Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 119190 January 16, 1997

CHI MING TSOI, petitioner,

vs.
COURT OF APPEALS and GINA LAO-TSOI, respondents.

TORRES, JR., J.:

Man has not invented a reliable compass by which to steer a marriage in its journey over
troubled waters. Laws are seemingly inadequate. Over time, much reliance has been placed in
the works of the unseen hand of Him who created all things.

Who is to blame when a marriage fails?

This case was originally commenced by a distraught wife against her uncaring husband in the
Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of the marriage
on the ground of psychological incapacity. Petitioner appealed the decision of the trial court to
respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision
November 29, 1994 and correspondingly denied the motion for reconsideration in a resolution
dated February 14, 1995.

The statement of the case and of the facts made by the trial court and reproduced by the Court
of Appeals 1 its decision are as follows:

From the evidence adduced, the following acts were preponderantly established:

Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, .
. . Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A")

After the celebration of their marriage and wedding reception at the South Villa, Makati,
they went and proceeded to the house of defendant's mother.

There, they slept together on the same bed in the same room for the first night of their
married life.

It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they
were supposed to enjoy making love, or having sexual intercourse, with each other, the
defendant just went to bed, slept on one side thereof, then turned his back and went to
sleep . There was no sexual intercourse between them during the first night. The same
thing happened on the second, third and fourth nights.

In an effort to have their honeymoon in a private place where they can enjoy together
during their first week as husband and wife, they went to Baguio City. But, they did so
together with her mother, an uncle, his mother and his nephew. They were all invited by
the defendant to join them. [T]hey stayed in Baguio City for four (4) days. But, during this
period, there was no sexual intercourse between them, since the defendant avoided her
by taking a long walk during siesta time or by just sleeping on a rocking chair located at
the living room. They slept together in the same room and on the same bed since May
22, 1988 until March 15, 1989. But during this period, there was no attempt of sexual
intercourse between them. [S]he claims, that she did not: even see her husband's
private parts nor did he see hers.

Because of this, they submitted themselves for medical examinations to Dr. Eufemio
Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989.

The results of their physical examinations were that she is healthy, normal and still a
virgin, while that of her husband's examination was kept confidential up to this time.
While no medicine was prescribed for her, the doctor prescribed medications for her
husband which was also kept confidential. No treatment was given to her. For her
husband, he was asked by the doctor to return but he never did.

The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not
show his penis. She said, that she had observed the defendant using an eyebrow pencil
and sometimes the cleansing cream of his mother. And that, according to her, the
defendant married her, a Filipino citizen, to acquire or maintain his residency status here
in the country and to publicly maintain the appearance of a normal man.

The plaintiff is not willing to reconcile with her husband.

On the other hand, it is the claim of the defendant that if their marriage shall be annulled
by reason of psychological incapacity, the fault lies with his wife.

But, he said that he does not want his marriage with his wife annulled for several
reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and
he is physically and psychologically capable; and, (3) since the relationship is still very
young and if there is any differences between the two of them, it can still be reconciled
and that, according to him, if either one of them has some incapabilities, there is no
certainty that this will not be cured. He further claims, that if there is any defect, it can be
cured by the intervention of medical technology or science.

The defendant admitted that since their marriage on May 22, 1988, until their separation
on March 15, 1989, there was no sexual contact between them. But, the reason for this,
according to the defendant, was that everytime he wants to have sexual intercourse with
his wife, she always avoided him and whenever he caresses her private parts, she
always removed his hands. The defendant claims, that he forced his wife to have sex
with him only once but he did not continue because she was shaking and she did not like
it. So he stopped.
 There are two (2) reasons, according to the defendant , why the plaintiff filed this case
against him, and these are: (1) that she is afraid that she will be forced to return the
pieces of jewelry of his mother, and, (2) that her husband, the defendant, will
consummate their marriage.

The defendant insisted that their marriage will remain valid because they are still very
young and there is still a chance to overcome their differences.

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.

