Wednesday, Aug 10 2022

In March 2018, House Bill 7303, "An Act Instituting Absolute Divorce and Dissolution of Marriage in the Philippines" languished on the Senate floor, its passage into law uncertain. For almost a year before that, the Philippine Divorce bill was heatedly debated in Congress after it was approved by the House of Representatives and favored by the majority of Filipinos surveyed in a scientific study conducted by the Social Weather Station.  For the last 10 years, divorce advocates have been trying to pass an absolute divorce bill but always failed.  But in September 2021, a paradigm shift regarding grounds to void a marriage in the Philippines was passed by the Supreme Court making it less costly to prove “psychological incapacity” as a ground for legal separation.

Aside from the Vatican, the Philippines and Malta are the only two countries in the world where divorce is illegal to this day.   Legal divorce is generally considered an issue of gender equality for women in the Philippines. "Many Filipino women, poor and rich, have been suffering from their husband's infidelities and lack of support because there is no law that protects women who want to leave unfaithful and neglectful husbands," said Congresswoman Liza Masa, author of Divorce Bill 7303.

In the Philippines when a marriage breaks down, it is often the woman who suffers abuse, humiliation and eventual abandonment with no support for herself and her children while men easily find a mistress, even a new love. Because of the strong influence of the Catholic church in the Philippines, a marriage breakdown is difficult to lead to a legal separation.

Of the different requisites for dissolving marriage, one of the most common and controversial grounds used is psychological incapacity. Psychological incapacity "contemplates downright incapacity or inability to take cognizance of and to assume the basic marital obligations; not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse."

In October 2021, the Philippine Daily Inquirer wrote an editorial about a new paradigm regarding the controversial psychological incapacity – one of the most common and most-difficult-and-expensive-to-prove  grounds for divorce and legal separation in the Philippines. It referred to a recent ruling from the Supreme Court which, while not yet ushering a regime of legal divorce in the country, certainly made it easier, less costly, and less heartbreaking for couples to call an end to a marriage that had been doomed due to psychological incapacity.

Released in September, the ruling declared that the high tribunal had “unanimously” decided to “modify the interpretation of the requirements of psychological incapacity as a ground in nullifying a marriage under Article 36 of the Family Code.”

In its decision on the case of Tan-Andal v. Andal, the Supreme Court held that psychological incapacity “need not be a mental or personality disorder,” nor that it needs to be “a permanent and incurable condition.” So, while previously petitioners for the nullification of a marriage depended on the testimony of a psychologist or psychiatrist to prove psychological incapacity, the high court decision held that this would no longer be necessary.

The Supreme Court set aside the longstanding “Molina” guideline in family law that ruled that psychological incapacity must be “medically or clinically identified.”

Psychological incapacity “is not a medical but a legal concept,” clarified the ruling written by Supreme Court Associate Justice Marvic Leonen.  It’s “a personal condition that prevents a spouse to comply with fundamental marital obligations only in relation to a specific partner that may exist at the time of the marriage but may have revealed through behavior subsequent to the ceremonies.” Thus, “Psychological incapacity is neither a mental incapacity nor a personality disorder that must be proven through expert opinion.”

Such a ruling decisively removes a major barrier against many couples seeking to nullify their marriage. The question of professional fees aside, the need to seek professional intervention requires first, knowing a psychologist or psychiatrist to consult, the time to undergo interviews or counselling, and willingness on the part of both to breach their privacy and discuss their relationship before a stranger.

Noted the Court: “To comply with the second Molina guideline, psychologists and psychiatrists, when serving as expert witnesses, have been forced to assign a personality disorder and pathologize the supposedly psychologically incapacitated spouse. This cruelty could not have been the intent of the Code Committee.”

No wonder, for many couples caught in untenable marriages, the legal steps one needs to follow are often ignored, with a great many resorting to mere separation of bed and board, taking up with new partners, or simply abandoning an existing relationship and even family. Certainly, this is not an environment that encourages respect for the law.

Under the new ruling, it is up to the judge to gather evidence, even from “ordinary witnesses” who have been present in the life of the spouses before the marriage, to decide if the behaviors complained of are “indicative of a true and serious incapacity to assume the essential obligations.”

Lawyer and law dean Mel Sta. Maria, who was invited to be an “amicus curiae” or friend of the court (along with Jesuit Fr. Adolfo Dacanay on canon law, and UP Dean Sylvia Estrada Claudio on psychology/psychiatry) to comment on the case in question, hailed the decision as paradigm-changing. “Family Courts are now given an astounding and liberating decision to make many people happy,” he wrote in a Facebook post. “This decision will make a family court truly a venue where a new lease on life can be given to those stuck in a non-functional, loveless marital life. I just really hope family court judges understand the beauty of this decision.”

But the Supreme Court ruling also makes clear: The new rules don’t mean that divorce will now be legal in the country. This new “paradigm” only makes it easier for a couple to go their separate ways with a minimum of pain and scandal, helped along by a fairer, more compassionate, and more enlightened family law in place.

As the Supreme Court put it: “The right to choose our intimate partner is part of our right to autonomy and liberty, an inherent part of human dignity. Ultimately, should the State interfere with these choices, it should do so only when public interest is imperiled.”

While still short of divorce, this new paradigm provides an easier way for couples to part ways when love dies.


The CFNet Editorial Board
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