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90 SUPREME COURT REPORTS ANNOTATED


Distinctions Between Psychological Incapacity As a Ground
For Declaration of Nullity of Marriage and Divorce

ANNOTATION

DISTINCTIONS BETWEEN PSYCHOLOGICAL


INCAPACITY AS A GROUND FOR DECLARATION OF
NULLITY OF MARRIAGE AND DIVORCE
By
JORGE R. COQUIA*

______________

§ 1. Introduction, p. 91
§ 2. Distinctions Between Divorce, Declaration of
Nullity of Marriage on the Ground of
Psychological Incapacity, Annulment of
Marriage and Legal Separation, p. 91
§ 3. Sources and Nature of Article 36 of the Family
Code, p. 92
§ 4. Consent Given in Marriage Distinguished
from Consent in Ordinary Contract, p. 93
§ 5. No Precise Definition in the Canon Code and
the Family Code, p. 95
§ 6. Some Characteristics of Psychological
Incapacity, p. 97
§ 7. The Three Levels of Psychological Incapacity,
p. 98
§ 8. Jurisprudence Developed By Church
Canonists, p. 98
§ 9. Interpretation by the Philippine Supreme
Court, p. 100
§ 10. Guidelines in the Interpretation and
Application of Article 36, p. 105
§ 11. No Prescriptive Period of Declaration of
Nullity of Marriage, p. 106
§ 12. Supreme Court Decisions Consistent with the
Principle of Indissolubility of Marriage, p. 106
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______________

_______________

* Member, Board of Editorial Consultants, Supreme Court Reports


Annotated (SCRA).

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§ 1. Introduction

Not so many in our country fully understand the meaning


of psychological incapacity as a ground for the declaration
of nullity of marriage, as provided for in Article 36 of the
Family Code. Many confuse it as a form of “Catholic
Divorce.” Since the Catholic Church itself has been
declaring the nullity of marriage of couples who have been
living together for a long time, they now insist that they
might just as well legislate a divorce law. One
Congressman who does not approve of divorce had
advocated the repeal of Article 36 of the Family Code. The
case of LUCITA ESTRELLA HERNANDEZ VS. COURT
OF APPEALS, ET AL., G.R. No. 126010, December 3, 1999
only the fourth case decided by the Supreme Court has
clarified the meaning of psychological incapacity as a
ground for the declaration of nullity of marriage and
distinguishing it with divorce and legal separation.

§ 2. Distinctions Between Divorce, Declaration of


Nullity of Marriage on the Ground of Psychological
Incapacity, Annulment of Marriage and Legal
Separation

The real meaning and purpose of psychological incapacity


as a ground for declaration of nullity of marriage under
Article 36 of the Family Code is due to lack of knowledge of
the distinctions between divorce, declaration of nullity of
marriage, annulment of marriage and legal separation.
Article 36 of the Family Code reads:

“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
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even if such incapacity becomes manifest only after its


solemnization.”

In divorce, all of the requisites of a valid marriage are


present, as provided for in Article 2 of the Family Code.
However, circumstances have occurred after the marriage
due to the deliberate will or action of one or both spouses,
as for example, adultery on the part of the wife, or
concubinage on the
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part of the husband, or attempt against the life of one


spouse by the other. To cut the marital bond, divorce is
obtained and the spouses can remarry with other partners.
Similarly, in legal separation, the marriage is valid but
causes occur upon the will of one or both spouses. In legal
separation, however, the marital bond is not broken. The
spouses only separate in bed and board (Divorce a mensa
et thoro).
In annulment of marriage, there is a defect in the
capacity or consent of either one or both spouses at the
time of marriage.

§ 3. Sources and Nature of Article 36 of the Family


Code

This new provision in the Philippine marriage law was


taken from Canon 1095 of the New Code of Canon Law
which took effect in 1983. Canon 1095 reads:

“Matrimonial Consent
Can. 1095. The following are incapable of contracting marriage:

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 obligations of marriage.”

