Chief Justice Claudio Teehankee

Center for the Rule of Law

Survey of the Constitutional and International Law Issues

of Divorce in the Philippines

EnriquitoCruz

Summer Internship Program 2015

Survey of the Constitutional and International Law Issues
of Divorce in the Philippines2

State of Dissolution of Marriage in the Philippines

During theAmerican1 and Japanese eras2, divorce law was operative and was found by
the Supreme Court of the Philippines to be legally binding even after the promulgation of the
New Civil Code and subsequently the Family Code, which prohibits divorce. Currently, the
Family Code allows marriages to be annulled, declared a nullity3 or stayed by legal separation4.
In annulment the marriage would be declared void if anyone of the parties at the time of
celebration is psychologically incapacitated to fulfill martial obligations, thus, legally speaking
there was no marriage celebrated to speak of. In legal separation, the spouses remained married
but are not obliged to comply with the marital obligations and the conjugal ownership between
the spouses is dissolved. Legal separation is filed on grounds which become present after the
marriage is celebrated.

Proponents of divorce argue that the current laws are sufficient to address the problems of
the spouses on marital issues. But some juristsassert that legal separation alone without further
recourse to annulment or divorce would lead both the innocent and inflicting spouse in legal
limbo. Bishop, an American jurist points out the ill effects oflegal separation in this wise:

"It is destitute of justice and one of the most corrupting devises ever imposed by
serious natures on blindness and credulity. It was tolerated because men believed

1
Act 2710 (see Valdez v. Tuazon (1920)
2
Executive Order No. 141, promulgated by the Chairman of the Philippine Executive Commission (1943)
3
Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential
marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.
4
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance
in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child by nature or by adoption.
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines3

as part of religion that dissolution would be offense against God, whence the
slope was easy towards any compromise with good sense, and as a result of
compromise we have this monster. It not only punishes the guilty party but it
punishes the innocent as well and should be done away with the on the ground
that it is against public policy"

This is so because sincethe marriage still subsists, then the spouses can still be held liable
for adultery or concubinage. Also, the innocent spouse is left with the horror of being forever
married to someone who did or can do atrocities beyond imagination. Furthermore, legal
separation does not allow the innocent spouse to marry again. The Supreme Court has stated that
due to the lack of a divorce law in the country, the Court is bound to follow the family law on the
matter no matter how harsh the circumstances are for the innocent spouse.5

Current Divorce Bills in the Philippines

House Bill 4408 is the only bill on divorce in the Philippines. The bill's principal author
is Congressmen De Jesus and Luzviminda of the Gabriela Partylist. The bill submitted by the
party is a combination of fault and no-fault divorce. The bill is currently pending under the
Committee on Population and Family Relations since its filing last March 20, 2014.

5
Carating-Siayngco v. Siayngco, G.R. No. 158896 Oct 27 2004 (see. Republic of the Philippines v.NormaCuison-Melgar,G.R. No. 139676
March 31, 2006)
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines4

I. NATIONAL LAW

Is Divorce Constitutional in the Philippines?

Yes. The main contention against divorce is that the Constitution prohibits divorce since
tears up families by dissolving marriages.Although the wording of Article XV of the
Constitution may seem to prohibit divorce, further study would actually reveal that said Article
does notbarthe legislature from enactingdivorce laws.

Article II, Section 12 of the 1987 Constitution provides:

The State recognizes the sanctity of family life and shall protect and strengthen
the family as a basic autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from conception. The natural and
primary right and duty of parents in the rearing of the youth for civic efficiency
and the development of moral character shall receive the support of the
Government

Article XV, Section 1 on the other hand states:

The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.

Furthermore, under Article XV, Section 2, it is provided that:

Marriage, as an inviolable social institution, is the foundation of the family and

shall be protected by the State.
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines5

During the constitutional deliberations of the current version of the Constitution, the
delegates had the following discussion regarding the constitutional provisions onthe family:

Fr. Bernas: "Just one last question, and I am not sure if it has been
categorically answered. I refer specifically to the proposal of Commissioner
Gascon. Is this to be understood as a prohibition of general law on divorce?
His intention is to make this a prohibition so that the legislature cannot pass a
divorce law.”

Mr. Gascon: "Mr. Presiding Officer, that was not primarily my intention. My
intention was primarily to encourage the social institution of marriage, but not
necessarily discourage divorce. But now that he mentioned the issue of
divorce, my personal opinion is to discourage it."

Fr. Bernas: "No. my question is more categorical. Does this carry the meaning
of prohibiting a divorce law?'