In open Court, the Trial Prosecutor manifested that there is no collusion between the
parties and that the evidence is not fabricated." 2

After trial, the court rendered judgment, the dispositive portion of which reads:

ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered

into by the plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica
of the Immaculate Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio
de Vera. Without costs. Let a copy of this decision be furnished the Local Civil Registrar
of Quezon City. Let another copy be furnished the Local Civil Registrar of Manila.

SO ORDERED.

On appeal, the Court of Appeals affirmed the trial court's decision.

Hence, the instant petition.

Petitioner alleges that the respondent Court of Appeals erred:

in affirming the conclusions of the lower court that there was no sexual intercourse
between the parties without making any findings of fact.

II

in holding that the refusal of private respondent to have sexual communion with
petitioner is a psychological incapacity inasmuch as proof thereof is totally absent.
 III

in holding that the alleged refusal of both the petitioner and the private respondent to
have sex with each other constitutes psychological incapacity of both.

IV

in affirming the annulment of the marriage between the parties decreed by the lower
court without fully satisfying itself that there was no collusion between them.

We find the petition to be bereft of merit.

Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has
the burden of proving the allegations in her complaint; that since there was no independent
evidence to prove the alleged non-coitus between the parties, there remains no other basis for
the court's conclusion except the admission of petitioner; that public policy should aid acts
intended to validate marriage and should retard acts intended to invalidate them; that the
conclusion drawn by the trial court on the admissions and confessions of the parties in their
pleadings and in the course of the trial is misplaced since it could have been a product of
collusion; and that in actions for annulment of marriage, the material facts alleged in the
complaint shall always be proved. 3

Section 1, Rule 19 of the Rules of Court reads:

Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or

otherwise admits the material allegations of the adverse party's pleading, the court may,
on motion of that party, direct judgment on such pleading. But in actions for annulment of
marriage or for legal separation the material facts alleged in the complaint shall always
be proved.

The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to
prevent is annulment of marriage without trial. The assailed decision was not based on such a
judgment on the pleadings. When private respondent testified under oath before the trial court
and was cross-examined by oath before the trial court and was cross-examined by the adverse
party, she thereby presented evidence in form of a testimony. After such evidence was
presented, it be came incumbent upon petitioner to present his side. He admitted that since their
marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual
intercourse between them.

To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil
Code provides that no judgment annulling a marriage shall be promulgated upon a stipulation of
facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the Rules of Court prohibit
such annulment without trial (Sec. 1, Rule 19).

The case has reached this Court because petitioner does not want their marriage to be
annulled. This only shows that there is no collusion between the parties. When petitioner
admitted that he and his wife (private respondent) have never had sexual contact with each
other, he must have been only telling the truth. We are reproducing the relevant portion of the
challenged resolution denying petitioner's Motion for Reconsideration, penned with magisterial
lucidity by Associate Justice Minerva Gonzaga-Reyes, viz:
 The judgment of the trial court which was affirmed by this Court is not based on a
stipulation of facts. The issue of whether or not the appellant is psychologically
incapacitated to discharge a basic marital obligation was resolved upon a review of both
the documentary and testimonial evidence on record. Appellant admitted that he did not
have sexual relations with his wife after almost ten months of cohabitation, and it
appears that he is not suffering from any physical disability. Such abnormal reluctance or
unwillingness to consummate his marriage is strongly indicative of a serious personality
disorder which to the mind of this 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 (See Santos vs. Court of Appeals, G.R. No. 112019, January 4,
1995). 4

Petitioner further contends that respondent court erred in holding that the alleged refusal of both
the petitioner and the private respondent to have sex with each other constitutes psychological
incapacity of both. He points out as error the failure of the trial court to make "a categorical
finding about the alleged psychological incapacity and an in-depth analysis of the reasons for
such refusal which may not be necessarily due to physchological disorders" because there
might have been other reasons, — i.e., physical disorders, such as aches, pains or other
discomforts, — why private respondent would not want to have sexual intercourse from May 22,
1988 to March 15, 1989, in a short span of 10 months.

