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Medico-Legal Aspect of Marital Union and Dissolution

A. As to the requisites of a valid marriage

Marriage is a special contract of permanent union between a man and a woman entered into
in accordance with law for the establishment of conjugal and family life. It is the foundation of
the family and an inviolable social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by this Code.1

No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer.2

Any male or female of the age of eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38, may contract marriage.3

For purposes of contracting marriage, legal capacity, under the Family Code, has a technical
meaning. Under Art. 5 of the Family Code, legal capacity has three components: (1) age
requirement; (2) sex of the parties; (3) and absence of legal impediments mentioned in Articles
37 and 38.

A.1. Age

The contracting parties must be at least eighteen (18) years of age; otherwise, he or she is
not legally capacitated to contract marriage. A marriage contracted by any party below eighteen
years of age is void from the beginning, even if such marriage is with the consent of the parents
of guardians of the minor4. Accordingly, the attainment of the required minimum age for
marriage should be reckoned, not on the date of the filing of the application for the issuance of a
marriage license, but on the date of the marriage5.

A.2. Sex

The law strictly provides that the contracting parties MUST be a MALE and a FEMALE.
This is evidenced by the fact that the Family Code as well as the Civil Code are replete with
words of heterosexual import such as husband and wife, man and woman, and father and

Article 1, Family Code
Ibid, Article 2
Ibid, Article 5
Ibid, Article 35
DOJ Opinion No. 146, series of 1991
Sta. Maria, Persons and Family Relations, 2010 ed.
Thus, in Silverio vs. Republic7, where the petitioner underwent sex-reassignment-surgery
and thereafter sought the amendment of his birth certificate to reflect the change in sex as a
preliminary step to get married to his partner, the Supreme Court denied the petition and ruled
that the sex determined by visually looking at the genitals of a baby at the time of birth is
IMMUTABLE and that there is no law legally recognizing sex reassignment.

By exception, the Supreme Court held in Republic vs. Cagandahan8, where a person had
Congenital Adrenal Hyperplasia (CAH) which is a condition where the persons afflicted has both
male and female characteristics and organs and where, through expert evidence, it was shown
that the respondent, though genetically a female, secreted male hormones and not female
hormones, had no breast, and did not have any monthly menstrual period and where the
respondent, in his mind and emotion, felt like a male person and did not want to have surgery,
the Supreme Court considered the persons as an INTERSEX INDIVIDUAL and granted the
preference of the person to be considered as a male person, thereby allowing the amendment of
the birth certificate of the person from female to male. The Supreme Court ratiocinated:

Ultimately, we are of the view that where the person is biologically or naturally intersex, the
determining factor in his gender classification would be what the individual, like respondent, having
reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a
male and considering that his body produces high levels of male hormones (androgens) there is
preponderant biological support for considering him as being male. Sexual development in cases of intersex
persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such
persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or
interfere with what he was born with. And accordingly, he has already ordered his life to that of a male.
Respondent, could have undergone treatment and taken steps, like taking lifelong medication, to force his
body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken
its due course in respondents development to reveal more fully his male characteristics. 9

Absence of Legal Impediments

The legal impediments under the Family Code pertain to incestuous marriages and
marriages which are void from the beginning for reasons of public policy.

B. As to Marital Relation

The husband and wife are obliged to live together, observe mutual love, respect and fidelity,
and render mutual help and support.10

Silverio vs. Republic of the Philippines, G.R. No. 174689, 22 October 2007
Republic of the Philippines vs. Cagandahan. G.R. No. 166676, 12 September 2008
Article 68, Family Code
The husband and wife shall fix the family domicile. In case of disagreement, the court shall

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 of the same is not compatible with the solidarity of the family.11

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 income or fruits, such obligations shall be satisfied from the separate properties.12

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 70.13

Causes of Sexual Dissatisfaction After Marital Union14 (PACHECK NGA NITO, KUNG

Fear of consequence of repeated abortion

Fear of unwanted pregnancy
Faulty contraceptive methods
There is inadequate opportunity for orgasm
Dyspareunia (Vaginismus, improper sex technique)
Fear of coitus
Emotional frustration due to fertility
Ignorance of the reproductive process and genital anatomy
Aversion to coitus (frigidity)
No sex desire (low basal metabolic rate found)
Anatomic cause of dissatisfaction in coitus:
- Tight resistant septate hymen
- Size and location of the clitoris
- Extreme obesity of either husband or wife
- Infantile genital development
- Pelvic abnormality, e.g. parametritis, torn perineum
Disparity in age
Venereal disease

