The absolute divorce bill allows religious groups – even one by a ‘Son of God' – to put a legal end to marriages. Both critics and supporters are concerned.

When the House of Representatives approved the absolute divorce bill on May 22, many supporters hailed the passage as a victory against the Catholic Church. 

The Catholic Church, after all, is seen as the biggest roadblock to a divorce law in the Philippines, the only country, aside from the Vatican, that prohibits divorce. It is also criticized for violating the separation of church and state, as bishops and priests pressure lawmakers to vote against the measure.

It is the same separation of church and state, however, that is threatened by a largely unnoticed provision of the absolute divorce bill or House Bill No. 9349. Lawyers interviewed by Rappler, whether pro- or anti-divorce, agree that this provision risks violating the country’s charter.

Based on this provision, religious groups can put a legal end to marriages without undergoing the judicial process, as long as the nullification or dissolution is authenticated by church authorities and registered with government. 

Section 7 of House Bill No. 9349 states: “A marriage which is nullified or dissolved by the proper matrimonial tribunal of the Roman Catholic Church or any other recognized religious sect or denomination shall be granted civil recognition as if a divorce had been granted in accordance with the provisions of this Act, without going through the judicial process when it is authenticated by the proper authorities of the Roman Catholic Church or any other recognized religious sect or denomination, and registered with the proper Civil Registry Office in the Philippines.”

Former chief justice Hilario Davide Jr. voiced his concerns in a forum on divorce on Wednesday, July 10, at the University of the Philippines (UP) College of Law.

Davide noted how, in Section 7 of the absolute divorce bill, “it is not required that these dissolutions or nullifications of marriages be for any of the grounds prescribed by law or under the bill.”

“Thus, the Catholic Church and any other religious sect or organization may grant dissolution or nullification of marriages on other grounds than those prescribed under our present law or under the bill,” the 88-year-old former chief justice said. 

“I am afraid that some groups may, for profit, form a religious sect for the business of celebrating marriages and dissolving marriages,” he added.

Davide quipped that the likes of Pastor Apollo Quiboloy, a fugitive wanted by the Federal Bureau of Investigation for sex trafficking, might even take advantage of this provision. “Quiboloy may now register his group for this purpose,” he said.

Risking ‘establishment of religion’

Experts fear that Section 7 of the absolute divorce bill violates, in particular, a constitutional provision that prohibits the establishment of a state religion – commonly known as the “non-establishment clause.” 

Article III, Section 5 of the 1987 Constitution states: “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.”

Paolo Tamase, assistant professor at UP College of Law, said Section 7 of the absolute divorce bill “risks an establishment of religion because it binds the state to a canonical or religious act.”

Tamase explained to Rappler that this is different from religious marriages, where the state “recognizes marriages via religious ceremonies only if they independently comply with state requirements.” The religious minister, for example the priest, “must be registered with the civil registrar and the couple must still secure a marriage license.”

In the case of such religious marriages, “the state can refuse to recognize a religious act if the latter does not comply with the Family Code.”

“Section 7 does the reverse. It binds the state to recognize a religious act. That results in what scholars and lawyers would call ‘entanglement,’ as the state effectively delegates to a religion the power to determine whether a civilly binding divorce should be granted,” Tamase said.

Tamase, a devout Catholic, said he supports the divorce bill to allow people “to recover whatever dignity that they have out of abusive relationships, or just their freedom to stay with the person that they want.” 

The Constitution, after all, “was not written just for Catholics,” Tamase said. “My faith should not stand in the way of other people who may not necessarily believe my religion’s tenets but who are likely people under the same Constitution.”

Patricia Anne Sta. Maria, a faculty member at Ateneo Law School, also said Section 7 “may violate the non-establishment clause” because it means that “the state would be adopting the ecclesiastical matters of religion” or the “religious content.”

“You are taking the standards of religion and applying it to the secular aspect,” Sta. Maria told Rappler.

Despite her reservations about Section 7, Sta. Maria supports the legalization of divorce in the Philippines.