First, it must be stated that neither the trial court nor the respondent court made a finding on
who between petitioner and private respondent refuses to have sexual contact with the other.
The fact remains, however, that there has never been coitus between them. At any rate, since
the action to declare the marriage void may be filed by either party, i.e., even the
psychologically incapacitated, the question of who refuses to have sex with the other becomes
immaterial.

Petitioner claims that there is no independent evidence on record to show that any of the parties
is suffering from phychological incapacity. Petitioner also claims that he wanted to have sex with
private respondent; that the reason for private respondent's refusal may not be psychological
but physical disorder as stated above.

We do not agree. Assuming it to be so, petitioner could have discussed with private respondent
or asked her what is ailing her, and why she balks and avoids him everytime he wanted to have
sexual intercourse with her. He never did. At least, there is nothing in the record to show that he
had tried to find out or discover what the problem with his wife could be. What he presented in
evidence is his doctor's Medical Report that there is no evidence of his impotency and he is
capable of erection. 5 Since it is petitioner's claim that the reason is not psychological but
perhaps physical disorder on the part of private respondent, it became incumbent upon him to
prove such a claim.

If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus,
the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is
considered a sign of psychological incapacity. 6
Evidently, one of the essential marital obligations under the Family Code is "To procreate
children based on the universal principle that procreation of children through sexual cooperation
is the basic end of marriage." Constant non- fulfillment of this obligation will finally destroy the
integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal
of one of the parties to fulfill the above marital obligation is equivalent to psychological
incapacity.

As aptly stated by the respondent court,

An examination of the evidence convinces Us that the husband's plea that the wife did
not want carnal intercourse with him does not inspire belief. Since he was not physically
impotent, but he refrained from sexual intercourse during the entire time (from May 22,
1988 to March 15, 1989) that he occupied the same bed with his wife, purely out of
symphaty for her feelings, he deserves to be doubted for not having asserted his right
seven though she balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil
Code, at p. 330). Besides, if it were true that it is the wife was suffering from incapacity,
the fact that defendant did not go to court and seek the declaration of nullity weakens his
claim. This case was instituted by the wife whose normal expectations of her marriage
were frustrated by her husband's inadequacy. Considering the innate modesty of the
Filipino woman, it is hard to believe that she would expose her private life to public
scrutiny and fabricate testimony against her husband if it were not necessary to put her
life in order and put to rest her marital status.

We are not impressed by defendant's claim that what the evidence proved is the
unwillingness or lack of intention to perform the sexual act, which is not phychological
incapacity, and which can be achieved "through proper motivation." After almost ten
months of cohabitation, the admission that the husband is reluctant or unwilling to
perform the sexual act with his wife whom he professes to love very dearly, and who has
not posed any insurmountable resistance to his alleged approaches, is indicative of a
hopeless situation, and of a serious personality disorder that constitutes psychological
incapacity to discharge the basic marital covenants within the contemplation of the
Family Code. 7

While the law provides that the husband and the wife are obliged to live together, observe
mutual love, respect and fidelity (Art. 68, Family Code), the sanction therefor is actually the
"spontaneous, mutual affection between husband and wife and not any legal mandate or court
order" (Cuaderno vs. Cuaderno 120 Phil. 1298). Love is useless unless it is shared with
another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say "I could
not have cared less." This is so because an ungiven self is an unfulfilled self. The egoist has
nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness
and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a
function which enlivens the hope of procreation and ensures the continuation of family relations.

It appears that there is absence of empathy between petitioner and private respondent. That is
— a shared feeling which between husband and wife must be experienced not only by having
spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-
way process. An expressive interest in each other's feelings at a time it is needed by the other
can go a long way in deepening the marital relationship. Marriage is definitely not for children
but for two consenting adults who view the relationship with love amor gignit amorem, respect,
sacrifice and a continuing commitment to compromise, conscious of its value as a sublime
social institution.

This Court, finding the gravity of the failed relationship in which the parties found themselves
trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less
but sustain the studied judgment of respondent appellate court.

IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals
dated November 29, 1994 is hereby AFFIRMED in all respects and the petition is hereby
DENIED for lack of merit.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 108763 February 13, 1997

REPUBLIC OF THE PHILIPPINES,

vs.
COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, respondents.

