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Article 36: Psychological Incapacity Examined

A Prcis

Submitted to:
Atty. David Robert Aquino
College of Law
New Era University

Dexter Aison
Keithlyn Alegre
Randy Bernardino
Mark Andrew Escarez
Trixie Hipolito
Rovel Lagonoy
Joseph Mendoza
Renz Jerome Nepomuceno
Jae Olaguer
Mike Pavico
Dwight Pilotin
Roca Regala
Librado Reyes Jr.
Ana Reyes
Maclord Talamayan

September 7, 2015

Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligation of marriage,
shall likewise be void even if such incapacity becomes manifest only after its
solemnization. (n) (as amended by E.O. No. 227, dated July 17, 1987).
The Psychological Incapacity under Article 36 contemplates an incapacity or inability to take
cognizance of and to assume basic marital obligations, and is not merely the difficulty, refusal or
neglect in the performance of marital obligations or ill will. It consists of:
(a) A true inability to commit oneself to the essentials of marriage;
(b) The inability must refer to the essential obligations of marriage, that is, the conjugal act, the
community of life and love, the rendering of mutual help, and the procreation and education of
offspring; and
(c) The inability must be tantamount to a psychological abnormality.
It means that if one of the parties is psychologically incapacitated to comply with his obligation
as a spouse, then the marriage is void from the very beginning. That is why the legal remedy is
to petition the court for nullity of the marriage.
What are the elements of the Psychological Incapacity, for the marriage to be annulled?
The Elements of Psychological incapacity are:
(a) Grave It must be grave or serious such that the party would be incapable of carrying out
the ordinary duties required in a marriage;
(b) Juridical Antecedence It must be rooted in the history of the party antedating the
marriage, although the overt manifestations may emerge only after the marriage; and
(c) Incurable and Permanent It must be incurable or, even if it were otherwise, the cure
would be beyond the means of the party involved. (Dimayuga-Larena v. Court of Appeals, G.R.
No. 159220, September 22 2008)
The Supreme Court held that psychological incapacity should refer to a mental incapacity that
causes a party to be truly incognitive of the basic marital covenants such as those enumerated
in Article 68 of the Family Code and must be characterized by gravity, juridical antecedence and
incurability. (Santos v. Court of Appeals, G.R.No. 112019, January 04 1995)

How Psychological Incapacity is usually manifested?


Some of the instances below are manifestations of Psychological Incapacity are:
(a) The refusal of one spouse to live, dwell or cohabit with the other spouse after marriage,
without any fault at all from the aggrieved spouse;
(b) By the deliberate refusal to give support to the other spouse, or their common children;
(c) When marriage is unbearable due to compulsive gambling, alcoholism, drug addiction or
violent jealousy of the spouse.

Marital Obligations
According to Baccay vs. Baccay (G.R. No. 173138, 636 SCRA 350), the Supreme Court
states that the fundamental obligations of a marriage are those listed in Articles 68 to 71, 220,
221, and 225 of the Family Code, which state the following:
Art. 68.The husband and wife are obliged to live together, observe mutual love, respect and
fidelity, and render mutual help and support. (109a)
Art.69.The husband and wife shall fix the family domicile. In case of disagreement, the court
shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or
there are other valid and compelling reasons for the exemption. However, such exemption shall
not apply if the same is not compatible with the solidarity of the family. (110a)
Art. 70.The spouses are jointly responsible for the support of the family. The expenses for
such support and other conjugal obligations shall be paid from the community property and, in
the absence thereof, from the income or fruits of their separate properties. In case of
insufficiency or absence of said income or fruits, such obligations shall be satisfied from the
separate properties. (111a)
Art. 71.The management of the household shall be the right and duty of both spouses. The
expenses for such management shall be paid in accordance with the provisions of Article 70.
(115a)
Art.220.The parents and those exercising parental authority shall have with respect to their
unemancipated children or wards the following rights and duties:
o To keep them in their company, to support, educate and instruct them by right
precept and good example, and to provide for their upbringing in keeping with
their means;
o To give them love and affection, advice and counsel, companionship and
understanding;
o To provide them with moral and spiritual guidance, inculcate in them honesty,
integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in
civic affairs, and inspire in them compliance with the duties of citizenship;
o To enhance, protect, preserve and maintain their physical and mental health at all
times;
o To furnish them with good and wholesome educational materials, supervise their
activities, recreation and association with others, protect them from bad
company, and prevent them from acquiring habits detrimental to their health,
studies and morals;
o To represent them in all matters affecting their interests;
o To demand from them respect and obedience;
o To impose discipline on them as may be required under the circumstances; and
o To perform such other duties as are imposed by law upon parents and guardians.
(316a)