Mr. Gascon: "No, Mr. Presiding Officer."6

During the deliberations, delegate Gascon stated that the purpose of Article XV Section 2
of the Constitution which states that marriage is the foundation of the family, is merely a policy
which encourages "those who wish to marry and establish a family to have the moral,
educational, social and economic conditions which will enable them to exercise their right to a
mature and responsible marriage."7

Furthermore, luminaries on Constitutional Law, acknowledged by the Supreme Court

itself, such as Fr. Joaquin Bernas, have repeatedly stated that the constitutional provisions

6
Record of the Constitutional Commission, Vol. V, September 24, 1986, p 41
7
Ibid, p 39
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines6

regarding the family does not bar any type of divorce laws.8However, it should also be noted that
the commentary of De Leon states that divorce is constitutional except for no-fault divorce.9

Just recently, the Supreme Court stated that the dissolution of marriage is not against the
Constitution. On the other hand, the Court upheldits decree in proper cases. The Court said:

"[But] the Constitution itself does not establish the parameters of state protection
to marriage as a social institution and the foundation of the family. It remains the
province of the legislature to define all legal aspects of marriage and prescribe the
strategy and the modalities to protect it, based on whatever socio-political
influences it deems proper, and subject of course to the qualification that such
legislative enactment itself adheres to the Constitution and the Bill of Rights. This
being the case, it also falls on the legislature to put into operation the
constitutional provisions that protect marriage and the family... While it may
appear that the judicial denial of a petition for declaration of nullity is reflective of
the constitutional mandate to protect marriage, such action in fact merely enforces
a statutory definition of marriage, not a constitutionally ordained decree of what
marriage is... Given the avowed State interest in promoting marriage as the
foundation of the family, which in turn serves as the foundation of the nation,
there is a corresponding interest for the State to defend against marriages ill-
equipped to promote family life. Void ab initio marriages under Article 36 do not
further the initiatives of the State concerning marriage and family, as they
promote wedlock among persons who, for reasons independent of their will, are
not capacitated to understand or comply with the essential obligations of
marriage" 10

8
Bernas, Joaquin G. The Constitution of the Republic of the Philippines: A Commentary Vol 1. 1987
See: Commentary on Article XV of the Constitution of Bernas, Joaquin Commentary on the Constituion. ( 1984, 1987 and 2009)
9
De leon, Commentary on Article XV of the Constitution 1987, Volume2.
10
Kalaw v. Fernandez G.R. 166357, Jan 14. 2015
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines7

Would divorce law lead to a violation of the Church's freedom of religion?

No. It should be noted from the start that civil and ecclesiastical marriages are different
and separate. Civil divorce laws affect the civil aspect of the marriage and do not, in any way,
affect or dictate the dissolution of the marriage in ecclesiastical marriages. The institution and
dissolution of civil marriages is completely controlled by law and merely allows religious groups
to solemnize on their behalf. Thus, for the civil marriage to be valid, it must be in accordance
with the civil law only and does not concern ecclesiastical rites. In fact, the Family Code and the
Constitution support this conclusion. To illustrate:

Article 7 of the Family Code of the Philippines states that:

“Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's jurisdiction;

(2) Any priest, rabbi, imam, or minister of any church or religious sectduly
authorized by his church or religious sect and REGISTERED with the civil
registrar general, acting within the limits of the written authority granted by his
church or religious sect and provided that at least one of the contracting parties
belongs to the solemnizing officer's church or religious sect; x xxx”

On the other hand, Article 6 of the same Code states:

“No prescribed form or religious rite for the solemnization of the marriage is
required. It shall be necessary, however, for the contracting parties to appear
personally before the solemnizing officer and declare in the presence of not less
than two witnesses of legal age that they take each other as husband and wife.
This declaration shall be contained in the marriage certificate which shall be
signed by the contracting parties and their witnesses and attested by the
solemnizing officer. x xxx
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines8

Under the 1987 Constitution, in particular Article III, Section 5, it is provided

that:

“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.”

It must be noted that civil marriage is a universal civil right as declared under the
Universal Declaration of Human Rights of the United Nations.

Following this reasoning, any civil law concerning the institution or dissolution of
marriage has no effect on ecclesiastical marriages and dissolutions.

