MARRIAGE AND PSYCHOLOGICAL INCAPACITY:A LOOK INTO THE DICHOTOMY BETWEEN

CANON AND CIVIL LAW APPLICATIONS

A

Paper

On

LEGAL RESEARCH

CHRISTINE ROSE PADAYHAGLLB-1

COLLEGE OF LAWJHCHC

INTRODUCTION

The disparity between theoretical and pragmatic applications between Canon

(Church) and Civil or Family (State) Laws always bring about the influences affecting or

distancing one aspect from the other.

Both have separate definitions of marriage as well as the requisites that will

nullify such. However, both also distinguish and pride themselves with independent

applications from the other.

In this paper, it will look into the applications of the requisites nullifying a

marriage from both sides, i.e. Canon vis a vis Civil Codes.

Further, this paper will cite cases that use both as points of reference, contention

as well as dissent. However, this paper only seeks to define and compare the

differences, as well as similarities with respect to their approach to the nullification of

marriage. This paper aims to come up with a respectable comparison as well as

contrast between the Canon and Civil Codes respectively.

HISTORICAL BACKGROUND

It is a known fact that both Church and State play predominant roles in Philippine

society. In order to understand the Philippines as a sovereign state, complete with its

own Constitution, government as well as body of constituents is also important to

acknowledge a parallel set of hierarchic mirror coming from the Church herself.

THE CIVIL CODE

The Civil Code of the Philippines (Civil Code of the Philippines, Wikipedia) is the

product of the codification of private law in the Philippines. It is the general law that

governs family and property relations in the Philippines. It was enacted in 190, and

remains in force to date despite some significant amendments.

The Philippine Civil Code is strongly influenced by the Spanish Codigo Civil

(Ibid.), which was first enforced in1889 within the Philippines, then a colony of the

Kingdom of Spain. The Codigo Civil remained in effect even throughout the American

occupation, however, by 1940, the Commonwealth Government of President Manuel

Luis Quezon formed a Commission tasked with drafting a new Civil Code.

The Code Commission completed the final draft of the new Civil Code by

December 1947, and this was submitted to Congress, which enacted it into law through

Republic Act # 386. The Civil Code took effect in 1950 (Ibid.)

THE FAMILY CODE OF 1987

In 1987, President Corazon Cojuangco Aquino enacted into law the Family Code

of 1987, which was intended to supplant Book 4 of the Civil Code concerning persons

and family relations. Work on the Family code had begun as early as 1979, and it had

been drafted by two successive committees. The Civil Coded needed amendment via

the Family Code in order to, among others, alter certain provisions derived from foreign

sources and have proven unsuitable to Filipino Culture, as well as to attune it to

contemporary developments and trends.

The Family Code covers fields of significant public interest, especially the laws

on marriage. The definition and requisites for marriage, along with the grounds for

annulment are found in the Family Code, as is the law on conjugal property relations,

rules on establishing filiations, and the governing provisions on support, parental

authority and adoption (Ibid.)

THE CANON LAW OF THE CATHOLIC CHURCH

The Catholic Church, with its headquarters in the Vatican City State in Rome,

Italy, has the most developed system of Canon Law. The foundations of the Catholic

System are the Holy Bible (both Old and New Testaments), the teachings of the

Apostles and the Church’s “ordinary magisterium” and custom (Canonical Impediment:

Legislation and Legal System of the Catholic Church).

Roman Law greatly influenced the development of the Catholic Canon Law. The

Catholic Church’s administrative governing system is based on the old territorial

apparatus of the Roman Empire with districts such as dioceses and archdioceses (or, in

the Eastern, Greek-speaking parts of the Empire, eparchies and metropolia) (Ibid.)

Through time, although there was much canon law, it was poorly systematized.

The upheavals of the French Revolution and Napoleonic Era, combined with the

growing secularism of the 19th century impelled the Catholic Church to codify its Canon

Law in order to have a specific source for addressing many areas of Church life and

apostolate (Ibid.).

