Psychological incapacity and proving it in

court
MARCH 30, 2017 BY LAWYERS IN THE PHILIPPINES, POSTED
IN ANNULMENT, FAMILY LAW
Contents
Defining psychological incapacity
Guidelines for determining psychological incapacity
Example of psychological incapacity
Example of a case denying psychological incapacity

Marriage is a peculiar institution in the Philippines, the only country on earth in

which there is still no general law on divorce.[1] It is a constitutionally protected
institution. Any legal assault on a marriage must hurdle Sections 1 and 2 of
Article XV of the Constitution, which provide that,
“The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.”
and
“Marriage, as an inviolable social institution, is the foundation of the family and
shall be protected by the State.”
Anyone who seeks to legally dissolve a marriage in the Philippines has her work
cut out for her.
Lacking divorce, married persons who seek to dissolve their union here often
resort to a petition for declaration of nullity of the marriage. This is different from
divorce. Whereas divorce ends a marriage, the legal fiction applied to a marriage
declared null and void is that it never truly came into effect. That, in a sense, the
marriage never happened at all.

Psychological incapacity
The most familiar ground for nullity is psychological incapacity under Article 36 of
the Family Code. It is the claim that one or both of the spouses
is “psychologically incapacitated to perform and comply with the essential marital
obligations at the time of the celebration of their marriage”.[2]
The amount of legalese in that last sentence speaks of how complicated such a
case for psychological incapacity can get. The Supreme Court has
defined psychological incapacityas “the downright incapacity or inability to take
cognizance of and to assume the basic marital obligations.”[3]
The burden of proving psychological incapacity is on the plaintiff. The plaintiff
must prove that the incapacitated party, based on his or her actions or behavior,
suffers a serious psychological disorder that completely disables him or her from
understanding and discharging the essential obligations of the marital state. The
psychological problem must be grave, must have existed at the time of marriage,
and must be incurable.[4]
There is a lot of jurisprudence on psychological incapacity. Decades of Supreme
Court rulings have laid down, restated and reconsidered not just what it is in
practice, but also how to prove it in court. These cases reveal a shifting, evolving
field of law. Since the Family Code is spare on its definition of “psychological
incapacity” the Supreme Court decisions first had to define the scope of the term,
and then fix, relax, revise and reiterate the procedures by which to prove it.
It’s gotten pretty complicated. A review of the cases shows an odd mix of
reactionary wariness of ‘psychological incapacity’ as providing for the “most
liberal divorce procedure in the world”[5] mingled with a continuing exegesis of
the surprisingly less conservative Catholic Church doctrine on the
concept[6] (Article 36 was lifted in spirit from Catholic canon law).

What are the current guidelines for a marriage to be declared null and void
under Article 36?
In November 2016,[7]the Supreme Court reaffirmed the guidelines which have
been in place since 1997:
1) 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
2) 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
3) The incapacity must be proven to be existing at ‘the time of the celebration’ of
the marriage.
4) Such incapacity must also be shown to be medically or clinically permanent or
incurable.
5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage.
6) 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.*
7) 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.
8) 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.
The Guidelines incorporate the basic requirements established in Santos v. Court
of Appeals that psychological incapacity must be characterized by: (a) gravity; (b)
juridical antecedence; and (c) incurability. These requisites must be strictly
complied with, as the grant of a petition for nullity of marriage based on
psychological incapacity must be confined only to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage.
What is an example of a case where there was found to be psychological
incapacity?
A fairly recent example is Kalaw vs. Fernandez[8]. In 2011, the Supreme Court
actually denied Kalaw’s petition for the declaration of nullity of his marriage under
Article 36. In 2015, however, the Supreme Court reversed itself and granted
Kalaw’s petition after all.
On reconsideration, the Supreme Court gave credence to the testimony of expert
witnesses who testified to the psychological incapacity of Kalaw’s wife. These
expert witnesses included a psychologist and a priest who was also a canon law
expert of the Catholic Church:
After a long and hard second look, we consider it improper and unwarranted to
give to such expert opinions a merely generalized consideration and treatment,
least of all to dismiss their value as inadequate basis for the declaration of the
nullity of the marriage. Instead, we hold that said experts sufficiently and
competently described the psychological incapacity of the respondent within the
standards of Article 36 of the Family Code. We uphold the conclusions reached
by the two expert witnesses because they were largely drawn from the case
records and affidavits, and should not anymore be disputed after the RTC itself
had accepted the veracity of the petitioner’s factual premises.
The findings of Kalaw’s expert witnesses who testified to the psychology of his
wife were upheld by the Supreme Court even though they had not personally
examined her:
The expert opinion of Dr. Gates was ultimately necessary herein to enable the
trial court to properly determine the issue of psychological incapacity of the
respondent (if not also of the petitioner). Consequently, the lack of personal
examination and interview of the person diagnosed with personality disorder, like
the respondent, did not per se invalidate the findings of the experts. The Court
has stressed in Marcos v. Marcos that there is no requirement for one to be
declared psychologically incapacitated to be personally examined by a physician,
because what is important is the presence of evidence that adequately
establishes the party’s psychological incapacity. Hence, “if the totality of evidence
presented is enough to sustain a finding of psychological incapacity, then actual
medical examination of the person concerned need not be resorted to.”
Verily, the totality of the evidence must show a link, medical or the like, between
the acts that manifest psychological incapacity and the psychological disorder
itself. If other evidence showing that a certain condition could possibly result from
an assumed state of facts existed in the record, the expert opinion should be
admissible and be weighed as an aid for the court in interpreting such other
evidence on the causation. Indeed, an expert opinion on psychological incapacity
should be considered as conjectural or speculative and without any probative
value only in the absence of other evidence to establish causation. The expert’s
findings under such circumstances would not constitute hearsay that would justify
their exclusion as evidence. This is so, considering that any ruling that brands the
scientific and technical procedure adopted by Dr. Gates as weakened by bias
should be eschewed if it was clear that her psychiatric evaluation had been
based on the parties’ upbringing and psychodynamics. In that context, Dr. Gates’
expert opinion should be considered not in isolation but along with the other
evidence presented here.
Expert witnesses are important for establishing the psychological incapacity.
However, whether or not psychological incapacity is established depends on the
totality of the evidence in the case. Despite some deference to expert witnesses,
a high standard of proof requiring more evidence — in particular the evidence of
the facts on which an expert bases her opinion — is demanded in cases under
Article 36.