Ibid., Article 69
Ibid., Article 70
Ibid., Article 71
Solis, Legal Medicine 1987
Masturbation preferred to coitus

Since marriage is a special contract and considered as a social institution in which the state is
vitally interested, its continuation or interruption cannot be made to depend upon the parties
themselves. In the case of Goitia vs. Campos Rueda, the Supreme Court held:

Marriage is an institution, in the maintenance of which in its purity the public is deeply
interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any
contract they may make. The reciprocal rights arising from this relation, so long as it continues, are such as
the law determines from time to time, and no other. 15

In one case where the petitioner prays for the annulment of his marriage to the defendant
on the ground that the office of her genitals or vagina was too small to allow the penetration of a
male organ or penis for copulation; that the condition of her genitals as described above existed
at the time of marriage and continues to exist; and that for that reason he left the conjugal home
two nights and one day after they had been married, the Supreme Court held:

Marriage in this country is an institution in which the community is deeply interested. The state has
surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the
state are largely dependent upon it. It is the interest of each and every member of the community to prevent the
bringing about of a condition that would shake its foundation and ultimately lead to its destruction. The
incidents of the status are governed by law, not by will of the parties.

The law specifically enumerates the legal grounds, that must be proved to exist by indubitable
evidence, to annul a marriage. In the case at bar, the annulment of the marriage in question was decreed upon
the sole testimony of the husband who was expected to give testimony tending or aiming at securing the
annulment of his marriage he sought and seeks. Whether the wife is really impotent cannot be deemed to have
been satisfactorily established, becase from the commencement of the proceedings until the entry of the decree
she had abstained from taking part therein. Although her refusal to be examined or failure to appear in court
show indifference on her part, yet from such attitude the presumption arising out of the suppression of evidence
could not arise or be inferred because women of this country are by nature coy, bashful and shy and would not
submit to a physical examination unless compelled to by competent authority. This the Court may do without
doing violence to and infringing in this case is not self-incrimination. She is not charged with any offense. She
is not being compelled to be a witness against herself. 16

More recently, the State has affirmed this recognition of marriage as an inviolable social
institution and as the foundation of the family which in turn is considered as the foundation of
the nation. R.A. No. 10354, An Act Providing for a National Policy on Responsible Parenthood
and Reproductive Health, provides that the State shall defend:

(a) The right of spouses to found a family in accordance with their religious convictions
and the demands of responsible parenthood;

Goitia vs. Campos Rueda, G.R. No. 11263, 2 November 1916
Jimenez vs. Canizares, G.R. No. L-12790, 31 August 1960
(b) 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;
(c) The right of the family to a family living wage and income;
(d) The right of families or family associations to participate in the planning and
implementation of policies and programs17

In conjunction with said policies, the State shall promote programs that: (1) enable
individuals and couples to have the number of children they desire with due consideration to the
health, particularly of women, and the resources available and affordable to them and in
accordance with existing laws, public morals and their religious convictions: Provided, That no
one shall be deprived, for economic reasons, of the rights to have children; (2) achieve equitable
allocation and utilization of resources; (3) ensure effective partnership among national
government, local government units (LGUs) and the private sector in the design,
implementation, coordination, integration, monitoring and evaluation of people-centered
programs to enhance the quality of life and environmental protection; (4) conduct studies to
analyze demographic trends including demographic dividends from sound population policies
towards sustainable human development in keeping with the principles of gender equality,
protection of mothers and children, born and unborn and the promotion and protection of
womens reproductive rights and health; and (5) conduct scientific studies to determine the
safety and efficacy of alternative medicines and methods for reproductive health care

All of these are testament to the high regard that the law confers to marriage as an
inviolable institution and foundation of the family whose nature, consequences, and incidents are
governed by law and not subject to stipulation.

C. As to Annulment of Marriage

In Republic vs. CA and Molina, the guidelines governing the application and the
interpretation of psychological incapacity referred to in Article 36 of the Family Code were laid
down by the Supreme Court as follows:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff;
(2) A petition under Article 36 of the Family Code shall specifically allege the complete
facts showing that either or both parties were psychologically incapacitated from
complying with the essential marital obligations of marriage at the time of the
R.A. No. 10354, An Act Providing for a National Policy on Responsible Parenthood and Reproductive Health
Ibid, Sec. 3 (f)
celebration of marriage even if such incapacity becomes manifest only after its
(3) The incapacity must be proven to be existing at the time of the marriage.
(4) Such incapacity must also be shown to be medically or clinically permanent or
(5) Such illness must be grave enough to bring about the disability of the party to assume
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 respect
in our courts19.