The results were the first Code of Canon Law for the Roman Rite, published in

1917. Following the Second Vatican Council (1962-1965) came a new edition of the

Code of Canon Law in 1983, this time exclusively for the Roman Rite (Ibid.)

DEFINITION OF TERMS

Under the Colonization of Spain over the Philippines that spanned over three

centuries, it has become synonymous with both government as well as ecclesiastical

applications of the Filipino way of life. The Church and the State are acutely intertwined

to each other and separation from the other seems next to impossible.

Here the line between Church and State has dimmed and when it comes to basic

terminologies, one cannot fail to notice the resemblance and influence the one has over

the other.

MARRIAGE

Under the Family Code of the Philippines, marriage is defined as “a special

contract of permanent union between a man and a woman entered into in accordance

with law for the establishment of conjugal and family life. It is the foundation of the

family and an inviolable social institution whose nature, consequence, and incidents are

governed by law and not subject to stipulation, except that marriage settlements may fix

the property relations during the marriage within the limits provided by this Code.”

On the other hand, the Code of Canon Law defined marriage in Can. # 1055 as

the “matrimonial covenant by which a man and a woman establish themselves a

partnership of the whole of life ad which is ordered by its nature to the good of the

spouses and the procreation and education of offspring, has been raised by Christ the

Lord to the dignity of a sacrament between the baptized.”

Under Spain, only the religious or canonical marriages were recognized in the

Philippines. The Civil Marriages in the Spanish Civil Code of 1889 were never extended

to the Philippines. The Americans introduced Civil Marriage in General Order (Art. 1;

Book 1; CC; p.370) repealed by the Civil Code.

DISCUSSION

In the much discussed article by Gerald W. Healy, S.J. entitled Marriage: The

1983 Code of the Canon Law, and the 1987 Family Code of the Philippines, he noted

that the Bishops of the Catholic Church were already “insistently and vehemently”

demanding for a new Code of the Canon Law.

Healy took note that both Codes have made “profound changes inasmuch as

both have opened up to the behavioral sciences in evaluating the existential reality of

contemporary marriages.”

Further, he stated that the “People of the Philippines, as Catholics, live under

both the Church and the Family Codes.” In the area where the Family Code overlaps

the Canon Law, Healy underlines the fact that the two will be compared “to see the

practical consequences of such overlapping and to draw out the pastoral applications.”

The author also underlines on those who appreciate the historical and theological

roots, and the weakness of those who “remain within a strict juridical horizon, with little

ambition to examine the canons critically.”

COMPARISON BETWEEN DICHOTOMIES

Canon 1095 is also crucial to one’s understanding concerning the psychological

capacity or incapacity to assume the obligations of marriage as it was intensively

discussed in the article.

There is an uneasy co-existence that is inevitable due to the radical nature of the

change from the 1917 Code where “the laws displayed the characteristics of an

ideology: logically they were clear and consistent but often in conflict with the concrete

demands of justice and equity.”

The Church has always espoused that marriage is a covenant (foedus) as this

was used to describe the relationship of Yahweh to his people, his covenant with Israel.

Healy notes that Orly points out that this does not exclude the contractual elements or

deny them but puts them in a sacred context (i.e. “a covenant between God and the

couple”; found in his gift of grace).

In this context, God’s own promises, through the sacramental covenant between

couples, becomes the source of the firmness of Christian marriage. On the other hand,

Civil Law has restricted marriage to a more pragmatic term. It allocates the “secular

reality of marriage in a very special category among contracts”.

To illustrate this dichotomy, the author reiterates that “the dividing line between

the two situations must be drawn in the field of operation of the human psyche, obscure

and complex beyond all telling”.

He criticizes that the prudence of making the validity of a marriage “depend on

such refined theoretical distinctions that even the experts find hard to explain”. Within

the legal parameters of Civil Law, “voidable” marriages becomes a concept unknown to

Church Law. Here, the victim could “sanate” or heal his or her own marriage eliminating

the defect.

