Thursday, April 2, 2015

Relaxed

(published 15 March 2015, MST)

I have more than once encountered this kind of reaction. When people find out that I was once married but am no more, because I have had my marriage judicially declared null and void, they say: “Wow, mayaman (rich)!”
I have always been aghast, and disappointed. What ever happened to being a strong, principled woman? Being the face of empowerment? Rejecting a toxic home environment? It is true, though: Having a marriage declared null and void is a privilege for those who can afford it.
Not that I am rolling in dough – oh no, far from it. I was only able to go through the process because many people helped me. My lawyer and my psychologist both provided their services at generous discounts, and I did not shell out any amount to the courts aside from the regular filing fees. Certainly, there were no extra payments to, uhm, “facilitate” the resolution of my case. I filed the case in the city where I was married and where I still live. I paid through the nose for these fees, often on installment.
I had to wait for two years and nine months before the decision was handed down.
I have known however of some who had to pay hundreds of thousands to get a decision in their favor, often swiftly. Perhaps they were in a hurry. Perhaps they could not bear to be legally bound to the same person a minute longer. Perhaps their case ran the risk of falling into the lap of an unsympathetic, closed-minded judge. Everybody has his or her reasons for trying to go around the rules. 
These thoughts are occasioned by this week’s reports that the Supreme Court has “relaxed” the on the nullity of marriages.
There are several reasons for the declaration of nullity, but what is most commonly used is provided for in Article 36 of the Revised Family Code – psychological incapacity. Some psychological conditions and disorders are enough to render a person incapable – not unwilling, but incapable – of performing the basic obligations attendant to married life.
Articles 68-71 of the same Family Code lists these basic obligations. Among them are to live together, to observe mutual love, respect and fidelity, and render mutual help or support. The spouses shall fix the family domicile. They are jointly responsible for the support of the family, and the management of the household shall be the right and duty of both husband and wife.
In 1997, the Supreme Court (through its decision on the case Republic vs. Court of Appeals and Roridel Olaviano Molina) laid out what is now referred to as the Molina Doctrine. According to the court, there are eight guidelines that must be present for a declaration of nullity: that the burden of proof is on the plaintiff, that the root cause of the incapacity must be medically or clinically established and alleged in the complaint, that the incapacity must exist at the time of the marriage even as it may have manifested after, that it must be permanent or incurable, and that it must be grave enough to disable the partner to assume the essential obligations, among others.
But in January 2015, the Supreme Court’s decision on Kalaw vs. Fernandez brought these guidelines to fore. This decision, penned by Associate Justice Lucas Bersamin, declared the marriage between Valerio Kalaw and Maria Elena Fernandez null and void, reversing its 2011 decision by Associate Justice Mariano del Castillo which denied, for lack of merit, the petition for nullity.
So was the relaxation inferred from the fact that the Supreme Court overturned an earlier judgment as it rarely does?
Explanations from the High Court’s spokesman, Theodore Te, came swiftly: No, there was no relaxation. What the 2015 decision said was that sometimes, the “foregoing guidelines have turned out to be rigid, such that their application to every instance practically condemned the petitions for declaration of nullity to the fate of certain rejection.”
It’s a matter or argument. Some say it was not a relaxation but of choosing where to look. The 2011 decision which denied the petition said the wife (it was the husband who had wanted the nullity) may have been gambling, but she did not gamble frequently enough as to constitute neglect of the family. The husband failed to show thus the frequency, hence the gravity, of the act.
The 2015 decision on the other hand said that the frequency of the gambling as supported by evidence was not as glaring as the fact that the wife even brought her children with her when she played mahjong.  The court said the wife should have known that bringing them along would expose them to a culture of gambling and other vices, thus eroding their moral fiber given their tender ages.
***
Then again, I have always believed that some relaxation is in order, even as it does not pertain, per se, to the guidelines set in the Molina Doctrine of 1997.
The perception that only those who can afford to get a declaration of nullity can do so is an unjust one. People trapped in unhappy, oppressive, or abusive unions should have access to legal relief regardless of their socio-economic status or educational attainment.
It is a fact of life that some marriages work and some do not. It makes little sense to stay trapped in a relationship if it prevents you from achieving your fullest self, if it endangers your self-esteem, or if it exposes you or your children to physical or psychological harm. People make choices that sometimes end up being bad ones. After you’ve tried your best to make it work, and it doesn’t, why should you wither away for the rest of your life paying for the consequences of your poor judgment? 
Conversely, those who are cavalier in their view of marriage or who simply want to change partners like exchanging an ill-fitting pair of shoes can easily get a declaration of nullity. They can pretend to live in a “favorable” jurisdiction, pay off the judges, exaggerate the grounds for psychological incapacity JUST BECAUSE THEY CAN AFFORD IT.  This makes the process a sham.
Unfortunately, because of prohibitive costs and the social stigma attached to having a failed marriage, not many people see nullity, much less divorce, as a real option. They stay to keep up appearances, or separate in fact and then cohabit with other unofficial partners while remaining legally bound to their spouses. A sham, as well.
Alas, it will take a generation or two for our society to “relax” its rigid, and often hypocritical view, of “keeping the family intact.” I wonder if we can all stick around long enough to see this happen.

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