PANGANIBAN, J.:

The Family Code of the Philippines provides an entirely new ground (in addition to those
enumerated in the Civil Code) to assail the validity of a marriage, namely, "psychological
incapacity." Since the Code's effectivity, our courts have been swamped with various
petitions to declare marriages void based on this ground. Although this Court had
interpreted the meaning of psychological incapacity in the recent case of Santos vs.
Court of Appeals, still many judges and lawyers find difficulty in applying said novel
provision in specific cases. In the present case and in the context of the herein assailed
Decision of the Court of Appeals, the Solicitor General has labelled — exaggerated to be
sure but nonetheless expressive of his frustration — Article 36 as the "most liberal
divorce procedure in the world." Hence, this Court in addition to resolving the present
case, finds the need to lay down specific guidelines in the interpretation and application
of Article 36 of the Family Code.
Before us is a petition for review on certiorari under Rule 45 challenging the January 25, 1993 Decision 1
of the Court of
Appeals 2 in CA-G.R. CV No. 34858 affirming in toto the May 14, 1991 decision of the Regional Trial
Court of La Trinidad, 3 Benguet, which declared the marriage of respondent Roridel Olaviano
Molina to Reynaldo Molina void ab initio, on the ground of "psychological incapacity" under
Article 36 of the Family Code.

The Facts

This case was commenced on August 16, 1990 with the filing by respondent Roridel O. Molina of a
verified petition for declaration of nullity of her marriage to Reynaldo Molina. Essentially, the
petition alleged that Roridel and Reynaldo were married on April 14, 1985 at the San Agustin
Church 4 in Manila; that a son, Andre O. Molina was born; that after a year of marriage, Reynaldo
showed signs of "immaturity and irresponsibility" as a husband and a father since he preferred to
spend more time with his peers and friends on whom he squandered his money; that he depended
on his parents for aid and assistance, and was never honest with his wife in regard to their
finances, resulting in frequent quarrels between them; that sometime in February 1986, Reynaldo
was relieved of his job in Manila, and since then Roridel had been the sole breadwinner of the
family; that in October 1986 the couple had a very intense quarrel, as a result of which their
relationship was estranged; that in March 1987, Roridel resigned from her job in Manila and went
to live with her parents in Baguio City; that a few weeks later, Reynaldo left Roridel and their child,
and had since then abandoned them; that Reynaldo had thus shown that he was psychologically
incapable of complying with essential marital obligations and was a highly immature and
habitually quarrel some individual who thought of himself as a king to be served; and that it would
be to the couple's best interest to have their marriage declared null and void in order to free them
from what appeared to be an incompatible marriage from the start.

In his Answer filed on August 28, 1989, Reynaldo admitted that he and Roridel could no longer live
together as husband and wife, but contended that their misunderstandings and frequent quarrels
were due to (1) Roridel's strange behavior of insisting on maintaining her group of friends even
after their marriage; (2) Roridel's refusal to perform some of her marital duties such as cooking
meals; and (3) Roridel's failure to run the household and handle their finances.

During the pre-trial on October 17, 1990, the following were stipulated:

1. That the parties herein were legally married on April 14, 1985 at the Church of St.
Augustine, Manila;

2. That out of their marriage, a child named Albert Andre Olaviano Molina was born
on July 29, 1986;

3. That the parties are separated-in-fact for more than three years;

4. That petitioner is not asking support for her and her child;

5. That the respondent is not asking for damages;

6. That the common child of the parties is in the custody of the petitioner wife.

Evidence for herein respondent wife consisted of her own testimony and that of her friends
Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G. Lalas, a social worker, and of
Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio General Hospital and Medical Center. She
also submitted documents marked as Exhibits "A" to "E-1." Reynaldo did not present any
evidence as he appeared only during the pre-trial conference.
On May 14, 1991, the trial court rendered judgment declaring the marriage void. The appeal of
petitioner was denied by the Court of Appeals which affirmed in toto the RTC's decision. Hence,
the present recourse.