Art. 221.Parents and other persons exercising parental authority shall be civilly liable for the
injuries and damages caused by the acts or omissions of their unemancipated children living in
their company and under their parental authority subject to the appropriate defenses provided
by law. (2180 [2]a and [4]a)
Art. 225.The father and the mother shall jointly exercise legal guardianship over the property
of their unemancipated common child without the necessity of a court appointment. In case of
disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds
P50,000, the parent concerned shall be required to furnish a bond in such amount as the
court may determine, but not less than ten per centum (10%) of the value of the property
or annual income, to guarantee the performance of the obligations prescribed for general
guardians.
A verified petition for approval of the bond shall be filed in the proper court of the place
where the child resides, or if the child resides in a foreign country, in the proper court of
the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in which all incidents
and issues regarding the performance of the obligations referred to in the second
paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except when the child is
under substitute parental authority, or the guardian is a stranger, or a parent has
remarried, in which case the ordinary rules on guardianship shall apply. (320a)

Establishing Psychological Incapacity in the Marriage


The Supreme Court had laid down the guidelines for the interpretation and application of Article
36: (Republic v. Court of Appeals, G.R. No. 108763, February 13, 1997)
a)
The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the existence and continuation of the marriage and
against its dissolution and nullity.
b)
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.
c)
The incapacity must be proven to be existing at the time of the celebration of the
marriage.
d)
Such incapacity must be also shown to be medically or clinically permanent or
incurable.
e)
Such illness must be grave enough to bring about the disability of the party to
assume essential obligations of marriage.

f)
The essential marital obligations must be those embraced by Articles 68 up to 71
of the Family Code as regards the husband and wife as well as Articles 220, 221, and
225 of the same Code in regard to parents and their children.
g)
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.
h)
The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down unless
the Solicitor General issues a certification, which will be quoted in the decision, briefly
stating therein his reasons for his agreement or opposition, as the case may be, to the
petition.

Constitutional Basis for Article 36


1. Article II, Sec. 12 of the 1987 Constitution:
a. SECTION 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution.
2. Article XV, Sec. 1 of the 1987 Constitution
a. SECTION 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its total
development.
3. Article XV, Sec. 2 of the 1987 Constitution:
a. SECTION 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
4. Article XV, Sec. 3 of the 1987 Constitution:
a. SECTION 2. The State shall defend:
(1) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
(2) The right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty,
exploitation, and other conditions prejudicial to their development;
(3) The right of the family to a family living wage and income; and
(4) The right of families or family associations to participate in the planning
and implementation of policies and programs that affect them.
The above-mentioned articles from the Constitution provides that the State will protect
and develop the family and recognizes it the foundation of the society. In relation to Article 36 of
the Family code, Atty. Pamaos state in his article that, This Constitutional protection of
marriage, however, does not apply to void marriages. Article 36 of the Family Code provides
that psychological incapacity is a ground for a marriage to be void. That being said, the State
now has no obligation to protect such family. It can be inferred that the State protects and

strengthens the family as it will build a strong society as it will build a strong nation. So if a
marriage is unable to promote a family life, then the State sees no further reason to support it.
Provision is New and Taken from Canon Law:
This is a new provision which was taken by the Committee from par. 3 of Can. 1095 of the New
Code of Canon Law which took effect on November 27, 1983, reading:
Matrimonial Consent
Can. 1095. The following are the incapable of contracting marriages:
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;
3. Those who, because of causes of a psychological nature, are unable to assume the
essential obligation of marriage.
The Committee decided adopt the third paragraph of the above provision of the new Code of
Canon Law as a ground for declaration of nullity of marriage for the following reasons:
(1) As a substitute for divorce. Divorce being very controversial and would surely be
strongly opposed by the Catholic Church, it was decided to draw from Canon Law
itself on a ground that does not conflict with the traditional civil law concept of
voidable marriages.
(2) As a solution to the problem of Church-annulled marriages: There are many
marriages that have already been annulled by the Catholic Church but still exist
under civil law. This provision would give many parties to church-annulled marriages
a cause of action to have their marriages declared void by the civil courts.
(3) As an additional remedy: The provision would also give a remedy to parties who are
imprisoned by a marriage that exists In name only as they have long separated
because of the inability of one them to perform the essential obligation of marriage.

History (1987 Family Code E.O 209)


The first Family Code of the Philippines was within the scope of the Old Civil Code of the
Philippines. As early as 1979, two successive committees were created, first was headed by
Supreme Court Justice Flerida Ruth Romero and the other was Supreme Court Justice J.B.L.
Reyes, to work on the draft of the Family Code. The intention to revise the Civil Code was to
change certain provisions adopted from the foreign sources that are not suitable for the Filipino
culture/customs and to conform to the contemporary trends and conditions of the society. The
Executive Order No. 209 was enacted into law by President Corazon C. Aquino on July 6, 1987.
It was published on August 4, 1987 and its effectivity date from the Supreme Court is August 3,
1988. The Family Code of the Philippines repealed certain provision of the Old Civil Code.
Old Civil Code
Article 36 is a new article included on the Family Code of the Philippines. There is no
provision under the Old Civil Code of 1950 Title III, Chapter 3 Void and Voidable Marriages that
is connected to psychologically incapacitated.

