Philippine Law Journal: An A.Ct Bstuusblng Divoilclt .A.Ctn - Uti
Philippine Law Journal: An A.Ct Bstuusblng Divoilclt .A.Ctn - Uti
pro2), Spain (Art. 1~pro2), Germany (Art. 1568)and Fiance (Art. 231).
The third ground which I believeought to be included as a ground of divorce
iswhereoneof thespousesissutlering ablolute, perpetual and incurable impotency,
occurring after marriage. Impotency used in this caaemeans the total lossor des--
truction of the sexual organ, 80that copulation isabsolutely impossible. .It isneed
lessto state that the principal and immediate object of marriage is reproduction.
I seenoreason, novalid reasonwhy themarriagerelation bestill maintained against
the will of oneof the spouseswhenthere isabsolute certainty of the impossibility of
realizingthe very object of marriage.
The fourth ground which I recommend is where one spouse has attempted
against the lifeof the other spouse.
The justification of this ground is even more apparent than in adultery, d~
sertion and cruelty. In cruelty, thebody of the offendedparty isinjured; intheone
under consideration the very lifeof the offended is exposed to destruction. This
ground of divorce is recognized in Germany (Art. 1566, Uruguay (Art. 148), and
Guatema1a (Art. 170).
EFFECT OF DIVORCE LA\VB IN DIFFERENT COUNTRU;B
(a) A dvantages:
It isprecisely under the systemof matrimonial indissolubility that crime is re
warded and innocencepunished; for them the unpreposscssed and recklesshusband
can livein adultery outsideof hishouseand demands however that thiswife, faith-
ful and submissive,should continuelivingwithhimunder the s&IDeroof and tolerat-
ing his incontinence protected by'law. The only thing to be attained from this
systemintheprostitution of thesanctity of the home, protection of viceand punish-
ment of innocence, without avoiding the unfaithful spouse from committing the
crime.
It isan undeniable fact that wherever the matrimonial institution exist, there
are disagreeablemarriageswhichonly recognizehatredness and the homellOnvcrted
into a birth placeof immorality and unfaithfulness.
In thesecaseswhenby the fault of oneof the spousesthe tiCllof marriage have
been lossened and the conditions imposed by the illlltitution cannot be fulfillClI,it
isanimmorality, a tyranny tocompel oneof thespouses to remainperpetually and
indissolubly subjected under theyokeof the guilty spouse.
Totheeeuaforiunate marriageswhiehcannoloqer fiodJ iappiness inth~union
eo.tract.eelbut ~rtune and shlime, thebalilamisapPliCable,and not to thehavPY
Dia!riBge8thatb~the inan environment saturated with happiness.
QUi ,,~perclianee kJ okuponwithgoodeyeswhen6tii' dall~telil haviIigootltract-
eel ~:in searett of l$ppinell8, do not find; however, butlltueltiell, ihsult8 &b.d
vtIiAtiOnlJ .fihm the. man of whofii.theypfllclse1y a~ait hapVbiell8,protection. and
esteem? Thai worillin isforever iJ 1i8etableand dead for kindrtese, beMuseshe' has
DO miledy to free her OPPlilsBOt. .It is vet;' unJ ust thBt love bA'VingdisapPeared
~ween twi:> beings who onooloved each otbet and haviDg OOenCOrivertedinto an
illto1erableliUtferingthe cOnyugafbed thai wasIItime a ileStof fragrant ftawet8, of
pdetieal buSses''and ofti~kable felicities, they should he condemned t6 remain
during thelrlifeiime dtownedin ti1illforiU1le; when each of them could look for 8:
new.love and new happiness. To delly this terilooy to UIifottuitat.ebeingswho are
grievingIltlder the'p~ of anettlmal unbAppineiJ S,isUtijti8t, iti1J ilotalt.hat criee
against.thejusticeof menand of God.
If Oil the CoiitraryW'j; only gi'ant thelli personal separation, this indi880lubility
of marriage will placethose spouseswho have not made ariy vow.of chastity iil an
\018Upportabfucondition, ooinPe!lingthemto becriminalsinorder tofind inthearms
Ofit manor womansomemitigation for their sUfJ eriJ 1g soulswhicharethirsty of love.