On the other end of the spectrum, Canon Law has no allowance for couples

healing nor “sanating” their own marriages. Either it was valid or invalid (ab initio) at the

time of the wedding or it must be invalidated formally.

Healy underscores that for Catholics, a marriage cannot heal itself which greatly

facilitates the work of matrimonial tribunals when such marriages break up, making the

very nature of nullification straightforward.

In the acceptance of self-healing marriages, Healy acknowledges that another

authority in Canon Law, _____ Orsy would consider the Family Code superior to Canon

Law.

This makes the new code’s recent opening to the behavioral sciences

acknowledges the necessary requirement that the Tribunal staff include an expert in

psychiatry or psychology “since so many cases today are based on lack of due

discretion or the invalidating personality problems of Canon 1095.”

Article 36 of the Family Code of the Philippines therefore, based against the

liberalization of the New anon Law has every reason to believe that it will be understood

in the same way as the ecclesiastical Canon 1095, paragraph 3. However, at present,

there is still no distinctive connection between canonical and civil jurisprudence in the

Philippines.

Conflict arises in fact as when even though the Church declares a marriage null

and void according to Canon 1095, it still remains civilly valid according to Philippine

Law. Here, the author acknowledges that with the new Family Code of the Philippines,

the “same arguments and proofs that sufficed for a church declaration of nullity could in

certain cases also merit a declaration of nullity if the case was brought to the Civil Court,

allowing always for certain obvious differences in the Codes, e.g. prescription.”

It is a good thing to note that “the new Code favors the institution over the

individual”. The author postulates however that, in synchronicity with Orsy’s opinion that

it is “virtually impossible to have a Tribunal System and follow Canonical procedures as

the Canon Law offers little help” as far as “sanation” to the defect is concerned. He even

illustrated Southeast Asia fitting into the existential Tribunal Situation. That the “whole

value of the law was found in the need to put an end to clandestine marriages”, pointing

this weakness to the human error on representatives at a wedding. He further

acknowledges this by stating that the Church most conveniently applies common error

as basis to the defect.

“The law of marriage like any other law is subject to the law of history, it must

change as our understanding of the mystery develops.” There is indeed, as underlined

in Healy’s article, a need to bring to the table some of the more urgent among the

questions needing to be faced and treated namely, (a.) separating the contract from the

Sacrament; (b.) the limits of indissolubility; and (c.) the problem of admitting divorce and

remarried Catholics to Communion.

A case in point is the practice of the Eastern Church in “allowing second

marriages, after repentance for the faults in the failed first marriage”. The Eastern notion

of “oikonomia” is commonly applied to issues presented before its Tribunals.

“Oikonomia” “empowers it to heal and redress a situation that cannot be helped in any

other way”.

The indissolubility might be considered more a moral obligation rather than an

unbreakable bond. The 1983 Canon Code Law does not allow divorce which always

involves setting aside a valid marriage. In fact, the “only way to gain permission for a

second marriage in the Church is to obtain a Church declaration of nullity of the former

marriage”. This is the irony between the Family Code of the Philippines and the Canon

Code Law. “Although free to remarry under Philippine Law (FCP), a Filipino must seek a

canonical declaration of nullity to his/her first marriage”. As the matrimonial tribunal of

the Church is the only competent forum for such a declaration, any divorce decrees of

any Civil Court are not honored by the Church as the Church espouses the belief that

for all baptized this bond is sacramental (Cn. 1055, 1).

A possible exception to this, however, is that “in practice there could be a basis

for a Church declaration of nullity for many non-Catholic marriages in today’s world”.

That a previous marriage wherein one or both parties was/were not baptized might

possibly merit a papal dissolution to permit marriage to a Catholic, but this is quite rare

and uncommon.

JURISPRUDENCE IN THE PHILIPPINES

Republic of the Philippines vs. Court of Appeals and Roridel Olaviano Molina. G.R. No. 10873. February 13, 1997.