Particularly, it is number 3 of this cited Canon that is now


incorporated in Article 36 of the Family Code. According to
one of the members of the Code Commission, said provision
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has been incorporated in the Family Code 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.

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(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 the 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 of them to
perform the essential obligations of marriage. (A.
SempioDiy, A Handbook on the Family Code, p. 36)

With due respect to the writer, Article 36 is not really a


substitute for divorce because, as already stated, divorce
is entirely different from annulment of marriage. In
psychological incapacity under Article 36, there was no
valid marriage at all, so there is nothing at all to divorce.
The grounds for divorce are caused by the deliberate
will of any of the spouses after the marriage thus violating
marriage as a social institution and as permanent union of
man and wife. Psychological incapacity is not due to the
deliberate will of any of the parties, as it occurred at the
time of the marriage rite. A valid marriage is indissoluble.
It is only in the death of one of the spouses that marriage is
dissolved and the surviving spouse is free to remarry.

§ 4. Consent Given in Marriage Distinguished from


Consent in Ordinary Contract

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Usually, the parties to a marriage consider it as an


ordinary contract which can be revoked or nullified at their
will. This is one main reason why many marriages end in
divorce. The root cause of the divorce of spouses to obtain
divorce is the lack of knowledge of the consent given in
marriage.
Consent in marriage is a solemn vow entirely different
from consent given in an ordinary contract. While marriage
is a form of contract it is special one where consent involves
so many matters such as the full capacity to enter into the
marriage and to know the essential obligations attached
thereto. It is for this reason that Article 1 of the Family
Code defines
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marriage as a “special contract of permanent union


between a man and a woman.” An individual may be fully
capable to give his consent in an ordinary contract such as
business deals involving huge amount of money but his
capacity to give consent to marriage is nil. For in marriage,
consent involves the capacity to enter into a community of
life of husband and wife and to understand the aspects as a
permanent union (Code of Canon Law, A Text and
Commentary, The Canon Law Society of America, 1985, p.
773). Marriage is an unconditional surrender of one’s body
to his or her spouse. As repeatedly stated in the Old and
New Testament of the Bible, “Therefore a man shall leave
his father and his mother and shall become united and
cleave to his wife, and they shall become one flesh (Gen.
2:24; Matt. 19:5; I Cor. 6:16; Eph. 5:31-33).”
Rooted in the marriage contract of the partners is their
irrevocable personal consent. It is an institution confirmed
by divine law and receiving its stability, even in the eyes of
society, from the human act by which the partners
surrender themselves to each other. The Rota, the highest
marital tribunal of the Catholic Church, held in its 1969
decision that the final object of a marital consent is where
the parties commit themselves more than the heterosexual
act. The core is the state of mind of husband and wife, by
which the spouses, despite human frailty, and the grave,
even very grave fault of one or the other, constantly strive
in their concrete circumstances to bring into effect that
indefinable sum of attitudes, of behavior and of actions,
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varying in its concrete expressions in different cultures,


without which it would be impossible to bring into being
and keep in being that communion of life, which is
necessary for the achievement in a truly human way, of the
ends which marriage is destined to achieve (C. Anne, Dec.
4, 1975, EIC 33 [1977], 176-177, trans. From Fellhauer,
139-140 cited in Code of Canon Law: Text and
Commentary, p. 773).
In addition to the capacity for a deliberate act of the will,
the spouses must be psychologically capable of assuming
and carrying out the essential obligations of marriage. One
cannot validly exchange consent to marriage if it is beyond
one’s capacity. A person may be capable of understanding
the na-
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ture of marriage and of making a deliberate act of the will


