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I.

Abstract

“Who is to blame when a marriage fails? A man has not invented a reliable compass
by which to steer a marriage in its journey over troubled waters” said Justice Justo Torres in his
ponencia in the case of Chi Ming Tsoi vs. Court of Appeals, G.R No. 119190, January 16, 1997.
Marriage is the cornerstone of Philippine society. Marriage in the Philippines is viewed as a life
long commitment. In fact, couples at the threshold of marriage are often advised that mariage is not like
kaning isusubo na madaling iluluwa (rice that is eaten and easily spat out).1 Marriage has been described
as a sacrosant social instituion2 in the Philippines, mainly because it is upon this cornerstone that the
Filipino family, the foundation of the nation, rests.3 Thus Philippine law commits itself to strengthening
the solidarity of the family and actively promoting its total development.4
But the Constitution itself does not establish the parameters of state protection to marriage as a
social institution and the foundation of the family. It remains the province of the legislature to define all
legal aspects of marriage and prescribe the strategy and the modalities to protect it, based on whatever
socio-political influences it deems proper, and subject of course to the qualification that such legislative
enactment itself adheres to the Constitution and the Bill of Rights. This being the case, it also falls on the
legislature to put into operation the constitutional provisions that protect marriage and the family. This
has been accomplished at present through the enactment of the Family Code, which defines marriage
and the family, spells out the corresponding legal effects, imposes the limitations that affect married
and family life, as well as prescribes the grounds for declaration of nullity and those for legal separation.
Recently however with the passing of the Family Code of the Philippines on 3 August 1998 and its
subsequent amendment by Executive Order No. 227 the “eye of the needle” was made a bit wider
thereby allowing marriage couples to avail of its more leneit provisions in order to avoid their marriage.
Article 36 provides a more liberal ground for declaration of nullity of marriage. The widening of
the needles eye may be due in part of the definetion of psychological incapacity which is not provide for
in the Code itself. The Civil Code Revision Committee did not give a definision of psychological incapacity

1
Maria Sophia Editha Cruz-Abrenica. “Re-Examining the Concept of Psychological Incapacity: Towards a More
Accurate Reflection of Legislative Intent”, 2006.
2
Domingo v. Court of Appeals, 226 SCRA 572 (1993)
3
PHIL. CONST. Art XV.
4
Ibid.

1
nor did it give any examples since they feard that doing so would unduly limit the meaning of the
concept and its application under ejusdem generis.5 Article 36 of the Code provides:
(a) marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.6
The Family Code, however, did not provide for a definiton of concept of psychological incapacity nor
any examples to illustrate the concept. 7 Initially, not all the members opted to leave the concept
undefined.8
A possible danger that may be encountered to this lack of definiton of the concept of
pyschological incapacity in the Family Code is that it may be broadened to encompass any and all
circumstances of incompatibility of the spouses. This may result in a situation where almost anyone can
have their marriage dissolved, thus running counter to the State policy declaring marriage as an
inviolable social institution.9 On the other hand, it could also grant judges too much discretion in
determining when declaration of nullity by virtue of psychological incapacity is applicable. This results in
a lack of standards in the application of the law and could possibly lead to violations of the equal
protection clause of the Constitution. Thus, according to Justice Alicia Sempio-Dy “some judges are very
liberal in applying Article 36 while others are unduly strict”.
Owing to the fact that the ground of ‘psychological incapacity’ is both novel and technical, it can
be defined by persons specializing in widely fivergent fields, such as psychologist, medical practitioners
legal professionals, as well as the Church in their interpretaion of Canon Law. Each of these groups has a
different standard by which they classigy a person to be psychologically icapacitated. This variable
definition therefore creates confusion as to the proper interpretation of the phrase.
Thus, we may pose the questions: Is the correct interpretation that given by the Church in its
interpretation of Canon Law from which the phrase was derived? Do we look towards the medical and
behavioral scientists for guidance regarding this matter? Or does the phrase have a different meaning
altogether when it is used in the legal sense? It is, therefore, the aim of this paper to determine the
accurate meaning of psychological incapacity from the legal point of view and further see

5
Temporal , supral note 7,at 383
666
Family Code art.36.
7
Maria Sophia Editha Cruz-Abrenica. “Re-Examining the Concept of Psychological Incapacity: Towards a More
Accurate Reflection of Legislative Intent”, 2006.
8
Ibid.
9
Ibid.

2
II. Introduction

The biblical decree, “What therefore God has joined together, let no man put asunder” in Mark
10:9, must have really sealed the sanctity and inviolability of the marital union between a man and a
woman. Those who found the union incompatible, got divorced. The Roman Catholic Church, however,
excommunicated those who remarried (Wilde, n.d). As the Roman Catholic Church kept itself busy
attempting to wrestle control over the profitable marriage enterprise from secular authorities (Davidson
& Ekelund, 1997), it also gave serious thought to not using the term “divorce”, following the indissoluble
character of the marital union.10 Hence, the dissolution of the marital union did not actually take place
in the church’s marital annulment (Foster, 1999) since Philippine society, being predominantly Roman
Catholic, did not allow divorce in its jurisdiction. The idea of civil nullity of marriage, then, took off from
the church’s concept of marital annulment. In the meantime, the notion of psychological incapacity in
Philippine civil society resonated quite strongly when this was introduced as the basis of petition for the
declaration of nullity of marriage in the country.
The Family Code of the Philippines defines marriage as a special contract of permanent union
which can only be dissolved by death of either spouse by annulment or by the declaration of nullity by
the courts11 unlike in ordinary contracts where the agreement of the parties has the force of law
between them in marriage the rights and obligations of the parties as all as the nature consequences
and incidents of the relation are generally fixed by law and are not subject to stipulation.
Philippine laws on marriage are based on this background of strong and permanent marital ties.
Marriage being an inviolable social institution is protected from being dissolved merely by the parties
whim. Seperation annulment or declaration of nullity of mirriage can only be based on grounds stated
by law.12 Hence Filipino couples in rocky marriage find that the process of getting out of said relationship
would be like the proverbial camel passing through the eye of the needle because of the ristrictive
grounds provide for in articles 35, 37, 38 and 45 of the Family Code.13

