Protecting spouseless, loveless marriages only destroys the family - Leonen

The good member of the Supreme Court, Associate Justice Marvic M.V.F. Leonen is of the considered opinion that the choice to stay in or leave a marriage is not for the Supreme Court, or the State, to make. The choice is given to the partners, with the Constitution providing that "[t]he right of spouses to found a family in accordance with their religious convictions and demands of responsible parenthood[.]" (CONST., art. XV, sec. 3(1). 26) Leonen emphasizes that it is counterintuitive for the State to protect marriages while allowing those found to have psychological illnesses that render them incapable of complying with their marital obligations to leave the marriage. (See Ngo-Te v. Yu-Te, 598 Phil. 666, 698, 2009) He argues that the attempt by the State to force partners to stay in a loveless marriage, or a spouseless marriage, only erodes the foundation of the family.

The Family Code Revision Committee originally intended a provision on absolute or no-fault divorce. Instead, the Committee drafted Article 36 of the Family Code, which it derived from Canon Law so as not to offend the Catholic religion to which the majority of Filipinos belong.[1][2] Read more: Justice Marvic M.V.F. Leonen (2016). Dissenting Opinion in Matudan v. Republic, G.R. No. 203284, November 14, 2016.
It is strange that in drafting Article 36, the Family Code Revision Committee had to consider the sensibilities of a particular religion. None of our laws should be based on any religious law, doctrine, or teaching; otherwise, the separation of church and State will be violated.[3]

We had absolute divorce laws in the past. Act No. 2710, enacted in 1917, allowed the filing of a petition for divorce on the ground of adultery on the part of the wife, or concubinage on the part of the husband.[4][5]

During the Japanese occupation, Executive Order No. 141 provided for 11 grounds for divorce, including "intentional or unjustified desertion continuously for at least one year prior to the filing of a [petition] for divorce" and "slander by deed or gross insult by one spouse against the other to such an extent as to make further living impracticable."[6][7]

After the Japanese left, the laws enacted during the Japanese occupation were declared void.[8] Act No. 2710 again took effect until the Civil Code's enactment in 1950. Since then, absolute divorce has been prohibited in our jurisdiction.

Justice Leonen disagrees that laws on absolute divorce violate the Constitution, specifically, on the Filipino family being the foundation of the nation and the inviolability of marriage.[9][10]

The Constitution describes the family as "the basic autonomous social institution."[11] To my mind, the Constitution protects the solidarity of the family regardless of its structure. Parties should not be forced to stay in unhappy or otherwise broken marriages in the guise of protecting the family. This avoids the reality that people fall out of love. There is always the possibility that human love is not forever.

The Philippines remains to be the only country in the world with no absolute divorce law available to its citizens regardless of religion. [12] Our country needs a law that recognizes the validity of marriage at the time of its celebration but nonetheless allows parties to dissociate without destroying the human dignity[13] of their former partners by pathologizing them with a psychological disorder.

For thirty-one (31) years, Nicolas has been alone without a spouse.

There is no marriage to protect in this case. Whatever possibility to fix the marriage is obviously absent or, at best, improbable. To deny the Petition of Nicolas is to require him to be condemned to a world that is not his. It is to ensure that he will live a life without the joy that marriage truly brings. It is to treat him as a ward. Read more: Justice Marvic M.V.F. Leonen (2016). Dissenting Opinion in Matudan v. Republic, G.R. No. 203284, November 14, 2016.

[1] J. Romero, Concurring Opinion in Santos v. Court of Appeals, 310 Phil. 21, 43 (1995) [Per J. Vitug, En Banc].

[2] Id.

[3] CONST., art. II, sec. 6 provides: "Section 6. The separation of Church and State shall be inviolable."

[4] An Act to Establish Divorce (1917).

[5] Act No. 2710, sec. 1 provides: "SECTION 1. A petition for divorce can only be filed for adultery on the part of the wife or concubinage on the part of the husband, committed in any of the forms described in article four hundred and thirty-seven of the Penal Code."

See Valdez v. Tuason, 40 Phil. 943, 948 (1920) [Per J. Street, En Banc].

[6] Otherwise known as "The New Divorce Law."

[7] Baptista v. CastaƱeda, 76 Phil. 461, 462 (1946) [Per J. Ozaeta, En Banc].

[8] Id. at 462-463.

[9] CONST., art. XV, sec. 1 provides: "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."

[10] CONST., art. XV, sec. 2 provides: "Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State."

[11] CONST., art. II, sec. 12 provides: "Section 12. 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 and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government."

[12] Carlos H. Conde, Philippines Stands All but Alone in Banning Divorce, THE NEW YORK TIMES, June 17, 2011 <> (visited November 14, 2016).

Pres. Decree No. 1083, otherwise known as the Code of Muslim Personal Laws, allows divorce but only for Filipino Muslims.

[13] CONST., art. II, sec. 11 provides that "[t]he State values the dignity of every human person and guarantees full respect for human rights." Read more: Justice Marvic M.V.F. Leonen (2016). Dissenting Opinion in Matudan v. Republic, G.R. No. 203284, November 14, 2016.