Can love be contracted?

If you are compelled by your own uncontrollable desires to do something which you know is not right, you may be mentally prevented from deliberation. As such, your judgment is not free.

Call it an illness, grave personality disorder, partial insanity, or lack of willingness beyond one’s control. Our Family Code calls it psychological incapacity. The magical route to allowing spouses to remarry after annulment.

For a country which reportedly is one of the only two remaining countries (the other being the Vatican) that does not have a divorce law, so many have filed for annulment. Many were denied in court, but so much more are those who live their dreams hard and are trapped in a sad, helpless predicament of a loveless marriage and unable to start fresh or dream again.

The law on the matter is, if one spouse is psychologically incapacitated to comply with essential marital obligations, the marriage can be annulled; and both parties, even the spouse who is incapacitated, can marry again. It must be proven that the defect existed before the marriage and continued during the marriage. The most critical evidence used is the testimony of the psychologist or psychiatrist who should form a medical evaluation on the mental state of the erring spouse.

The law was drafted to allow “resilience,” if not flexibility. Justices have performed a big role in crafting what this Philippine equivalent of “divorce” really means.

For instance, jurisprudence clarified that not all human faults or frailties show incapacity. A man who pleaded with his wife to be released from the marriage because of her incessant nagging and continuous distrust was denied annulment because the wife was otherwise able to take care of him and the family. The wife was responsible enough to perform essential marital obligations.

But even the showing of highly irresponsible behavior is not a sure win, as in the case of this woman who was left in the Philippines by her Japanese husband. The husband, after going back to Japan, gave support for two months but thereafter stopped doing so and simply abandoned his wife. The court said that while the abandonment is indeed irresponsible, it was not shown that it resulted from psychological illness and so the annulment is denied.

Is infidelity a ground for annulment? It is possible, but it must be shown that this or these are not merely isolated incidents, but a continuing pattern (womanizing all the time, for instance). There’s more—it must be shown that this pattern arises from a mental illness that is the cause of his failure to perform essential marital obligations.

Note that if the husband is simply guilty of sexual infidelity, it is just a ground for legal separation. If you are legally separated, you still cannot marry. To escalate such as a ground for annulment, it must be shown that such infidelity is one of the manifestations of the husband’s psychological incapacity.

Probably the greatest irony of our law on this type of annulment is reflected on the requirement that the “illness” must be incurable. The irony is that it must be shown as incurable, at least in the current marriage. If the defect is impotence of the husband, such can be shown to be incurable in so far as his marriage to the wife is concerned. It does not matter if the husband is prolific (i.e., able to sire offspring) with other women. He can still be considered as permanently incapacitated as a husband in his marriage.

You may notice celebrities whose marriages get annulled because at least one of them is ill with incapacity to perform marital obligations, but they remarry anyway and are apparently able to do just fine in the next marriage. The court said that it is none of their business if the persons whose marriage is annulled, get to remarry. The previous annulment only serves as a warning to the next spouse. This is wise as a legal position. It only bothers a simple mind to believe whether there was any sickness in the first place or couples simply are able to get away with annulment even if their real reason is simply falling out of love.

This segues into the harsh reality for many. This annulment law has sought to reconcile with Canon Law, that is why the requisites are supposed to be stiff. But they became accessible only to those who can afford. An annulment case for psychological incapacity nowadays, all-in, can easily cost from a quarter of, to as much as half, a million pesos. Those without means still attempt to do so, but without much success. The psychiatric evaluation needs to be an arrow shot before hitting the bull’s eye because otherwise, that evaluation will not be helpful and will not be used. On grounds where others have succeeded, others can fail and be miserable. In a way, although never intended, this avenue for “divorce” because of prohibitive costs has become anti-poor.

It is not too off to say that our law is pretentious, or even constitutionally infirmed because obviously, it is tailored to a certain set of religion. Psychological incapacity has been used to annul marriages using as evidence the fact that the husband has a family by another woman. For one non-Christian religion, more than one marriage or spouse is an allowable norm. And it is not considered an illness.

Can the Philippine sentiment against divorce be overcome by empathy for those who live lonely and difficult lives, shackled daily by the bondage of a wrong marriage arising out of human imperfection?

Marriage is a solemn and constitutionally protected contract. But it does not guarantee mutual love and respect. To the spouse who gives but does not receive the same affection, an accessible reprieve is deserved. But so long as our laws remain uncooperative, dreams require adjustments. Many have succeeded, and many more will succeed, in their own ways, in their own signature, without aid of law or contract.

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Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the tax committee of the Management Association of the Philippines (MAP). Email your comments and questions to [email protected]. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.