She argued in Wednesday’s UP forum: “We do not put fire exits in buildings in hopes that the building will burn down. Similarly, we do not legislate divorce wanting for marriages to fail.”

“What we do want is to give people another chance and to recognize that some people make mistakes. In some cases, some people are the mistakes,” she continued. “We cannot trap people in burning rooms, hoping to admire an undisturbed façade from the outside.”

Joseph Peter Calleja, who teaches at San Beda College Alabang School of Law, said he agrees with Davide’s concerns about Section 7. While acknowledging that it could undergo refinements, the absolute divorce bill “in its present form” might lead to the formation of religious groups to solemnize marriages and spearhead divorce cases “in the name of religion.”

“That’s the danger,” he told Rappler in a mix of English and Filipino. “The bill has no safeguards against that.” 

Unlike Tamase and Sta. Maria, Calleja opposes the divorce bill because he believes that it is unconstitutional, and that “constitutionality precedes necessity or benefits of a bill.” 

He stressed Article XV, Section 2 of the Constitution that describes marriage as “an inviolable social institution.” In Wednesday’s UP forum, the lawyer said, “The critical word is ‘inviolable,’ which means cannot be broken or cannot be violated.”

“When the words of the law are clear, there is only room for application,” Calleja said.

Davide, a framer of the 1987 Constitution, shared the view that “absolute divorce is absolutely prohibited” under the country’s charter, emphasizing its description of marriage as “inviolable.” A married Roman Catholic, the former chief justice also said the bill “violates divine law.”

This is in contrast to the position of another former SC justice, Conchita Carpio-Morales, who said in the UP forum that “the issue of divorce is a legal or civil one, not a religious one.”

“I am for absolute divorce, but availing of it should be a matter of conscience, choice, culture, and constitutional rights of individuals,” Morales said.

Rappler sought the reaction of the divorce bill’s principal author, Albay 1st District Representative Edcel Lagman, about the concerns of lawyers regarding Section 7. Lagman said on Friday evening, July 12, that he will release a statement.

Section 7 a sweetener?

Like marriage, the separation of church and state is also “inviolable,” according to Article II, Section 6 of the Constitution.

Still, religion is an intricate part of public life in Asia’s biggest predominantly Catholic country, where nearly 8 out of 10 Filipinos belong to the Catholic Church.

The Constitution adheres to an approach called “benevolent neutrality,” which “recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits.” 

“Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests,” said the SC. Benevolent neutrality, which is opposed to “strict neutrality,” recognizes “the religious nature of the Filipinos and the elevating influence of religion in society.”

Section 7 is, in a way, a response to the needs of religious groups even if legalizing divorce is a secular issue.

It is, in particular, related to the longstanding desire of Catholic leaders for the state to recognize the declaration of marriage nullity in the Catholic Church. This is different from divorce, according to Catholic teaching, because it declares that the marriage was nonexistent due to certain impediments.

Antipolo Auxiliary Bishop Nolly Buco, who heads the church office handling marriage nullity cases, explains this in his 2023 book, Freeing Distressed Couples from Guilt: The Need for State Recognition of the Church’s Declaration of Marriage Nullity. 

Buco explained that it is an urgent need for the state to recognize the validity of the Catholic Church’s declaration of marriage nullity, because civil annulment can be tedious and costly. He cited reforms by Pope Francis in 2015 that streamlined the marriage nullity process and ensured that it “should be free of charge, except for a minimal administrative cost.”

Buco, a 60-year-old canon lawyer, argued that “if a marriage can be legitimately contracted under the laws of the church, then it follows that under the same laws, such marriage can also be nullified or annulled according to the laws of the church.” 

Bills have been filed in previous congresses to achieve this goal, but it is now found in Section 7 of the absolute divorce bill that the Catholic Church opposes.

Will Section 7 serve as a sweetener for church authorities?

Given the concerns of both critics and supporters, what’s sure is that the absolute divorce bill, in its current form, is not a simple question of yes or no. – Rappler.com