary to the established Filipino custom and tradition of close family
ties. As instead of binding the spouse to the marriage tie and the family
together, the divorce law influences the spouses to consider separating then and
there without first considering the possibility of having their marital or familial
dispute settled through an open communication and discussion.

128. Evidently, divorce erodes the sanctity of marriage and family life
which should have otherwise been protected and safeguarded.

PRAYER

WHEREFORE, in view of the foregoing, the petitioners respectfully

pray that:

I. Upon filing this petition, a writ of certiorari be issued since there has
been a grave abuse of discretion on the part of the members of the House
of Representatives who are the proponents of the said law for proposing
the same despite it being unconstitutional.

II. The petition for prohibition be granted in order to stop the

implementation of the said law for it runs contrary not only to the
Constitution but also to the existing statutes and treaties.

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