Supreme Court Justice Flerida Ruth Romero, who was also a member of the Committee which drafted the revisions of the Civil Code, (now the Family Code) recalled in her separate opinion in the case of Republic vs. Court of Appeals and Molina, (13 February 1997, G.R. No. 108763):

“With the revisions of Book I of the Civil Code, particularly the provision on Marriage, the drafters, now open to fresh winds of change in keeping with the more permissive mores and practices of the time, took a leaf from the relatively liberal provisions of Canon Law.”
 

Taking its roots directly from Roman Catholic Canon Law, the provision on psychological incapacity necessarily carries with it the indelible influence of the canonical decisions as interpreted by the Matrimonial Tribunals of the Catholic Church.
 In the cited case of Molina, the Supreme Court through Justice Panganiban (ponente) held that:

“Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given respect by our courts. XXX
   
Since the purpose of including such provision in our Family Code 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 decisions of such appellate tribunal.  Ideally-subject to our law on evidence-what is decreed civilly void.” 

On the other hand, the Catholic Church did not recognize psychological incapacity per se as a ground for annulment until 1983 when Pope John Paul II issued the New Code of Canon Law that embodies the concept under Canon 1095 as such:

“The following are incapable of contracting marriage:    XXX
 (3)  Who are unable to assume the essential obligations of marriage due to causes of psychological nature.”

Again, according to Justice Romero in her separate opinion, the Catholic Church, in making a change, “took pains to point out that its new openness in the area did not amount to the addition of new grounds for annulment, but rather was an accommodation by the Church to the advances made in psychology during the past decades.  There was now the expertise to provide the all-important connecting link between a marriage breakdown and premarital causes. ”

While the occurrence of domestic violence or the abuse of women in intimate relationships is easily acknowledged in various levels of Philippine society, it is most always dismissed as aberrational, an unfortunate but not wholly unexpected response to various social factors including alcoholism or as a response to nagging.

Abusive men are also thought to be mentally ill, thereby portraying the phenomenon as rare.  Yet the overwhelming reality of gender-based violence has long established the role of culture  as a sanction for the commission of violence against women.

The belief that women are naturally inferior to men validates community acceptance of violence against women.  In the Philippines, this is very much reflected in many beliefs and customs or practices such as: believing baby boys bring luck and that first born baby girls will pay for their fathers indiscretion; giving more emphasis to the education of boys than girls because girls have no use for education when they get married and depend on their husbands; or simply the rampant unfair labor practice of paying women less than men who do the same work.

In addition to the valuation of men over women, traditional family structure also facilitates the subordination of women.

Indeed, domestic violence is not gender-neutral. While in heterosexual relationships women sometimes fight back and in exceptional cases men are injured or killed, severe, repeated domestic violence is overwhelmingly initiated by men and inflicted by women. Nor is this violence isolated, random, or explicable by the abnormal characteristics of the abuser or victim or by dysfunction in the family.  In developed and developing societies, studies indicate that between 20 percent to 67 percent of women have experienced violence in intimate heterosexual relationships.  The very prevalence of wife battering unmasks the prevailing concepts of normalcy and functionality. 

The Power of the Law

Feminists recognize that in large part, the power of the law comes from the power we give it.  Thus, even when feminists engage in legal advocacy, the essence of engaging law really lies in challenging the law’s long entrenched baseless assumptions and misconceptions on women and the lives of women.

In litigating cases of domestic violence under Article 36 of the Family Code, feminist legal advocates are contributing to the formation of case law on nullity and psychological incapacity.  While many advocates will say that their motives are purely practical ( in consideration of their client’s short-term needs), the fact hat court decisions or jurisprudence  also form part of the law presents a very noteworthy problem.

Thus when feminist advocates litigate cases of domestic violence, as cases illustrating the psychological incapacity of the husband, what body of cases under article 36 are we building?

Psychological incapacity has been clearly differentiated from acts of willfulness:

"The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less, ill will.” 

Following the logic of the interpretation, a husband who batters and abuses his wife (whether physically or emotionally) is psychologically incapacitated to perform his marital obligations.  As such he suffers from a psychological illness.
 

As discussed earlier, various social factors have been used as excuses to sanction the abuse of women in intimate relationships.  It is commonly argued that men who abuse their women partners do not act purposively, but impulsively.  Thus, when men batter women, hey never mean to do it but simply “lose control.”

The contention that battering is simply an impulsive letting-off steam is an aspect of the depoliticization of domestic violence against women.  This view treats battering as an individual problem of personal family dynamics and obscures the underlying and purposive gender dynamic of domination and subordination. 

Blaming alcohol abuse and even drug use as the cause of violence has the same effect.  While substance abuse facilitates male violence, it is hardly the cause of violence.

Yet isn’t this treatment of domestic violence as an abnormal (rare) and unintentional occurrence (a result of loss of control), taken even a step further when we argue wife battery and abuse as psychological incapacity since in this case it is not just a case of impulse but illness?

In the legal context, if “the heat of passion or rage,” mitigates the penalty of some crimes of violence, what does lack of capacity (in this case psychological incapacity) do?

Article 36: Insanity or Incapacity: Who decides?

At the core of the controversy is the question of how the courts define psychological incapacity.  Is it insanity? Does it exempt the incapacitated from liability?

 Other related issues also crop up in the context of this discussion.  Do courts have the expertise to rule on this area of knowledge? What is the relationship between the courts and the field of psychology? Do court decisions and interpretations reflect the advancements in the field of psychology?  Does the field of psychology even agree in a single interpretation?

The deliberations of the Code Commission that adopted Article 36 from Canon 1095 (1983) reveal that many issues regarding the actual nature of psychological incapacity were not completely settled.