10
Davidson, A. and Ekelund, R. Jr. (1997). The medieval church and rents from marriage market regulations.
Journal of Economic Behavior and Organization, 32, 215-245. US: Elsevier Science. https://doi.org/10.1016/S0167-
2681(96)00903-1
11
Id. art 1
12
Katherine F. Lopez Psychological Incapacity: Whether or Not Persons claiming to be Psychologically Incapacitated
Can Themselves File for nullity of Marriage as the Basis of Such under Article 36 of the Family Code 2 (2004) Juris
Doctor Thesis Ateneo de Manila University School of Law.
13
Jnathan O. Temporai Republic v. Court of appeals and Molina: Providing Define Standards for the Application of
Article 36 of the Family Code 43 ATENEO L. 384 (1984).

3
Further, Sec. 12, Art. II, of the Constitution provides: “The State recognizes the sanctity of family life
and shall protect, strengthen the family as a basic autonomous social institution…” Enshrining further
the sanctimonious hallmark of the Filipino family, Sec. 1, Art. XV, of the Constitution provides that “The
State recognizes the Filipino family as the foundation of the nation.” Accordingly, the State shall
strengthen its solidarity and actively promote its total development. Sec. 2 Art XV, of the Constitution
decrees: “Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the state.” “It is the product or emanation of ‘marriage’ the inviolable social institution
protected by the State” (Sec. II, Art. XV, Philippine Constitution.)
The words employed – “the State recognizes the sanctity of family life and shall protect, strengthen
the family as basic social institution” and “as the foundation of the nation and shall strengthen its
solidarity and actively promote its total development” separately and collectively embody and crystallize
marriage as an inviolable social institution, whose foundation or root abide in the sanctity of family,
deserving of state protection.
The State’s recognition of the sanctity of Filipino family that shall be protected strengthens the
cornerstone of the nation. To maintain and ensure the sanctity of the family and marriage, its
foundation or root must remain inviolable to ensure the piety of family and State’s protection. The
intent clearly abhors and spurns any act, measure or law that scorns or abominates the very sanctity of
marriage.
Despite the importance of family as discussed above, the Supreme Court, in ruling Chi Ming Tsoi v.
Court of Appeals seemed forgetful of such. Aside from this, the open-ended application of Article 36 of
the Family Code which results to inconsistency of decisions laid down by the Courts gave rise to this
paper. Being the final arbiter of the law, and from where case laws originates, the Supreme Court shall
be bounded by their previous decisions in deciding new ones.
After a series of rebuffs based mainly on failure to comply with the Molina Guidelines, the Supreme
Court in Antonio v. Reyes14, satisfied itself that these standards were observed in case of a party who is
uable to distiguish between fantasy and reality.15 It helped that the National Appellate Matrimonial
Tribunal of the Roman Catholic Chruch, to which the parties presumably belonged, pronounced that the
invalidity of the marriage. It also helped that there was no jurisprudential clarity at the time trial court
rendered a decision that required a medical finding of incurabililty. The Supreme Court instead

14
Antonio v. Reyes, G.R No. 155800, March 10, 2006002E
15
Gesmundo, Virgilio. Jurisprudence and Comments on Persons and Family Relations, 2014.

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concluded considering the gravity of psychosis, a cure thereof would be a remarkable feat and hence,
incurable.
In Republic v. Court of Appeals,16 the Supreme Court created the Molina guidelines to aid the
courts in the disposition of cases involving psychological incapacity, to wit:

(1) Burden of proof to show the nullity of the marriage belongs to the plaintiff.
(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. Such non-complied marital
obligation(s) must also be stated in the petition, proven by evidence and included in
the text of the decision.
(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.17

16
335 Phil. 664 (1997).
17
Id. at 676-679. (Emphasis supplied).

5
The Supreme Court, however, pursuant to Supreme Court Administrative Matter No. 02-11-10, has
modified the above pronouncements, particularly Section 2(d) thereof, stating that the certification of
the Solicitor General required in the Molina case is dispensed with to avoid delay. Still, Article 48 of the
Family Code mandates that the appearance of the prosecuting attorney or fiscal assigned be on behalf
of the State to take steps to prevent collusion between the parties and to take care that evidence is not
fabricated or suppressed.18
Furthermore psychological incapacity it itself a nebulous idea for persons having little background in
psychology. Being a concept which at first glance may well be grasp only of a perons trained in the
psychological and behavioral sciences it is no wonder that judicial discretion with regard to declaring
whether or not there psychological incapacity in a given case describe as almost unbridled.
From the text of article 36 may gather the following elements of psychological incapacity: (a)
celebration of marriage; (b) non performance of marital obligations; (c) the material obligations
whichare not performed are essential obligations; (d) non performance is due to cause/s psychological
in nature and its chronic: constant and habitual; (e) the cause/s are present during the celebration of
mirriage although they may not be manifest or evident at the point and (f) the cause/s surface after the
celebration of marriage”
In his study entitled “A Thematic Look at Selected Cases of Marital Nullity in the Philippines”,
Antero Arias (2016) mentioned that psychological incapacity on the part of either or both spouses as the
cases of personality disorders. From a theoretical framework that included the legal basis under the said
article and the categorical model of the Diagnostic and Statistical Manual of Mental DisordersIV-TR
(DSM-IV-TR), the author purposefully selected several clinical cases of spouses’ narratives in their social
case history – these narratives were already part and parcel of court transcripts. 19 Employing a
qualitative research methodology using thematic analysis, they were then dissected into superordinate
themes that represented spouses’ developmental years, premarital relationship years, and period of
marital cohabitation as husband and wife. Thereafter, other themes and possible subthemes were
extracted and listed under each of these superordinate themes. These themes and subthemes were
then equated to the spouses’ overt manifestations of psychological incapacity. In turn, these
manifestations were matched with any or all of the diagnostic features or traits of personality
functioning in the DSM. The ultimate objective of deriving and labelling the identified themes with
specific personality disorders, with due consideration to the subthemes that referred to spouses’

