The divorce bill is unconstitutional

Part 1

One of the most brilliant and honest among jurists and politicians that the Philippines has ever produced, former Chief Justice of the Supreme Court, Hilario A. Davide Jr. has said the final word about the House Absolute Divorce Bill or House Bill No. 9349.  It is unconstitutional.  Even in the very unlikely event that the Senate would approve it, it would be certainly rejected by the Supreme Court as violating a very clear provision of the Philippine Constitution of 1987 which the Honorable Davide quoted in a public statement he made on May 24, 2024, the very day the Lower House passed the bill by a slight majority.  

As one of his colleagues in  the Constitutional Commission that drafted the 1987 Constitution, I strongly support the expert opinion of the former Chief Justice that the bill violates Section 2 of Article XV on the Family, which categorically states that “Marriage, as an inviolable institution, is the foundation of the family and shall be protected by the State.”  As a former Chief Justice and one of the authors of the Philippine Constitution, he certainly knows what he is talking about.

Let me cite other provisions of the Philippine Constitution of 1987 that explicitly or implicitly render an absolute divorce law unconstitutional.  First, we read in Section 12 under State Policies:  “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.  It shall equally protect the life of the mother and the life of the unborn from conception.  The natural and  primary right of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.”  

In this article, we shall present more than ample evidence from social science empirical research that absolute divorce has weakened the family as the foundation of society in many countries that allow absolute divorce and has led to the neglect of the youth by divorcing parents, leading to numerous dysfunctional behaviors of the children victimized by divorce.  Section 1 of Article XV on the Family reiterates 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.”  Legalizing absolute divorce clearly weakens the solidarity of the family and goes against its total development.

The most influential member of the Constitutional Commission of 1986 was the Chairwoman of the entire Commission  and who also  chaired the Committee on the Family.  This was Cecilia Munoz-Palma, the first woman appointed to the Philippine Supreme Court.  Besides being the Chairperson of the Committee on the National Economy, I myself was a member of the Committee on the Family and worked closely with Chairwoman Munoz-Palma.  Thanks to her leadership, the Philippines is arguably the most family-friendly Constitution in the world.  She believed strongly that the future of every society hinges critically on the stability of the family.  She constantly shepherded the members of the Committee on the Family and eventually the entire Commission to include provisions in the draft Constitution that safeguarded the right to life of every human being from conception and the indissolubility of marriage.  

Those who believe in the so-called “originalist” interpretation of a constitution can readily verify from the minutes of the meetings of the Committee on the Family that it was in the minds of the drafters that a legitimate marriage  bond should be indissoluble.  The final word used to describe marriage as an “inviolable” institution was equivalent in the minds of those of us who  were members of the Committee on the Family to “indissoluble” and, therefore, precluded the possibility of absolute divorce.

The main reason given by proponents of the absolute divorce bill is more emotional than substantial.  They say that divorce will “save the children from the pain, stress and agony consequent to their parents’ marital clashes or irreconcilable differences and grant the divorced spouses the right to marry again for another chance to achieve marital bliss.”  In the first place,  the three allowed modes of terminating an irreparably broken or dysfunctional marriage—canonical dissolution, annulment and legal separation—are more than enough to shield the children from the constant bickering  of their parents.  Using any one of these modes, the parents can end their cohabitation and spare their children the stress of their continuing conflicts. 

The more practical solution that will not undermine the institution of marriage, which has to be “inviolable”, is what Senate President Chiz Escudero recommends:  make annulment easier and less costly to low-income couples or  make it even free as suggested by Iloilo Rep. Janette Garin. This will allow the spouses to marry again for another chance to achieve marital bliss without weakening the institution of marriage.  Annulment means that there was never an indissoluble bond of marriage in the first place and, therefore, does not go against the inviolability of the institution of marriage.

Those of us in the Committee on the Family chaired by Justice Cecilia Munoz Palma were against allowing absolute divorce in the Philippines because of the ample evidence even in 1986 that children and adolescents who experience the divorce of their parents in countries like the U.S. and those in Europe  who have legalized divorce have higher rates of depressed mood, lower self-esteem and emotional distress.  Parental divorce, as can be verified in many scientific articles in the internet, is also associated with negative outcomes and  earlier life transitions as offspring enter young  adulthood and later life.  In these countries, as many as 50 percent of marriages end up in divorce, leading us to conclude that the very possibility of dissolving the bond when difficulties arise (which will always be the case in any normal marriage) actually induces couples contemplating marriage to be less careful in choosing the right partners for life.  We thought that giving divorced couples another chance for marital bliss do not compensate for the great harm done to numerous children of divorced parents. In 1986, much of our arguments against absolute divorce was based on common sense and anecdotical evidence. Over the last 30 years or so, the divorce rate has increased dramatically.  The negative consequences on children have been catastrophic. 

Research during the last three decades have shown that divorce is associated with approximately a one-and-half to two-fold increase in the risk for impairing outcomes in the offspring, such as dropping out of school or experiencing their own divorce.  A large number of offspring of divorced parents experience many distressing thoughts and emotions, regardless of whether they have diagnosable problems. A recent meta-analysis, a study that combines numerous studies on a topic, also has revealed that  the differences between offspring who have and who have not experienced parental divorce have increased since the 1980s. 

The studies have been increasingly using scientific tools like genetics and psychology.  For example, genetically-informed approaches, studies that rule out genetic and environmental selection factors, and longitudinal studies with measures of offspring functioning before and after the divorce suggest that risk factors specifically associated with parental divorce are responsible for most of the increased risk of psychological, academic and social impairments.  There is no question then that the worst victims of a divorce law are the most innocent and vulnerable members of society—the children—on whom the future of the country depends.  

Their over-all  welfare should be considered more important than that of  couples who were culpable in making the wrong decision about getting into a failed marriage. As mentioned above, their not being given another chance for marital bliss would actually be a deterrent to other future couples making the wrong choices or not having the strength of will and perseverance to make a difficult marriage succeed.  The mere possibility of getting an absolute divorce actually leads to more divorces. (To be continued.)