Dbt with a legislationondivorce, the anoinaloussituation of unhappy marriage and
t~econdition of the .cWldrerilIondof society ate thereby remedied; besides,.concu-
binage, polygamy lIondpolian<J ryare avoided.
We see every day throughout the events that without a Divorce J ..aw, illicit
unions of marritld men and married womenwith women or men who are not their
respective spousesand whieh aretheexternal manifestation of a scandalous Polyg-
amy, are enhanced.
It is very Immoral to seechildrenlivingunder the conyupl roof wherenothing
arefound but infiunies; where,irulteadof preservingthefaith promised before.the al-
tar, it is converted into a place of the ugliest immoralities. It is not an edifying
eXamplethat the children should growupcolitemplating the impunity of the per-
pet.ual commissionof such a crimewhichdevelopsin the family.
But with the present I~w,the moral conditionSof the country and the morality
of the family in particUlar,.will be bettered, for under the rule of divorcethere will
not haveabandoned wivescompelledto lookfor bread inclandestinerelations; there
will not have deserted childrenlost in the rivulet on account of the separation of
the parents, without education, without home, without the environsof love or of
charity.
Supposing that the contending parties in a divorce caseshould have children;
it isasked. what will becomeof them? They will bebenefitted, their-surroundings
will be bettered, for the homewherethey werereared up i tained with infamy OJ !
~, for their p&reIltllor any of themcannot'pve them but ~~of deceit aiMl,
treuObjtheir IeIltimentl 'Willbebettered, for an iQllDOl'llI. hoD'cannot prod1lJ '8noble
IeIltimentaj and 1a8tly, their lifewill bebettered, for divorcewill reduceth9 number
of abortioDS,infanticides, abandonment 'of many children, IODS' of inlatortunell;
LookiDaupon thedivoree question fromthe stand point of events; weare con-
vincedthat it hasnotobetructed theproareisiveand moral developmentpf procreation
Aecordingto the StatistiCl fumished by the Bureau of the Censu8of the United
Stat., the number of dM>l'CleI illinClleUingin the divorceoountri8ll,88 for ~DlDple,
J ~, which ill the oountry mOlJ tradical in dil'Otoeand, yet, itIl population ill ever
inereaaiDg.
Cotnpa~with the PhiJ ippinell,J ava whereabeolutAldivorceill in foree, in 1880
it bil1~hIidtwomilliOllland a haif pciop1efor ita popiJ lationand nowthat nUmberhu
iiil!teaaedto twtiliy-iUnemUliOnII.On tte ether band, the PhilippiDel whereno aboo
lIOhrie di't'b1"ce wU in:foree, 01 onemilUonand a balf of peoplefor thell&lDeyear, call
only boat now of lICBrcelyten million inhabitanta. (Census of the Philippiriea).
(b) ~:
The divorcelaw which opensthe way to the un100tIeningof p88IIionand pvea
facility to the oe1ebfationof newaDdretleated marria&esill the causeOf the corrup..
tibii of domeeticusaaeeaDd cUstom8. Could a ll&dderseeneand ai the iiametime a
mote horrible spect8c1epreeent itle1f before the ctllidren than the Ilipit' of .theit
lathen UJ iitedin lawful 1VedJ ookto other women, and their mothers to oilier men,
in such a way that they find themselveswith two or morefather and two or ~
mothen?
ACcordingto Mr. Stearney,-Divorce ill the portal which ill opened to pa88lon,
in order to search for, or create pretextS, whenever the weight of matrimony, the
ccmyup1 tedium ill felt. Who can 88IlU1'e that in such casee,'whereloveno lonier
reignsand thehoUlethat wasformerlya paradiseof delighta, but nowoonverted into
a sceneof ignominy, oollilionwill not be'sought 80 that commonlifecould be made
UDBUpportable?There cannot be a moreharmful thing to the moral well-bel of
the Off-eprlngsof a maniap than the divorceof their parents whichdeatroysODeor
the other of the two best influencesthat work on childhood, and may poisoneven
the inflUencethat is left. And according to Mr. Pablo Mankegpza,-UDivotee
isnowoneof the fathomlessfounta~ of mishaps, a slowvenon which underminea
domeatic felieity, which deatroys the healthful youth' of the children, the morals
of a na~ion, and the development of the economicresourcesof a country."
