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THE RELAXATION OF RULES IN DECLARATION OF NULLITY

OF MARRIAGE BASED ON PSYCHOLOGICAL INCAPACITY


SC relaxes rules on psychological incapacity as ground to annul marriages, says the
news title in a popular newspaper. While the news article does not mention the title of the
case, its clearly abundant that it refers to the 2015 case of Valerio E. Kalaw vs. Ma.
Elena Fernandez (G.R. No. 166357, 14 January 2015). Did the Supreme Court, in the
case of Kalaw, relax the rules on petitions for declaration of nullity of marriage based on
psychological incapacity? Lets discuss this question and, at the same time, highlight ten
matters that may be of interest to those seeking answers.

1. The rules provided in Molina remain valid

Practitioners refer to the guidelines for the interpretation and application of Article 36 as
the Molina Doctrine, considering that the set of guidelines were first compiled in the
1997 case of Republic vs. Court of Appeals and Roridel Olaviano Molina (G.R. No.
108763). There are eight guidelines: (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 medically or clinically identified, alleged in the
complaint, sufficiently proven by experts and 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; and, (8) The trial court must order
the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the
state.
In Kalaw, the Supreme Court reiterated its categorical statement, made in a 2009 case,
that we are not suggesting the abandonment of Molina in this case. The set of
guidelines in Molina, therefore, stays.
The pronouncement in Kalaw that is closest to relaxation of the guidelines is its
reiteration that the foregoing guidelines have turned out to be rigid, such that their
application to every instance practically condemned the petitions for declaration of nullity
to the fate of certain rejection. There is no doubt that the Molina Doctrine is strict, but
there is also no doubt that countless petitions have been granted pursuant to its
guidelines.
The Court did not relax the rules when it reconsidered the Kalaw ruling. On the contrary,
the ruling falls under the ambit of the Molina guidelines. The first time the Supreme Court
decided Kalaw in 2011, with Justice Mariano C. Del Castillo as the ponente, the Court
dismissed the petition for insufficiency of evidence. There was no sufficient evidence to
prove the alleged acts of the respondent wife constant mahjong sessions, visits to the
beauty parlor, going out with friends, adultery, and neglect of their children. While it was
shown that the respondent-wife played mahjong (bringing the kids with her), the
petitioner-husband failed to show the FREQUENCY of the mahjong sessions. There is no

proof that the mahjong sessions were so frequent that respondent neglected her family.
In other words, the allegations, which served as the bases or underlying premises of the
conclusions of his experts, were not actually proven.
In 2015, with Justice Lucas Bersamin as ponente, the Supreme Court reconsidered its
earlier decision. The Supreme Court, lest it be misunderstood, explicitly stated that its
not abandoning Molina. The Court, bound by the same set of proven facts, clarified that
the failure to show the frequency of mahjong sessions does not preclude a finding of
psychological incapacity. Its not the FREQUENCY of the mahjong sessions; its the fact
that the respondent-wife should have known that bringing her children along her children
of very tender ages to her mahjong sessions would expose them to a culture of gambling
and other vices that would erode their moral fiber. This, based on the totality of facts in
the case, supports the finding of psychological incapacity. This ruling is very much
consistent with the Molina Doctrine. There is no relaxation of the rules in this respect.
The label that the Court relaxed the rules is most likely derived from the Courts
statement that the rules set forth in Molina are rigid. This is bolstered by the apparent
expression of regret, also reiterated in Kalaw, that in hindsight, it may have been
inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving
all cases of psychological incapacity. In my opinion, and as discussed below, the term
rigid should not be understood along the lines of relaxed as an antonym.

