Summary: In this article, the author criticizes Article 274 of the Civil Code in relation to marriage nullity for persons with multiple disabilities. The article begins by describing the origin of the Civil Code and its provisions. It then examines the current situation of persons with disabilities in Peru before setting out criticisms of this provision, ranging from the wording of the text to questions concerning its substance, using specialized sources on the subject. Finally, it develops a comparative-law analysis drawing on Spanish law, which, like Peruvian law, belongs to the civil-law tradition.
Keywords: multiple disability, deafblind person, marriage nullity.
I. INTRODUCTION.
During the 1980s, Peru underwent severe social and political changes. It was in this context that concern began to emerge for certain groups that had gone unnoticed by society, while democracy was also returning. The economy appeared to be experiencing strong growth during these years; however, inflation made this difficult. Terrorism, foreign debt and the El Niño phenomenon showed that Peru faced many problems and highlighted the importance of seeking viable solutions to address them.
In the midst of this crisis, one of the principal legal sources governing the country was developed. After projects and changes, this process resulted in an instrument that remains in force and continues to govern the life of Peruvian society: the 1984 Civil Code.
The 1984 Civil Code is composed of 2,132 articles distributed across 12 parts: Preliminary Title; Book I: Law of Persons; Book II: Legal Acts; Book III: Family Law; Book IV: Law of Succession; Book V: Real Rights; Book VI: Obligations; Book VII: Sources of Obligations; Book VIII: Limitation Periods and Expiry; Book IX: Public Registries; Book X: Private International Law; and the Final Title.
Here we propose to study the changes that should be made to Book III, Family Law, focusing on Article 274(2), which imposes a marriage impediment on persons with multiple disabilities. This essay seeks to clarify the limits and scope of this provision in the context of the forthcoming reform of the Code. Drawing on constitutional and civil-law rules, we will demonstrate that this provision must be amended and brought into line with the rights of persons with disabilities.
II. PERSONS WITH MULTIPLE DISABILITIES: A TYPE OF DISABILITY PRESENT IN PERUVIAN SOCIETY.
Persons with multiple disabilities are placed at a disadvantage in relation to society because, in addition to having two or more impairments, they also encounter social barriers. Thus, bodily impairments combined with societal barriers restrict their participation in society. For this reason, foundations now exist in the country that seek to provide support and create an appropriate environment for persons with multiple disabilities.
Among these nonprofit organizations, one of the best known in Peru is Sense International Peru, whose purpose is to seek opportunities and provide services to persons with multiple sensory disabilities[1]. Today, this nonprofit organization operates in different parts of the world, seeking to ensure the well-being of persons with these types of disabilities.
Multiple sensory disability has been widely discussed and analyzed in recent years. As evidence of this, it is worth recalling that Peru and the rest of the world observe an International Day of Deafblindness on June 27 each year in tribute to Helen Keller, who represents a prominent example of a successful deafblind person.
For all these reasons, it is vital to raise awareness of the importance of including persons with disabilities and to stop creating social barriers that obstruct their free participation. It is also important to promote the development of different abilities among persons with multiple disabilities so that they can engage in activities that are meaningful to them, feel more motivated to contribute to society, and challenge the deeply rooted social view that labels persons with disabilities as a burden.
III. MARRIAGE INVOLVING PERSONS WITH MULTIPLE DISABILITIES.
Declarations of intent by persons with multiple disabilities constitute acts aimed at establishing a shared life.
For such declarations to be enforceable, they must comply with legal rules in order to produce effects. Family-law rules have therefore established a set of parameters for regulating this subject.
3.1 PERUVIAN CIVIL CODE.
The original wording of Article 274(2) provided that a marriage was null when entered into by a deaf-mute person[2] (a category that is inaccurate because only the term “deaf” would be appropriate), a deafblind person or a blind person unable to speak who could not express their will unequivocally. However, if they learned to express themselves without doubt, paragraph 1 would apply. In analyzing a ground of nullity, it is important to make clear that the provision rests on an underlying rationale that appears to be incorrect, making amendment appropriate given the particular nature of the rule. Among the problems surrounding nullity on the basis of multiple disability, the following are directly relevant here:
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- As a general rule, the provision seeks to protect the person with a disability and the institution of marriage; however, restrictions of this kind may limit individual freedom. This impediment is an example because it seeks to prevent such persons from becoming holders of the rights and duties arising from marriage on the premise that “they have not developed the faculties that would allow them to possess discernment and knowledge of the momentous act of marriage” (Aguilar: 88). The impediment therefore presumes that deaf-mute persons (an incorrect term), deafblind persons and blind persons unable to speak are incapable because, according to the statutory premise, they do not perceive reality. This position is incompatible with Article 12 of the Convention on the Rights of Persons with Disabilities, which recognizes that persons with disabilities enjoy legal capacity on an equal basis with others and therefore rejects the notion of incapacity reflected in Article 274(2). It must also be recalled that this international convention has superior rank in relation to domestic rules.[3]Accordingly, the domestic provision in Article 274(2) should not be considered valid insofar as it conflicts with an international human-rights norm of constitutional hierarchy, as recognized in Constitutional Court cases EXP. No. 0025-2005-PI/TC and 0026-2005-PI/TC.