The Issue

In his petition, the Solicitor General insists that "the Court of Appeals made an erroneous and
incorrect interpretation of the phrase 'psychological incapacity' (as provided under Art. 36 of the
Family Code) and made an incorrect application thereof to the facts of the case," adding that the
appealed Decision tended "to establish in effect the most liberal divorce procedure in the world
which is anathema to our culture."

In denying the Solicitor General's appeal, the respondent Court relied 5 heavily on the trial court's
findings "that the marriage between the parties broke up because of their opposing and
conflicting personalities." Then, it added it sown opinion that "the Civil Code Revision Committee
(hereinafter referred to as Committee) intended to liberalize the application of our civil laws on
personal and family rights. . . ." It concluded that:

As ground for annulment of marriage, We view psychologically incapacity as a

broad range of mental and behavioral conduct on the part of one spouse indicative
of how he or she regards the marital union, his or her personal relationship with
the other spouse, as well as his or her conduct in the long haul for the attainment
of the principal objectives of marriage. If said conduct, observed and considered
as a whole, tends to cause the union to self-destruct because it defeats the very
objectives of marriage, then there is enough reason to leave the spouses to their
individual fates.

In the case at bar, We find that the trial judge committed no indiscretion in
analyzing and deciding the instant case, as it did, hence, We find no cogent reason
to disturb the findings and conclusions thus made.

Respondent, in her Memorandum, adopts these discussions of the Court of Appeals.

The petitioner, on the other hand, argues that "opposing and conflicting personalities" is not
equivalent to psychological incapacity, explaining that such ground "is not simply the neglect by
the parties to the marriage of their responsibilities and duties, but a defect in their psychological
nature which renders them incapable of performing such marital responsibilities and duties."

The Court's Ruling

The petition is meritorious.

In Leouel Santos vs. Court of Appeals 6 this Court, speaking thru Mr. Justice Jose C. Vitug, ruled
that "psychological incapacity should refer to no less than a mental (nor physical) incapacity . . .
and that (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 the
marriage. This psychologic condition must exist at the time the marriage is celebrated." Citing Dr.
Gerardo Veloso, a former presiding judge of the Metropolitan Marriage Tribunal of the Catholic
Archdiocese of Manila, 7 Justice Vitug wrote that "the psychological incapacity must be
characterized by (a) gravity, (b) juridical antecedence, and (c) incurability."
On the other hand, in the present case, there is no clear showing to us that the psychological
defect spoken of is an incapacity. It appears to us to be more of a "difficulty," if not outright
"refusal" or "neglect" in the performance of some marital obligations. Mere showing of
"irreconciliable differences" and "conflicting personalities" in no wise constitutes psychological
incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties
as married persons; it is essential that they must be shown to be incapable of doing so, due to
some psychological (nor physical) illness.

The evidence adduced by respondent merely showed that she and her husband could nor get
along with each other. There had been no showing of the gravity of the problem; neither its
juridical antecedence nor its incurability. The expert testimony of Dr. Sison showed no incurable
psychiatric disorder but only incompatibility, not psychological incapacity. Dr. Sison testified: 8

COURT

Q It is therefore the recommendation of the psychiatrist based on

your findings that it is better for the Court to annul (sic) the
marriage?

A Yes, Your Honor.

Q There is no hope for the marriage?

A There is no hope, the man is also living with another woman.

Q Is it also the stand of the psychiatrist that the parties are

psychologically unfit for each other but they are psychologically fit
with other parties?

A Yes, Your Honor.

Q Neither are they psychologically unfit for their professions?

A Yes, Your Honor.

The Court has no more questions.

In the case of Reynaldo, there is no showing that his alleged personality traits were constitutive of
psychological incapacity existing at the time of marriage celebration. While some effort was made
to prove that there was a failure to fulfill pre-nuptial impressions of "thoughtfulness and
gentleness" on Reynaldo's part of being "conservative, homely and intelligent" on the part of
Roridel, such failure of expectation is nor indicative of antecedent psychological incapacity. If at
all, it merely shows love's temporary blindness to the faults and blemishes of the beloved.