while at the same time being radically incapable of
assuming its obligations.
If a party is not psychologically capable of
understanding the meaning of marriage, he is not a
functioning human person in the view of marriage. He does
not exist as subject nor as object. To contract marriage with
a psychologically incapable person is to contract will be
effected because the other party is missing. (Veloso,
Catholic Marriage Annulment, Vol. III [Selected Successful
Cases], 1992, p. 2)
The Catholic Church has crafted the annulment process
as a way of providing for the needs of her anguished
children, without compromising the severity and
inflexibility of her doctrine. Thus, while upholding the
indissolubility of marriage, thereby forbidding absolute
divorce, she has nonetheless designed and evolved the
opportune process of marriage annulment or the judicial
declaration of marriage nullity—for the relief of people
whose marriage has become not only irreparably broken
but also inimical to their spiritual welfare. As in civil
divorce, Catholic marriage annulment, which is more
appropriately called declaration of marriage nullity,
releases a couple from the marital vinculum, thereby
making them free to contract new marriages with other
partners. The doctrinal difference is that in divorce, the
marital bond which previously existed is severed, while in
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Catholic declaration of nullity, the bond—which is the


sacrament of matrimony—is declared to be non-existent.
Declaration of marriage nullity in civil cases is similar to
the Church process in that the marriage bond is likewise
decreed to be non-existent thereby making remarriage with
other partners possible. In civil annulment there is a valid
but defective marriage which is being sought to be
nullified. Church law does not have the category of voidable
marriage: it is either valid or void.

§ 5. No Precise Definition in the Canon Code and the


Family Code

As in the Code of Canon Law, the Family Code did not


define what is meant by psychological incapacity. The
absence of
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definition will invite multifarious interpretations from


different courts trying cases for declarations of nullity of
marriages based on psychological incapacity. Even the
appellate courts will not find it easy to apply the law. This
is to be expected considering that the expanse of
psychological infirmities is limitless. Ultimately, this will
result in judicial legislation by the courts which will feel
free to fill up the vacuum left in the Code. The Philippine
Congress may solve this problem either by abolishing the
Article or by defining the term for the guidance of our
courts.
The only guidance provided by the Code is that the
psychological incapacity prevents the subject from
complying with the essential marital obligations of
marriage which is still very general.
Gerardo Ty Veloso, a former presiding judge of the
Metropolitan Marriage Tribunal of the Catholic
Archdiocese of Manila, however, enumerates the
psychological ills or irregularities accepted as grounds for
Church annulment of marriage, apart from the already
classical neuroses, psychoses, and other personality
disorders known to psychologists that render a person
psychologically unfit to assume and perform the roles of
marriage, as follows: (1) homosexuality in men or
lesbianism in women (attachment to the same sex for
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sexual fulfillment); (2) satyriasis in men or nymphomania


in women (excessive and promiscuous sex hunger); (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 husband to
support the family or excessive dependence on parents or
peer group approval); (5) epilepsy, with permanently
recurring mal-adaptive manifestations; and (6) habitual
alcoholism, or the condition by which a person consistently
gets in trouble with the law or with socially established
norms of conduct. (Veloso, Catholic Marriage Annulment,
Volume I [Accepted Grounds], 1990, p. 2)
Rev. Fr. Gerald Healy, SJ of the Ateneo de Manila
University and Archbishop Oscar Cruz, head of the
Appellate Matrimonial Tribunal of the Church in the
Philippines, said that the psychological incapacity to
discharge the essential obliga-
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tions of marriage may also be made manifest: (1) by the


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 an affliction that makes
common life as husband and wife impossible or unbearable
such as compulsive gambling or unbearable jealousy on the
part of 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
of physical violence on the wife, constitutional laziness or
indolence, drug dependence or addiction, or some kind of
psycho sexual anomaly.

