Ascribing a contradictory interpretation to the provision, under the guise of equal protection, essentially re-writes
Article 26(2) and gives it a meaning completely different from the framers' intention.
While I am not oblivious to the difficulty that results from the prohibition on absolute divorce and commiserate totally
with the respondent in this regard, I find that the prohibition remains, and thus, must be faithfully applied. To my mind,
a contrary ruling will subvert not only the intention of the framers of the law, but also that of the Filipino people, as
expressed in the Constitution. The Court is bound to respect the prohibition, until the legislature deems it lit to
lift the same through the passage of a statute permitting absolute divorce.
As recognized by the ponencia, there are currently four bills on the subject of divorce and severance of marriage
pending before the 17th Congress: (i) House Bill No. 116 (HB 116) and House Bill No. 2380 (HB 2380) which
propose different grounds for the issuance of a judicial decree of absolute divorce; (ii) House Bill No. 1062 (HB 1062)
which proposes the inclusion of separation in fact as an additional ground for annulment of marriage; and (iii) House
Bill No. 6027 (HB 6027) which proposes additional grounds for dissolution of marriage. These bills have been
consolidated and substituted by House Bill No. 7303[35] (HB 7303), which, at present, is awaiting deliberations before
the Senate.[36]
HB 7303 proposes the issuance of divorce decrees on the basis of the following grounds:
1.
The existing grounds for legal separation and annulment of marriage under Articles 55 and 45 of the Family
Code;
2.
Separation in fact for at least five years;
3.
Psychological incapacity, whether or not present at the time of the celebration of the marriage;
4.
Gender reassignment surgery or transition from one sex to another undertaken by either spouse; and
5.
Irreconcilable marital differences.[37]
These movements towards the passage of a divorce law illustrate that the difficulty which results from the absolute
prohibition against marriage is being addressed by the 17th Congress through a statute specifically crafted for the
purpose. That the legislature has seen it necessary to initiate these proposed laws is a clear delineation of the
Court's role — that is, to simply apply the current law and not for it to indulge in judicial legislation.
Indeed, it is desirable, if not imperative, that statutes in a progressive democracy remain responsive to the realities of
the present time. However, responsiveness is a matter of policy which requires a determination of what the
law ought to be, and not what the law actually is.[38] Widening the scope of the exception found in Article 26(2) so as
to indiscriminately recognize foreign divorce in this jurisdiction is doing, in Justice Elias Finley Johnson's [39] words,
"exactly what the Legislature itself [has] refused to do."[40] It not only subverts the standing public policy against
absolute divorce; worse, it sanctions a violation of the fundamental principle of separation of powers — a violation
which cannot be undone by any subsequent law. To wield judicial power in this manner is to arrogate unto the Court
a power which it does not possess; it is to forget that this State, is foremost governed by the rule of law and not of
men, however wise such men are or purport to be.
Considering the foregoing, I submit that the Court of Appeals erred when it reversed the RTC's order denying
respondent's Petition for Enforcement. Hence, I vote to GRANT the instant Petition for Review.
[1]
See Tañada v. Yulo, 61 Phil. 515-516, 519 (1935) [Per J. Malcolm, En Banc]; emphasis supplied.
223 Phil. 357 (1985) [Per J. Melencio-Herrera, First Division].
[3] 509 Phil. 108 (2005) [Per J. Quisumbing, First Division].
[4] 625 Phil. 494 (2010) [Per J. Carpio, Second Division].
[5] Minutes of the 146th joint Meeting of the Civil Code and Family Law Committees dated July 12, 1986, p. 5.
[6] Minutes of the 149th Joint Meeting of the Civil Code and Family Law Committees dated August 2, 1986, pp. 14-15.
[7] See CIVIL CODE, Arts. 15 and 17.
[8] Supra note 5.
[9] Supra note 2, at 361.
[10] Id. at 362.
[11] Id.
[12] Supra note 3, at 115-116.
[13] Supra note 4, at 508; emphasis and underscoring supplied.
[14] See Medina v. Koike, 791 Phil. 645, 651-652 (2016) [Per J. Perlas-Bernabe, First Division]; Garcia v. Recio, 418
Phil. 723, 725 and 730-731 (2001) [Per J. Panganiban, Third Division].
[15] 256 Phil. 407 (1989) [Per J. Regalado, Second Division].
[16] 507 Phil. 485 (2005) [Per J. Chico-Nazario, Second Division].
[17] 591 Phil. 452 (2008) [Per J. Velasco, Jr., Second Division].
[18] 712 Phil. 524 (2013) [Per J. Carpio, Second Division].
[19] Supra note 14.
[20] Supra note 6.
[21] Supra note 16, at 503-504.
[22] Ponencia, p. 14.
[2]
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