During its deliberations, the Court decided to go beyond merely ruling on the facts of this case
vis-a-vis existing law and jurisprudence. In view of the novelty of Art. 36 of the Family Code and
the difficulty experienced by many trial courts interpreting and applying it, the Court decided to
invite two amici curiae, namely, the Most Reverend Oscar V. Cruz, 9 Vicar Judicial (Presiding
Judge) of the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines,
and Justice Ricardo C. Puno, 10 a member of the Family Code Revision Committee. The Court
takes this occasion to thank these friends of the Court for their informative and interesting
discussions during the oral argument on December 3, 1996, which they followed up with written
memoranda.
From their submissions and the Court's own deliberations, the following guidelines in the
interpretation and application of Art. 36 of the Family Code are hereby handed down for the
guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt
should be resolved in favor of the existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish
the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on
the Family, 11 recognizing it "as the foundation of the nation." It decrees marriage as legally
"inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and
marriage are to be "protected" by the state.

The Family Code 12 echoes this constitutional edict on marriage and the family and emphasizes
the permanence, inviolability and solidarity

(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. Article 36 of the Family Code requires that the incapacity must be psychological — not
physical. although its manifestations and/or symptoms may be physical. The evidence must
convince the court that the parties, or one of them, was mentally or physically ill to such an extent
that the person could not have known the obligations he was assuming, or knowing them, could
not have given valid assumption thereof. Although no example of such incapacity need be given
here so as not to limit the application of the provision under the principle of ejusdem generis, 13
nevertheless such root cause must be identified as a psychological illness and its incapacitating
nature explained. Expert evidence may be given qualified psychiatrist and clinical psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage.
The evidence must show that the illness was existing when the parties exchanged their "I do's."
The manifestation of the illness need not be perceivable at such time, but the illness itself must
have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to
the assumption of marriage obligations, not necessarily to those not related to marriage, like the
exercise of a profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her own children as an essential
obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes,
occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown
as downright incapacity or inability, nor a refusal, neglect or difficulty, much less ill will. In other
words, there is a natal or supervening disabling factor in the person, an adverse integral element
in the personality structure that effectively incapacitates the person from really accepting and
thereby complying with the obligations essential to 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. It is
clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the
New Code of Canon Law, which became effective in 1983 and which provides:

The following are incapable of contracting marriage: Those who are unable to
assume the essential obligations of marriage due to causes of psychological
nature. 14

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 decision of such appellate tribunal. Ideally — subject to our
law on evidence — what is decreed as canonically invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code
provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the
State and the Church — while remaining independent, separate and apart from each other — shall
walk together in synodal cadence towards the same goal of protecting and cherishing marriage
and the family as the inviolable base of the nation.

(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 he handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly staring therein his reasons for his
agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the
date the case is deemed submitted for resolution of the court. The Solicitor General shall
discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.

In the instant case and applying Leouel Santos, we have already ruled to grant the petition. Such
ruling becomes even more cogent with the use of the foregoing guidelines.

WHEREFORE, the petition is GRANTED. The assailed Decision is REVERSED and SET ASIDE. The
marriage of Roridel Olaviano to Reynaldo Molina subsists and remains valid.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Bellosillo, Melo, Puno Francisco, Hermosisima, Jr., and Torres, Jr., JJ.,
concur.

Regalado, Kapunan and Mendoza, JJ., concurs in the result.

Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice Panganiban but only
because of the peculiar facts of the case. As to whether or not the 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. In Leouel
Santos v. Court of Appeals and Julia Rosario-Bedia Santos, G.R. No. 112019, 4
January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was
psychological incapacity on the part of the wife to discharge the duties of a wife
in a valid marriage. The facts of the present case, after an indepth study, do not
support a similar conclusion. Obviously, each case must be judged, not on the
basis of a priori assumptions, predilections or generalizations but according to
its own facts. In the field of 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 actual millieu and the appellate court
must, as much as possible, avoid substituting its own judgment for that of the
trial court.

