Marriage cannot be entered into on a whim or caprice

Dear PAO,
I am single and I want to know if I can get married with a married guy. He has been separated for like 10 years now. His ex-wife has 2 kids already with another man. Is it possible that we can be married even if my partner is already married before? Thanks.
Ladyleo

Dear Ladyleo,
While it is true that marriage is one of the “basic civil rights of man” and the freedom to marry has been long recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men, it is still regulated by law particularly in civilized nations because of the very nature of marriage and that is being the basic social institution upon which a society may be built (Persons and Family Relations Law, Fourth Edition, 2004. p. 97, Melencio S. Sta. Maria, Jr.).

Being regulated by law, the parties to the marriage are bound to respect and uphold the sanctity of marriage. They cannot enter into a subsequent marriage at their whim and caprice because they can be prosecuted for bigamy and their second marriage, considered as void.

In the same way, they cannot arrogate upon themselves the authority to decide and declare that their marriage is null and void only to contract another marriage.

Apparently, your married boyfriend cannot enter into marriage with you however long he may have been separated from his wife considering that in the eyes of the law, he is still married to his wife.

The most possible way for your married boyfriend to be able to marry you is to ask for the dissolution of his previous marriage first by filing a Petition for Declaration of Nullity of Marriage on the ground of psychological incapacity in accordance with Article 36 of the Family Code, as amended, which provides, to wit:

“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.”

Psychological incapacity is the inability of one or both spouses to comply with the essential marital obligations of marriage. In a plethora of cases, it was held that psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of ‘psychological incapacity’ to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated (Lorna Guillen Pesca vs. Zosimo A. Pesca, G.R. No. 136921, April 17, 2001 citing Santos vs. Court of Appeals, 240 SCRA 20).

Furthermore, psychological incapacity is psychosomatic and deals with a state of mind and thus, can only be proven by indicators or external manifestations of the person claimed to be psychologically incapacitated. These indicators must be clearly alleged in the complaint filed in court (Persons and Family Relations Law, Fourth Edition, Melencio S. Sta. Maria, Jr., p. 204). Thus, what needs to be alleged and proven by your boyfriend in the petition he is to file is that he or his wife or both of them are incapable of discharging the duties arising from the marriage as provided for by the Family Code that is why they have been separated for 10 years now.

Once the petition is granted by the court, your boyfriend can marry you. This is in accordance with Article 40 of the Family Code which provides, to wit:

“Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.”

We hope that we were able to enlighten you on the matter. Please take note however, that all information contained herein are based on our appreciation of your questions. A different legal opinion may be given if other facts not included in your queries will be discussed.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net