Sec. 2 of E.O 277 (July 17, 1987)


Article 36 of Executive Order No. 209 is hereby amended to read as follows:
"Art. 36. 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."

Psychological Incapacity Distinguished from Vice of Consent:


Psychological incapacity has nothing to do with consent to marriage. A person might
have given free and voluntary consent to marriage (that is, mind knew what marriage is all about
and all the rights and obligations arising therefrom), but his will may not be capable of fulfilling
such rights and obligations. Hence, psychological incapacity is not a question of defective
consent but a question of fulfilling of a valid consent.
Psychological Incapacity Distinguished Insanity;
Mental Incapacity or insanity of some kind, like physical incapacity, is a vice of consent,
while psychological incapacity is not a species of vice of consent. As already stated a person
might have given valid consent to a marriage, but because of a psychological disorder in his
make-up, he is unable to assume the essential obligations of marriage.
(1) May be of varying degrees;
(2) Is curable, being an illness hence, the marriage is capable of ratification of
convalidation;
(3) Has lucid intervals;
(4) Is a ground only for annulment of marriage in many countries?
Why Were No Examples of Psychological Incapacity Given in this Article?
The Committee did not give any example of psychological incapacity for fear that the
giving of 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 finding of experts and
researchers in psychological disciplines, and by decisions of Church tribunals which, although
not binding in the civil courts, may be given persuasive effect since the provision was taken from
Canon Law.
Psychological Incapacity Must be Present at his Time of the Marriage:
To be a ground for declaration of nullity of marriage, the psychological incapacity of
either party to comply with the essential marital obligation must already be present at the time of
the marriage, although it might have become manifest only after the marriage.
Father Gerald Healy, S.J., whom the Committee consulted on this matter gave the
example of a man or a woman who, after marriage and after having, cracks up under the heavy
responsibility of being a parent, Father Healy said that this proves that psychological weakness
or disorder in that persons character or make-up has always been there all the tune, for if
having children would cause a person to crack up, this world would be filled with disturbed
people.

Is the Psychologically Incapacitated Person Disqualified from Marrying Again?


According to Father Healy, the Church does not impose an absolute prohibition for a
person proven to have a psychological defect to marry again because he or she may get the
right partner who understands his problem. He says that a person with psychological incapacity
may be all right for B but not for C because the former relationship compensates while the latter
aggravates the problem.
The Committee also believes that there is no need to disqualify the psychologically
incapacitated from contracting another marriage because the fact of his psychological incapacity
for marriage would be revealed anyway when he applies for a marriage license for the second
marriage and the other party is this placed on guard to conduct discreet investigation about the
matter.
Guides to Interpretation of term Psychological Incapacity
I.
Dr. Gerardo Ty Veloso, former judge of Br. 1 of the Metropolitan Marriage Tribunal of the
Catholic Archdiocese of Manila, in his booklet on the accepted grounds for church
annulment of marriage, states that aside from the already classical neuroses,
psychoses, and other personality disorders known to psychological that render a person
psychologically unfit to assume and perform the roles of marriage, the following grounds
may be mentioned as more familiar to laymen:
(1) Homosexuality in men or lesbianism in woman (attachment to the same sex for
sexual fulfillment);
(2) Satyriasis in men or nymphomania in women
(3) Extremely low intelligence
(4) Immaturity; i.e., the lack of an effective sense of rational judgment and responsibility,
otherwise peculiar to infants (like refusal of the husband to support the family or
excessive dependence on parents or peer group approval);
(5) Epilepsy, with permanently recurring mal-adaptive manifestations;
(6) Habitual alcoholism, or the condition by which a person lives for the next drink and
the next drink the next drink; and
(7) Criminality, or the condition by which a person consistently gets in trouble with the
law or with socially established norms of conduct.
II.

Furthermore, based on dialogues with Father Healy and another expert on church
annulments. Archbishop Oscar Cruz, the Committee gathered the annulments,
Archbishop Oscar Cruz, the Committee gathered the information that psychological
incapacity to discharge the essential obligation of marriage may also be made manifest:
(1) by refusal of the wife to dwell with the husband after the marriage without fault on the
part of the latter or to have sex with the husband or to have children;
(2) when either party or both of them labor under and affliction that makes common life
as husband and wife impossible or unbearable such as compulsive one party or
other psychic or psychological causes of like import and gravity; and
(3) in manifestations of sociopathic anomalies in husbands like sadism or infliction or
physical violence on the wife, constitutional laziness or indolence, drug dependence
or addiction, or some kind of psychosexual anomaly.