One of the main distinctions between Canon Law and our Civil Law is that in Canon Law, a marriage can only be either void from the beginning (invalid) or valid. On the other hand, our Civil Law recognizes an intermediate state, he voidable marriages, which can be annulled. 

Because of this difference, the Code Commission deliberated extensively on the nature of psychological incapacity and its difference or similarity with insanity.

Under the Family Code, insanity is a ground for annulment because it vitiates consent. However, the marriage, while “voidable,” can also be ratified and subsequently become valid upon the condition that if the party of  unsound mind comes to reason he or she freely cohabits with the other as husband or wife.

On this point, it was Judge Alicia Sempio-Dy who raised the issue as such:

“Judge Dy:  Since insanity is also a psychological r mental incapacity, why is insanity only aground for annulment and not for declaration of nullity?

Justice Caguioa:  “In insanity there is the appearance of consent which is the reason why it is a ground for voidable marriages, while subparagraph (7) does not refer to consent but to the very essence of marital obligations.” 

Likewise, Dean Fortunato Gupit stated that:

“The confusion lies in the fact that in inserting the Canon Law annulment in the Family Code, the Committee used a language which describes a ground for voidable marriages.”

As earlier pointed out, unlike Canon Law which does not make a distinction between the effect of insanity and psychological incapacity at the time of celebration of the marriage (both invalidate a marriage from the very beginning), our Civil Law makes this distinction.

Recognizing insanity as curable, it follows that one who regains sanity (while consent may have been vitiated at the beginning), can ratify his or her otherwise void marriage.

As a result, the Code Commission attempted to make a distinction between psychological incapacity and insanity.

The first distinction was its relationship with consent.

“Justice Caguioa: There are two interpretations of the phrase psychologically or mentally incapacitated – in the first one, there is vitiation of consent because one does not know all the consequences of marriage, and if he had known these completely, he might have consented to marriage.

XXX

In case of incapacity by reason of defects in the mental faculties, which is less than insanity, there is a defect in consent and, therefore, it is clear that it should be a ground for voidable marriages because there is the appearance of consent and it is capable of convalidation for the simple reason that there are lucid intervals and there are cases when the insanity is curable.  Psychological incapacity does not refer to mental faculties and has nothing to do with consent; it refers to obligations attendant to marriage.”

By creating a concept of psychological incapacity as having nothing to do with mental faculties and consent, the Code Commission was moving away from the Canon Laws concept of psychological incapacity.

Yet this point was not completely settled by the Commission.  At one point, Justice Romero still opined that: “psychological incapacity is still insanity of a lesser degree.” Justice Luciano at this point suggested that a psychiatrist (who is the expert on the matter) be invited to the deliberations.

To this suggestion however, justice Caguioa replied that “psychological incapacity” is not a defect in the mind but in the understanding of the consequences of marriage, and therefore, a psychiatrist will not be a help.”

 In the 1995 case of Lequel santos vc. CA  the Supreme Court through Justice Vitug remarked that: “It could well be that, in sum the Family Code Revision Committee in ultimately deciding to adopt the provision with less specifity than expected, has in fact, so designed the law as to allow some resiliency in its application.”

Thus, in her handbook on the Family Code, Judge Alicia Sempio-Dy stated that:

“The Committee did not give any examples of psychological incapacity for fear that the giving of examples would limit the applicability of the provision under the principle of ejusdem generis. Rather, the Committee would like the judge to interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law.” 

Conclusion

 At the moment, the controlling interpretation of Article 36 is the case of Republic v Court of Appeals and Molina , wherein the Supreme Court laid down guidelines for the application of the provision.  In a sense, by laying down guidelines, the Supreme Court somewhat veered away from the original legislative intent to provide trial court judges with some resiliency in applying the provision.

The overwhelming reaction of most practitioners who handle cases on nullity has been that of dismay. Admittedly, the Supreme Court decision makes it even more difficult to secure judgements of nullity now than before.

The requirement of medical proof or the presentation of expert witnesses to testify on the spouse’s mental or physical illness rendering him psychologically incapacitated, was particularly identified as a problem in further limiting access to the provision because of the expenses.  In the first place, al legal remedies per se pose a financial burden to indigent litigants.

Yet even with such practical limitations posed by the new ruling, for feminist advocates, the issues go even deeper into the premises laid down by our engagement of the law in cases of domestic violence.

Like all other practitioners who are bound by the Molina ruling, feminist advocates seek the assistance of expert medical witnesses to prove the psychological incapacity of the errant spouse, in this case, the abusive husband.

This conceptualization of gender-based violence, particularly domestic violence as a factor of psychological incapacity, not only tends to dilute the issue of domestic violence.  It runs totally contrary to feminist analysis of gender-based violence.

One such alternative law is the draft billon the Abuse of women in Intimate Relationships (House Bill 6750). 

The draft law seeks to reflect the actual experiences of partner abuse as experienced by women, and creates remedies that aptly address their needs.

The reality of gender-based partner abuse beyond the confines of “legal marriages” or traditional relationships is one reality that is laid down by a bill’s coverage.

The draft bill the outlines remedies that range from immediate crisis intervention (protection orders and temporary restraining orders) to actual penalties for the infliction of physical, emotional and psychological abuse.

Indeed, while we may serve the immediate needs of some clients through nullity proceedings, the need for a law that squarely addresses the phenomenon of domestic violence cannot be overlooked.

Nullity proceedings are not only financially prohibitive for many women, for feminist advocates, relying on the same law to explain domestic violence also very clearly sends out the wrong signals.

Is the alternative divorce (or species thereof?) Who is to say it is not? Our lawmakers certainly accommodated the so-called Catholic majority by integrating and harmonizing Canon Law with our Civil Law, perhaps they should extend the same courtesy to the rest of the non-Catholic population who are after all, covered by the same Civil Laws.