Article 36 has been described as the “most liberal divorce procedure in the

world”. It is clear that Article 36 was taken by the Family Code Revision Committee from

Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which

provides:

“The following are incapable of contracting marriage: those

who are unable to assume the essential obligations of marriage due

to causes of psychological nature.”

The very purpose to this is “to harmonize our civil laws with the religious faith of

our people, it stands to reason that to achieve such harmonization, great persuasive

weight should be given to decision of such appellate tribunal. Ideally- -subject to our law

on evidence—what is decreed as canonically invalid should also ne decreed civilly

void.”

The ponente further states that the “State and the Church, while remaining

independent separate and apart from each other, shall walk together in synodal

cadence towards the same goal of protecting and cherishing marriage and the family as

the inviolable base of the nation.”

This case highlights the need for clarity as Article 36, being an adopted provision

of the Canon Code Law needs further elucidation as its roots are primarily ecclesiastical

rather than juridical.

Litigators, especially non-Catholics fall into the trap of generalizations, hence

their erroneous and incorrect interpretation of the phrase “psychological incapacity”,

making “incorrect applications thereof to the facts.”

This case itemized the characteristics of psychological incapacity:

1. gravity

2. juridical antecedents and

3. incurability (Justice Vitug).

Guidelines in the interpretation and application of Article 36 were also laid down

to give a framework to the same:

1. The burden of proof to show the nullity of the marriage

belongs to the plaintiff. The Family Code emphasizes on the

permanence, inviolability, and the solidarity of marriage;

2. The root cause of the psychological incapacity must be

a. medically or clinically identified

b. alleged in the complaint

c. sufficiently proven by experts and

d. clearly explained in the decision;

3. The incapacity must be proven to be existing at “the time of

the celebration” of the marriage (manifestation need not be

perceivable);

4. Such incapacity must also be shown to be medically or

clinically permanent or incurable (absolute/relative to the other

spouse);

5. Such illness must be grave enough to bring about the

disability of the party to assume the essential obligations of

marriage;

Further, natal or supervening disabling factor in the person,

and adverse integral element in the personality structure that

effectively incapacitates the person from really accepting and

thereby complying with the obligations essential to marriage;

6. The essential marital obligations must be those embraced by

Articles 65 to 71 with regards the husband and wife; as well as

Articles 220, 221, and 222 of the same Code with regards to

parents and their children;

7. Interpretations given by the National Appellate Matrimonial

Tribunal of the Catholic Church in the Philippines, while not

controlling or decisive, should be given great respect by our Courts;

and

8. The trial court must order the prosecuting attorney or fiscal

and the Secretary General to appear as counsel for the State while

the he or she shall discharge the equivalent function of the

DEFENSOR VINCULI contemplated under Canon 1095.

Noel B. Baccay, petitioner versus Maribel C. Baccay and Republic of the Philippines.G.R. No. 173138. December 1, 2010.

This case also supplements the preceding case as it tries dissecting the terms of

the provision of Article 36 as illustrated by the elements below:

1. a celebration of marriage;

2. non-performance of marital obligations;

3. the marital obligations which are not performed are essential obligations;

4. non-performance is due to causes psychological in nature and it is chronic;

instant and habitual;

5. the cause/s are present during the celebration of marriage although they may

not be manifest or evident at that point; and

6. the cause/s surface after the celebration of marriage.

The “incapacity should make the party disabled from rendering what is due in the

marriage, within the context of justice, not merely in the sphere of good will.” In this

sense, “the consummation of the marriage…is an essential marital obligation”.

This case also pointed out that Article 36 of the Family Code was based on

Canon 1095 of the New Canon Law of the Catholic Church. Canon 1095 states that

“the following are incapable of contracting marriage:

1. Those who lack sufficient use of reason;

2. Those who suffer from a grave lack of discretionary judgment concerning

the essential matrimonial rights and obligations to be mutually given and

accepted; and

3. Those who, because of causes of a psychological nature, are unable to

assume the essential obligations of marriage.