The guidelines incorporate the three basic requirements earlier mandated by the Supreme
Court in Santos vs. CA: psychological incapacity must be characterized by (a) gravity, (b)
juridical antecedence, and (c) incurability. The foregoing guidelines do not require that a
physician examine the person to be declared psychologically incapacitated. In fact, the root cause
may be medically or clinically identified. What is important is the presence of evidence that can
adequately establish the partys psychological condition. For indeed, 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.20

The action or defense for the declaration of absolute nullity of a marriage shall not

In one case, the husband filed for annulment of his marriage under Article 36 of the
Family Code on account of his wifes constant lying, insecurities and jealousies over him. The
Supreme Court ruled in favor of the husband since aside from his testimony, he presented a
psychiatrist and clinical psychologist who attested that the constant lying and extreme jealousy
of his wife is abnormal and pathological and corroborated his allegations on his wifes behavior,
which amounts to psychological incapacity. The Supreme Court ruled that the case sufficiently
satisfies the Molina guidelines:

First, that Antonio had sufficiently overcome his burden in proving the psychological incapacity
of his wife;
Second, that the root cause of Reyes' psychological incapacity has been medically or clinically
identified that was sufficiently proven by experts, and was clearly explained in the trial court's decision;

Republic vs. CA and Molina, G.R. No. 108763, 13 February 1997
Santos vs. CA, G.R. No. 112019, 4 January 1995
Article 39, Family Code
Third, that she fabricated friends and made up letters before she married him prove that her
psychological incapacity was have existed even before the celebration of marriage;
Fourth, that the gravity of Reyes' psychological incapacity was considered so grave that a
restrictive clause was appended to the sentence of nullity prohibited by the National Appellate Matrimonial
Tribunal from contracting marriage without their consent;
Fifth, that she being an inveterate pathological liar makes her unable to commit the basic tenets of
relationship between spouses based on love, trust, and respect.
Sixth, that the CA clearly erred when it failed to take into consideration the fact that the marriage
was annulled by the Catholic Church. However, it is the factual findings of the judicial trier of facts, and
not of the canonical courts, that are accorded significant recognition by this Court.
Seventh, that Reyes' case is incurable considering that Antonio tried to reconcile with her but her
behavior remains unchanged.22

D. As to Legal Separation

Legal Separation is a legal remedy available to parties in a valid but failed marriage for
the purpose of obtaining a decree from court entitling him or her to certain reliefs such as the
right to live separately from each other without affecting the marital bond that exists between
them, the dissolution and liquidation of their absolute community or conjugal partnership
property regime and the custody of their minor children.

Legal Separation is distinct from annulment in that in the former, the marriage bond is
not severed; whereas, in annulment, the marriage bond is severed or terminated, thus allowing
the parties to remarry. The cause giving rise to legal separation must necessarily exist only after
the celebration of marriage23.

Either the husband or the wife can solely file such action which prescribes within five (5)
years from the occurrence of any of the grounds mentioned in Article 55 of the Family Code.
There is a cooling-off period of six (6) months before the Pre-Trial can be set for the possibility
of reconciliation. However, such cooling-off period does not apply if the grounds alleged are
those under R.A. No. 9262.24

If the drug addiction, habitual alcoholism, lesbianism or homosexuality is already present

during the time of the marriage but the same is concealed from the other party, there is fraud
which constitutes a ground for annulment of the marriage. If there is no concealment and such
circumstance is known to the other party at the time of the marriage, may not likewise qualify as
a ground for legal separation since in the latter, the causes or grounds thereof must necessarily
exist only after the celebration of the marriage. Thus, for drug addiction, habitual alcoholism,
lesbianism or homosexuality to be a ground for legal separation, said cause is required to arise
only after the celebration of the marriage25.