2. Expert testimony is decisive


If theres anything in Kalaw that can be construed as a relaxation or departure from
the Molina Doctrine, its the rule on expert witnesses. Guideline No. 2 in Molina provides
that the root cause of the psychological incapacity must be medically or clinically
identified, alleged in the complaint, sufficiently proven by experts and clearly explained in
the decision. However, it has been established in previous cases that expert testimony is
not a requisite in psychological incapacity cases. In other words, the absence of an
expert witness does not automatically result to a denial of the petition. In a number of
cases, including the case of Mendoza vs. Republic (G.R. No. 157649, 12 November
2012), the Supreme Court had the occasion to state that the expert opinions of
psychologists are not conditions sine qua non in the granting of petitions for declaration
of nullity of marriage, although the Court added that the actual medical examination
was to be dispensed with only if the totality of evidence presented was enough to support
a finding of his psychological incapacity. The requirement of the totality of evidence is
also not new, having been discussed in similar cases prior to Kalaw.
Going back to the value of expert testimonies, the Supreme Court in Kalaw restated the
rule that in the task of ascertaining the presence of psychological incapacity as a ground
for the nullity of marriage, the courts, which are concededly not endowed with expertise in
the field of psychology, must of necessity rely on the opinions of experts in order to inform
themselves on the matter, and thus enable themselves to arrive at an intelligent and
judicious judgment. There is no relaxation of the rules in this respect.
Incidentally, in one of our cases, the judge noted that it is for the court not the
psychologist to conclude that one or both parties is/are psychologically incapacitated.
Indeed, the existence of psychological incapacity is a legal conclusion, which is within the

exclusive province of the court, but this does not preclude the expert witness from
expressing a similar opinion, pointing to the exact condition or personality disorder of
the spouse/s.

3. The psychologist need not personally examine the


incapacitated spouse
The usual objection raised against the testimony of the expert witness, especially when
the services of the expert witness has been obtained by the petitioner-spouse and there
is a conclusion that the respondent-spouse is psychologically incapacitated, is the usual
inability of the psychologist to examine or interview the respondent spouse. In Kalaw, the
Supreme Court reiterated the rule that the lack of personal examination and interview of
the person diagnosed with personality disorderdid not per se invalidate the findings of
the experts. There is no relaxation of the rules in this respect.
The opinion of the expert opinion should not be lightly brushed aside in the presence of
the totality of evidence in the case. This is the reason why, in the cases we are
handling, we require the client to present other witnesses to corroborate the clients
testimony on the facts which constitute the basis for the finding of the personality disorder
and, ultimately, psychological incapacity. While clients initially complain about the
presentation of other witnesses, we make it a point to carefully explain that this is needed
to avoid an outright denial of the petition.

4. Article 36 is patterned after Church doctrines


It has been said that the Philippines is the only country in the whole world that does not
have divorce. This, of course, did not deter the Office of the Solicitor General (OSG) to
make, in the language of the Supreme Court, an exaggeration in Molina that Article 36
is the most liberal divorce procedure in the world. In Kalaw, the Supreme Court noted
that it was sensitive to the exaggeration of the OSG when it enunciated the rigid rules
in Molina. The unintended consequences of Molina, however, has taken its toll on people
who have to live with deviant behavior, moral insanity and sociopathic personality
anomaly, which, like termites, consume little by little the very foundation of their families,
our basic social institutions. Far from what was intended by the Court, Molina has
become a strait-jacket, forcing all sizes to fit into and be bound by it. Wittingly or
unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed
sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously
debase and pervert the sanctity of marriage. Ironically, the Roman Rota has annulled
marriages on account of the personality disorders of the said individuals.
Article 36 is patterned after Church rules. As noted in Molina: Since the purpose of
including such provision in our Family Code is to harmonize our civil laws with the
religious faith of our people, it stands to reason that to achieve such harmonization, great
persuasive weight should be given to decisions of such appellate tribunal. Ideally
subject to our law on evidence what is decreed as canonically invalid should also be
decreed civilly void.

