What’s wrong with the Divorce Bill

By Michael Henry Yusingco, LL.M

House Bill No. 9349 or “The Divorce Bill” is another clear example of poor lawmaking. This critique has nothing to do with divorce per se. But everything to do with an inadequacy afflicting our lawmakers today.

Lawmaking is fundamentally a problem-solving exercise. In his seminal book, Making Laws That Work: How Laws Fail and How We Can Do Better, the eminent jurist David Goddard wrote:

“The first step in designing legislation that works is to identify and describe the relevant social problem, and the desired social change.”

Understandably, lawmakers would want to champion their ideals and principles when enacting laws. But the job requires a combination of theoretical research and case study analysis. Personal testimonies and anecdotal evidence are helpful, but lawmaking requires a more organized and scientific method of gathering insights and information.

Laws that did not pass through the proper rigorous process become dead-letter laws. Sadly, we have a lot of that in our books due principally to lawmakers not fulfilling their mandate as problem-solvers. The Divorce Bill is proof of such a failure.

As per the Divorce Bill itself, the social problems it intends to address are domestic violence, broken marriages, and dysfunctional families. This rationale was often repeated by the proponents of the bill in media interviews and public forums. However, the bill itself does not really offer any updated and distinct solutions to these problems.

Regarding domestic violence, the bill does not have any provision prescribing specific means of police assistance and barangay support for an abused spouse. The first and immediate recourse for an abused spouse and the children is to escape from the abuser. So, police and barangay involvement here would be crucial.

The bill also does not have provisions mandating the creation of shelters and safe houses for abused spouses and the children. No provisions on facilitating financial independence and legal protection from the abuser. It does not exactly establish how divorce can prevent domestic violence or how it can alleviate its impact on the family.

Neither does the bill offer concrete ways to help children cope with the dysfunction brought about their parents’ irredeemable situation. Nor does it provide specialized mechanisms to deal with the emotional, mental, and psychological impact of the separation of their parents.

Obviously, the problem that the Divorce Bill aims to solve, relates to legal concerns attendant to a separating couple. The bill covers matters such as the dissolution of marital property arrangements and custody and support of the children.

But as the proposed solution, divorce has no comprehensible link to the problem identified and targeted by the proponents. And it is the incoherence between the objectives set by lawmakers and the remedies instituted in the bill that proves lawmakers are failing to do their job.

From the “conversations” between folks in favor and against the Divorce Bill, it is evident that important matters were not settled during the drafting stage. For instance, the Philippine Statistics Authority’s 2020 household census revealed that 15% of Filipinos favored common-law partnerships.

Moreover, Rappler published a piece in November last year reporting that “a significant portion of the younger generation would rather not marry than to have a bad marriage.”

How does the proposal to legislate divorce square with these current realities? Will having divorce as a legal option actually encourage more people to get married? These are just some of the questions that need empirical answers to get a firm grip of the problem at hand.

It is more likely that the proponents of the bill are driven primarily by their personal agenda rather than by the need to address a specific social problem. Consequently, those who oppose them are also compelled by personal motivations. The public interest part of this initiative has yet to be explicitly defined.

If the Divorce Bill is passed in this substandard form, meaning with still a lot of questions hounding it, then it would be difficult to forecast a future under the auspices of a divorce law. Thus, the possibility that divorce may cause more harm than good to society cannot be discounted.