Tuesday, July 24, 2018

Are you Insane?






Psychological Incapacity is the "catch-all" ground for declaring a marriage null and void in the Philippines.  It can be found in Article 36 of the Family Code, and states "a marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization."  

Going through the other grounds I had discussed in a previous article, it is clear that the grounds mentioned therein affects the formal and/or essential requisites. For example, marriage by one of an unsound mind affects his/her legal capacity to marry. 

It must be emphasized that the "psychological incapacity" mentioned in Article 36 is not "insanity" (although my title may have misled you otherwise).  Because insanity as a ground is covered by a different provision.  The psychological incapacity contemplated by law, is one that prevents the individual from "complying with essential marital obligations," and the way that is worded, allows a great deal of discretion on the part of the judge to decide whether or not the factual circumstance of the case is one that may be considered as amounting to psychological incapacity.

Psychological (mental) Incapacity and Not Physical Incapacity

In the case of Santos v. Court of Appeals, Justice Vitug acknowledged that psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive (lacking in understanding)of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage.  It involves the incapacity to understand the marital obligations and not merely the inability to perform it. 

Difficulty in Establishing the Ground

As can be seen from the definition of the offense itself, the participation of a psychiatrist in establishing the mental incapacity is absolutely necessary.  Likewise, the fact that either the fiscal and/or Office of the Solicitor General is duty-bound by the Constitution, no less, to voice their opposition or agreement, as part of their duty to ensure that no collusion exists between the parties.  On a side-note I often find it ridiculous that the parties who file for declaration of nullity on this ground, often are quick in remarrying.  After all, this ground presupposes that the guilty party is not capacitated mentally to perform marital obligations.  Nonetheless, it happens and parties (including the guilty one) remarries subsequently.

Instances When Supreme Court found Psychological Incapacity

1. Constant lying about her educational background, lifestyle and work background. (Antonio v. Quisumbing, G.R No. 155800, March 10, 2006)

2. Chronic irresponsibility; inability to recognize and work towards providing the needs of his family; several failed business attempts; substance abuse; and a trail of unpaid money obligations (Reyes v. Reyes, G.R. No. 185286, August 18, 2010)

3. Acts of sexual infidelity and abandonment only if it is shown that such promiscuity existed at the beginning of the marriage. (Dedel v. Court of Appeals, G.R. No. 151867, January 29, 2004)


Based on the above, it is clear that acts of infidelity alone or abandonment will not give grounds for an annulment.  Likewise will physical violence alone on the other spouse give rise to an annulment, especially if it cannot be proven that it is due to a mental mallady existing at the time of marriage.  In Marcos v. Marcos, the Supreme Court found that the physical violence existed only during the period of marriage when respondent was unemployed for six years and which triggered violent behavior. Consequently, although the physical violence may have given grounds for legal separation, it cannot result in an annulment.

Monday, July 16, 2018

So the Marriage Did Not Work? (Annulment and Declaration of Nullity)


A friend of mine said that the two most common subjects of concern to foreigners are 1) annulment and 2) immigration.  Since I had previously written about annulment in another site, I will try my best to summarize what I had written previously.

There are two things to take note in Philippine marriages: the essential requisites and the formal requisites.  The essential requisites are: 1) legal capacity of the parties and 2) consent freely given before a solemnizing officer.  The formal requisites are:  1) authority of the solemnizing officer, 2) a valid marriage license and 3) a marriage ceremony where both the contracting parties appear before a solemnizing officer and personally declare in the presence of at least two witnesses of legal age that they take each other as husband and wife.

Absence of any of the essential and formal requisites renders the marriage void ab initio (as if it had never happened).  But just like anything else that involves an actual contract, any of the parties cannot unilaterally declare that the marriage is void.  A Philippine court has to declare the marriage as void in order for the parties to remarry again.

At the outset, it must be emphasized that a marriage is either void or merely voidable. When it is void ab initio, a petition for the declaration of its absolute nullity is filed, and such action cannot prescribe (meaning it can be filed any time).  On the other hand in marriages that are merely voidable (a defect in the essential requisites), a petition for annulment may be filed. But if it is not filed on time any action to declare it void is barred by prescription.

Marriages Void Ab Initio (Imprescriptible)

1) When one of the parties is below 18;
2) Solemnizing Officer is not legally authorized to solemnize marriage;
3) Solemnized without a license (subject to exceptions);
4) Contracted through mistake of one party as to the identity of the other;
5) Bigamous and polygamous marriages; and
6) Marriages that are void for being incestuous or against public policy (usually between relatives either by blood or even affinity, including between the adopted and adoptive).

Marriages that are Voidable

1) When one of the parties is between 18 to 21 and did not get the consent of the parents before marriage (prescription within 5 years upon reaching 21 and at any time before reaching 21);
2) When one party is of unsound mind (at any time before the death of either party by the spouse having no knowledge of the insanity or a relative having legal charge of the insane spouse);
3) When consent of the party was obtained by fraud (within 5 years from the discovery of the fraud);
4) That the consent of either party is obtained by force, intimidation or undue influence (within 5 years after the FIU disappeared);
5) That either party was incapable of physically consummating the marriage; (within 5 years after the marriage); and
6) That either party has a sexually transmissible disease found to be serious and incurable (within 5 years after the marriage).

