Proposed Title: Revisiting the Muslims Divorce Law as a basis for
Re-adoption of Divorce in the Philippine Legal System
Abstract
The statement that Philippines does not recognize divorce is not altogether true. As it
currently applies, divorce in the country can only be exercised by any Filipino Muslim
person whose marriage is solemnized in accordance with Muslim law. For Filipinos
whose marriages are not governed by the Muslim Code but the Philippine Civil Code
and Family Code, divorce is not an option.
This research paper will not deal with the discussion of annulment or legal separation in
the Philippines. Rather, this research paper will tackle the issue of divorce, or the lack of
its general application.
The researcher intends to uphold the constitutional guarantee of equal protection
clause, in the context of divorce law being available to all Filipino married persons.
References:
1. Jacob, Jihan. (2013). Reintroduction of Divorce into the Philippine Law. Master of Laws Toronto.
2. Gerard Joseph Jumamil. (2012).Islamic Conversion as Alternative to Civil Divorce: Addressing
Tensions between Freedom of Religion and the Inviolable Institution of Marriage, 86 PHIL. L.J.
864, (2012)
3. Hagad, Andres. Comments on the Muslim Code. Philippine Law Journal, 52 (1-05), p.107-119.
4. Sibulo, Emily.(1979) Islamic laws of Marriage and Divorce as affected by Philippine Legislation.
Philippine Law Journal, 49.
5. Panfilo, Floralie.(2007).Ending Marital Iniquities and Revisiting the Issues on Divorce: Should it
be finally allowed in the Philippines. Ateneo Law Journal 52 (41) pp. 418-462.
6. Ma. Veronica Abutan. (2013). Protecting Womens rights: A move for the institutionalization of
absolute divorced as an alternative mode of dissolving marriages if non-muslims and for the
amendment of the provisions on divorce of the code of muslim personal laws. The Ateneo de
Manila University School of Law.
7. Veronica Fenix-Villavicencio (2000). Our right to self-determination: Pilipinas position on the
issues if Divorce and abortion. Friedrich Ebert Stifting OUR RIGHT TO SELF8. Bocobo, Elvira. Absurdities in Philippine Law of Persons and Family. Philippine Law Journal, XVII
(7).
9. Deogracias T. Reyes.History of Divorce Legislation in the Philippines since 1900. Philippine
Studies vol. 1, no. 1 (1953): 4258
10. Manuel Alberto R. Colayco. (2001). God, Family, and Country: The Philippine Debate on the
Legalization of Divorce. Ateneo Law Journal, 46(227).
Submitted by: Yasmin P. Rasuman
Proposed Adviser: Atty Maralit
Atty. Fragante
I.
BACKGROUND OF THE STUDY
The enactment of a divorce law has been strongly pushed for by Gabriela
Womens Party, a party list
launched by General Assembly binding Women for
Reforms, Integrity, Equality, Leadership, and Action (GABRIELA) which is a national
coalition of womens organization. GABRIELA and other womens groups claim that
petitions for declaration of nullity of marriage, annulment, and legal separation are
inadequate options for an abused spouse. They also argue that spouses who desire to
separate from each other and terminate their marriages are met with rigid limitations in
the present laws response to the countless causes of failed marriages. Further, these
groups view that the remedies provided for by law do not cover the problems that occur
after the celebration of marriage while legal separation does not put an end to marriage.
The lack of divorce is questioned as a discriminatory policy on non-Muslim Filipinos.
OVERVIEW OF THE EQUAL PROTECTION CLAUSE
The Constitution, as the fundamental law, is the expression of the sacred
convictions of a body politic imbued with legal guarantees. 2 One of the basic principles
on which the government was founded is that of the equality of right which is embodied
in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is
embraced in the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate clause,
1 See Party-list sytem act, RA No. 7941, 1995
2 Henry J. Abraham, The Bill of Rights: Reflections on Its Status and Incorporation, in
THE FIRST FREEDOM 61-62 (James E Wood, Jr. ed., 1990)
however, to provide for a more specific guaranty against any form of undue favoritism or
hostility from the government.3
The Equal Protection clause is a specific constitutional guarantee of the Equality
of the Persons. The equality it guarantees is legal equality or, as it is usually put, the
equality of all the persons before the law. Under this guarantee, each individual is dealt
with as equal persons in the law which does not treat the persons differently because of
who he is or what he is or what he possesses (Biraogo v The Philippine Truth
Commission of 2010, G.R. No. 192935).4
HISTORY OF DIVORCE
Divorce is not a new concept in the Philippines. It was recognized in the
Philippines from 1917 until August 30, 1950 but became prohibited with the enactment
of the Civil Code of 1950.
Blacks law dictionary defines divorce as the legal termination of a marriage by a
court in a legal proceeding, requiring a petition or complaint for divorce by one party.
It
is the legal separation of man and wife, effected, for a cause, by the judgment of a
court, and either totally dissolving the marriage relation, or suspending its effects so far
as it concerns the cohabitations of the parties. 6
3Biraogo v The Philippine Truth Commission of 2010, G.R. No. 192935
4 Bernas, S.J The 1987 Constitution of the Republic of the Philippines: A
commentary
5 US Legal Definition, sub verbo divorce, online US Legal
http://definitions.uslegal.com.
6 Blacks law Dictionary, 2d ed, divorce
The Philippines and the Vatican City are the only states left in the world which
have not legalized divorce. Though the Philippines recognized relative divorce or legal
separation as coined under its Family Code, it has not allowed absolute divorce with the
exceptions of the Filipino Muslims which specifically recognized Islamic Divorce in the
Philippines as provided in their Code of Muslim Personal laws.
DIVORCE IN MUSLIM CODE
Divorce is a legal means of extinguishing marital ties under the Islamic Law. The
Muslim Code under article 45 defines divorce as the formal dissolution of the marriage
bond. Likewise, the same code provides for seven (7) modes of affecting divorce to wit:
1.
2.
3.
4.
5.
6.
7.
Talaq, or repudiation of the wife by the husband;
Ila, or vow of abstinence by the husband;
Zihar, or injurious assimilation of the wife by the husband;
Lian or acts of imprecation;
Khul, or redemption by the wife;
Tafwid, or exercise by the wife of the delegated right to repudiate; or
Faskh, or judicial decree7
Contrary to the Family Code, which does not recognize divorce as a valid means
of dissolving marital bonds, Islamic Law acknowledges the necessity of divorce as a
safety valve in cases where the spouses can no longer live harmoniously, and when
the very purpose of marriage would be defeated if they remained together. 8
Thus, the absence of divorce for some non-muslims, encouraged the conversion
of non-muslim to Islam without the faithful acceptance of such religion, in order to be
accorded with such right.
7 Muslim Code, article 45
8 Maccrina Adjerol Morados, Muslim Divorce Law Under P.D 1083: An Analysis of its
Application to Selected Cases Decided at the Sulu Shariaah Circuit Courts 11 (2003)
(unpublished thesis for M.A Islamic Studies, University of the Philippines, Diliman, on
file with the Institute of Islamic Studies, University of the Philippines, Diliman.
II.
STATEMENT OF THE PROBLEM
The main problem this study seeks to address is whether the Re-adoption of
divorce law in the Philippines will uphold the equal protection of laws. This study
also seeks to address the following questions in relation to the main problem:
1. In the advent of re-adoption of divorce, would this be an adequate remedy
that can address the rigid limitations in the present laws response to the
countless causes of failed marriages.
2. Whether the practice of Islamic conversion for the purpose of circumventing
the prohibition against divorce under Family Code be minimized.