18
Antonio v. Reyes, G.R. No. 155800, March 10, 2006, 484 SCRA 353, 375.
19
Arias, Antero Rosauro. “A Thematic Look at Selected Cases of Marital Nullity in the Philippines”, 2016.

6
juridical antecedent behaviors, was successfully achieved to supplement the use of powerful
psychometric tests, including the use of projective techniques which were utilized in the local courts.
This innovative scheme of thematically analyzing spouses’ narratives on marital nullification figured very
well in forensic mental health assessment, especially when the respondent spouse was not available to
undergo the necessary psychological assessment for some reason.

Statement of the Issues

In the case of Antonio v. Quisumbing, Justice Tinga, stated that there were initial criticisms of
this original understanding of Article 36 as phrased by the Family Code committee. Dr. Tolentino, in the
1990 edition of his commentaries on the Family Code that psychological incapacity to comply would
not be juridically different from physical incapacity of consummating the marriage, which makes the
marriage only voidable under Article 45 (5) of the Civil Code should have been a cause for annulment of
the marriage only.20 These concerns though were answered, beginning with Santos v. Court of Appeals,
wherein the Court, through Justice Vitug, acknowledged that psychological incapacity should refer to no
less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to the marriage.21
The requirement that psychological incapacity be incurable is questionable.22According to
Justice Caguioa, insanity is a merely a ground for annulment because insanity is curable and there are
lucid intervals, whereas psychological incapacity is a ground for declaration of nullity because
psychological incapacity is not curable.23
It might seem that this present understanding of psychological incapacity deviates from the
literal wording of Article 36, with its central phase reading psychologically incapacitated to comply
with the essential marital obligations of marriage.24 The preference of the revision committee was for
the judge to interpret the provision on a case-to-case basis, guided by experience, in the findings of
experts and researchers in psychological disciplines, and decisions of church tribunals which, although

20
I A. TOLENTINO, CIVIL CODE OF THE PHILIPPINES: COMMENTARIES AND JURISPRUDENCE 274-275 (1990 ed.).
21
Id. at 40, emphasis supplied. The Court further added, [t]here 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 marriage. Id.
22
Ibid. at 3.
23
Id. at 9.
24
Marcos v. Marcos, 397 Phil. 840, 851 (2000).

7
not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon
Law.25
Of particular notice has been the citation of the Court, first in Santos then in Molina, of the
considered opinion of canon law experts in the interpretation of psychological incapacity. This is but
unavoidable, considering that the Family Code committee had bluntly acknowledged that the concept of
psychological incapacity was derived from canon law and as one member admitted, enacted as a
solution to the problem of marriages already annulled by the Catholic Church but still existent under civil
law. 26 It would be disingenuous to disregard the influence of Catholic Church doctrine in the
formulation and subsequent understanding of Article 36, and the Court has expressly acknowledged that
interpretations given by the National Appellate Matrimonial Tribunal of the local Church, while not
controlling or decisive, should be given great respect by our court. 27 Still, it must be emphasized that
the Catholic Church is hardly the sole source of influence in the interpretation of Article 36. Even though
the concept may have been derived from canon law, its incorporation into the Family Code and
subsequent judicial interpretation occurred in wholly secular progression. Indeed, while Church thought
on psychological incapacity is merely persuasive on the trial courts, judicial decisions of this Court
interpreting psychological incapacity are binding on lower courts. 28
Now is also opportune time to comment on another common legal guide utilized in the
adjudication of petitions for declaration of nullity under Article 36. All too frequently, this Court and
lower courts, in denying petitions of the kind, have favourably cited Sections 1 and 2, Article XV of the
Constitution, which respectively state 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
that marriage, as an inviolable social institution, is the foundation of the family and shall be protected by
the State. These provisions highlight the importance of the family and the constitutional protection
accorded to the institution of marriage.

25
It may be noted that a previous incarnation of Article 36, subsequently rejected by the Family Code Commission,
stated that among those void ab initio marriages are those contracted by any party who, at the time of the celebration,
was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was
psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity
is made manifest after the celebration. See Santos v. Court of Appeals, supra note 60, at 30.

26
See SEMPIO-DIY, supra note 60, at 36.
27
Republic v. Court of Appeals, supra note 40, at 678.
28
Thus, Chi Ming Tsoi v. Court of Appeals, supra note 48, wherein the psychological incapacity of the petitioner
was recognized by the Court from the fact that he did not engage in sexual relations with his wife during their ten
(10) month marital cohabitation, remains a binding precedent, even though it was decided shortly before
the Molina case.

