Deficiencies of the Family Code of the Philippines (part 1):

Psychological incapacity vs. lack of due discretion as ground for marriage nullity

Time and again, I have been confronted with cases of marriages, which have been declared null in a Philippine civil court on the ground of psychological incapacity of either or both of the spouses. In fact, this seems to be the most common ground for such declarations of nullity, to the point of being abused. While such abuses have been exposed by the Supreme Court, the fact is they continue to proliferate. What could be the reason for this?

Deficient juridic structure of marriage in Philippine civil law

In a number of articles in this column over the years, we have considered the juridic structure of marriage—in the Law of the Church—as standing on three pillars: (1) the capacity to marry of the spouses, (2) matrimonial consent and (3) the canonical form. In this scheme, the different factors that can vitiate the coming about of marriage (marriage in fieri) can be neatly considered and—even more important in the juridic world—subjected to judicial verification.

For example, under this scheme, it would be a relatively simple matter of documentary proof to show a defect of capacity due to the presence of any of the so-called diriment impediments (no less than 12 of them to be sure). In the same line, the lack of the needed canonical form (the external formal requirements for the celebration of marriage) is also easily proven.

In contrast, the provisions of the Philippine Family Code for void and voidable marriages (Title I, Chapter 3 of the Family Code) do not show such a clear juridic structure—despite the quite obvious provenance of its norms from the corresponding canons of the Code of Canon Law. Thus, absent the juridic framework, the civil law provisions for the declaration of marriage nullity give the impression of being legalistic: the process is reduced to a case of lawyering to get a marriage annulled. In a recent briefer process I was involved in, for example, one of the spouses blurted out during deposition that the allegations of the other spouse, in the civil process for the declaration of nullity of their marriage, that he was psychologically incapacitated due to homosexuality was pure invention; in fact their marriage had broken down in part due to his philandering with women. When confronted with that observation by his estranged wife, the man admitted that he just hired a civil lawyer who made up a case and he just signed off on it.

However, the real advantage of the canonical laws on marriage becomes evident when it comes to the matter of consent—i.e., the lack of a valid consent as a ground for the declaration of marriage nullity. In effect, given the great understanding and appreciation of the human person—as a spiritual being with intellect and will—that canonical doctrine has, the provisions of Canon Law as regards the genesis of a valid matrimonial consent is far superior to what the civil legislation and jurisprudence has on this matter.

Psychological incapacity vs.  incapacity to assume the essential obligations of matrimony due to causes of a psychic nature

The problem with the notion of psychological incapacity as ground for marriage nullity, enshrined in Art.36 of the Family Code of the Philippines, becomes apparent even with a cursory reading of the legal text:

“Art.36. 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.” (Philippine Family Code, as amended by E.O. No.227.)

In contrast, the corresponding provision in the Code of Canon Law, which inspired the framers of the Philippine Family Code in this regard, clearly states:

“Can.1095, 3º: They are incapable of contracting marriage, (those) who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature.”

In effect, what is at bar should not be the mere existence of a psychological anomaly but rather its connection to an incapacity to comply with the essential marital obligations. Such essential marital obligations, to the credit of the Family Code, have been typified in the same Family Code as follows:

“Art.68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.”

The problem, in practice, is that in most cases of marriage nullities granted in Philippine civil courts, such incapacity to assume the essential obligations of marriage is not really proven beyond reasonable doubt, but rather presumed when a psychological anomaly is proven. In other words, the cause has transitioned from the incapacity to assume the essential marital obligations to a psychological anomaly, which has conveniently been labeled psychological incapacity. This is not the venue for demonstrating this observation, but it could be a good topic for a licentiate thesis in Canon Law (if not simply for a serious case of investigative journalism) to review some recent declarations of marriage nullity in civil court to demonstrate this point.

Grave lack of discretion of judgment concerning essential matrimonial rights and duties

The reason, to my mind, why Philippine civil courts tend to abuse the notion of psychological incapacity is the absence in the Philippine Family Code of another ground for nullity, which its framers failed to import from Canon Law. This is the notion of grave lack of due discretion (loosely referred to as LDD), enshrined in c.1095, 2º of the Code of Canon Law:

“Can.1095, 2º. They are incapable of contracting marriage (those) who suffer from grave lack of discretion of judgment concerning the essential matrimonial rights and duties, which are to be mutually given and accepted.”

In effect, the genesis of matrimonial consent has been the object of canonical doctrine and jurisprudence for many centuries, and especially in the last decades (since the promulgation of the Code of 1983) has yielded veritable gems of Rotal Jurisprudence. As we have had a chance to consider on several occasions in this column, matrimonial consent—the most important of the three pillars on which the juridic structure of marriage stands—is a human act which demands the intervention of both the intellect and the will. Aside from the obvious grounds of violence (whether internal or external) that vitiates the act of the will, and of ignorance or error (especially due to fraud) that vitiates the act of the intellect, Canon Law gives a lot of importance to the discretion of judgment as a necessary element for the validity of matrimonial consent. Now is not the time to delve deeper into the notion, but in broad strokes we can understand discretion of judgment as that quality of the intellect that allows a person to know what marriage means and what a specific marriage to the specific person in question here and now means, together with its consequences.

Definitely such discretion of judgment can be conceptually taken as an act of the intellect (since judgment is an act of the intellect), but it cannot be dissociated from the influence of the will and the passions, since in the last analysis the one who consents is the person—making use of his intellect and will.

Psychological incapacity vs. grave lack of discretion

The problem with using the so-called psychological incapacity, or more accurately in canonical terms incapacity to assume due to causes of a psychic nature as a ground for nullity is its radical nature: in effect, what is being alleged is an intrinsic incapacity on the part of the party. Such incapacity is at least semi-permanent, which therefore affects the person also as regards any future marriage. Thus, a sentence of nullity due to this ground in an Ecclesiastical Tribunal normally carries with it a provision (caveat) to the effect that the party who is suffering such incapacity is barred from contracting any future canonical marriage, unless he proves to the satisfaction of the competent authority that he/she has overcome whatever psychic reason there was that was causing such incapacity. Indeed, it seems anomalous that while civil courts are so liberal in declaring marriage nullities based on this ground, most of the people involved proceed to another marriage—indeed that was the motive for getting the declaration in the first place—after the previous one has been declared null.

In contrast, grave lack of discretion of judgment is specific to the genesis of a particular consent, even if it may have been caused by psychological factors. In effect, when using c.1095, 2º as ground for nullity, what is proven is the momentary (or at least temporary) condition of grave lack of discretion of judgment in making the consent to marry, and not an incapacity to assume the essential marital rights and obligations. This presents a wider margin of possibilities, other than the strictly psychic reasons that would render a person incapable of assuming the essential rights and obligations of marriage. Unfortunately, as stated earlier, this ground is not present in the Philippine Family Code.