Even if religious groups state that seeing dissolution of marriages affects their
congregation by having "bad examples" in the community, thus, affecting their freedom of
religion indirectly, the argument cannot stand for three main reasons. First, this argument
circumvents the Constitution's "non-establishment clause" which mandates that no law shall be
made respecting an establishment of religion, or prohibiting the free exercise thereof. Second,
freedom of religion has its limits and would be weighed with other rights, in this case, public
welfare and individual rights. Third, freedom of religion is also an individual right, thus, the
change of heart by a person in a religious congregation, which is contrary to divorce, is also
protected by the Constitution.
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines9

The Catholic Church's own teachings support the notion that religious freedom should be
given to all the people of the world and that the people have the right to choose their religious
faith and should not be coerced into Christianity.11

Is divorce recognized,in anyway, in the Philippines?

Yes. Article 26 of the Family Code states:

“All marriages solemnized outside the Philippines, in accordance with the

laws in force in the country where they were solemnized, and valid there as such,
shall also be valid in this country, except those prohibited under Articles 35 (1),
(4), (5) and (6), 3637 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly

celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.

The Family Code was promulgated almost the same time as the present Constitution.
Thus, it can be inferred that constitutional issues regarding divorce were taken into consideration
when the Family Code was drafted.

In the case of Van Dorn, a Filipina spouse obtained a divorce abroad with the consent of
theformer husband. The latter tried to get the properties of the wife claiming that under
Philippine laws the two are still married. The Supreme Court ruled:

"To maintain, as private respondent does, that, under our laws, petitioner
has to be considered still married to private respondent and still subject to a wife's
obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner

11
Vatican II and DignitatitesHumanae, http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-
ii_decl_19651207_dignitatis-humanae_en.html
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines10

should not be obliged to live together with, observe respect and fidelity, and
render support to private respondent. The latter should not continue to be one of
her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be served."12

Furthermore, under Article 13 of the Family Code:

“In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate
required in the last preceding article, the death certificate of the deceased spouse
or the judicial decree of the absolute divorce, or the judicial decree of
annulment or declaration of nullity of his or her previous marriage.”

The above-stated provision recognizes the effect of a judicial decree of absolute divorce
by allowing the spouse to remarry after the decree is submitted into evidence. In effect,therefore,
it also recognizes the validity of divorce in the country.

In addition, the Code of Muslim Personal Laws in the Philippinesalso has provisions on
divorce.The said Code has different ways of effecting divorce that is legally binding on the
spouses. These provisions are the following:

Art. 45. Definition and forms. — Divorce is the formal dissolution of the
marriage bond in accordance with this Code to be granted only after the
exhaustion of all possible means of reconciliation between the spouses. It may be
effected by:

(a) Repudiation of the wife by the husband (talaq);

(b) Vow of continence by the husband (ila);

12
Van Dorn v. Hon. Romillo, G.R. No. L-68470, October 8, 1985
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines11

(c) Injurious assanilation of the wife by the husband (zihar);

(d) Acts of imprecation (li'an);

(e) Redemption by the wife (khul');

(f) Exercise by the wife of the delegated right to repudiate (tafwld); or

(g) Judicial decree (faskh).

Art. 46. Divorce by talaq. — (1) A divorce by talaq may be effected by the
husband in a single repudiation of his wife during her non-menstrual period (tuhr)
within which he has totally abstained from carnal relation with her. Any number
of repudiation made during one tuhr shall constitute only one repudiation and
shall become irrevocable after the expiration of the prescribed 'idda.

(2) A husband who repudiates his wife, either for the first or second time, shall
have the right to take her back (ruju) within the prescribed 'idda by resumption of
cohabitation without need of a new contract of marriage. Should he fail to do so,
the repudiation shall become irrevocable (Talaqbainsugra).

Art. 47. Divorce by Ila. — Where a husband makes a vow to abstain from any
carnal relations (ila) with his wife and keeps such ila for a period of not less than
four months, she may be granted a decree of divorce by the court after due notice
and hearing.

Art. 48. Divorce by zihar. — Where the husband has injuriously assimilated
(zihar) his wife to any of his relatives within the prohibited degrees of marriage,
they shall mutually refrain from having carnal relation until he shall have
performed the prescribed expiation. The wife may ask the court to require her
husband to perform the expiation or to pronounce the a regular talaq should he fail
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines12

or refuse to do so, without prejudice to her right of seeking other appropriate

remedies.

Art. 49. Divorce by li'an. — Where the husband accuses his wife in court of
adultery, a decree of perpetual divorce may be granted by the court after due
hearing and after the parties shall have performed the prescribed acts of
imprecation (li'an).

Art. 50. Divorce by khul'. — The wife may, after having offered to return or
renounce her dower or to pay any other lawful consideration for her release
(khul') from the marriage bond, petition the court for divorce. The court shall, in
meritorious cases and after fixing the consideration, issue the corresponding
decree.