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The Constitution, however, does not establish the parameters of state protection to marriage as
a social institution and the foundation of the family. It remains the province of the legislature to define
all legal aspects of marriage and prescribe the strategy and the modalities to protect it, based on
whatever socio-political influences it deems proper, and subject of course to the qualification that such
legislative enactment itself adheres to the Constitution and the Bill of Rights. This being the case, it also
falls on the legislature to put into operation the constitutional provisions that protect marriage and the
family. This has been accomplished at present through the enactment of the Family Code, which defines
marriage and the family, spells out the corresponding legal effects, imposes the limitations that affect
married and family life, as well as prescribes the grounds for declaration of nullity and those for legal
separation. While it may appear that the judicial denial of a petition for declaration of nullity is reflective
of the constitutional mandate to protect marriage, such action in fact merely enforces a statutory
definition of marriage, not a constitutionally ordained decree of what marriage is. Indeed, if
circumstances warrant, Sections 1 and 2 of Article XV need not be the only constitutional considerations
to be taken into account in resolving a petition for declaration of nullity.
Of course, however, it is still important to take into consideration the inviolability of marriage
which is enshrined in our Constitution and the importance of the family, which duty of strengthening
and actively promoting its development the State upholds. If one lowers the bar too much, doing so
right be detrimental to marriages and the tamily, thereby running counter to the Constitution which
upholds the family as a state policy. 29 We are thus left in a cross-road where we must decide - should
we allow the liberalization of the declartion of nullity of marriages, or should we opt for the more
conservative view where the bar should be made higher? The author feels that this is the point we find
ourselves in jurisprudence, thereby explaining the seeming disparity between the legislative intent and
the court pronounceltlents. The Supreme Court seems to favor the more conservative view, perhaps
keeping in mind their allegiance to the Constitution. The framers, on the other hand, failed to give
proper and definitive guideposts for subsequent jurisprudence. Some of the guideposts provided,
seemingly, are actually moving guideposts - the experience of the judges, the findings of the experts and
researchers in psychological disciplines, and the decisions of the Church tribunals - these are all dynamic
guides. It is no wonder that the proper interpretation of psychological incapacity could place even
learned men and women of our courts in a quandary.

29
Philippine Constitution. Art. 2, par. 12

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Literature Review

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 ill-equipped 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.
Citing the doctrinal case of Santos v. Court of Appeals, Gesmundo (2014) 30 and Carcereny and
Soliman (2010)31 defined psychological incapacity as the type of incapacity that is not physical, but
mental in nature, such that either or both spouses would be truly incognizant to assume and discharge
their essential marital obligations. Carcereny and Soliman added that the disorder must be grave,
incurable and with juridical antecedents. Gesmundo clarified that although the symptoms could readily
be physical, said incapacity must still necessarily be psychological in nature. Mamaňgun (n.d.) identified
the essential marital obligations of either or both spouses to the marital union (citing the landmark case
of Molina) to include the obligation to live together as husband and wife, to observe mutual love,
respect and fidelity, and to provide support to each other.32 In addition, there was the obligation on the
part of either or both not to do any act that brought danger to the family, or to avoid any act that
dishonored a spouse’s good name and reputation. Canlas (2007) 33 pointed out that psychological
incapacity must be more than the difficulty, neglect or refusal to perform the essential marital
obligations, such as the obligation or duty of the wife to have sex with her husband (citing Navarro, Jr. v.
Cecilio-Navarro). Similarly, sexual infidelity alone, according to Canlas (2007), was not sufficient proof of
psychological incapacity, unless the numerous acts of infidelity were shown to be symptomatic of a
disordered personality. Nambi and Sarkar (2015)34 and Sharma, Reddy, and Kamath (2015)35 proposed

30
Ibid.
31
Carcereny, J.M., & Soliman, T. (2010). Annulment in the Philippines: Clinical & legal issues. Manila: Rex Book
Store.
32
Mamaňgun, R. (n.d.). Psychological incapacity. Retrieved from http://www.mylawyer.asia/node/34
33
Canlas, J. (30 April 2007). Refusal to have sex no reason to annul. The Manila Times. Retrieved from
https://www.highbeam.com/doc/1P3-1264234701.html
34
Nambi, S., & Sarkar, S. (July – September 2015). Mental illness and nullity of marriage: Indian perspective. Indian
Journal of Psychological Medicine, 37:3, 366-369. https://doi.org/10.4103/0253-7176.162919
35

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that the nullification of the marital union should only be given to cases where the unsoundness of mind
was severe enough to prohibit one from discharging his or her essential obligations to the marriage. The
Code of Canon, in fact, already made it very clear that the basis of real incapacity should be grounded on
the presence of a serious anomaly that substantially vitiated the individual’s psyche, and that this
incapacity must impact the person’s ability to understand his or her essential obligations to the marital
union (Gray, 2006).
Petitions for declaration of nullity of marriage based on psychological incapacity were generally
anchored on disordered personalities (Drogowski 2010-CITE PROPERLY). Malibiran (2007), citing cases of
Dedel, Villalon, and Navarro, claimed that the cruxes of spouses’ psychological incapacity in the
aforesaid cases were traceable to their disordered personalities. For instance, the respondent wife in
Dedel suffered from Anti-Social Personality Disorder; the petitioner husband in Villalon suffered from
Narcissistic Personality Disorder; and in Navarro, both parties similarly suffered from personality
disorders, although only one of the spouses was cited by the forensic clinical psychologist as
psychologically incapacitated. In Edward Kenneth Ngo Te v. Rowena Ong Gutierrez Yu-Te (February 13,
2009), the petitioner husband and respondent wife, who both suffered from personality disorders, were
also cited as psychologically incapacitated by Dr. Roxel A. Apruebo, an expert and scholar in the field. Dr.
Apruebo’s evaluation was recognized and upheld with utmost credibility by the Supreme Court.
Interestingly, this case laid down the doctrine that forensic clinical psychologist’s expert opinion must be
considered with utmost regard insofar as personality profiles of the parties were concerned. The case of
Leonilo Antonio v. Marie Ivonne F. Reyes, (March 10, 2006), although not necessarily an exception to the
foregoing cases, still took note of the Paranoid Personality Disorder of the respondent-wife, as testified
by expert witness. What was groundbreaking about this case, however, was the highlight on the
pathological and habitual lying that was concocted by the respondent wife, as asseverated by the expert
opinion and conclusion of Dr. Arnulfo V. Lopez, forensic clinical psychology expert for the petitioner
husband. Accordingly, the Supreme Court gave credence to the expert testimony of Dr. Lopez on the
respondent wife’s “fantastic ability to invent and fabricate stories and personalities that enabled her to
live in a world of make-believe”, making her psychologically incapacitated to fulfill her essential marital
obligations.36
In establishing whether or not either or both spouses in a projected petition for declaration of
nullity of marriage was psychologically incapacitated, the psychological assessment should be conducted