Antonio vs. Reyes, G.R. No. 155800, 10 March 2006
Tolentino, Civil Code of the Philippines, Vol.1, 1990 Ed.
Sec. 19, R.A. No. 9262, Anti-Violence Against Women and their Children Act of 2004
Rabuya, The Law on Persons and Family Relations, 2006 Ed., pp. 353-354
E. Impotency and Sterility

A marriage may be annulled for any of the following causes, existing at the time of

(5) That either party was physically incapable of consummating the marriage with the other, and
such incapacity continues and appears to be incurable.26

The law provides that the marriage of one physically incapable consummating the
marriage with the other (or physical incapability of sexual intercourse) is voidable and subject to
annulment at the instance of the injured party. The theory on which the marriage is invalidated is
not that there was an original incapacity to contract, but that there has been an entire and
complete failure of the consideration of the marriage contract27. Accordingly, the physical
incapacity must have existed, however, at the time of the celebration of the marriage.

Impotence refers to the inability of the male organ to copulation, to perform its proper
function. As defined in the celebrated case of Menciano vs. San Jose28, impotency is the physical
inability to have sexual intercourse. It is not synonymous with sterility. Sterility refers to the
inability to procreate, whereas, impotence refers to the physical inability to perform the act of
sexual intercourse. In respect of the impotency of the husband of the mother of a child, to
overcome the presumption of legitimacy on conception or birth in wedlock or to show
illegitimacy, it has been held or recognized that the evidence or proof must be clear or
satisfactory: clear, satisfactory and convincing, irresistible or positive.29

In the case of Menciano vs. San Jose30, the Supreme Court held impotency as an
abnormal condition should not be presumed, rather, the presumption is in favor of potency. The
burden of proof lies upon the person who alleges the existence of such condition. In the said
case, the fact that the physician was able to get a specimen of the semen of the supposed
impotent for examination as to its contents, through the use of a rubber sac and a woman,
conclusively shows potency. In another case, the Supreme Court

An exception to the said rule is the Doctrine of Triennial Cohabitation. Under said
doctrine, if the wife remains a virgin after three (3) years of cohabitation, the husband will be
presumed impotent, and the burden to overcome the presumption of impotency will be shifted
upon him31.

Article 45 (5), Family Code
Rabuya, The Law on Persons and Family Relations, 2006 Ed., p. 309
Menciano vs. Jose, G.R. No. L-1967, 28 May 1951
Macadangdang vs. CA, G.R. No. L-49542, September 12, 1980
Cited in Macadangdang vs. CA, supra.
Rabuya, The Law on Persons and Family Relations, 2006 Ed.
If the ground for annulment is that one of the parties was impotent, the action can be filed
be filed by the injured party --- referring to the other party who was not aware of the existence of
such incapacity at the time of the marriage and who himself or herself was not suffering from the
same incapacity. Said action must be filed within five (5) years after the celebration of the
marriage and not after discovery of such incapacity.32

Also, if the ground for annulment is physical incapacity of one spouse to consummate
marriage, the marriage is not subject to ratification by continued cohabitation as husband and
wife. Unlike in the previous grounds for annulment of voidable marriages which are all subject
to ratification by continued cohabitation as husband and wife, the law does not authorize
ratification of a voidable marriage under Article 45(5). The reason for this rule is that there has
been an entire and complete failure of the consideration of the marriage contract in a voidable
marriage under Article 45(5). Note that while the defect is not subject to ratification, the action
for annulment may, however, be barred by prescription.

In one case, a husband continuously avoided having sexual intercourse with his wife
which led to them to submit themselves to medical examination. The wife alleged that her
husband is psychologically incapacitated due to a physiological defect of impotency. The
husband submitted himself to another physical examination to disprove such claim:

The defendant submitted himself to a physical examination. His penis was examined by Dr. Sergio
Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof, Dr. Alteza submitted
his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is no evidence of impotency (Exh. "2-
B"), and he is capable of erection. (Exh. "2-C")

The doctor said, that he asked the defendant to masturbate to find out whether or not he has an
erection and he found out that from the original size of two (2) inches, or five (5) centimeters, the penis of
the defendant lengthened by one (1) inch and one centimeter. Dr. Alteza said, that the defendant had only a
soft erection which is why his penis is not in its full length. But, still is capable of further erection, in that
with his soft erection, the defendant is capable of having sexual intercourse with a woman. 33

The Supreme Court held that the abnormal reluctance or unwillingness to consummate
his marriage is strongly indicative of serious personality disorder which to the mind of the 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 marriage.

Article 47 (5), Family Code
Chi Ming Tsoi vs. CA, G.R. No. 119190, 16 January 1997