§ 6. Some Characteristics of Psychological Incapacity

For psychological incapacity to be a ground for nullity of a


marriage, it must exhibit the following characteristics: (a)
Gravity: It is grave if the subject cannot carry out the
normal and ordinary duties of marriage and family
shouldered by any average couple existing under everyday
circumstances of life and work; (b) Antecedence: It is
antecedent to marriage if at least the roots of the trouble

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can be traced to the history of the subject before marriage;


although its overt manifestations appear only after the
wedding; and (c) Incurability: It is incurable if the required
treatments exceed the ordinary means of the subject. For
instance, if the psychiatric sessions involve time and
expense beyond the reach of the subject, his psychological
unfitness is incurable.
Under the Family Code, the essential marital obligations
are, the chronic—meaning, constant and habitual—non-
performance of which gives rise to a ground for declaration
of nullity of marriage: (1) To procreate children based on
the universal principle that procreation of children through
sexual cooperation is the basic end of marriage; (2) To live
together under one roof for togetherness spells the unity in
marriage; (3) To observe mutual love, respect, and fidelity
for love, sexual comfort, and loyalty to one another are
basic postulates of marriage; (4) To render mutual help and
support for assistance in necessities, both temporal and
spiritual, is
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essential to sustain the marriage; (5) To jointly support the


family for the spouses are joint administrator in the
partnership; and (6) Not to commit acts which will bring
danger, dishonor, or injury to each other or to the family for
the safety and security of the family at all times is the
primordial duty of the spouses.
The essential elements that will justify the nullification
of marriage are the following: (a) There is a celebration of
marriage; (b) There is non-performance of marital
obligation; (c) The obligations are material elements of
essential obligations; (d) The non-performance is due to
causes psychological in nature and the same is chronic,
that is constant and habitual; (e) The cause or causes are
present during the celebration of marriage, although may
not be manifest; and (f) The cause or causes resulting
incapacity surface after the marriage celebration.

§ 7. The Three Levels of Psychological Incapacity

There are three levels of psychological incapacity: (1)


Mental Level—This has something to do with the

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intelligence, memory and imagination of the spouse; (2)


Affective level—This has something to do with the
sentiments, feelings, passions, desires, affections, and
emotions; and (3) Physical level—This has something to do
with the bodily execution of dictates from the mental and
affective levels. There being three levels of psychological
incapacity, it is possible that a spouse may be mentally
incapable but physically capable, or vice versa or he may be
incapable on the affective level but capable for the other
levels, or vice versa. Or he may be incapable at all. (Lipton,
Understanding Article 36 of the Family Code, Unpublished,
M.S.S., p. 10)

§ 8. Jurisprudence Developed By Church Canonists

Article 36 having been adapted from the Canon Code 1095


of the Code of Canon Law, the jurisprudence developed by
Church Canonists may serve as guide for the real
application of said canon. The rotal judges have developed
the notion of marital capacity all point out to the
interpersonal relationship
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which can reach a greater or lesser degree of perfection in


different spouses.
The incapacity to assume the essential obligation of
marriage differ from the unwillingness to do so in that one
or both of the parties suffers from a debilitating
psychological condition to such an extent that it is
impossible to begin and sustain a marital relationship. The
psychic factor itself is not the cause of invalidity, rather
than the gravity of the affliction is the root of the
incapacity.
The law does not specify which types of psychic causes
can incapacitate one for marriage nor does it give a partial
listing of disorders which have a detrimental effect on the
marital community. However, the marriage committee
clearly intended to include not simply sexual anomalies but
also other psychological disorders which affect the
personality.
The diagnosis of a disorder, even a tentative one, is a
clinical and not a juridical issue. The classification and

