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A LEGAL DISCOURSE ON MARITAL RELATIONS[1] ATTY. BERNI M. LUCERES DIVORCE is not officially allowed in the Philippines.

Yet skeptics say that divo rce was, in fact, adopted in the Family Code of the Philippines. Divorce is a ve ry debatable point, and would be strongly protested by the Catholic Church. Henc e, the drafters of the Family Code decided to adopt from canon law a ground that would not conflict with Christian principles. This became the basis for the ena ctment of Article 36 of the Family Code. Parallel to Canon Law 1095, Article 36 states Those who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage, are incapable of contracting marriage. Art. 36 of the Family Code that pertains to psychological incapacity is a remedy to parties who are imprisoned by a marriage that exists only in paper, when in truth, they have long been separated because one of them is unable to perform th e essential marital obligations. The said provision was likewise enacted to redr ess unfair treatment between husband and wife as to their rights and responsibil ities, which is in response to the loud clamor against double standard. Psychological incapacity has no clear-cut definition. In fact, the drafters did not give any example of psychological incapacity for fear that it would limit th e applicability of the provisions under the principle of ejusdem generis (of the same kind or nature). Rather, the drafters would like the judge to interpret th e provision of Article 36 on a case-to-case basis. The interpretations should be based on experience, the findings of experts and researchers in psychological b ehavior, and by decisions of church tribunals, which may be given persuasive wei ght since the provision was taken from canon law. In an en banc Supreme Court decision, in the case of Leouel Santos vs. CA and Ju lia Rosario Bedia-Santos, and taking into consideration and deliberations of the drafters, the Supreme Court said that the phrase psychological incapacity was not meant to comprehend all such possible cases of psychosis as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances. Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our l aw on marriage. Thus correlated, psychological incapacity should refer to no les s than a mental (not physical) incapacity that causes a party to be truly incogn itive of the basic marital covenants that concomitantly must be assumed and disc harged by the parties to the marriage which, as so expressed by Article 68 of th e 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 inca pacity to the most serious cases of personality disorders, clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. According to Catholic priest Fr. Timothy Healy, the Church does not impose an ab solute prohibition for a person proven to have a psychological defect to marry a gain because he or she may get the right partner who understands his/her problem . The drafters also believe that a psychologically incapacitated person should n ot be prohibited from contracting another marriage. According to the book entitled Moral Philosophy authored by Archimedes C. Articu lo, pro-divorce people reason out the following: 1. Divorce/annulment rectifies the unfortunate situation of husband and wife t ied together in lovelessness. Divorce allows spouses to look for other partners who can give them a satisfying and happy married life. It is unfair to force a p erson to live a life of misery; 2. Divorce/annulment does not break a family that is already broken. There

are serious grounds that prevent the reconciliation of spouses, like adultery, c oncubinage, attempt on the life of another, etc.; 3. Divorce/annulment affords protection of the innocent spouse. Keeping a f amily is the ideal, but if one causes the prevention of a happy life, it would n ot be proper to maintain the marital union; 4. Divorce/annulment affords protection of the children of an ill-fated mar riage. An unhappy marriage is not good for children, and the entire family. If p arents are happier after divorce, the children will be too; 5. Divorce/annulment would encourage spouses to be loyal, truthful, and fra nk with each other. Divorce teaches spouses to value their respective families b y respecting each other. Anti-divorce advocates believe that divorce runs counter to the moral and religi ous perception of marriage as a permanent and indispensable relationship. Divorc e is immoral to them because: 1. Almost every divorce means the breakup of a family, and the children and the family property cannot be made to depend on arbitrariness; 2. Divorce takes into account only the individual will or the arbitrariness of couples, but it fails to pay attention to the will of the marriage, the mora l substance of this relationship; 3. It violates the sanctity of marriage; 4. The absence of a permanent commitment is not conclusive to the formation of a peaceful and satisfying family; and 5. If marriage is a temporary commitment, the care and training of children would not be attained. Without a lasting commitment, people will use other peop le for their own advantage. [1] Points of Law Atty. Bernardo M. Luceres The Manila Times, Barangay News March 20, 2006 (Monday)