|
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
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 re-marry 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.
www.soriano-ph.com
|
