MANILA, Philippines—A Western-style absolute divorce between spouses who are both Filipinos—even if obtained abroad—is not valid here. Although divorce is taboo, our courts can nonetheless void a marriage due to a fatal defect at its inception. The most common defect used to void a marriage is “psychological incapacity” under Article 36 of the Family Code. This law took effect on Aug. 3, 1988, but its interpretation and application are still evolving.
First decision. Let me quote the law: “A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”
The earliest Supreme Court decision on the subject (Santos vs Court of Appeals, Jan. 4, 1995) ruled that “psychological incapacity should refer to no less than a mental (not physical) incapacity … to confine (its) meaning to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.” It “must be characterized by gravity, juridical antecedence and incurability.”
Still, judges and lawyers found this ruling difficult to apply in specific cases. In frustration, the Office of the Solicitor General (OSG) branded—an exaggeration, no doubt—Article 36 as the “most liberal divorce procedure in the world.” Thus, it asked the Court to issue clear guidelines to standardize its application.
Strict guidelines. Since Article 36 was sourced from Canon Law, the Court invited Archbishop Oscar V. Cruz, head of the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, as amicus curiae, to explain its meaning and application. Based on his presentation, the Court in Republic vs Molina (Feb. 13, 1997) issued these eight guidelines:
1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of its validity and against its dissolution.
2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. The evidence must convince the court that the parties, or one of them, were mentally or psychically ill to such an extent that the person could not have known the obligations he or she was assuming, or knowing them, could not have validly assumed them.
3) The incapacity must be proven to be extant “at the time of the celebration” of the marriage. The evidence must show that the illness existed when the parties exchanged their “I do’s.”
4) The incapacity must also be shown to be incurable, that it is medically or clinically permanent. The incurability may be absolute or may relate only to the other spouse.
5) The illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, “mild characteriological peculiarities, mood changes, occasional emotional outbursts” cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will.
6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. The non-complied marital obligations must also be stated in the petition, proven by evidence and included in the text of the decision.
7) Interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church, while not controlling, should be given great respect by our courts.
8) The trial court must order the prosecuting attorney and the solicitor general to appear as counsel for the state. No decision shall be handed down unless the solicitor general issues a certification, which shall be quoted in the decision, briefly stating therein the reasons for his/her agreement or opposition to the petition.
Back to liberality. Because of criticisms that the guidelines were “too strict,” the Court abandoned item no. 8 in 2003. Dissenting, I argued that the active intervention of the OSG was necessary in the same way that the “defensor vinculi” (defender of the bond) was tasked by the Church to oppose nullity cases to ensure that the process does not degenerate to a divorce fiat.
Since then, the high court has tended to relax the guidelines. The latest decisions on the subject (see Te vs Te, Feb. 13, 2009 and Azcueta vs Republic, May 26, 2009) held that the guidelines should not be used as a “straightjacket.” While “not suggesting the abandonment of Molina,” Te nonetheless held that “courts should interpret (Article 36) on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.”
Because of this “case-to-case” ruling and the relaxation of the guidelines, it is now difficult to predict how individual cases would be decided. There are no more firm standards to which decisions could be anchored. Sometimes, when parties collude successfully, the defective judgments are not appealed because the OSG is no longer mandated to defend the marital bond. Critics say that we are back to the “most liberal divorce procedure in the world.” Or simply, to the Pinoy edition of absolute divorce.
* * *
The Personal Website of Retired Chief Justice Panganiban 