36
Id. at 3.

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within the context of forensic mental health assessment. Heilbrun, Grisso, and Goldstein (2009)
appropriately defined this concept as an assessment activity designed to help the court in resolving a
forensic issue. The forensic issue referred to would then revolve around the legal question faced by the
court in legal proceedings. Hence, the referral question in forensic mental health assessment would be
the very legal question at hand.37
In the forensic mental health assessment of the petitioner and/or respondent spouse, forensic
clinical psychologists in marital nullity cases would often be questioned on the means and methods of
assessment. Nicholson and Norwood (2000) declared that forensic mental health assessment reports in
the court setting appeared to fall quite short of professional aspirations.38 Citing Roesch and Golding,
they described these forensic reports as “most frequently stereotyped in form”, usually containing only
summarized conclusions or mere medical abstractions. Although most sample reports matched legal
criteria, forensic clinical psychologists did not still use psychological assessment tools and procedures
with the strongest evidence of psychometric properties of reliability and validity.
Urbina (2014) referred to reliability as trustworthiness. To the extent that a decision to declare
either or both spouses as psychologically incapacitated would have to be made, the forensic clinical
psychologist needed to be sure that test results would be reasonably trustworthy. That degree of trust,
in turn, would have to be evidenced by the consistency of test results of psychological instruments used
to measure the disordered personality. Although reliability implied consistency, it similarly did not imply
absolute consistency of test results because it was possible that the same would contain some amount
of error. For instance, an error might come from so-called “bias,” which Neal and Grisso (January 2014)
claimed to be frequent forensic mental health assessment because of the “inappropriate personal or
emotional involvement” that forensic clinical psychologists would get themselves tangled with.
Rogers, Wasyliw, and Cavanaugh, Jr. (1984) also cited construct validity as another important
psychometric property in forensic mental health assessment. They defined construct validity as the
congruence of the psychological concept to associated theory. Trochim (2006) referred to this as the
extent to which an operationalization of the construct could be made. Applied to the present study,
construct validation would then refer to congruence of the concept of psychological incapacity with
personality disorders. However, how could we then validate the construct of psychological incapacity,

37
Heilbrun, K., Grisso, T., & Goldstein, A. (2009). Foundations of forensic mental health assessment. NY: Oxford
University Press.
38
Nicholson, R., & Norwood, S. (February 2000). The quality of forensic psychological assessments, reports, and
testimony: Acknowledging the gap between promise and practice. Law and Human Behavior, 24:1, 9-44. DOI:
0147-7307/00/0200-0009$18.00/1

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when this very construct was intended to be fluid in the first place? The construct then would have to
come from varied sources, such as the law, jurisprudence, and empirical research studies, both
psychological and legal, to explicate the concept. It would have to view, as well, the professional
conventions, conferences and seminars that had academic paper presentations and publications on the
construct. In its view of construct of psychological incapacity then, the Psychological Association of the
Philippines (April 2010), through Dr. Roger Davis, zeroed in on personality disorders as cruxes of
psychological incapacity. Dr. Davis then reminded forensic clinical psychologists that it was not enough
that practitioners knew how to measure personality disorders; it was equally important for the forensic
clinical psychologists, he added, to know how disorders manifested themselves and how they actually
undermined marital relationships.
After the client intake, the forensic clinical psychologist would find herself/himself conducting a
forensic mental health assessment that would assist the courts of law as trier of facts. In so doing, the
forensic clinical psychologist would have to conduct this assessment using psychological instruments
that would be both highly reliable and valid. The Minnesota Multiphasic Personality Inventory-2-
Restructured Form (van der Heijden, Egger, Rossi, Grundel & Derksen, 2013), the Millon Clinical
Multiaxial Inventory-III (Daubert & Metzler, 2000) and other equally powerful structured personality
tests, which had long been considered reliable measures in detecting faking and feigning, would be most
ideal in assessment of personality disorders to determine whether or not either/both spouses was
psychologically incapacitated. In the meantime, use of the locally normed Psychological Incapacity
Rating Scale (Ng & Apruebo, 2006), which actually and directly measured the construct of psychological
incapacity, would also be a very good addition to the battery. The use of projective techniques
(Lilienfeld, Wood, & Garb, 2000), although discouraged in forensic setting on one hand, nonetheless
continued to be allowed by judges in the courtroom setting on the other hand, still increased the
reliability of forensic assessment. To further increase reliability in forensic assessment, the use of
collateral informants or corroborative accounts from independent and competent witnesses should
ideally be extracted and incorporated in forensic mental health assessment reports (Republic of the
Philippines v. Nestor Galang, 06 June 2011).

Significance of the Problem

This research paper has the following significance:


1. To enhance the empirical literature on psychological incapacity;

13
2. To clarify the nature of psychological incapacity as intended by the framers;
3. To reexamine the concept of psychological incapacity as interpreted by the courts and thus
establish a consistent ruling on cases of psychological incapacity
4. Assure protection by the State on the sanctity of marriage by strictly following on how the
concept of psychological incapacity was shaped.
5. To free any marriage from being compromised resulting from liberality of the decision being laid
down by the court in the absence of proper definitive guideposts for subsequent jurisprudence.