As to the general characteristics of psychological incapacity, Dr. Veloso adds that it must
exhibit gravity antecedence, and incurability: gravity, if the subject cannot carry out the
normal and ordinary duties of marriage and family shouldered by any average couple
existing under ordinary circumstances of life and work; antecedence; if the roots of the
trouble can be traced to the history of the subject before marriage although its overt
manifestation appear only after the wedding; and incurability, if treatment require exceed
the ordinary means of the subject, or involve time and expense beyond the reach of the
subject.

III.

According Atty. Rainier Mamangun on his website, the Psychological Incapacity under
Article 36 contemplates an incapacity or inability to take cognizance of and to assume
basic marital obligations, and is not merely the difficulty, refusal or neglect in the
performance of marital obligations or ill will. It consists of:
(a) A true inability to commit oneself to the essentials of marriage;
(b) The inability must refer to the essential obligations of marriage, that is, the conjugal
act, the community of life and love, the rendering of mutual help, and the procreation and
education of offspring; and
(c)

The inability must be tantamount to a psychological abnormality.

Who can File the Action to Declare the Marriage Void?


Either party, I.e., even the psychologically incapacitated can file the action.
Does the Action to Declare the Marriage Void under this Article Prescribe?
Like any action for declaration of nullity of marriage, the action under this Article does not
prescribe. While an amendment to the Family Code made by E.O. 277 for marriages
solemnized before the effectively of this Code provided that the action or defense for the
declaration of nullity of marriage under this Article prescribed in ten years after this Code
became effective on August 3, 1988 (Art. 39) still later R.A. 8533 now makes all actions under
this Article imprescriptible.

Action for Annulment of Marriage May Also Be Filed In Proper Cases:


If the case can be made to fall under any action for annulment of marriage and such
action has not yet prescribed an action for annulment of marriage may be filed instead of an
action for declaration of nullity of marriage under this Article. Such an action would be more
advantageous to the aggrieved spouse, as the marriage, being considered valid until annulled,
will have all the effects of a valid marriage

What is the Status of the Children Under this Article?


The children conceived or born before the decree of nullity of marriage are legitimate
(Art. 54). This, together with children born of the subsequent marriage under Art. 53, are
exceptions to Art. 165 defining illegitimate children.
How Should the Properties acquired by the Parties be Disposed of After the Marriage is
Nullified?
The family home and all their common property shall be divided between them in equal
shares, since the liquidation of partition of said properties are governed by the provisions on coownership, not by Arts. 50, 51, 52, in relations to Arts. 102 and 129, of the Family Code (Valdes
v. RTC or Q.C., GR 122749, July 31, 1996)
Further Questions Regarding the Children and Properties
o

The most obvious consequence of a court declaration of nullity is that you are now entitled
to marry or enter into a civil partnership. If you do get married after a civil annulment, you
are not committing bigamy, as your new marriage is your only valid one.

If you have already remarried, that is, you have married before an order of annulment was
actually made by the court, your second marriage may have appeared invalid and
bigamous. However, once the annulment order is granted, your second marriage is
validated, as your first marriage has now been declared invalid.
If your marriage is annulled, it will also have consequences for your children. However,
the Status of Children Act 1987 protects the legal rights of children

If your marriage is annulled, it also means that you lose the rights that you enjoyed as a
married person. Therefore:
i. The home that you shared with your former partner is not a family home. If your
former partner is the legal owner of the house, they can sell or lease it without your
consent.
ii. Under the Succession Act 1965, when a married person dies, their spouse is legally
entitled to a share of their estate whether or not they have left a will. As your
marriage never happened, you do not have any succession rights if your former
partner dies.
iii. Once your marriage has been annulled, you do not have a right to apply to the court
to order your former partner to pay maintenance to support you, as only spouses
may apply to a court for an order for maintenance. However, if there were children
born during the annulled marriage, you may apply to the court to order your former
partner to pay child support.