Glaasen in his work "Le Marriage at Ie DivorCE''',affirms that, according to
statistics, the num~ of divorces increases continously in raPid ptogrellllionjthat
divorcereaultsinita ownabuseand that theabuseof divorceendangerstheexistence
of the family.
In Engl&nd,whenthe bill on abSolutedivorcewasintroduoed.forthe fQst time
iJ i theabgU8tbody of the English Parliamen~, Gladstone, the celebrated'oratorsaid
thefo!iowinginthecourseof his~oD. regardingthebin: "I donot knowwhere
di~ leadsus; but what I knoW'isth&t it dragsUs to th~placewhereChristianity
Ii!sd'takenusany . H England declaresthe dissolubiUtyof marriage, it iswiseto
record Ilt1Ch an event in the annals of history with black letters rather than with
golden ones."
Thesepositiveassertionsof eminent men lam~nting j;hecondition of their ooun-
tiY "beeiaUle of divorce, would lack weight and authority to convinceusof the ~
c6nse4-uenOO8 whichgOhand inhand with divorceif wedo not strengthen with fa~ts
sUffiCient to provetheir existence.
In America,for example, whereabsolutedivorceisknown, we,hear criesof alarm
whichspringrromthe hearts{)fthe poor and the richalike,i~ the htlt aswell asin
th~' ~lace,due ~, the rapid increaSe~(div~ that are daily recorded by the tri-
b~ls .. As'a resul~of th~abnormality which elu;iangers~tio~l morality and..
',"1 : . , . ' _, . , . ,' .
tranquility, various, societieswereformed to combat and dethrone fromthe heart
of ~anthe liking'for divo~.
In Boston, a Congressof protestant bishops'was heid,.in whicha justice of the
Sq~e Court of Rhode Islandssaid,-"The institution of marriage isundergoing
a.y.ertiginous ev:olutionfroma contract for lifein~ a contract fW: conventionalities;
'Y~arefacinga danger which~es pletrerp.ble grea.tly,'and the chruch aswell8.11
the State should co-operateand take a stand to preservesocietyfromthis imminent
~.'"
Divorcehasincreasedand extended itself likeanepidemicwhichcorruptsmoral-
ity and diminishespopulation.' Thus, inFrance, the lawof divo~ceha~ingbeen re-
~blished in 1884, thebirtll rate decreased in 1901 by 19% andin 11)07by 32%.
In. theearly half of theyear 1909, the number of divorcesamounted to 398,7~0, and
t)lat od deaths to 426,913, that is, an.excessof 28,203 d,eathsover births:
; YonMoltke, the great strategic of themodemage, said: "that from1870France
beenlosing a battle each day and its cause is the law of divorce, and within
fifteenyearsFrancewill have37 or 38regimentsless. And accordingto Mr. Bureau,
& famousprofessor of the University of Paris, in hisbook entitled "La. CrisisMoral
d~.loslTiemPosModemos", publishesthefollo~ingstatistics that provestheincrease
of divorcewhichhas beenthe principal causeof the decreaseof the French popula-
.,:-
tion.
In 1886 the numbe~of divQrceswas 2,900
In 1890the nlDllberof divorceswas 5,497
In 1905 the number of divorceswas.10,109
In 1907 the number of divorceswas12,304
Now, makiog & brief ClOU;lpa.rison of the number of divofOOlll with th&t of mar-
ria&eet welIban be convinced that thoformer number isdouble than the lat. 0Qe.
In FraDcethe suitsfor divorcerank from1773in the year 1884to 7M3in the year
1891;whereaamarriapsnumbered from892in theyear 1884to 3247inthe year 1891.
In Cennany. ~ were534ZdivorcesgrantAldin 1882and 6178in 1891-
InliJ ngtand,divo~ UlMt from127in 1860to 300in 1887,an incl"l'.8llC muchmore
~id than that of the population or that of marriages.