Solution to the Problem

This research has the following approach to deal with the problem:

1. It is suggested that legislation be made to further clarify the concept of psychological


incapacity. Clarification must be done keeping in mind the present state of understanding of the
psychological sciences, such that the proper categories in the classifications of the mental disorder
included within the definition of the concept itself, if indeed the legislators intended the concept to
encompass only mental or personality disorder. If not, the law should state more precisely what it
wishes to include within the ambit of the term.
2. The intent of the framers must be reflected accurately by the interpretation
given to the provision. Such intention as may be read and deduced from the records of the sessions of
the Family Code Revision Committee, as well as that which may be athered from holistic reading of the
Family Code, guided by the external sources allowed by the framers such as experts in the psychiatric
fields, as well as Church Law and jurisprudence must be ascertained carefully, and as much as possible,
such intention must be followed.39
3. Psychological incapacity need not be considered as to whether or not it is caused by
personality or a mental disorder, rather, one should view the incapacity simply as being caused by
psychological factors. This would have the effect of further lowering the bar with regard to the
declaration of nullity of marriages, wHich is the avowed intention of the provision. Of course, however,
it is still important to take into consideration the inviolability of marriage which is enshrined in our

39
Ibid. at 1.

14
Constitution and the importance of the family, which duty of strengthening and actively promoting its
development the State upholds.
4. Guidance by the experts in the field of psychiatry in looking not just at the disorders of
individuals, but look also into the interpersonal dynamics of the marital relationship. Hence,
psychological incapacity need not be considered as to whether or not it is caused by a personality or a
mental disorder, rather, one should view the incapacity simply as being caused by psychological factors.
This would have the effect of further lowering the bar with regard to the declaration of nullity of
marriages, which is the avowed intention of the provision.

III. Methods

The theoretical underpinnings of this study included the legal theory of psychological incapacity
based in Articl e 36 of the Family Code of the Philippines and categorical model of personality
functioning based on the DSM-IV-TR, which was the effective diagnostic manual at the time these cases
became part of court records.
Article 36 of The Family Code (as amended by Executive Order 227) served as the primary
theoretical foundation of this study. In addition, the books Civil Code of the Philippines: Commentaries
and Jurisprudence by Tolentino, Jurisprudence and Comments on Persons and Family Relations (2014)
by Virgilio B. Gesmundo and Statutory Construction (2009) by Ruben E. Agpalo, existing laws, and codes
of the Philippines and of the Spain are the resources of this paper.
The internet webites, particularly www.sc.judiciary.gov.ph, Lawphil, Chan Robles Virtual Law Library,
in availing the copies of the cases involving psychological incapacity, have played vital role in providing
informations in this paper. Furthermore, some cases decided by the Supreme Court added content on
this paper.

IV. Results

Presently, it might seem that the understanding of psychological incapacity deviates from the
literal wording of Article 36, with its central phase reading psychologically incapacitated to comply with
the essential marital obligations of marriage.40

40
Marcos v. Marcos, 397 Phil. 840, 851 (2000).

15
There were several interpretations that led to inconsistency of court decisions. Few examples
are as follows:
In the case of Chi Ming Judge Torres in finding the gravity of the failed relationship in which the
parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations
due to refusal of the husband to consummate the marriage, decreed the annulment of the marriage on
the ground of psychological incapacity.41 For the first time, Supreme Court declared a marriage void on
the ground of psychological incapacity of a husband who is not impotent but who did not engage in any
sexual intercourse with his wife from the time of the celebration of their marriage up to and until their
separation 10 months later. Despite having earlier conceded that the law does not evidently envision
mere inability of the spouse to have sexual relation with the other42, the Supreme Court characterized
the senseless and protracted refusal to fulfill the said marital obligation of one of the parties to said
marriage as equivalent to psychological incapacity.
However, in the case of Santos v. Court of Appeals, it was held that psychological incapacity 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.43
Furthermore, in the case of Castillo v. Republic of the Phillipines, the Supreme Court favored the
continuity of the marriage on the basis that psychological incapacity must be more than just a
"difficulty," "refusal" or "neglect" in the performance of some marital obligations. Rather, it is essential
that the concerned party was incapable of doing so, due to some psychological illness existing at the
time of the celebration of the marriage.44
It must be taken note of that during the case of Chi Ming Tsoi vs. Court of Appeals, no clinical or
medical report was presented to the court to show that either or both of the parties are psychologically
incapacitated. One month thereafter, in the case of Republic vs CA (G.R. No. 108763, February 13, 1997,
268 SCRA 198, 209-213), the Court declared that the psychological incapacity of either or both parties
must be medically or clinically identified.

41
Chi Ming Tsoi v. Court of Appeals, G.R No. 119190, January 16, 1997.
42
Santos v. Court of Appeals, G.R. No. 112019, January 4, 1995, 240 SCRA 20, 31.
43
Ibid.
44
Castillo v. Republic of the Phillipines, G.R. No. 214064, February 06, 2017.