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terminology related to the various disorders change, and


court experts themselves often differ about the precise
classification of an obvious disorder.
The phrase “of a psychic nature” includes a wide range
of possibilities. Marital incapacity can result from a
psychotic disorder or a personality disorder, provided, the
disorder is a true constitutional impairment which
prevents the person from improving his or her situation. A
personality disorder is a very complex and elusive
phenomenon which resists easy analysis. Although the
Rota has generally demanded a clearly diagnosed disorder
in incapacity cases, continuing research developments,
changing terminology, and the elusive nature of the
disorders themselves make exact diagnoses difficult. One
important Rotal decision states that marital incapacity can
result from an abnormality which is not really an illness
but which is caused by various factors which preclude one’s
entering into an interpersonal relationship. The
abnormality is referred to as “emotional immaturity.”
When canonists use the term “immaturity” they use it in
a specific sense and not in reference to ordinary
chronological
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immaturity which affects everyone at one time in his or her


development. Rather, immaturity is a psychological
condition which affects the ability to make judgments, to
control one’s actions, and to relate to another. As such, it is
not a temporary condition but a permanent one.
Some canonists refer to absolute and relative incapacity,
indicating that a person may be incapable of marriage to
anyone or only to certain persons. In cases involving a
psychotic disorder, a person may be incapable of marriage
to anyone at any time, yet a similar incapacity is not as
easily demonstrated with a personality disorder. According
to Serrano, it is not necessary to prove that a person is
incapable of any marriage but, rather, that he or she is
incapable of the marriage being adjudicated by the court.
Psychiatrists and psychologists are frequently reluctant to
pronounce on a person’s absolute incapacity for marriage
but prefer to limit their opinions to the case before them.
The object of primary concern is not the psychic disorder
but, rather, its effects upon the interpersonal relationship.
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What is sought is a clear-cut pattern of behavior which


leads to a judgment that a psychic disorder has prevented
the community of life from coming into being. Occasional
acts of irresponsibility, be they grave or light, do not in
themselves constitute proof either of incapacity or of the
existence of a psychic disorder. Yet a pattern of such
behavior can and usually does provide evidence of such a
disorder.

§ 9. Interpretation by the Philippine Supreme Court

It is quite unfortunate that most Regional Trial Court


judges have not fully undertook the real psychological
incapacity as ground of declaration of nullity and have been
granting petitions for nullity easily thus destroying
marriage as a social institution which the State should
protect. It is for this reason that many believe that the
Catholic Church is now granting divorce which is not
true.
Jurisprudence on the matter is still undeveloped in the
Philippines. Although as a new doctrine, the Supreme
Court
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has been very careful in granting the declaration of nullity


of marriage to preserve the integrity of marriages as a
social institution which is a declared State policy (Art. II,
Sec. 12, Phil. Const.). There are only four cases that have
reached the Supreme Court on the matter. In all these
cases, the Supreme Court has granted a petition of the
declaration of nullity of marriage on the ground of
psychological incapacity.
The second case was Santos vs. Court of Appeals, 240
SCRA 29 (1992). The case involved Leouel Santos, an
officer in the Philippine Army and his wife Julia Rosario
Bedia-Santos, a nurse. The couple were married civilly on
September 20, 1986, and shortly thereafter, sacramentally
in a Church ceremony. Two years later or on May 18, 1988,
Julia left for the United States to work as a nurse despite
Leouel’s efforts to dissuade her. Seven months after her
departure, or on January 1, 1989, Julia called up Leouel for
the first time by long distance telephone promising to

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return home after the expiration of her contract in July


1989. She never returned. When Leouel was sent to
undergo a training program in the U.S., from April 10 up to
August 25, 1990, he desperately tried to locate or to
somehow get in touch with Julia but all his efforts were of
no avail. After he returned to the Philippines, Leouel filed
with the Regional Trial Court a complaint for “Voiding of
Marriage under Article 36 of the Family Code.” After
summons by publication, Julia through counsel, filed an
answer opposing the complaint and denying its allegations
and claiming in the main that it was Leouel who had, in
fact, been irresponsible and incompetent. Julia filed a
manifestation that she would neither appear nor submit
evidence. On November 6, 1991, the trial court finally
dismissed the complaint for lack of merit. On appeal by
Leouel, the Court of Appeals affirmed the decision of the
trial court. Leouel went to the Supreme Court on petition
for review on certiorari, but his petition was eventually
denied.
In denying the petition for the declaration of nullity of
the marriage, Justice Vitug, who was a member of the Civil
Code Revision Committee, said, “x x x. ‘(P)sychological
incapacity’ should refer to no less than a mental (not
physical) incapacity
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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 Article 68 of the Family Code, include their
mutual obligations to live together, observe love, respect
and infidelity 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 of the
spouse to give meaning and significance to the marriage.
This psychologic condition must exist at the time the
marriage is celebrated. The law does not evidently
envision, upon the other hand, an inability of the spouse to
have sexual relations with the other. This conclusion is
implicit under Article 54 of the Family Code which
considers children conceived prior to the judicial
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declaration of nullity of the void marriage to be ‘legitimate.’