JURISPRUDENCE
A. Republic vs CA and Molina / GR No. 108763 / February 13, 1997
FACTS:
Roridel Olaviano was married to Reynaldo Molina on 14 April 1985 in Manila, and gave
birth to a son a year after. Reynaldo showed signs of immaturity and irresponsibility on
the early stages of the marriage, observed from his tendency to spend time with his
friends and squandering his money with them, from his dependency from his parents,
and his dishonesty on matters involving his finances. Reynaldo was relieved of his job in
1986, Roridel became the sole breadwinner thereafter. In March 1987, Roridel resigned
from her job in Manila and proceeded to Baguio City. Reynaldo left her and their child a
week later. The couple is separated-in-fact for more than three years.
On 16 August 1990, Roridel filed a verified petition for declaration of nullity of her
marriage to Reynaldo Molina. Evidence for Roridel consisted of her own testimony, that
of two of her friends, a social worker, and a psychiatrist of the Baguio General Hospital
and Medical Center. Reynaldo did not present any evidence as he appeared only during
the pre-trial conference. On 14 May 1991, the trial court rendered judgment declaring the
marriage void. The Solicitor General appealed to the Court of Appeals. The Court of
Appeals denied the appeals and affirmed in toto the RTCs decision. Hence, the present
recourse.

ISSUE:
Whether opposing or conflicting personalities should be construed as psychological
incapacity
HELD:
The Court of Appeals erred in its opinion the Civil Code Revision Committee intended to
liberalize the application of Philippine civil laws on personal and family rights, and
holding psychological incapacity as a broad range of mental and behavioral conduct on
the part of one spouse indicative of how he or she regards the marital union, his or her
personal relationship with the other spouse, as well as his or her conduct in the long haul
for the attainment of the principal objectives of marriage; where said conduct, observed
and considered as a whole, tends to cause the union to self-destruct because it defeats
the very objectives of marriage, warrants the dissolution of the marriage.
The Court reiterated its ruling in Santos v. Court of Appeals, where psychological
incapacity should refer to no less than a mental (not physical) incapacity, existing at the
time the marriage is celebrated, and that there is hardly any doubt that the intendment of
the law has been to confine the meaning of psychological incapacity to the most serious
cases of personality disorders clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage. Psychological incapacity must be
characterized by gravity, juridical antecedence, and incurability. In the present case,

there is no clear showing to us that the psychological defect spoken of is an incapacity;


but appears to be more of a difficulty, if not outright refusal or neglect in the
performance of some marital obligations. Mere showing of irreconcilable differences
and conflicting personalities in no wise constitutes psychological incapacity.
The Court, in this case, promulgated the guidelines in the interpretation and application
of Article 36 of the Family Code, removing any visages of it being the most liberal
divorce procedure in the world: (1) The burden of proof belongs to the plaintiff; (2) the
root cause of psychological incapacity must be medically or clinically identified, alleged
in the complaint, sufficiently proven by expert, and clearly explained in the decision; (3)
The incapacity must be proven existing at the time of the celebration of marriage; (4) the
incapacity must be clinically or medically permanent or incurable; (5) such illness must
be grave enough; (6) the essential marital obligation must be embraced by Articles 68 to
71 of the Family Code as regards husband and wife, and Articles 220 to 225 of the same
code as regards parents and their children; (7) interpretation made by the National
Appellate Matrimonial Tribunal of the Catholic Church, and (8) the trial must order the
fiscal and the Solicitor-General to appeal as counsels for the State.
The Supreme Court granted the petition, and reversed and set aside the assailed
decision; concluding that the marriage of Roridel Olaviano to Reynaldo Molina subsists
and remains valid.

Case Doctrines of the Molina Case


o

Mere showing of "irreconciliable differences" and "conflicting personalities" in no wise


constitutes psychological incapacity. It is not enough to prove that the parties failed
to meet their responsibilities and duties as married persons; it is essential that they
must be shown to be incapable of doing so, due to some psychological (nor physical)
illness.

The following guidelines in the interpretation and application of Art. 36 of the Family
Code are hereby handed down for the guidance of the bench and the bar:
o The plaintiff (the spouse who filed the petition in court) has burden of showing the
nullity of the marriage. Our laws cherish the validity of marriage and unity of the
family, so any doubt is resolved in favor of the existence/continuation of the
marriage.
o

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. Article 36 of the Family Code requires that the
incapacity must be psychological not physical, although its manifestations
and/or symptoms may be physical. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.

The incapacity must be proven to be existing at the time of the celebration of


the marriage. The evidence must show that the illness was existing when the
parties exchanged their I dos. The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such
moment, or prior thereto.

Such incapacity must also be shown to be medically or clinically permanent or


incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against every one of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job.

Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, mild characteriological
peculiarities, mood changes, occasional emotional outbursts cannot be
accepted as root causes.

The essential marital obligations must be those embraced by Articles 68 up to 71


of the Family Code as regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their children. Such noncomplied marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
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.

The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down
unless the Solicitor General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement or opposition, as
the case may be, to the petition.