Art. 51. Divorce by tafwid. — If the husband has delegated (tafwid) to the wife
the right to effect a talaq at the time of the celebration of the marriage or
thereafter, she may repudiate the marriage and the repudiation would have the
same effect as if it were pronounced by the husband himself.

Art. 52. Divorce by faskh. — The court may, upon petition of the wife, decree a
divorce by faskh on any of the following grounds :

(a) Neglect or failure of the husband to provide support for the family for at least
six consecutive months;

(b) Conviction of the husband by final judgment sentencing him to imprisonment

for at least one year; .chanrobles virtual law library

(c) Failure of the husband to perform for six months without reasonable cause his
marital obligation in accordance with this code;
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines13

(d) Impotency of the husband;

(e) Insanity or affliction of the husband with an incurable disease which would
make the continuance of the marriage relationship injurious to the family;

(f)Unusual cruelty of the husband as defined under the next succeeding article; or

(g) Any other cause recognized under Muslim law for the dissolution of marriage
by faskh either at the instance of the wife or the properwali.

Art. 53. Faskh on the ground of unusual cruelty. — A decree offaskh on the
ground of unusual cruelty may be granted by the court upon petition of the wife if
the husband:

(a) Habitually assaults her or makes her life miserable by cruel conduct even if
this does not result in physical injury;

(b) Associates with persons of ill-repute or leads an infamous life or attempts to

force the wife to live an immoral life;

(c) Compels her to dispose of her exclusive property or prevents her from
exercising her legal rights over it;

(d) Obstructs her in the observance of her religious practices; or

(e) Does not treat her justly and equitably as enjoined by Islamic law.

II. INTERNATIONAL LAW

Universal Declaration of Human Rights

Article 16 of the Universal Declaration of Human Rights states:

Survey of the Constitutional and International Law Issues
of Divorce in the Philippines14

(1) Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family. They are
entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the
intending spouses.

(3) The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.

In the book of Morsink on the origins, drafting and intent of the Universal Declaration of
Human Rights, he posits that the right to divorce is an inherit effect of the Declaration. He stated:

"The drafters treated the issue of divorce as one of nondiscrimination rather than
as a basic and independent human right. It is true, of course, that much of the
opposition to explicit mention of divorce came from delegates from Christian
countries and organizations. This opposition, which was based on certain religious
convictions, did not in the final roll call prevent these countries from voting for
the Declaration. These Christians were in the same positions as the delegates from
Muslim countries. Both groups objected on religious grounds to certain provisions
of the marriage article. In the end, all of them - except Saudi Arabia - voted for
the Declaration, in effect admitting that the question of human rights cannot be
settled on religious grounds. The human rights enunciated in the Declaration
are not linked to religious grounds. The human rights enunciated in the
Declaration are not linked to religion. The drafters did not think that in order
to accept the existence of any one of the rights one had to be adherent of a
certain faith. In that context the right to divorce, though derivative, is
nevertheless fundamental, in the same way that a prisoner's right to a fair
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines15

hearing is. No one has to contract marriage, but once one is in that state, certain
rights become operative."13

The Philippines, being a signatory to the Convention, should abide with Article
16particularlywith the last sentence of paragraph one. The allowance of divorce to Muslims is
discriminatory to non-Muslims and, thus, puts the Philippines non-compliant with International
Law.

United Nations

The postgraduatethesis of Jihan A. Jacob of the University of Toronto is insightful on the

obligations of the Philippines under International Law. In his thesis, he stated that the Philippines
being a signatory to the multiple treaties regarding discrimination based on religion, culture,
race, gender must comply with international norms. The articles concerning divorce under the
different Committees of the United Nations are enumerated below.

Committee on Economic, Social and Cultural Rights

"The Committee notes with concern the absence of legislation on divorce. (Article 10) The
Committee recommends that the State party adopt legislation recognizing the right of men and
women to divorce, to obtain the legal severance of marital ties and to remarry after divorce."14

13
Morsink Johannes, "Univeral Declaration of Humans Rights Origins, Drafting and Intent"
https://books.google.com.ph/books?id=nSWZY3Rs9vQC&pg=PA125&lpg=PA125&dq=divorce+as+a+human+right&source=bl&ots=VmFi7gb
auP&sig=iJW_5owJaQR3Y6v3VJbgMLjvuRo&hl=en&sa=X&ei=TZZMVZKpBaLVmgXWvICwCA&ved=0CCcQ6AEwAjgK#v=onepage&q=
divorce%20as%20a%20human%20right&f=false

14
Committee on Economic, Social and Cultural Rights, Concluding Observations: Philippines, UN Doc E/C.12/PHL/CO/4 (2008) at para 24
accessed at http://www2.ohchr.org/english/bodies/cescr/docs/E.C.12.PHL.CO.4_EN.pdf
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines16

Convention on the Elimination of All Forms of Discrimination against Women

"31. The Committee expresses its concern about the lack of a law on
divorce, making it impossible for women to obtain legal divorce.