In the .Special Census Report on Marrillge and Divorce, statistics reveal WI
the fact that in the United States one million divorces weregranted, that is, from
1887to 1901; or within a period of thirteen YCllrs;and from1887W1907, or within
aperiod of 2Qyears, 1,340,000iNitsfor divol'OOl:l werefiled,and out of whichmoretba~
% obtained a favorable result.
Consideringnowthe elfe~of divorce on Ulevu!>ulation, wefind fl"Om8Cv~1
statistics that divorcedecreasesinstead of increasing it. Acoo,rding to the Amer-
ican Ce~us Report, w~have the followingdata.: from 187o-1~, the increasep C
population was30per.centum; from1880-1890 it WIlS 25per centwu; from 1890--
1900it was21per centumand frqm1900-1906 it was10.50per centum.
From the foregoingdata. showing the increase of divorce llJ l tIle dL'creascl?f
population, wecan ll9Dolude. that though the increll8Cof divorce in America ~ wCtlI
asinother natioDS,doesnot J )ecessari1yshowa declinein thostandard of sociui an~
domesticmomlity, nevertheless, it .ml,llltbe admitted that if the inCl'ClUlC continues
unchecked, divorcewill tend to inducesuch ItdL-cline,it b(~in~the lo~ical and n~-
sary consequenceof the abuse.
The natuml vinculumof loveisthe cssential clL'lOentof the lUarriagll rL'latioll,
and not the nominal bond of legal sanction; if this isso, does it not followa.'!th(~
night the day that the maintenance of the legnl hond isimproper if the natural hond
ceases? It wouldnot beright toforcea man and womanto liveashusband and wife
whohad noloveforoneanother but only contempt.and hat-redj whyshould wethink
it right to forcethem to liveashusband and wifeaft(~rloveha'l 1lC(l!l dL'litroycdhy
cruelty or betrayal?
Now, if notwithstanding the countless restrictions iUlllOlledin thL' application
of the present law, safeguarding the interests of the Stnte, of the family and of the
individual; if despite the assurances of our Legislative, Executive and J udicial dc-
pa.rtulents, to do their best to check, to guard and to suppressany attempt of abuse
and corruption, there are stillllOmewho believe'prejudicoo in their rights asIlCIlCe-
fut citizensby the pa888geof thislaw, forgetting perhaps that there arein thiscoun-
try thousandsl of unhappy families, that are forever condcmnoo to suffer tilecruel-
ties, insults, and vexatioDSof the man of whomthey preciselyawait happiness, pro-
tection, and ~teem; and if in spiteof their knowledgethat they asprogressiveciti.
zeDS should uphold the pal!8ageof this law will remain obstinate by continuously
refusingto yield, to them, therefore, I take theliberty of addressingthesefewwords.
. There are many things permitted by law, whichthe conscienceof many, taken
individuallv, cannot toleratej nevertheless, the J .egislature isfoteed to pass such
measuresin order to protect the interests of the wholecommunity.
Wemust not fear that this lawmight destroy and poisonthe sweetnessof our
family lifeand degenerate the morality of our country, because this law doesnot
compel themto resort to it; and if notwithstanding the rare unfaithfulnessof some
wives, weprefer to forgivethemand extend to themthe temptation, the enoourage-
ment, the licenseof running through the whole calendar of matrimonial offenses,
without redressingthe offense,then no body will-interfereto us, and asa result we
will not fail witnessingeveryday thegradual but firmdownfall of that scared honor
whichevery body will stakehislifefor thevindicationof theMme.
Nor need wehaveany fear tba.t the granting of divorcesunder theseconditions
will menacethe stability of the family or threaten the integrity of the State. The
essenceof all tnle marriage,8S wehave said, islove, and loveisthe greatest thing
in all the world. Let full freedomof choicebe exercised in mating; let all worldly
and material considerationsas incentives to marriage be eliminated; let the union
be protected and guaranteed by such regulationsaswehave laid down; let lovebe
cherished and encouraged in every youthful heart, and then let it do its perfect
work, and I believethat theinstinctswhichhaveprompted theformationof theunion
may be safely trusted to safeguard its continuance.