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Marital psychology

JNS — Sun, 13 Jul 2008 02:26:53 +0000

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.

Act of God

JNS — Sat, 05 Jul 2008 16:04:30 +0000

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 6 July 2008 Issue

The phrase ‘act of God’ has usual reference to fortuitous events or force majeure, an unavoidable situation brought about by natural causes that disrupts the expected course of events.

From legal contemplation, no person shall be responsible for a fortuitous event which could not be foreseen, or which, though foreseen, was inevitable, so said the Philippine Civil Code. And for a person or entity to be exempt from any obligation or liability arising from act of God, there must be an entire exclusion of human agency from the cause of injury or loss, so said the Supreme Court in a long line of decided cases.

The rationale for the legal precept, as explained by the High Court in one case, is - “when the effect is found to be partly the result of a person’s participation—whether by active intervention, neglect, or failure to act - the whole occurrence is then humanized and removed from the rules applicable to acts of God.”

The fateful sinking of MV Princess of the Stars (allegedly Sulpicio Line’s main star among its fleet) at the height of typhoon Frank last June 21 caused this nation to grieve over the tragic death of several hundreds of passengers and crew, many of whose remains would surely just be consigned beneath the surface of the deep sea. The irony of it all is that no one would ever take legal or even simply some moral responsibility for the tragedy.

Did anyone ever say “I am sorry” for this unfortunate incident?

Sulpicio Line is strong in its position that it was the result of the weather bureau’s inaccurate forecasting of the direction of the typhoon. The weather bureau said that it was never remiss in its duty of providing advisories and warnings every quarter of the day while the typhoon was here. Some observers even note that the duty of the agency is just to predict, plain and simple, and forecasting the course of nature would never be perfect. The coast guard said that it adherred strictly to existing policies and regulations, particularly on the fact that sea vessels may sail during signal no. 1 at the discretion of the ship owner.

The arguments and counter-arguments of the stakeholders could be endless and circuitous until such time that the event is relegated to the inside pages of news stories. At the end of it all, the debate before the courts, the halls of Congress, and the various government initiated investigations would boil down to the sole issue whether the sinking was the result of God’s will or not. Because if it is, the families of the victims should probably claim their just compensation in heaven.

In the next few months, business, as in the past, would just be as usual until the next sea mishap.

Why cannot government require all shipping companies carrying passengers to procure a compulsory insurance of say a million pesos per passenger under a no-fault arrangement? Why cannot government allocate enough money to oversee and ensure that maritime regulations are strictly enforced considering that the more than 7,100 islands of the country are connected by water lanes and suspend or cancel the franchise of violators even before an accident struck? Surely, there are other why’s that would come to mind.

And perhaps the most reasonable explanation is that there is God to blame, after all. Or stated differently, maybe the government and the shipowners prefer to act like God.

In the case of the MV Princess of the Stars, the God in heaven cannot be blamed with certainty. But the gods of this country should be, all because there is human intervention, neglect, and failure to act.

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MCLE certificate required in pleadings

JNS — Wed, 02 Jul 2008 21:13:11 +0000

On 3 June 2008, the Supreme Court promulgated a resolution in Bar Matter 1922 requiring all lawyers to indicate the number and date of issue of their MCLE certificate of compliance or exemption in pleadings (as well as motions) filed in courts and quasi-judicial bodies. MCLE stands for the Mandatory Continuing Legal Education program of the Supreme Court for the members of the Philippine legal profession.

Failure to disclose may result in the dismissal of the case and the expunction of the pleadings from the records.

The full text of the resolution, which becomes effective sixty days following its publication (or on 24 August 2008), may be viewed HERE.