Shaking the nation’s foundation

Exploiting the poor and using them as an excuse to justify the adoption of some measures smacks of demagoguery. Yet this practice has been going on and seems to be accepted in every democratic society like ours because it appears harmless and tolerable. Sometimes, however, the proposed measures to be adopted or the steps to be taken are not really harmless. They may in fact subvert inviolable social institutions that serve as the very foundation of the nation.

The classic example here is the proposed bill (HB 3952) of a Congressman representing a party-list group that repeatedly wins seats in Congress by just styling itself as “pro-poor”, although the lifestyle of its member once in Congress does not reflect any empathy with the poor. Entitled “An Act Recognizing Spousal Violence, Infidelity and Abandonment as Presumptive Psychological Incapacity Constituting a Ground for Annulment of Marriage”, HB 3952 allegedly intends to “make Article 36 of the Family Code which allows the annulment of marriage on the ground of psychological incapacity accessible to the poor”.

From the title alone and its supposed intention, the flaws in the bill are already glaring. It talks of annulment of marriage. Thus it contemplates an existing marriage that may be annulled. But since our Constitution considers marriage as an “inviolable social institution” which is the “foundation of the (Filipino) family” (Section 2, Article XV) and the Filipino family in turn is recognized as the “foundation of the nation” (Section 1, Article XV), only marriages with some irregularities or defects existing at the time of tying the knot are actually annullable.

Pursuant to these constitutional precepts, our Family Code therefore provides that only the following irregularities or defects may render a marriage annullable: lack of consent of parents of a party below 21 years old; insanity of any party or when any party is of unsound mind; fraud, force, intimidation or undue influence in obtaining the consent of any party; continuous or incurable physical incapacity of any party to copulate or consummate the marriage; or affliction of any party with a serious and incurable sexually transmissible disease (Article 45).

There is fraud in obtaining consent when there is concealment of pregnancy by another man; non-disclosure of conviction of a crime involving moral turpitude or of a sexually transmissible disease of whatever nature, or of drug addiction, alcoholism, homosexuality or lesbianism at the time of marriage (Article 46).

The proposed bill however would like to add spousal violence, abandonment or infidelity as grounds for annulment. But readily noticeable is that any of these additional grounds do not at all involve any irregularity at the time of marriage that affects its validity. They are events and causes occurring after and during the marriage already. Under the Family Code, they are only grounds for legal separation precisely because they are not enough reason to dissolve or annul a legally existing marriage; legal separation contemplates a situation where the spouses live separately from bed and board (a mensa et toro) but their marriage remains valid in keeping with the constitutional precept of inviolability of marriage.

Another glaring flaw in the bill is that it bastardizes the concept of “psychological incapacity” envisioned in Article 36 of the Family Code. As the framers of the Code itself admit, this concept is lifted from Canon 1095.3 of the 1983 Code of Canon Law of the Church. While there is no exact definition of the phrase, it is at least clear that it “refers to no less than a mental (not physical) incapacity that causes a party to be truly in-cognitive of the basic marital covenants” that they must concomitantly assume and discharge. Mere difficulty, refusal or neglect to perform the marital obligations is not enough; they must be incapable of doing so (Santos vs. CA, G.R. 1120919, January 4, 1995).

Moreover, Fr. Hermogenes Bacareza, SVD, in his book “Psychological Incapacity, A Gift from Heaven?” also citing Santos supra wrote that psychological incapacity as a ground for nullity must have the following characteristics: gravity, which means that the subject cannot carry out the normal and ordinary duties of marriage and family, antecedence, when at least the roots of the trouble can be traced to the history of the subject before marriage, although manifested after the wedding, and incurability, when the required treatment exceed the ordinary means of the subject.

Definitely therefore the additional grounds proposed by HB 3952 do not fall within the real concept of psychological incapacity. Indeed “psychological incapacity” under Article 36, does not contemplate the annulment or dissolution of a marriage. Said article actually refers to cases where marriage has never existed from the very beginning so that there is no marital bond to speak of which is dissolved; there is no annulment but only a formal declaration of nullity of a void marriage.

Thus HB 3952 actually uses and distorts the real essence of “psychological incapacity” to indirectly legalize absolute divorce or the dissolution of a valid and existing marital bond on the ground of violence, abandonment and infidelity. This is the same pattern used by the sponsors of the RH bill in adopting the phrase “responsible parenthood” to enable the government to purchase contraceptives and artificial devices that may cause abortion purportedly for the same purpose of helping the poor.

If this bill is passed, any married spouse can get out of a marital relationship and its concomitant obligations by simply inflicting physical harm on the other, or leave the conjugal abode and stay in with another man or woman, or forsake the family without giving them any support and go to a place where his/her whereabouts will be unknown. This is so because under the said bill, he/she will then be presumed psychologically incapacitated to perform the marital obligations, which is enough reason to annul his/her marriage. Evidently, this bill will weaken and impair the stability of marriage and shake the very foundation of the nation which is the family. It should be struck down ASAP for being unconstitutional. –Jose C. Sison (The Philippine Star)

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E-mail at: jcson@pldtdsl.net