32. The Committee urges the State party to introduce and support
vigorously legislation which permits divorce, allows women to remarry after
divorce, and grants women and men the same rights to administer property during
marriage and equal rights to property on divorce. It also recommends"15

Human Rights Committee

12. The Committee is concerned at the lack of legislation providing for

the dissolution of marriages, which might have the effect of compelling victims of
sexual and gender based violence to remain in violent relationships (arts. 2, 3, 7
and 23).

The State party should adopt legislation that governs the dissolution of
marriages and ensure that it protects the rights of children, and the rights of
spouses to custody of children, and equality in the devolution of matrimonial
property.16

International Human Rights Instruments

Compilation of General Comments and General Recommendations Adopted By Human

Rights Treaty Bodies

Article 26 provides that all persons are equal before the law and are entitled to equal
protection of the law without discrimination, and that the law shall guarantee to all persons equal

15
Committee on the Elimination of All Forms of Discrimination Against Women, Concluding Comments: Philippines, UN Doc
CEDAW/C/PHI/CO/6 (2006) at paras 31 & 32 accessed at http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/N06/480/52/PDF/N0648052.pdf?OpenElement
16
Human Rights Committee (HRC), Concluding Observations: Philippines, UN Doc CCPR/C/PHL/CO/4 (2012) at para 12.
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines17

and effective protection against discrimination on any of the enumerated grounds. In the view of
the Committee, Article 26 does not merely duplicate the guarantee already provided for in article
2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any
field regulated and protected by public authorities. Article 26 is, therefore, concerned with the
obligations imposed on States parties in regard to their legislation and the application thereof.
Thus, when legislation is adopted by a State party, it must comply with the requirement of
Article 26 that its content should not be discriminatory. In other words, the application of the
principle of non-discrimination contained in Article 26 is not limited to those rights which are
provided for in the Covenant.17

European Court of Human Rights

The decision of the European Court of Human Rights, in effect, strengthens the above-
cited thesis in the reverse.In the case of Johnston v. Ireland, the Court declared that Convention
of Human Rights and Fundamental Freedoms which is the European counterpart of the Universal
Declaration of Human Rights, does not guaranty the right to divorce. The court stated that it
cannot enforce divorce as a European human right even by means of an evolutive interpretation
because the omission in the European Convention of Human Rights and Fundamental Freedoms
on the right to divorce was deliberate, by omitting the last sentence of Article 16 (1) of the
Universal Declaration of Human rightsin the European convention, in particular, the paragraph
stating: "They are entitled to equal rights as to marriage, during marriage and at its dissolution.”

Though in the separate opinion of Judge Farinha, he stated: "the prohibition, under the
Constitution of the respondent [Ireland] State, of any legislation permitting the dissolution of
marriage is, as seems already to have been recognised in 1967 by a Committee of that State’s
Parliament, coercive in relation to all persons, Catholics and non-Catholics, whose religious rules
do not absolutely prohibit divorce in all circumstances" and "at variance with the accepted
principles of religious liberty as declared at the Vatican Council and elsewhere. Above all, it is,

17
International Human Rights Instruments, HRI/GEN/1/Rev.1 29 July 1994
Survey of the Constitutional and International Law Issues
of Divorce in the Philippines18

as that Committee stated, "unnecessarily harsh and rigid" For so draconian a system to be
legitimate, it does not suffice that it corresponds to the desire or will of a substantial majority of
the population. The Court has also stated that "although individual interests must on occasion be
subordinated to those of a group, democracy does not simply mean that the views of a majority
must always prevail: a balance must be achieved which ensures the fair and proper treatment of
minorities and avoids any abuse of a dominant position. The foregoing considerations do not
imply recognition of a right to divorce or that such a right, to the extent that it exists, can be
classified as a fundamental right. They simply mean that the complete exclusion of any
possibility of seeking the civil dissolution of a marriage is not compatible with the right to
respect for private and family life, with the right to freedom of conscience and religion and with
the right to marry and to found a family."18

18
Case of Johnston and Others v. Ireland, European Court of Human Rights, Application number 9697/82