5. Article 36 protects the family


The first guideline under Molina provides that any doubt should be resolved in favor of
the existence and continuation of the marriage and against its dissolution and nullity.
Marriage is protected under the Constitution and existing laws. In case of DOUBT in
petitions for nullity cases, the doubt must be resolved in favor of the validity of marriage.
In other words, the petition must be examined strictly in favor of the validity of marriage. If
the issue can be resolved both ways for or against declaration of nullity the issue
must be resolved in favor of marriage, which means that petition must be dismissed.
This Constitutional protection of marriage, however, does not apply to void marriages. As
reiterated by the Supreme Court in Kalaw, Article 36 protects the institution of marriage
the fulfillment of the constitutional mandate for the State to protect marriage as an
inviolable social institution only relates to a valid marriage. No protection can be accorded
to a marriage that is null and void ab initio, because such a marriage has no legal
existence.
Indeed, Article 36 of the Family Code, in classifying marriages contracted by a
psychologically incapacitated person as a nullity, should be deemed as an implement of
this constitutional protection of marriage. Given the avowed State interest in promoting
marriage as the foundation of the family, which in turn serves as the foundation of the
nation, there is a corresponding interest for the State to defend against marriages illequipped to promote family life. Void ab initio marriages under Article 36 do not further
the initiatives of the State concerning marriage and family, as they promote wedlock
among persons who, for reasons independent of their will, are not capacitated to
understand or comply with the essential obligations of marriage.
Heres the dilemma that I see: the determination whether the marriage is void (in which
case it loses any protection under the Constitution) is done at the latter part of the trial
(the decision), while the application of the presumption of the validity of marriage (as well
as the strict interpretation in favor of validity) exists at the time of filing of the very same
petition.
In my opinion, there is no inconsistency, and there is no relaxation of the rules. A
presumption can always be overturned by contrary evidence. Once contrary evidence is
admitted and the marriage is declared void, then the presumption loses any value and the
marriage cease to be constitutionally protected. Under this scenario, it does not help to
be saddled with presumptions (or assumptions, predilections or generalizations) at the
start of the petition. The task is to examine the evidence and look at the totality of the
case. In the words of the Supreme Court, we reiterate once more the principle that each
case must be judged, not on the basis of a priori assumptions, predilections or
generalizations but according to its own facts. There should be no rigid application
of Molina and Article 36 of the Family Code must not be so strictly and too literally read
and applied given the clear intendment of the drafters to adopt its enacted version of less
specificity obviously to enable some resiliency in its application.

6. Article 36 has no definition

Psychological incapacity is characterized as as a ground for the nullity of marriage under


Article 36 of the Family Code refers to a serious psychological illness afflicting a party
even prior to the celebration of the marriage that is permanent as to deprive the party of
the awareness of the duties and responsibilities of the matrimonial bond he or she was
about to assume.
However, the Family Code has not defined the term psychological incapacity. The
committee that drafted the Family Code decided to adopt a provision with less specificity
than expected in order to have the law allow some resiliency in its application. The
intent of the commitee is to give courts sufficient leeway to interpret the provision on a
case-to-case basis, guided by experience, the findings of experts and researchers in
psychological disciplines, and the decisions of church tribunals that had persuasive effect
by virtue of the provision itself having been taken from the Canon Law.
The intended resiliency of Article 36 had, somehow, been rendered ineffectual by the
imposition of a set of strict standards in Molina, yet the Supreme Court still maintains
that it is not abandoning Molina.

7. One or both spouses can be psychologically incapacitated


In the Kalaw case, the petitioner-husband alleges that the respondent-wife is
psychologically incapacitated. The wife, in her answer, denies her psychological
incapacity and alleges that the husband is the one psychologically incapacitated. Both
spouses presented expert witnesses to support each others allegation that the other
spouse is psychologically incapacitated.
In the original Kalaw case, the Court focused solely on the psychological incapacity of the
wife, concluding that there was insufficient evidence; the Court did not discuss the
incapacity of the husband. This appears to be consistent with the first guideline
in Molina the burden of proof to show the nullity of the marriage belongs to the
plaintiff.
In the reconsidered Kalaw case, the Court declared BOTH spouses as psychologically
incapacitated. While it can be argued that this is a deviation, or relaxation, of the rule
that was followed in the original Kalaw case, there is no basis for such argument.
As a rule, the burden of proving the existence of psychological incapacity is with the
petitioner. This is based on the basic rule that he who alleges must prove the allegation.
This basic rule, stated in another manner, simply means that the person who alleges
psychological incapacity must prove such psychological incapacity.
Under the circumstances, the court has three options: (a) declare the WIFE as
psychologically incapacitated; (b) declare the HUSBAND as psychologically
incapacitated; or (c) declare BOTH spouses as psychologically incapacitated. It doesnt
matter who raised the allegation of psychological incapacity. In the words of the Supreme
Court in the reconsidered decision: The courts are justified in declaring a marriage null
and void under Article 36 of the Family Code regardless of whether it is the petitioner or
the respondent who imputes the psychological incapacity to the other as long as the