“The other forms of psychoses, if existing at the inception of


marriage, like the state of a party being of unsound mind or
concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, merely renders the marriage
contract voidable pursuant to Article 46 of the Family Code. If
drug addiction, habitual alcoholism, lesbianism or homosexuality
should occur only during the marriage, they become mere grounds
for legal separation under Article 55 of the Family Code. These
provisions of the Code, however, do not necessarily preclude the
possibility of these various circumstances being themselves,
depending on the degree and severity of the disorder, indicia of
psychological incapacity.”
“Until further statutory and jurisprudential parameters are
established, every circumstance that may have some bearing on
the degree, extent, and other conditions of that incapacity must,
in every case, be carefully examined and evaluated so that no
precipitate and indiscriminate nullity is peremptorily decreed.
The well-considered opinions of psychiatrists, psychologists, and
persons with expertise in psychological disciplines might be
helpful or even desirable.”

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In his dissent, Justice Teodoro R. Padilla declared “it has


been abundantly established that private respondent Julia
Rosario Bedia-Santos exhibits specific behavior which x x x
shows that she is psychologically incapacitated to fulfill her
essential marital obligations, to wit: (a) It took her seven
(7) months after she left for the United States to call up her
husband; (b) Julia promised to return home after her job
contract expired in July 1989, but she never did and
neither is there any showing that she informed her
husband x x x of her whereabouts in the U.S.A.; (c) When
petitioner went to the United States on a mission for the
Philippine Army, he exerted efforts to ‘touch base’ with
Julia, there were no similar efforts on the part of Julia to
do the same; (d) When Petitioner filed this suit, more than
five (5) years had elapsed, without Julia indicating her
plans to rejoin the petitioner or her whereabouts; (e) When
petitioner filed this case in the trial court, Julia, in her
answer, claimed that it is the former who has been
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irresponsible and incompetent; and (f) During the trial,


Julia waived her right to appear and submit evidence.”
The first case decided by the Supreme Court on the
matter is Salita vs. Magtolis, 233 SCRA 100 (1994). The
Supreme Court said that the Court of Appeals decision
denying the petition for the declaration of nullity of
marriage on a procedural matter. The Court held that the
petitioner has not demonstrated a good grasp of Article 36
of the Family Code, citing Justice Sempio-Diy of the Civil
Code Revisions Committee, that the Committee did not
give any exact examples of psychological incapacity for fear
that the giving of examples would limit the applicability of
the provision under the principle ejusdem generis. Rather,
the Committee would like the judge to interpret the
provision on a case-to-case basis, guided by experience, the
findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which,
although not binding on the civil courts, may be given
persuasive effect since the provision was taken from Canon
Law.
The third case decided by the Supreme Court on
psychological incapacity was Republic of the Philippines vs.
Court of Appeals, 268 SCRA 198 (1997). Also denying the
petition for declaration of nullity of marriage, the Court
held that the
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Distinctions Between Psychological Incapacity As a Ground
For Declaration of Nullity of Marriage and Divorce

