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LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 13 July 2008 Issue

Being the only predominantly Catholic country in Asia, the Philippines does not have a “no-fault” and ‘uncontested’ divorce to put a formal end to marital relationships, in the same way that is recognized in many legal regimes in the western world, particularly in countries like the United States and Australia.

To make sure that this state policy is not transgressed by legislation, the country’s fundamental law made explicit that marriage is an inviolable social institution and the foundation of the Filipino family which should be protected by the State.

But it does not mean that in this country spouses cannot terminate their marital bond before the death of either of them. They can certainly contest the validity of their marriage based on the legal grounds provided for by the Family Code through a protracted litigation. And one of the most usual grounds invoked to have a marriage declared a nullity by the court is the so-called ‘psychological incapacity’ of one of the spouses.

The psychological incapacity here as defined by law and jurisprudence relates to the inability (and not mere refusal) of the guilty spouse to assume the basic marital obligations of living together, observing love, respect and fidelity and rendering mutual help and support brought about by some mental (not physical) conditions that already existed at the time of marriage. It is also required that the mental disorder is serious and incurable.

They say that the legislative intent for including such a ground is to harmonize civil law with canon law of the Catholic faith, which similarly recognize psychological incapacity as a basis to terminate church marriages.

Perhaps, the legal set up is fine. It is logical to provide a legal escape to a spouse who suffers, and continues to suffer, in the hands of a spouse with grave and incurable mental disorder. In the end, no amount of a legal provision can dictate what would make a good, happy and successful family life, except the individual resolve of the members of the family, principally the husband and the wife, even if conditions of psychological incapacity actually exist.

But the same legal set up also provide a convenient legal excuse. Psychologist and law educatee Marah Sharyn M. de Castro asked – if the guilty spouse is judicially declared psychologically incapacitated so as to render the marriage null and void, how come he or she is still allowed by law to re-marry? Obviously, if the degree of mental unfitness required by law is serious and incurable, the same cannot be remedied by having another lovelife. For this, they should be disqualified to remarry as a social deterrent for a continuing breakdown in the family as a social institution, or at least there must be a legal system to re-qualify them into entering another marital life. After all, the judicial determination should be binding before the whole world, in legal parlance.

While it is axiomatic in Philippine law and jurisprudence that termination of marriage cannot be the subject of stipulation and agreement of the parties, this is more apparent than real because all the offending spouse needs to do is not to put up a legal fight. At the end of the day, the guilty spouse still benefits from the proceedings by just being silent, especially if there is contemplation of having another relationship. It is not even impossible to feign his or her psychological incapacity.

If the country wants to sustain its avowed national policy of preserving marriages through a legal mechanism, maybe there is a need to re-engineer the concept of ‘psychological incapacity’, either by law or jurisprudence, to make it work in context.

Although law is the state’s response towards the preservation of the family, one thing is sure – only love can make a marriage work. It may not be necessarily the love for each other anymore. Oftentimes, the love of parents of their children is worth the sacrifice if only to breed the next generation of a good and successful family.

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