16
Meanwhile, in the case of Republic v. Dagdag 45 the Supreme Could held that whether or not
psychological incapacity exists in a given case calling for annulment of a marriage, depends crucially,
more than in any field of the law, on the facts of the case. Each case must be judged, not on the basis of
a priori assumptions, predilections or generalizations but according to its own facts. In regard to
psychological incapacity as a ground for annulment of marriage, it is trite to say that no case is on "all
fours" with another case. The trial judge must take pains in examining the factual milieu and the
appellate court must, as much as possible, avoid substituting its own judgment for that of the trial
court.46
The Court thus acknowledges that the definition of psychological incapacity, as intended by the
revision committee, was not cast in intractable specifics. Judicial understanding of psychological
incapacity may be informed by evolving standards, taking into account the particulars of each case,
current trends in psychological and even canonical thought, and experience. It is under the auspices of
the deliberate ambiguity of the framers that the Court has developed the Molina rules, which have been
consistently applied since 1997. Molina has proven indubitably useful in providing a unitary framework
that guides courts in adjudicating petitions for declaration of nullity under Article 36. At the same time,
the Molina guidelines are not set in stone, the clear legislative intent mandating a case-to-case
perception of each situation, and Molina itself arising from this evolutionary understanding of Article 36.
There is no cause to disavow Molina at present, and indeed the disposition of this case shall rely
primarily on that precedent. There is need though to emphasize other perspectives as well which should
govern the disposition of petitions for declaration of nullity under Article 36.

V. Discussion

The observations above interpose the need to re-examine the concept of psychological
incapacity.
Let us go back to the discussion above on the definition of psychological incapacity. The
preference of the revision committee was for the judge to interpret the provision on a case-to-case
basis, guided by experience, in the findings of experts and researchers in psychological disciplines, and

45
Salita v. Magtolis, G.R. No. 106429, 13 June 1994, 233 SCRA 100, 107-108; citing A. SEMPIO-DIY, supra note 60,
at 37, emphasis supplied. See also Santos v. Court of Appeals, supra note 60, at 36; Republic v. Court of
Appeals, supranote 40, at 677.
46
Id. at 431; citing Republic v. Court of Appeals, 268 SCRA 198, 214 (1997), Padilla, J., Separate Statement.

17
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.47
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 ill-equipped 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.
It was said that the present understanding of psychological incapacity deviates from the literal
wording of Article 36, with its central phase reading psychologically incapacitated to comply
with the essential marital obligations of marriage.48 The preference of the revision committee was for
the judge to interpret the provision on a case-to-case basis, guided by experience, in the findings of
experts and researchers in psychological disciplines, and 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.49
The notion that psychological incapacity pertains to the inability to understand the obligations
of marriage, as opposed to a mere inability to comply with them, was further affirmed in the Molina 50
case. Therein, the Court, through then Justice Panganiban observed that the evidence to establish
psychological incapacity must convince the court that the parties, or one of them, was mentally or
psychically ill to such extent that the person could not have known the obligations he was assuming, or

47
It may be noted that a previous incarnation of Article 36, subsequently rejected by the Family Code Commission,
stated that among those void ab initio marriages are those contracted by any party who, at the time of the celebration,
was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was
psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity
is made manifest after the celebration. See Santos v. Court of Appeals.

48
Marcos v. Marcos, 397 Phil. 840, 851 (2000).
49
It may be noted that a previous incarnation of Article 36, subsequently rejected by the Family Code Commission,
stated that among those void ab initio marriages are those contracted by any party who, at the time of the celebration,
was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was
psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity
is made manifest after the celebration. See Santos v. Court of Appeals, supra note 60, at 30.
50
Supra note 40.

18
knowing them, could not have given valid assumption thereto. 51Jurisprudence since then has
recognized that psychological incapacity is a malady so grave and permanent as to deprive one of
awareness of the duties and responsibilities of the matrimonial bond one is about to assume. 52
In the case of Antonio v. Quisumbing, Justice Tinga, stated that there were initial criticisms of
this original understanding of Article 36 as phrased by the Family Code committee. Dr. Tolentino, in the
1990 edition of his commentaries on the Family Code that psychological incapacity to comply would
not be juridically different from physical incapacity of consummating the marriage, which makes the
marriage only voidable under Article 5 (5) of the Civil Code should have been a cause for annulment of
the marriage only.53 These concerns though were answered, beginning with Santos v. Court of Appeals,
wherein the Court, through Justice Vitug, acknowledged that psychological incapacity should refer to no
less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to the marriage.54
The Supreme Court, in Santos then in Molina, considered the opinion of canon law experts in
the interpretation of psychological incapacity. This is but unavoidable, considering that the Family Code
committee had bluntly acknowledged that the concept of psychological incapacity was derived from
canon law and as one member admitted, enacted as a solution to the problem of marriages already
annulled by the Catholic Church but still existent under civil law. 55 It would be disingenuous to disregard
the influence of Catholic Church doctrine in the formulation and subsequent understanding of Article 36,
and the Court has expressly acknowledged that interpretations given by the National Appellate
Matrimonial Tribunal of the local Church, while not controlling or decisive, should be given great respect
by our court. 56 Still, it must be emphasized that the Catholic Church is hardly the sole source of
influence in the interpretation of Article 36. Even though the concept may have been derived from
canon law, its incorporation into the Family Code and subsequent judicial interpretation occurred in
wholly secular progression. Indeed, while Church thought on psychological incapacity is merely
persuasive on the trial courts, judicial decisions of this Court interpreting psychological incapacity are
binding on lower courts.

51
Id. at 677.
52
Marcos v. Marcos, 397 Phil. 840, 851 (2000).
53
I A. TOLENTINO, CIVIL CODE OF THE PHILIPPINES: COMMENTARIES AND JURISPRUDENCE 274-275 (1990 ed.).
54
Id. at 40, emphasis supplied. The Court further added, [t]here 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 marriage. Id.
55
See SEMPIO-DIY, supra note 60, at 36.
56
Republic v. Court of Appeals, supra note 40, at 678.