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The wording of the provision reveals a distinction between absolute and relative incapacity. This appears in the second paragraph, which suggests that the marriage may be voidable if the person with a disability learns to express themselves (relative incapacity), while those who do not are prevented from marrying (absolute incapacity). The Convention on the Rights of Persons with Disabilities does not make such a distinction. Nevertheless, the Code unnecessarily creates a discriminatory differentiation among persons with disabilities, granting greater rights to some than to others. A person’s communication system is relevant, but legal capacity cannot be determined by language alone because other factors—such as qualities, abilities and intrapersonal relationships—also influence how a person understands the reality in which they live and makes decisions.
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It is evident that the provision is written in formal legal language, but it nonetheless contains pejorative connotations toward persons with multiple disabilities that should not be overlooked. This is reflected in the phrase: “However, if they learn to express themselves without doubt, paragraph 1 shall apply.” In other words, the text initially assumes that persons with disabilities cannot manage on their own and require another person in order to learn—understood as acquiring knowledge through study, practice or experience—to function independently. This suggests that the person is born unable, or is incapable of developing freely on their own. Such language reflects a social stereotype that labels a person with a disability as useless or incapable and as someone who needs third parties to “treat” an illness. A similar idea was reflected in the Civil Code through interdiction or restrictions on the capacity of persons with sensory disabilities. This approach derives from the medical model prevalent in the nineteenth and twentieth centuries, a position now rejected because of its discriminatory and degrading character toward persons with disabilities.
- Consistent with the previous point, referring to a person with a disability as “deaf-mute” is pejorative because it was historically assumed that a person with a hearing disability could not communicate. This position has been discarded: a Deaf person can communicate through different means without spoken words, including sign language. Even if a person does not produce utterances or sentences in conventional spoken language, they can use other languages and communication systems. A Deaf person can learn language, and persons with hearing disabilities may also speak. If an impairment affects the vocal apparatus or speech, other alternative means of communication can be used; this does not mean that the person cannot communicate.
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Against this background, the restriction on marriage for persons with disabilities contained in Article 274(2) of the Peruvian Civil Code can be understood as an impediment to the legitimate exercise of freedom of decision. In my view, it operates unconstitutionally because it directly affects a constitutional right—the free development of personality—and conflicts with an international norm, the Convention on the Rights of Persons with Disabilities, which Peru has ratified. It should be recalled that the Constitutional Court has stated that the Constitution is superior to norms of lower rank and is the supreme rule of the legal system together with international norms ratified by Peru. Accordingly, the validity of acts and rules issued by public authorities depends on their conformity with those higher norms.
IV. PROPOSALS AND PUBLIC POLICIES.
4.1 COMPARATIVE LAW (Spain–Peru).
One of the major changes concerning marriage by persons with disabilities was the enactment of Law 15/2015 of July 2 on Voluntary Jurisdiction, which amended the Spanish Civil Code. Under the previous arrangement, persons with sensory, intellectual or mental disabilities could be required to submit a medical certificate in order to marry. This prompted statements from various associations defending the rights of persons with disabilities, followed by discussions aimed at designing a non-discriminatory measure. In June of that year, the Voluntary Jurisdiction Law entered into force, under which medical evidence concerning the ability to consent would be required only in exceptional cases involving persons who “categorically, evidently and substantially” could not provide consent. It is important to mention that the Spanish State has repeatedly stated that it seeks to facilitate marriage by persons with disabilities, in conformity with the Convention on the Rights of Persons with Disabilities, which Spain ratified a decade earlier.
