The fundamental importance in the philosophy of maintaining order and harmony in society is the collective society producing law’s that better the quality of life and rights of all individuals. In doing so we must bear in mind the importance of morality, the importance of the rights in laws that seem out dated and unjust. As such we must ask ourselves ‘how far and in what sense should any law or legal precedent dictate to a community which seeks to give support to law and legal precedents. Every citizen has a moral duty to obey the law, but the law is not always right. It can be extensively blind and unjust.

In such cases it is the community’s responsibilities to show cause of any unjust law and act in accordance to law in correcting unjust laws, or more importantly out dated laws.

The Philippines current stance on the issue of divorce. The challenged argument of……Annulment v Divorce.

There is much current and past debate on the issue in the Philippines. However, none that the writer is aware of, which explores the two major reason why a divorce law would be more justifiable and pro productive for the Philippines.

The first major point of law is that the current stance on divorce is unjust.

There is NO equality in the Philippines if laws such as Presidential Degree No: 793 allow Muslim Philippine citizen the right to ascertain absolute divorce. Such laws were obviously introduced by the former President Marcos in order to appease Muslim uprising in the Provinces during his time in power.

Clearly stated, in the preamble of the current Philippine Constitution, equality is one of the main objectives which bind the constitution of the Philippines.

In article XIII, section one, a pledge is made that congress shall give the highest priority in reducing any inequalities.

If such is written in the constitution then clearly a law that is enacted in order to grant one religious group the right to divorce and restrict the other is clearly unjust. There can be no legal argument that would suggest otherwise. Equality means just that……the equality of all, not a minority or majority but one law for all. For Muslim, or for Christian or any other religious authority.

I addition to the inequalities between Muslim and other women in the Philippines there is also the issue and question of law of the rights of children.

Notably an unaddressed point of law arises. Accordingly then laws which lend to an unbalanced frame in society, therefore bring about inequality which extends beyond and forms other inequality for the right of an individual. A right which is said to be covenanted in the Constitution. The right to equality.

Children who are born in marriages which subsequently are annulled do not have such equality. A child born in a marriage that ends up in an annulment becomes technically by law illegitimate. If such is the case, then what are the legal rights of children who are subject to such proceedings. Ignoring the issue and maintaining a belief that there is no issue is a falsehood. Children born in marriages that end in annulment have rights as well, and such rights should be protected.

It could be argued that children in such cases do have rights and that their rights are subsequently defined under the current rights and laws which govern illegitimately children’s rights.

However, in reality that is not the case. Firstly a child born in wedlock has defined legal rights under natural inheritance. A child who is born outside of wedlock can make claim to inheritance under reformed laws that have been brought in to existence in recent times. But what of the child who is born in wedlock and subsequently for what ever the reason an annulment is granted.

The current laws on annulment define that after the granting of an annulment, the marriage is said never to have taken place. As such each party is free to remarry. If the law defines that an annulled marriage is said never to have taken place, then accordingly by the enactment of that same law. Any child born in such circumstances officially become illegitimate children when an annulment has been granted.

It is abundantly clear that there are too many unclear counter-productive circumstances and inequalities when in comes to the issue of annulment and divorce in the Philippines.

Certainly it would be creditable for the modernization of existing laws or the re introduction of Divorce laws in the Philippines.

The Philippines has had a historical and constant struggle in finding its way in concluding a realizable solution with the issue of annulment and divorce.

From the times the Spaniards strongly influenced Philippine social order, divorce was negated as the unfavorable solution.

However that changed in 1917 when the Jones Law was introduced. Thus giving Philippines the right to absolute divorce. During the Japanese occupation of the Philippines, the laws were reverted, under the Imperial Executive order 141. Then once again at the end of WWII in 1945 Executive order number 141 was again reverted by the American liberalization.

One year later the Philippine republic was formed and in the creation abolished the right for absolute divorce. The Philippine Muslim society however continued to enjoy divorce privileges during Spanish influenced times and again officially by Presidential Degree 793. Which stand to-date.

Obviously in this sense Muslim women enjoy more liberal laws and concessions then those of none Muslim women. In all certainty, the existence of Presidential Degree 793, produces an inequality in the Philippines.

It is evident that the Philippines are struggling with the issue of divorce. On the one hand the church uses its extraordinary influences to ensure the continuation of a NO divorce law policy. On the other hand you have the obvious modernization in the government’s efforts to appease the people and the required reforms. Reforms which are clearly visible by the enactment of the Executive order 209, the Family Code of the Philippines. In addition reforms can be noted in the extensive, but incomplete amendments in which an annulment can be sought.

One of the most recent being, the introduction of the ‘PSYCHOLOGICAL INCAPACITY’.

In reality however, the amendments and efforts in order to provide an alternative to divorce, such as the annulment in itself, does not provide harmony and family unity. Which is said to be the sole purpose for maintaining a none divorce policy law.

As already indicated in this paper, the current stance on divorce is an unjust one. A law which in itself goes against the very essence and fabric of the constitution of the Philippines.

The promotion of a state enforcing people to live with one another as husband and wife in order to strengthen national unity is a notion purely conjectured on fantasy. The promotion of nation and family unity is a wonderful thing, but the presence of laws which dictate to society that even when two parties no longer love each other then they are compelled by the laws of a developing country to, no matter what; remain together, for the sake of national unity and the promotion of family unity.

The reality however is different. The laws of a country and a religion should not be imposed on people, where it infringes on the rights and equality in existence.

Strangely enough, the inapt annulment laws which allow for the dissolution of a marriage in effect destroy the rights of the individual granted to them under the constitution, a right to equality for women who are none Muslim and to the children of annulled marriages.

In conclusion, seeking to provide a legislation which allows for divorce, if need be under condition, such as fault, would provide the protection of the individual’s right. The right as defined in the Philippine constitution.

The constitution bearing the superiority of peace and mind for all Philippines citizens should carry more weight then those of induced social laws and reform which now could be considered out dated and inadequate to service the best interest of a community a large.

Christian PW Faust.
Grad: Criminology; Dip: Business (Legal Services); Cert: III Investigative Services (Private Practice).

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