19
VI. Conclusion

The sanctity of marriage is protected by the Constitution. But the Constitution itself does not
establish the parameters of state protection to marriage as a social institution and the foundation of the
family. It remains the province of the legislature to define all legal aspects of marriage and prescribe the
strategy and the modalities to protect it, based on whatever socio-political influences it deems proper,
and subject of course to the qualification that such legislative enactment itself adheres to the
Constitution and the Bill of Rights. This being the case, it also falls on the legislature to put into
operation the constitutional provisions that protect marriage and the family. This has been
accomplished at present through the enactment of the Family Code, which defines marriage and the
family, spells out the corresponding legal effects, imposes the limitations that affect married and family
life, as well as prescribes the grounds for declaration of nullity and those for legal separation.
Recently, however, with the passing of the Family Code of the Philippines on 3 August 1998 and
its subsequent amendment by Executive Order No. 227 the “eye of the needle” was made a bit wider
thereby allowing marriage couples to avail of its more leneit provisions in order to avoid their marriage.
Currently, the Molina guidelines aid the courts in the disposition of cases involving psychological
incapacity. There are, however, several interpretations of the definition of psychological incapacity laid
down by the Court in different cases.
There is a need for the legislature to re-examine the concept of psychological incapacity.
In view of the lack of definition of the concept of psycological incapacity in the Family Code, problems
arose with regard to its application and interpretation, leading to many misapplications of Article 3657
thereby resulting in efforts of the Supreme Court to provide guidelines for its application.
It is suggested that the intent of the framers must be reflected accurately by the interpretation
given to the provision. Such intention as may be read and deduced from the records of the sessions of
the Family Code Revision Committee, as well as that which may be athered from holistic reading of the
Family Code, guided by the external sources allowed by the framers such as experts in the psychiatric
fields, as well as Church Law and jurisprudence must be ascertained carefully, and as much as possible,
such intention must be followed.58
From the above discussion, one can gather that jurisprudence concerning the definition of
psychological incapacity does not conform to the legislative intention for the provision. Judicial

57
Ibid. at 1.
58
Ibid. at 1.

20
interpretation has unduly restricted the grounds of psychological incapacity for voiding marriages, and
thus no longer accurately reflects the true intent of the law. The spirit of the law was to liberalize the
grounds for declaration of nullity of marriages. In so doing, jurisprudence seems to have arrived at a
point where the concepts allowed to be encompassed by jurisprudence are no longer consistent with
each other, such as the pronouncement in Molina with regard to psychological incapacity being a
personality disorder and at the same time that it could be relative, as well as the question of whether
the Supreme Court is referring to a mental illness/disorder or a personality disorder when referring to
psychological incapacity.
Furthermore, if one is to be guided by experts in the field of psychiatry, one should not just look
at disorders of individuals, but look also into the interpersonal dynamics of the marital relationship.
Hence, psychological incapacity need not be considered as to whether or not it is caused by a
personality or a mental disorder, rather, one should view the incapacity simply as being caused by
psychological factors. This would have the effect of further lowering the bar with regard to the
declaration of nullity of marriages, which is the avowed intention of the provision. Of course, however, it
is still important to take into consideration the inviolability of marriage which is enshrined in our
Constitution and the importance of the family, which duty of strengthening and actively promoting its
development the State upholds. Agpalo, in his book entitled Statutory Construction (2009), citing the
Supreme Court’s decision in the case of Teehankee v. Rovira 59, “It is a well statutory construction that a
statute should be interpreted in harmony with the Constitution.” If one lowers the bar too much, doing
so right be detrimental to marriages and the tamily, thereby running counter to the Constitution which
upholds the family as a state policy. 60 We are thus left in a cross-road where we must decide - should
we allow the liberalization of the declartion of nullity of marriages, or should we opt for the more
conservative view where the bar should be made higher? The author feels that this is the point we find
ourselves in jurisprudence, thereby explaining the seeming disparity between the legislative intent and
the court pronounceltlents. The Supreme Court seems to favor the more conservative view, perhaps
keeping in mind their allegiance to the Constitution. The framers, on the other hand, failed to give
proper and definitive guideposts for subsequent jurisprudence. Some of the guideposts provided,
seemingly, are actually moving guideposts - the experience of the judges, the findings of the experts and
researchers in psychological disciplines, and the decisions of the Church tribunals - these are all dynamic

59
Teehankee v. Rovira, 75 Phil.634 (1945)
60
Philippine Constitution. Art. 2, par. 12

21
guides. It is no wonder that the proper interpretation of psychological incapacity could place even
learned men and women of our courts in a quandary.
It is therefore suggested that legislation be made to further clarify the concept of psychological
incapacity. Clarification must be done keeping in mind the present state of understanding of the
psychological sciences, such that the proper categories in the classifications of the mental disorder
included within the definition of the concept itself, if indeed the legislators intended the concept to
encompass only mental or personality disorder. If not, the law should state more precisely what it
wishes to include within the ambit of the term.
In the meantime, the Courts will have no choice but to follow the intent of the framers. One of
the intentions is clearly that Church annulled marriages be accommodated in Civil Law. If such is the
case, Courts will at least have to allow other forms of mental disorders an clinically undefined
abnormalities allowed by Church jurisprudence to be similarly annulled under Civil Law. Although article
9 of the Civil Code61 affirms the ability of judges to fill in the gaps and interstices of the law, and as
Justice Holmes stated, courts “do and must legislate" in order to fill in the gaps of the law, because the
mind of the legislator, like all human beings is finite and therefore not envisage all possible scenarios,
we must always be careful that before judicial interpretation comes in to fill in the interstices, such gaps
in the law really exist. Otherwise, judicial interpretation might easily become judicial legislation.

61
NEW CIVIL CODE, art. 9 (“No judge or court shall decline to render judgment by reason of the silence, obscurity
or insufficiency of the laws.”)

22