That is the gist of the basic grounds, but there is still the ever popular ground of "psychological incapacity."  Also, an absent spouse may be declared presumptively dead in certain circumstances.  Both will deserve a separate discussion.

Monday, July 9, 2018

Making Philhealth Work for the Expat Foreigner (Not Filipino)


A foreigner (aged 60 and above) would find it difficult to be covered by a local health plan.  Consequently, the only saving grace there is will be Philhealth.  It may be true that the deduction is "small" by a foreigner's standard, it is certainly better than nothing.

Philhealth deducts based on the "case" for hospitalization.  Simply said, if a patient is hospitalized for a specific medical condition, he/she will be deducted for the hospitalization and professional fee based on the "case".  For example, my husband was hospitalized in 2015 for cellulitis in his leg.  He was deducted for the hospitalization and the professional fee based on the case rate.

Take note also that if the last hospitalization maximized the allowable deduction, re-admission for the same case 90 days after the same confinement will result in not being eligible for the deduction.  

As a lawful resident (all you need is your ACR Card), a foreigner can enroll in Philhealth.  In our case, we paid a much lesser premium because I was working at the time for the government.  The government agency I worked with also paid a portion of the total premium.  On top of that, if he was confined in a government hospital (which he was several times), he gets 10% off the bill.  

If you are less than 60, go get an extra local health plan and you can get covered for a bigger amount.  At the time, I had Fortunecare for myself and my son, which was just a carry over of my company-sponsored plan.  It gave me around P150,000 of coverage a year.  Usually, the local health plan deducts the Philhealth deduction, before covering the remainder.  Always take note which hospitals accept your health plan and understand what is your room coverage.  When my son was hospitalized for gastroenteritis , the hospital we were in did not have the room (semi-private) that we were covered.  Since I read my policy contract, I know I was entitled to the higher room rate at least for one night, until they can have a room at the rate we were covered.  Luckily, he only stayed one night, so we got the better room at no cost to us.

Wednesday, July 4, 2018

What is your Game Plan?

In the last few years of our stay in the Philippines, my husband was in the hospital for more times than I can imagine.  Sometime 2014 up to 2015, my husband got hospitalized four times, and the last hospitalization had us staying in the hospital for one and a half months.  I often wonder if my husband was married to a different woman, would he have been alive now.  Majority of the hospitalization was not covered by the Veterans Affair (VA) because it was not service-connected and of those that were service-connected, the first hospitalization had to be reimbursed (meaning we initially had to pay it out-of-pocket). The last hospitalization which was service-connected, although paid mostly by the VA, had me still shelling out P64,000 in addition, because Medical City, the only VA-accredited hospital, had no room at the amount covered by the VA. So I had to pay the extra. It was a great strain on our finances at the time.  Considering that  my husband was only rated 20% at the time (it is now 70%), we had very little to cover our regular expenses AND hospitalization expenses.  Luckily, I had enough of my own money to pay all the extra expenses we were having.  But certainly, without that money, we would have been deep in debt by now.  But yes, I had to juggle our finances.

So what is my take away from that -  as a foreigner aged 50 and above, you have to have a GAME PLAN.  What do you do to cover the inevitability of getting sick?  I will assume that you and your wife/significant other truly love each other.  Then I assume likewise that you do not want your wife to struggle and hurt seeing you in pain and not being able to do anything to help you.  Consequently, you should have something to help her, help you.

I think, a foreigner, should have at least P100,000.00 of readily accessible cash (that is earmarked for hospital expenses) every year.  That, realistically, would not even be enough if you had a major surgery in a good hospital.  So yes, I say, that is the minimum you should have set aside in a year.  On top of Philhealth, if you can, get a health plan.  If not, set aside the money, for your peace of mind and your wife's peace of mind.


Tuesday, July 3, 2018

Paradise is Family


It has been many years since I last updated this blog, but just to update anyone not in the know, I and my family have moved to the other side of the world (United States).  I still ask the question if our choice of moving here is the best choice to make, but since my husband receives full health coverage having been given a higher rating on his disability (he now belongs to Priority Group 1) the choice seems to have been made.  He is already 70 years old and being in that age, he has a myriad of health problems.

Fortunately for us, under the present Affordable Care Act, the veteran family (including the immigrant wife) receives health coverage.  I do not know how long that will be, considering that Trump is set on reducing state-sponsored health coverage. At least, for the time being, while I study for the NY bar, my son and I are fully covered.

The way I see it, I have five years while the present Philippine President is "changing" the Philippines, for me to decide whether I and my family will come back.  It will help me become vested to receive my husband's Social Security benefit within that time. I can decide also in three years if I want to become a U.S. citizen, and potentially lose my Philippine license until the time I apply for dual citizenship.