imputation is fully substantiated with proof. Indeed, psychological incapacity may exist in
one party alone or in both of them, and if psychological incapacity of either or both is
established, the marriage has to be deemed null and void.
As far as remarriage is concerned, it doesnt really matter who between the spouses is
psychologically incapacitated there is absolutely no prohibition for the psychologically
incapacitated spouse to marry again.
Lets consider a number of scenarios. What if, in another case, the husband alleges that
the wife is psychologically incapacitated and the wife simply denies such allegation,
without replying that the husband is the one psychologically incapacitated? What if the
husband alleges that wife is psychologically incapacitated and the wife fails to answer? If,
for one reason or another, evidence shows that there is no basis for finding that the wife
is psychologically incapacitated, but sufficient evidence exists to support a finding of
psychological incapacity on the part of the husband, can the court still declare the
existence of the psychological incapacity, albeit on the part of the husband?

8. Trial court decision is binding


In the original Kalaw case, the Supreme Court concluded that there is no factual basis
for the conclusion of psychological incapacityThe trial courts Decision merely
summarized the allegations, testimonies, and evidence of the respective parties, but it did
not actually assess the veracity of these allegations, the credibility of the witnesses, and
the weight of the evidence. The trial court did not make factual findings which can serve
as bases for its legal conclusion of psychological incapacity.
In reconsidering its earlier decision in Kalaw, the Supreme Court cited the general rule
that findings of the Regional Trial Court (RTC) on the existence or non-existence of a
partys psychological incapacity should be final and binding for as long as such findings
and evaluation of the testimonies of witnesses and other evidence are not shown to be
clearly and manifestly erroneous. In every situation where the findings of the trial court
are sufficiently supported by the facts and evidence presented during trial, the appellate
court should restrain itself from substituting its own judgment.

9. There are sufficient safeguards to protect marriage


Without a divorce law, and with the perceived relaxation of the rules on petitions for
declaration of nullity, its normal to be apprehensive about the deluge of cases that will
choke court dockets. This possible onslaught might also be interpreted as an attack on
the institution of marriage.
In EACH and EVERY petition for annulment or declaration of nullity, the State (through
the OSG and the public prosecutors) is mandated by law to participate and ensure that
the institution of marriage is amply protected. According to the Supreme Court, it need
not worry about the possible abuse of the remedy provided by Article 36, for there are
ample safeguards against this contingency, among which is the intervention by the State,
through the public prosecutor, to guard against collusion between the parties and/or

fabrication of evidence. The Court should rather be alarmed by the rising number of
cases involving marital abuse, child abuse, domestic violence and incestuous rape.

10. Other perspectives for Article 36


The Supreme Court took pains to stress in Kalaw, again pointing to an earlier case, that it
is not suggesting the abandonment of Molina in this case. It is not accurate to say that
the Supreme Court relaxed the psychological incapacity guidelines in Kalaw. Matters
that can be interpreted in Kalaw as a relaxation of the rules have been taken up in
previous cases. Kalaw simply reiterates those principles.
What the Supreme Court again pointed out in Kalaw is the need to emphasize other
perspectives that should guide courts in dealing with petitions for declaration of nullity
under Article 36 of the Family Code.
What are the other perspectives? The Supreme Court noted that Article 36 cases
should not be decided based on a priori assumptions, predilections or generalizations
and emphasized that courts should 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.
This, in my opinion, means that other perspectives can run parallel to
the Molina guidelines. In other words, the Molina Doctrine is not the be-all and end-all of
Article 36 interpretation. The intention not to define Article 36 simply means that the
provision should not be static; it is intended to be a living provision, with courts guided
by experience, the findings of experts and researchers in psychological disciplines, and
by decisions of church tribunals.
Cases that dont fall squarely under the Molina guidelines should not be dismissed
outright. A rigid interpretation of Molina means that petitions must be strictly

construed in favor of the validity of marriage and any deviation from the guidelines,
no matter how reasonable, must lead to the dismissal of the petition. But it should be
remembered that a void marriage enjoys no protection and not entitled to any
presumption of regularity, which means that even if a particular case does not fall
squarely under the Molina principles, the court must still examine the totality of
evidence and must apply other perspectives. This way, diagnosed sociopaths,
schizophrenics, nymphomaniacs, narcissists and the like will not be allowed to
continuously debase and pervert the sanctity of marriage.