Once more, this case underlines that the third paragraph of Canon 1095 provided

for the model for what is now Article 36 of the Family Code:

-it recognizes the existence of a valid consent

-refers to the incapacity to assume essential marital obligations

Church decisions held “that a person may appear to enjoy full use of his faculties,

but because of some psychotic defect, he/she may be incapable of assuming the

obligations of marriage, although, he/she may have a conceptual understanding of such

obligation.”

Arguments in the way the Church has limited the third paragraph of Canon 1095

“to refer only to lack of capacity to fulfill essential marital obligations (lack of due

capacity) and where Article 36 of the Family Code should also be interpreted as limited

only to this kind of incapacity.”

Majority of the guidelines listed “corresponds to and is consistent with the

concept of psychological incapacity that the members of the Family Code Revision

Committee had in mind, the interpretation of Canon 1095 from the provision was

modeled after, and the existing laws, both procedural and substantive”.

Article 36 therefore has a “limited remedy addressing only a specific situation”

(e.g. a relationship where no marriage could have been validly conducted because the

parties, or one of them, by reason of grave and incurable psychological illness existing

at the time when the marriage was celebrated, was incapacitated to fulfill the essential

marital obligations, and thus, could not have validly entered into a marriage).

Edward Kenneth Ngo Te vs. Rowena Gutierrez Yu-Te and Republic of the Philippines.G.R. No. 161793. February 13, 2009.

Another notable case, Te vs. Te & RP illustrates that marriage is the “Christian

traditional concept of marriage of the Filipino people as a permanent, inviolable,

indissoluble social institution upon which the family and society are founded”. The

ponente describes here that the two committees did not pursue “the idea of absolute

divorce”. Instead, it is the action for judicial declaration of invalidity of marriage based on

grounds available in the Canon Law that is called to underscore the remedy.

However, this still does not “solve the nagging truth of Church annulments of

marriages on grounds not recognized by the Civil Law of the State”. It is important to

note however that the New Family Code “decided to consolidate the present provisions

in the enumeration of void marriages in the present Canon Code” where any person

“psychologically or mentally incapacitated to discharge the essential marital obligations,

even if such lack or incapacity is made manifest after the celebration” may call for the

declaration of nullity & annulment of marriage—rendering an absolute divorce law

unnecessary.

On the other end, the Catholic Church has been declaring marriages null and

void on the ground of “lack of due discretion”. This acknowledges the reality that “a lot of

machismo among husbands are manifestations of their sociopathic personality anomaly

(physical violence upon wives, laziness, drug dependence/addiction and sexual

anomaly)”.

Justice Caguioa, in his comment, also used the term “psychological or mental

impotence” which Archbishop Oscar Cruz opened (1984) that this term is an invention

of some churchmen who are moralists but not canonists”…considering it a weak

phrase.

This case puts forward a committee classification on the bases for determining

void marriages namely:

1. lack of 1 or more of the essential requisites of marriage as contract;

2. reasons of public policy; and

3. special cases and special situations.

Distinctively, Canon 1095 states inter alia that the following persons are

incapable of contracting marriage:

“(3) (those) who, because of cause of psychological nature,

are unable to assume the essential obligations of marriage”

[provided the model for what is now Art. 36 of the FC.

Stressing that unlike in Civil Law, Canon Law recognizes only two types of

marriages with respect to their validity: VALID or VOID while on the other end, Civil Law

recognizes an intermediate state: VOIDABLE or ANNULLABLE marriages.

For the Ecclesiastical Tribunal the word “annuls” means the marriage is declared

null and void (i.e. it never really existed in the first place, for a valid sacramental

marriage can never be dissolved). It requires nullification by the formal annulment

process which entails a full tribunal procedure with a Court selection and a formal

hearing.

The ironic truth however is that, again, Church “annulments” are not recognized

by Civil Law as “severing ties as to capacitate the parties to enter lawfully into marriage

as Civil Law grounds not being congruent with those laid down by Canon Law.

