Document Type

Article

Disciplines

International Law

Abstract

Divorce is prohibited in the Philippines, and such prohibition is seen as "a reflection of the country's overwhelmingly Roman Catholic population and the allegiance it owes to the Vatican."' However, numerous countries of similar religious profiles have introduced divorce over the last fifteen years. 2 The Philippines and Malta have struggled with the modem trend towards secularization and are the only two countries in the world where divorce is prohibited.3 Malta, though, is a member of the European Union and has been feeling the pressure from its European Union neighbors over the last few years to legalize divorce.4 Barring a sudden political change, Malta will likely allow divorce before the Philippines.

In Filipino culture, marriage is "regarded as the 'fount of love and care,' 'the pillar of safety,' and the 'bastion against social decadence."' 5 Because the Philippine society disapproves and discourages marital dissolutions, it "provides cultural and legal safeguards to preserve marital relations."6 These cultural and legal prescriptions are rooted in the strong influence of the Roman Catholic Church in the Philippines. The interplay of culture and institutions like the bureaucracy, political offices, and the Church makes the discourse on divorce very animated and usually polarized.

Curiously, throughout its varied history, divorce was allowed and practiced during different periods of time in the Philippines. Divorce was widely accepted during the pre-Hispanic era, the American period, and the Japanese occupation.7 Only in 1950, when the New Civil Code took effect, did divorce become permanently disallowed under Philippine law.' The only legal remedy for estranged couples lay in legal separation.' In 1998, the Family Code, which supplanted the provisions of the New Civil Code on marriage and family, adopted the same policy, but established nullification of marriage on grounds of "psychological incapacity."'" Paradoxically, the Code of Muslim Personal Laws of the Philippines allows divorce for Muslim Filipinos.

As a culture evolves, people's relationships and beliefs do as well. As a result, idealizations once upheld need to be rethought. 2 For example, when a marriage is no longer viable, divorce should be an option as the sacredness and integrity of marriage is based on the quality of the marital relationship. 3 Philippine society has changed due to cultural dynamism. Today, not all marriages succeed as a permanent union. The ample evidence that the institution of marriage and family in the Philippines is the embodiment of inequality, oppression, and violence perverts the idealized myth of the "heaven-made marriage" and the "indestructible family."'4 An increasing number of Filipino couples find themselves subjected by their spouses to "physical violence, grossly abusive conduct and other acts of or offenses that . . . impair, debase or destroy the legitimate ends of the marriage relationship."' 5 Without a divorce law, Filipinos are "forging unions, separating, and forming new unions" at an alarming rate.'6 In recognition of the history of divorce in the Philippines and given the realties that there are many failed, unhappy marriages across all Filipino classes, the Philippines should legalize divorce.

This Note suggests one type of divorce law for the Philippines to adopt. Part II examines the background of divorce in the Philippines. Part III analyzes the existing Philippine laws in relation to marriage, including the Family Code of the Philippines and the Code of Muslim Personal Laws, and the remedies they in turn provide for Filipino couples. Next, Part IV examines the arguments made for and against divorce in the Philippines. Finally, Part V begins by suggesting that the Philippines adopt legislation that allows no-fault grounds for divorce while permitting considerations of fault as well. This section then offers a divorce bill based largely after proposed House Bill No. 4016 presented by Representative Liza Maza in 2005.

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