An example of denial
This high standard of proof was the reason that the Supreme Court denied a
petition in the 2016 case of Matudan vs. Republic and Matudan[9]:
Indeed, “[w]hat is important is the presence of evidence that can adequately
establish the party’s psychological condition.” [T]he complete facts should allege
the physical manifestations, if any, as are indicative of psychological incapacity at
the time of the celebration of the marriage.” Petitioner’s judicial affidavit and
testimony during trial, however, fail to show gravity and juridical antecedence.
While he complained that Marilyn lacked a sense of guilt and was involved in
“activities defying social and moral ethics,” and that she was, among others,
irrational, irresponsible, immature, and self-centered, he nonetheless failed to
sufficiently and particularly elaborate on these allegations, particularly the degree
of Marilyn’s claimed irresponsibility, immaturity, or selfishness. This is
compounded by the fact that petitioner contradicted his own claims by testifying
that he and Marilyn were happily married and never had a fight, which is why
they begot four children; and the only reason for his filing Civil Case No. Q-08-
62827 was Marilyn’s complete abandonment of the marriage and family when
she left to work abroad.
‘Psychological incapacity,’ as a ground to nullify a marriage under Article 36 of
the Family Code, should refer to no less than a mental – not merely 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 in Article 68 of the Family Code, among
others, include their mutual obligations to live together, observe love, respect and
fidelity and render help and support. 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.
Although an apparently one-sided presentation of evidence was upheld
in Kalaw, Matudan offers a cautionary counter-example for such a strategy.
In Matudan the Supreme Court looked askance at an expert’s psychological
assessment of the wife without the benefit of personally examining her:
We cannot help but note that Dr. Tayag’s conclusions about the respondent’s
psychological incapacity were based on the information fed to her by only one
side — the petitioner — whose bias in favor of her cause cannot be doubted.
While this circumstance alone does not disqualify the psychologist for reasons of
bias, her report, testimony and conclusions deserve the application of a more
rigid and stringent set of standards in the manner we discussed above. For,
effectively, Dr. Tayag only diagnosed the respondent from the prism of a third
party account; she did not actually hear, see and evaluate the respondent and
how he would have reacted and responded to the doctor’s probes.
Dr. Tayag, in her report, merely summarized the petitioner’s narrations, and on
this basis characterized the respondent to be a self-centered, egocentric, and
unremorseful person who ‘believes that the world revolves around him’; and who
‘used love as a . . . deceptive tactic for exploiting the confidence [petitioner]
extended towards him.’ x x x
We find these observations and conclusions insufficiently in depth and
comprehensive to warrant the conclusion that a psychological incapacity existed
that prevented the respondent from complying with the essential obligations of
marriage. It failed to identify the root cause of the respondent’s narcissistic
personality disorder and to prove that it existed at the inception of the marriage.
Neither did it explain the incapacitating nature of the alleged disorder, nor show
that the respondent was really incapable of fulfilling his duties due to some
incapacity of a psychological, not physical, nature. Thus, we cannot avoid but
conclude that Dr. Tayag’s conclusion in her Report — i.e.. that the respondent
suffered ‘Narcissistic Personality Disorder with traces of Antisocial Personality
Disorder declared to be grave and incurable’ — is an unfounded statement, not a
necessary inference from her previous characterization and portrayal of the
respondent. While the various tests administered on the petitioner could have
been used as a fair gauge to assess her own. psychological condition, this same
statement cannot be made with respect to the respondent’s condition. To make
conclusions and generalizations on the respondent’s psychological condition
based on the information fed by only one side is, to our mind, not different from
admitting hearsay evidence as proof of the truthfulness of the content of such
evidence.

All told, there is a lot to overcome in a petition for declaration of nullity under
Article 36. The more well established the basis for an expert’s opinion is, the
better it will be taken by the Court. The more credible evidence a petitioner can
present, the better the chances that the petition will be granted.

Atty. Francesco C. Britanico

[1] There remains no divorce in the Philippines save in the case of Muslim
marriages under Sharia law.
[2] Kalaw vs. Ferndandez, G.R. No. 166357, September 19, 2011.
[3] Ibid.
[4] Ibid.
[5] Republic vs. Court of Appeals and Molina, G.R. No. 108763, February 13,
1997.
[6] Kalaw vs. Fernandez, G.R. No. 166357, January 14, 2015
[7] Matudan vs. Republic and Matudan, G.R. No. 203284, November 14, 2016
[8] Supra.
[9] Supra.