B. Louel Santos vs CA / GR. No. 112019 / January 4, 1995


FACTS:
Plaintiff Leouel Santos married defendant Julia Bedia on September 20, 1986. On May
18 1988, Julia left for the U.S. She did not communicate with Leouel and did not return
to the country. In 1991, Leouel filed with the RTC of Negros Oriental, a complaint for
voiding the marriage under Article 36 of the Family Code of the Philippines. The RTC
dismissed the complaint and the CA affirmed the dismissal.
ISSUE:
Does the failure of Julia to return home, or at the very least to communicate with him, for
more than five years constitute psychological incapacity?
HELD:
No, the failure of Julia to return home or to communicate with her husband Leouel for
more than five years does not constitute psychological incapacity.
Psychological incapacity must be characterized by (a) GRAVITY (b) JURIDICAL
ANTECEDENCE (c) INCURABILITY
Psychological incapacity should refer to no less than a mental (not physical) incapacity
that causes a party to be truly incognitive of the basic marital covenants that
concomitantly must be assumed and discharged by the parties to the marriage which, as
so expressed by Art. 68 of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help and support.
The intendment of the law has been to confine the meaning of PSYCHOLOGICAL
INCAPACITY to the most serious cases of personality disorders clearly demonstrative
of an utter insensitivity or inability to give meaning and significance to the marriage. This
psychological condition must exist at the time the marriage is celebrated.
Undeniably and understandably, Leouel stands aggrieved, even desperate, in his
present situation. Regrettably, neither law nor society itself can always provide all the
specific answers to every individual problem. PETITION IS DENIED.
Case Doctrines of the Leouel Case

The failure of Julia to return home or to communicate with her husband Leouel for
more than five years does not constitute psychological incapacity.

Psychological incapacity must be characterized by (a) gravity, (b) juridical


antecedence, and (c) incurability.

Psychological incapacity" should refer to no less than a mental (not physical)


incapacity that causes a party to be truly in cognitive of the basic marital obligations

Psychological incapacity must refer to the most serious cases of personality


disorders clearly demonstrative of an utter insensitivity or inability to give meaning
and significance to the marriage. This psychological condition must exist at the time
the marriage is celebrated.

C. Chi Ming Tsoi vs CA / GR. No. 1191190 / January 16, 1997

FACTS:
Chi Ming Tsoi and Gina Lao Tsoi was married in 1988. After the celebration of their wedding, they
proceed to the house of defendants mother. There was no sexual intercourse between them
during their first night and same thing happened until their fourth night. In an effort to have their
honeymoon in a private place, they went to Baguio but Ginas relatives went with them. Again,
there was no sexual intercourse since the defendant avoided by taking a long walk during siesta
or sleeping on a rocking chair at the living room. Since May 1988 until March 1989 they slept
together in the same bed but no attempt of sexual intercourse between them. Because of this,
they submitted themselves for medical examination to a urologist in Chinese General Hospital in
1989. The result of the physical examination of Gina was disclosed, while that of the husband
was kept confidential even the medicine prescribed. There were allegations that the reason why
Chi Ming Tsoi married her is to maintain his residency status here in the country. Gina does not
want to reconcile with Chi Ming Tsoi and want their marriage declared void on the ground of
psychological incapacity. On the other hand, the latter does not want to have their marriage
annulled because he loves her very much, he has no defect on his part and is physically and
psychologically capable and since their relationship is still young, they can still overcome their
differences. Chi Ming Tsoi submitted himself to another physical examination and the result was
there is not evidence of impotency and he is capable of erection.
ISSUE:
Whether Chi Ming Tsois refusal to have sexual intercourse with his wife constitutes psychological
incapacity.

HELD:
The abnormal reluctance or unwillingness to consummate his marriage is strongly indicative of a
serious personality disorder which to the mind of the Supreme Court clearly demonstrates an
utter insensitivity or inability to give meaning and significance to the marriage within the meaning
of Article 36 of the Family Code.
If a spouse, although physically capable but simply refuses to perform his or her essential marital
obligations and the refusal is senseless and constant, Catholic marriage tribunals attribute the
causes to psychological incapacity than to stubborn refusal. Furthermore, one of the essential
marital obligations under the Family Code is to procreate children thus constant non-fulfillment of
this obligation will finally destroy the integrity and wholeness of the marriage.
Case Doctrines of the Chi Ming Tsoi Case

Love is useless unless it is shared with another. Indeed, no man is an island, the
cruelest act of a partner in marriage is to say I could not have cared less. This is
so because an ungiven self is an unfulfilled self. The egoist has nothing but himself.
In the natural order, it is sexual intimacy that brings spouses wholeness and
oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a
function which enlivens the hope of procreation and ensures the continuation of
family relations.
The Supreme Court held that the prolonged refusal of a spouse to have sexual
intercourse with his or her spouse is considered a sign of psychological incapacity.

