Psychological incapacity’s big move

TOWARDS JUSTICE - Emmeline Aglipay-Villar - The Philippine Star

In May of this year, the Supreme Court en banc issued a landmark ruling which modified the Court’s earlier definition of psychological incapacity. Why this is so important may require some context.

It is no secret that the Philippines is one of only two countries in the world where divorce is not legal – and a significant amount of the population of the other (the Vatican) have taken vows of chastity. But today’s column is not about divorce, something which is currently only available to Filipinos under the Code of Muslim Personal Laws or in the cases of a divorce against a foreign spouse obtained abroad. Instead, the recent decision of the Court concerns marriages that are deemed never to have been real in the first place.

The Family Code has long acknowledged the power of the courts to declare as null marriages that were void or voidable from the start. Unlike a divorce, in which it is recognized that a marriage took place, a declaration of nullity means these “marriages” never took place at all. For the most part, the grounds for nullity have nothing to do with the inner qualities of the persons involved.

The primary exception to this (other than deficiencies of consent) is the ground of psychological incapacity. If you were married to a person who was incapable of carrying out the essential obligations of marriage – say, a pathological liar unable to distinguish truth from fiction – the only ground you could use to expect relief from the courts would be psychological incapacity.

This is the reason that psychological incapacity has become something of a catch-all – it is the one ground that actually encompasses the most common reasons why a person may seek to erase their marital bond. Soap operas aside, discovering you’ve married your long lost sibling is quite rare… realizing that you are married to a person who is incapable of being a true partner is, unfortunately, fairly common.

Yet the manner that the courts have interpreted “psychological incapacity” has long been narrow, technical and often at odds with living experience. The Supreme Court previously said that for psychological incapacity to justify the nullification of a marriage, it must be characterized by:

“(a) gravity, i.e., it must be grave and serious such that the party would be incapable of carrying out the ordinary duties required in a marriage; (b) juridical antecedence, i.e., it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and (c) incurability, i.e., it must be incurable, or otherwise the cure would be beyond the means of the party involved.”

This strict technical definition has led to much confusion. Courts have at times required expert testimony medically or clinically to identify the root cause of the alleged psychological incapacity, while other times they have not. For the inability to satisfy the stringent requirements, behavior that is completely at odds with the very concept of marriage and family life – such as refusing to cohabit with one’s spouse, repeated infidelities, abandonment or habitual drunkenness and refusal to find a job – have, in separate cases, been found by the Court as not rendering a person incapable of complying with essential marital obligations. This kind of severity has been justified as a means to preserve the family unit as mandated by the Constitution – but it’s hard to see how forcing one to remain legally bound to another who abandoned or abused them truly safeguards a family.

The result has been to make the acquisition of nullity decrees another expression of inequality, with many who deserve to have their unions nullified unable to afford the legal and/or clinical expertise required. And even for those that can afford to go to court, proving the existence of psychological incapacity is an adversarial process and can be intensely traumatic. Desperation can lead to exaggeration of the flaws of one or both partners, particularly for those who decide to double their chances for a declaration of nullity by claiming that they themselves were also psychologically incapacitated.

Even the Supreme Court has previously  acknowledged that their own guidelines “have turned out to be rigid, such that their application to every instance practically condemned the petitions for declaration of nullity to the fate of certain rejection.” But with the recent decision in Tan-Andal v. Andal (G.R. No. 196359), the Supreme Court appears to have taken a big step towards flexibility and practicality. While I have yet to read the full text of the decision, which has yet to be publicly released, the Court – clearly aware of the importance of the decision – released a press briefer which outlined the modified interpretation of psychological incapacity:

“The Court pronounced that psychological incapacity is not a medical but a legal concept. It refers to 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. It need not be a mental or personality disorder. It need not be a permanent and incurable condition.”

The divergences are clear and striking. Removing psychological incapacity from the medical to the legal realm eliminates an unnecessary and costly step, and gives the courts greater flexibility to weigh the actual behavior of the parties. It prevents those seeking nullity from being held hostage by the mere possibility, no matter how remote, that the other party could change their ways. It acknowledges that even if the behavior complained of is absent in the partner’s relationships with others, what matters is how they treat their spouse.

The actual effects this decision may have in the lives of Filipinos will depend to a large degree on the entire text of the decision and how it is used by the lower courts. But even at this early stage it is accurate to say that it is a decision to be celebrated, one which moves our nation’s jurisprudence in a direction more in line with the purpose of the law and the true protection of the Filipino family.


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