This issue is discussed because the amendment, and particularly the exception, must be critically examined. The scope of the exception is not clearly defined, so the relevant chamber must determine to whom it is directed. It cannot refer specifically to persons with disabilities such as Deaf, blind or deafblind persons, because they are capable of understanding the environment in which they live and their cognitive processes remain intact. This is demonstrated by the use of various tools and alternative means of communication and expression, because “not everything we think requires language. We think in terms of images, three-dimensional patterns, bodily gestures, movements, and almost anything we have experienced” (BBC: 2013). In other words, the capacity of persons with disabilities cannot be denied; the difference lies in the form of expression. They have a clear understanding of the reality in which they live, although their way of interacting may differ from that of persons without disabilities.
Although persons with disabilities in Spain, as in Peru, have faced negative developments regarding access to employment, basic needs and other areas, important changes have been achieved through the work of associations, NGOs and major organizations seeking to reverse the situation and defend their rights. Like Sense International Peru, Spain has ASOCIDE, an association for deafblind persons that seeks to promote and create spaces where they can carry out essential activities. Spain also has CNSE, the State Confederation of Deaf Persons, which supports persons with hearing disabilities through policies developed in close coordination with competent authorities and through assistance and service programs. Finally, Fundación ONCE is a nonprofit organization that seeks to improve and strengthen the abilities of persons with disabilities and provides various services that support their participation and development.
V. CONCLUSIONS.
It is therefore clear that Article 274(2) contains errors that obstruct the free development of the personality of persons with disabilities by creating barriers to participation in the institution of marriage. Various changes are therefore proposed.
To achieve this ambitious objective, repeal of this provision is proposed. This is not far removed from reality because many specialists have emphasized the urgent need to reform the Civil Code, and it is therefore hoped that this impediment will soon be removed from the legal text. It should also be noted that the article refers to lucidity, which would concern psychosocial disability rather than sensory disability as specified in the Code, because sensory disabilities do not involve intervals of lucidity.
All of this forms part of a proposal currently under development that seeks to protect the rights of persons with disabilities. It is hoped that this process will continue and benefit persons with disabilities in the coming years.
REFERENCES:
[1] Multiple sensory disability refers to sensory impairments, or impairments affecting senses such as sight, hearing and smell, among others.
[2] Throughout the article, this term is used because it appears in the Peruvian Civil Code (CCP). However, it should be remembered that this term does not correspond to a recognised disability category.
[3] Peru signed the Convention and its Protocol on 30 March 2007 and ratified them on 30 January 2008; both instruments entered into force on 3 May 2008. — Legislative Resolution No. 29127.
BIBLIOGRAPHY:
Aguilar. (2016). Tratado de derecho de familia. Lima: Lex Iuris.
BBC. (2013). Si alguien nace ciego y sordo, ¿en qué lenguaje piensa? Revista BBC focus. Retrieved on 18 July 2017, from http://www.bbc.com/mundo/noticias/2013/08/130830_respuestas_curiosos_31agosto_finde_mr
SENSE. Retrieved on 18 July 2017. SENSE. Retrieved from http://www.senseintperu.org/
Orrego,J. (2010). Recuerdos de la década de los 80. 18 July 2017, de PUCP Website: http://blog.pucp.edu.pe/blog/juanluisorrego/2010/01/01/recuerdos-de-la-decada-de-los-80/
ONCE. (s.f.). ONCE. Retrieved on 18 July 2017, from http://www.once.es/new/servicios-especializados-en-discapacidad-visual/discapacidad-visual-aspectos-generales
ASOCIDE. (s.f.). ASOCIDE. Retrieved on 22 July 2017, from http://www.asocide.org/
CNSE. (s.f.). CNSE. Retrieved on 22 July 2017, from http://www.cnse.es/
ONU. (s.f.). ONU. Retrieved on 17 July 2017, from http://www.un.org/esa/socdev/enable/documents/tccconvs.pdf
El CONFIDENCIAL. (2016). Chapuza legal: los ciegos y los sordos no podrán casarse con autorización médica. 22 July 2017, de EL CONFIDENCIAL Website: http://www.elconfidencial.com/espana/2016-12-20/ley-ciegos-sordos-matrimonio-error_1307068/
La información. (2017). Justicia facilitará los matrimonios de personas con discapacidad. 22 July 2017, de La información Website: http://www.lainformacion.com/policia-y-justicia/magistratura/JUSTICIA-FACILITARA-MATRIMONIOS-PERSONAS-DISCAPACIDAD_0_989302149.html