NON LEGAL SOURCES


A. Article Excerpts
Ending a Marriage in the Only Country That Bans Divorce by Ana P. Santos
I had walked out on my marriage five years earlier and had barely spoken with my
daughters father for just as long, but on paper he was still my husband. I was a single
woman, but I was not free. My name was only half mineall my identification papers
remained in my married name. Any major purchase I made would be considered
conjugal property. If I got into a new relationship, I risked being charged with
adultery and jailed.
If marriage is essentially a contract, the difference between an annulment and a divorce
is the difference between declaring the contract nullbecause, say, it was signed under
conditions of duress or fraudand terminating it.
In the case of marriage, declaring the contract null is a far more difficult proposition.
Infidelity and physical abuse, for example, are not on the list of acceptable reasons for a
marriage to be declared invalid under Philippine law. A petitioner seeking to leave a
marriage for those or any number of other reasons has to try to prove that his or her
spouse is suffering from psychological incapacity such as narcissistic personality
disorder.
The system is so unfair, especially to women like me in a situation of abandonment.
Why do they have to make it so hard? asked Perez, whose marriage didnt formally end
until a decade after her husband left her.
.My lawyer suggested I try to have both of us declared psychologically incapacitated to
double the chances of success, but I refused. I was afraid such a designation would
damage my chances of getting a job or custody of my daughter.
Dont worry. Its just a term to justify your petition, my lawyer assured me, echoing the
two other lawyers I had consulted before her. (I wanted a second opinion.) They all gave
me some variation on: Its just the Philippine version of irreconcilable differences.
But making such a claim is not an innocuous formality. Trying to show psychological
incapacity is an adversarial process in civil court, aimed at proving beyond a reasonable
doubt that one spouse was exhibiting behavior indicating an inability to take on the

responsibilities of marriage. It means stating in public court all the reasonsboth trivial
and consequentialwhy you cannot stay married to your spouse. It involves
psychological tests and, in some cases, witnesses. Its a game of mud-slinging and oneupmanship that makes breaking up that much harder and uglier. It encourages a
petitioner to exaggerate problemsto declare a once-loved partner an alcoholic as
opposed to someone who occasionally came home drunk, or a chronic womanizer as
opposed to someone who once had an affair.
The process is inhumane. It is hurtful to two people who may have at one point loved
each other and may have even tried to work it out, Philippine Senator Pia Cayetano, a
prominent womens-rights legislator, told me. She should know: Shes been through it
too.
It was a harrowing experience, forcing me to dredge up years of bad, buried memories.
The judge probed for details about the fights Id had with my husband. He accused me of
not trying hard enough to keep the peace in our relationship. When I brought up the
allegations in my petitionregarding the abuse and infidelity Id had to endurehe
asked me if I thought that was enough to end a marriage. (My then-husband didnt show
up to any of the court proceedings, which is a way of opposing the annulment petition.) I
was too proud to beg the judge to stop his line of questioning, too angry to stay quiet. I
was ultimately taken off the stand because I was crying uncontrollably. I felt like I was on
trial, as if I were a criminal.
And in the eyes of the Church and Philippine matrimonial law, which is largely based on
Church doctrine, I had done something worse than commit a crime. I had sinned. I was
reneging on sacred vows. I had desecrated the sanctity of marriage.
When legislators were asked if the results of the survey would sway their opinion on
divorce, one senator explained: I cannot favor a divorce law. My wife might use that
against me.

B. Law Journal
The following are quoted salient points from Atty. Florin T. Hilbays thesis entitled Chi Ming Choices:
A Coasean Analogue followed by a summary of his statements corroborating the same.
The original proposal of the Civil Code Revision Committee of the University of the Philippines
Law Center for what now stands as Article 36 of the Family Code was as follows--Those marriages contracted by any party who, at the time of the celebration, was
wanting in the sufficient use of reason or judgment to understand the essential nature of
marriage or was psychologically or mentally incapacitated to discharge the essential to
discharge the essential marital
obligations, even if such lack or incapacity is made manifest
after the celebration.
It appears that this text was a compromise between the CCRCs original intention of proposing a
no-fault divorce regime and the demands of pragmatism. (Underscoring supplied)
Given the numerous cases filed in the courts for declaration of nullity of marriages, with grounds
ranging from as simple as character incompatibilities to graver ones like habitual alcoholism and
abandonment1, failure to provide material support and physical abuse 2, immaturity and lack of
intention of procreative sexuality3, self-centeredness4, the CCRC for purposes of drafting
revisions to the Civil Code, acknowledged the actuality that there must be something so grave,
so serious which in order to protect the sanctity of marriage, the State must put an end to it.
However, the CCRC was placed in a situation where allowing severance of marital ties will cause
massive unsolicited negative comments from the predominantly Catholic Filipinos and most
especially, stern opposition from the Catholic Church. Corollary, concerns on political instability
may arise.
Ergo, the CCRC arrived at an invention of the word psychological incapacity stated under
Article 36 of the Family Code as a ground for nullifying marriage. Said Article resolved the
problem of the CCRC of balancing the clamor of failed marriages and the watching eye of the
Church and left the difficult job to the interpreters of the law -- the judiciary.
Since Article 36 provided everything but a clear guideline on its application, the lower courts,
having no guidance whatsoever, in cases of doubt when they are faced with a petition under
Article 36, they opt to dismiss or better yet, when faced with a petition under Article 36, dismiss