mere showing of “irreconcilable 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 (not
physical) illness.
The evidence adduced by the respondent merely showed
that she and her husband could not get along with each
other. There had been no showing of the gravity of the
problem; neither its juridical antecedence nor its
incurability. The expert testimony of Dr. Sison showed no
incurable psychiatric disorder but only incompatibility, not
psychological incapacity.
In clarifying this concept, the Supreme Court in the case
under annotation said that there is hardly any doubt that
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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. The law does not
evidently envision, upon the other hand, an inability of the
spouse to have sexual relations with the other. This
conclusion is implicit under Article 54 of the Family Code
which considers children conceived prior to the judicial
declaration of nullity of the void marriage to be
“legitimate.”
The other forms of psychoses, if existing at the inception
of marriage, like the state of a party being of unsound mind
or concealment of drug addiction, habitual alcoholism,
lesbianism, merely renders the marriage contract voidable
pursuant to Article 46, Family Code. If drug addiction,
habitual alcoholism, lesbianism or homosexuality should
occur during the marriage, they become mere grounds for
legal separation under Article 55 of the Family Code. These
provisions of the Code, however, do not necessarily
preclude the possibility of these various circumstances
being themselves, depending on the degree and severity of
the disorder, indicia of psychological incapacity.
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VOL. 320, DECEMBER 8, 1999 105


Distinctions Between Psychological Incapacity As a Ground
For Declaration of Nullity of Marriage and Divorce

§ 10. Guidelines in the Interpretation and


Application of Article 36

In denying the petition for declaration of nullity of a


marriage, the Supreme Court in its third decision in
Republic of the Philippines vs. Court of Appeals, 268 SCRA
198 (1997), said that from the submissions and court
deliberations, the following guidelines in the interpretation
and application of Article 36 of the Family Code are hereby
handed down for the guidance of the bench and the bar: (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. This is rooted in the fact
that both our Constitution and our laws cherish the
validity of marriage and unity of the family. Thus, our
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Constitution devotes an entire Article on the Family,


recognizing it “as the foundation of the nation.” It decrees
marriage as legally “inviolable,” thereby protecting it from
dissolution at the whim of the parties. Both the family and
marriage are to be “protected” by the state.
The root cause of psychological incapacity must be
identified as a psychological illness and its incapacitating
nature fully explained. It 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. The evidence must convince the court that the
parties, or one of them, was mentally or psychically ill to
such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not
have given a valid assumption thereof. Although no
example of such incapacity need be given so as not to limit
the application of the provision under the principle ejusdem
generis, nevertheless such root cause must be identified as
a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
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Distinctions Between Psychological Incapacity As a Ground
For Declaration of Nullity of Marriage and Divorce

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 do’s.” 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. The opinion of a
psychologist or psychiatrist is necessary in determining the
psychological incapacity of a person.

§ 11. No Prescriptive Period of Declaration of Nullity


of Marriage

To give more effect to Article 36 of the Family Code,


Congress recently enacted Republic Act No. 8533 in 1998
by removing the prescriptive period for filing of petition for
declaration of nullity of marriage grounded on Article 36 of
the Family Code. The amendatory law (Republic Act No.
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8533) now provides that many petitions in the declaration


of nullity of marriage does not prescribe.

§ 12. Supreme Court Decisions Consistent with the


Principle of Indissolubility of Marriage

As shown in the Philippine Supreme Court decisions, the


declaration of the nullity of marriage on the ground of
psychological incapacity as now produced in the Family
Code strengthens the institution of marriage. Philippine
court decisions follow the jurisprudence set by the church
tribunals that once a valid marriage is celebrated, not even
the State can dissolve it as there is no absolute divorce in
the Philippines. Marriage is not an ordinary contract where
the conditions are subject to the will of the parties. The
decisions have applied strictly the meaning of psychological
incapacity as a ground for the declaration of nullity of
marriage. The position of the Supreme Court is to preserve
the institution of marriage as a social institution.

——o0o——

107

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