It was precisely “to provide a satisfactory solution to such anomalous situations

that the Civil Law Revision Committee decided to engraft the Canon Law concept of

psychological incapacity into the Family Code” and classified the same as a ground for

declaring marriages void ab initio or totally inexistent from the beginning.

The inclusion of revolutionary change where psychological grounds for

annulment was given a broader approach to the kinds of proof necessary paved the

way for “Diocesan Tribunals to begin accepting proof of serious psychological problems

that “manifested themselves shortly after the ceremony as proof of an inability to give

valid consent at the time of the ceremony”.

In this line, the Courts are aware of the parallel decisions of Catholic marriage

tribunals. This includes interpretations “given by the National Appellate Matrimonial

Tribunal of the Catholic Church in the Philippines, while not controlling or decisive,

should be given great respect by our courts. It is clear that Art. 36 was taken by the FC

Revision Committee from Canon 1095 of the New Code of Canon Law, which became

effective in 1983”.

Once more, the purpose of including such provision in our Family Code was to

harmonize our Civil Laws with the religious faith of our people and “it stands to reason

that to achieve such harmonization, great persuasive weight should be given to

decisions of such appellate tribunal”.

“Ideally, subject to our law on evidence, what is declared as canonically invalid

should also be decreed civilly void.” The State and the Church—while remaining

independent, separate and apart from each other, “shall walk together in synodal

cadence towards the same goal of protecting and cherishing marriage and the family as

the inviolable base of the nation”.

It is also interesting to note that the Secretary General, as counsel of the State

also discharges the equivalent function of the defensor vinculi contemplated under

Canon 1095. For the Church, however, this new openness “did not amount to the

addition of new grounds for annulment; rather an accommodation by the Church to the

advance mode in psychology during the past decade”.

It is their expertise to provide the all-important connecting link between a

marriage breakdown and premarital causes. “It could no longer be assumed in

annulment cases that a person who could intellectually understand the concept of

marriage could necessarily give valid consent to marry.”

Rotal decisions continued applying the concept of insipient psychological

incapacity “not only to sexual anomalies but to all kinds of personality disorders that

incapacitate a spouse/s and “since 1973 have refined the meaning of psychological or

psychic capacity for marriage as presupposing the development of an adult personality”.

In this end, according to Church decisions, the fulfillment of the obligations of

marriage depends.

CONCLUSION

Marriage being one of the most esteemed institutions in civil society and most

importantly, as a covenant and sacrament under the Catholic Church remains one of

the most defended, challenged as well as assailed social contract known to man.

Within the parameters of Philippines society and taken into consideration its long

history as a colony under Spain, Japan and the U.S.A., it is then no surprise that a

dichotomy of opposing beliefs, canons, as well as judicial interpretations come to play

each time the concept is put to the test.

Although a few jurisprudence illustrate this dichotomy, this researcher’s purpose

is merely to present an initial survey of select decided cases adapting the concept of

marriage, and subsequently, the requisites of the nullification of the same.

The number of cases considered herein may not be the ideal number to

represent a realistic picture of Philippine jurisprudence, two things remain true: either

there are indeed more cases that this researcher has not yet come across or this is

indicative of the ratio of actual repositories of decided cases in the entire archipelago.

Psychological incapacity in particular, supersedes other requisites for the

nullification of marriage as is shown in the sample cases discussed herein. One

discovery this researcher has unveiled through the subject is the fact that despite the

accepted historical basis of Article 36 of the Civil Code as to that derived from Canon

1095 of the Canon Code Law, a synchrony of applications, interpretations as well as

decisions do not go in parallel with each other. In fact, opinions presented by various

ponente in the cited cases underline this very discrepancy.

This researcher acknowledges her concurring opinion to the need for unification

from both sides in order to streamline separate as well as autonomous annulment

(Canon Law) or nullification (Civil Code) of failed and dysfunctional marriages in this

country.

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