1 Hernandez v Court of Appeals, Pesca v Pesca


2 Marcos v Marcos, Republic v Dagdag
3 Dedel v Court of Appeals
4 Villalon v Villalon

outright. This is made evident by the only 2 granted petitions under this provision of the law, to
wit: 1) Chi Ming Tsoi v. Court of Appeals and 2) Antonio v. Reyes.
In 1960, Ronald Coase published what is now the most cited article on law and economics, The
Problem of Social Cost. Ostensibly, the paper is about actions of business firms which have
harmful effects on others. In sum, the theorem can be reduced to two propositions:
First, if there are zero transaction costs, the efficient outcome will occur regardless of the choice
of legal rule.
Second, if there are positive transaction costs, the efficient outcome may not occur under every
legal rule. In these circumstances, the preferred legal rule is the rule that minimizes the effects of
transaction costs. These effects include actually incurring transaction costs as well as the
inefficient choices induced by a desire to avoid transaction costs.
Atty. Hilbay claims analogy/similarity between The Coase Theorem and Article 36 petitions. In
relation to Article 36 petitions, transactions costs is compared to the degree of felicity of parties;
legal rule is whether to stay married or not. With regard to the first proposition, it shows the effect
of exit to marriages if they will not be regulated. Transaction costs would be minimal as
litigation costs would be less while arriving at the desired outcome of cutting the marital ties.
Thus, maximizing felicity of both parties.
However, if exit to marriage is regulated by the State, like the case in our country, heavy costs
result as is in the second proposition of the case theorem. These costs somewhat negatively
affect the felicity of the parties involved for their loss of money, but still pursue litigation to
minimize further transaction costs, this time pertaining to negation of felicity of both parties if the
marriage is continued.
Legal rules entail costs; at times, they operate as the price of getting something from the
biggest monopolize of public benefits and licenses the government. In the context of Article 36,
and from the perspective of the Holmesian legal participant, the Molina Rules provide a system
of incentives that allow both litigants and judges an opportunity to ascertain the cost of granting
or not granting the certification of nullity of marriage, regardless of whether or not the rule is
violated. In short, the Molina Rules may be likened to a rent-seeking mechanism (mildly put) or
an opportunity for corruption (bluntly stated). This is especially true in a country widely regarded
as a haven for rent-seekers, where institutions of accountability are weak and where illegal
practices are usually perceived as not necessarily incompatible with culture.
Atty. Hilbay also discussed the illegitimate ways that the parties of an Article 36 petition may
resort to for the nullification of the marriage. Since in most cases, both parties in this kind of
petition want the same result, the only barrier existing are the judges and public prosecutors
whose duty is to protect the marriage. The parties, as a result, resort to rent-seeking or bribery to
cause the judges and public prosecutors to rule in favor of the parties.
Aside from compromising the dignity stand of the judges and public prosecutors, the parties may
also jeopardize the practice of psychiatrists/psychologists. Although the testimony of a
psychologist/psychiatrist is not required as corroborating evidence in the courts for subject
petitions, it actually can be used for purposes of rationalizing the decision of the judge to grant
the petition, and for the public prosecutors not to appeal. It somehow provides a
proof/justification for the favorable exercise of discretion by the judge.
xxx if the costs of transacting are considerable, only those who can afford the transactions
costs will contract.

Atty. Hilbay also tackled the implicit favor given by Article 36 to the financially advantaged. He
infers that since the threshold for winning Article 36 petitions are high, the accompanying costs
of filing and sustaining the same until a favorable decision is obtained is undeniably great which
allows only those with financial capability to apply for nullity of marriage.

References:
Sempio-Diy, Alicia. Handbook on the Family Code of the Philippines. 3rd ed. Quezon
City: Joer Prinitng Service. 43-51. Print.
Maria, Melencio S. Persons and Family Relations Law. 5th ed. Manila, Philippines:
Published & Distributed by Rex Book Store, 2010. 219-240. Print.
Atty. Hilbay, F. T. (2007). Chi Ming Choices: A Coasean Analogue. Philippine Law
Journal. Volume 82 No. 2.
Santos, A. (2015, June 25). Ending a Marriage in the Only Country That Bans Divorce.
Retrieved September 6, 2015.

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