ROMERO, J., separate opinion:

The majority opinion, overturning that of the Court of Appeals which affirmed the
Regional Trial Court ruling. upheld petitioner Solicitor General's position that
"opposing and conflicting personalities" is not equivalent to psychological
incapacity, for the latter "is not simply the neglect by the parties to the marriage
of their responsibilities and duties, but a defect in their Psychological nature
which renders them incapable of performing such marital responsibilities and
duties.

In the present case, the alleged personality traits of Reynaldo, the husband, did
not constitute so much "psychological incapacity" as a "difficulty," if not outright
"refusal" or "neglect" in the performance of some marital obligations. "It is not
enough to prove that the parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown to be incapable of doing
so, due to some psychological (not physical) illness."

I would add that neither should the incapacity be the result of mental illness. For
if it were due to insanity or defects in the mental faculties short of insanity, there
is a resultant defect of vice of consent, thus rendering the marriage annulable
under Art. 45 of the Family Code.

That the intent of the members of the U.P. Law Center's Civil Code Revision
Committee was to exclude mental inability to understand the essential nature of
marriage and focus strictly on psychological incapacity is demonstrated in the
way the provision in question underwent revisions.

At the Committee meeting of July 26, 1986, the draft provision read:
 (7) Those marriages 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.

The twists and turns which the ensuing discussion took finally produced the
following revised provision even before the session was over:

(7) That contracted by any party who, at the time of the celebration,
was psychologically incapacitated to discharge the essential marital
obligations, even if such lack or incapacity becomes manifest after
the celebration.

Noticeably, the immediately preceding formulation above has dropped any

reference to "wanting in the sufficient use of reason or judgment to understand
the essential nature or marriage" and to "mentally incapacitated." It was
explained that these phrases refer to "defects in the mental faculties vitiating
consent, which is not the idea . . . but lack of appreciation of one's marital
obligation." There being a defect in consent, "it is clear that it should be a ground
for voidable marriage because there is the appearance of consent and it is
capable of convalidation for the simple reason that there are lucid intervals and
there are sanity is curable. . . . Psychological incapacity does not refer to mental
faculties and has nothing to do with consent; it refers to obligations attendant to
marriage." 1

My own position as a member of the Committee then was that psychological incapacity is, in a
sense, insanity of a lesser degree.

As to the proposal of Justice Caguioa to use the term "psychological or mental impotence,"
Archbishop Oscar Cruz opined in he earlier February 9, 1984 session that this term "is an
invention of some churchmen who are moralists but not canonists, that is why it is considered a
weak phrase." He said that the Code of Canon Law would rather express it as "psychological or
mental incapacity to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may
be psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of
Art. 36 is: "Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to the other spouse,
not necessarily absolutely against everyone of the same sex."

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is
incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of
how they will determine curability and Justice Caguioa agreed that it would be more problematic.
Yet the possibility that one may be cured after the psychological incapacity becomes manifest
after the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice
Caguioa suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:
 1. lack of one or more of the essential requisites of marriage as
contract;

2. reasons of public policy;

3. special cases and special situations.

The ground of psychological incapacity was subsumed under "special cases and special
situations," hence its special treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling
marriages that even comes close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such
marriage which stands valid until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are
void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters,
now open to fresh winds of change in keeping with the more permissive mores and practices of
the time, took a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting
marriage: "3. (those) who, because of causes of a psychological nature, are unable to assume the
essential obligations of marriage" provided the model for what is now Art. 36 of the Family Code:
"A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its solemnization.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with
respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the
voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it actually
declares the marriage null and void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal annulment
process which entails a full tribunal procedure with a Court selection and a formal hearing.

Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties
as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil
marriage, not being congruent with those laid down by Canon Law, the former being more strict,
quite a number of married couples have found themselves in limbo — freed from the marriage
bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under
state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into
live-in relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law
Revision Committee decided to engraft the Canon Law concept of psychological incapacity into
the Family Code — and classified the same as a ground for declaring marriages void ab initio or
totally in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide
directly for psychological incapacity, in effect recognized the same indirectly from a combination
of three old canons: "Canon #1081 required persons to 'be capable according to law' in order to
give valid consent; Canon #1082 required that persons 'be at least not ignorant' of the major
elements required in marriage; and Canon #1087 (the force and fear category) required that
internal and external freedom be present in order for consent to be valid. This line of
interpretation produced two distinct but related grounds for annulment, called 'lack of due
discretion' and 'lack of due competence.' Lack of due discretion means that the person did not
have the ability to give valid consent at the time of the wedding and therefore the union is invalid.
Lack of due competence means that the person was incapable of carrying out the obligations of
the promise he or she made during the wedding ceremony.

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual
disorders such as homosexuality and nymphomania laid the foundation for a broader approach to
the kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for
the first time in several cases that the capacity to give valid consent at the time of marriage was
probably not present in persons who had displayed such problems shortly after the marriage. The
nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated a
cautious willingness to use this kind of hindsight, the way was paved for what came after 1970.
Diocesan Tribunals began to accept proof of serious psychological problems that manifested
themselves shortly after the ceremony as proof of an inability to give valid consent at the time of
the ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert became
increasingly important in such cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to give professional opinions
about a party's mental at the time of the wedding. These opinions were rarely challenged and
tended to be accepted as decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness in this area did not amount to the
addition of new grounds for annulment, but rather was an accommodation by the Church to the
advances made in psychology during the past decades. There was now the expertise to provide
the all-important connecting link between a marriage breakdown and premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to
that of a covenant. The result of this was that it could no longer be assumed in annulment cases
that a person who could intellectually understand the concept of marriage could necessarily give
valid consent to marry. The ability to both grasp and assume the real obligations of a mature,
lifelong commitment are now considered a necessary prerequisite to valid matrimonial consent. 2

Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to
sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both
spouses from assuming or carrying out the essential obligations of marriage. For marriage . . . is
not merely cohabitation or the right of the spouses to each others' body for heterosexual acts, but
is, in its totality, the right to the community of the whole of life, i.e., the right to a developing.
lifelong relationship. Rotal decisions since 1973 have refined the meaning of psychological or
psychic capacity for marriage as presupposing the development of an adult personality; as
meaning the capacity of the spouses to give themselves to each other and to accept the other as a
distinct person; that the spouses must be 'other oriented' since the obligations of marriage are
rooted in a self-giving love; and that the spouses must have the capacity for interpersonal
relationship because marriage is more than just a physical reality but involves a true intertwining
of personalities. The fulfillment of the obligations of marriage depends. according to Church
decisions, on the strength of this interpersonal relationship. A serious incapacity for interpersonal
sharing and support is held to impair the relationship and consequently, the ability to fulfill the
essential marital obligations. The marital capacity of one spouse is not considered in isolation but
in reference to the fundamental relationship to the other spouse. 3
Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital
relationship:

The courts consider the following elements crucial to the marital commitment: (1) a
permanent and faithful commitment to the marriage partner; (2) openness to
children and partner; (3) stability; (4) emotional maturity; (5) financial
responsibility; (6) an ability to cope with the ordinary stresses and strains of
marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions that might
lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion

even with the best intentions of the parties. Among the psychic factors possibly
giving rise to his or her inability to fulfill marital obligations are the following: (1)
antisocial personality with its fundamental lack of loyalty to persons or sense of
moral values; (2) hyperesthesia, where the individual has no real freedom of sexual
choice; (3) the inadequate personality where personal responses consistently
fallshort of reasonable expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts whether
he or she has a case for an annulment on any other terms. A situation that does
not fit into any of the more traditional categories often fits very easily into the
psychological category.

As new as the psychological grounds are, experts are already detecting a shift in
their use. Whereas originally the emphasis was on the parties' inability to exercise
proper judgment at the time of the marriage (lack of due discretion), recent cases
seem to be concentrating on the parties' to assume or carry out their
responsibilities an obligations as promised (lack of due competence). An
advantage to using the ground of lack of due competence is that the at the time the
marriage was entered into civil divorce and breakup of the family almost is of
someone's failure out marital responsibilities as promised at the time the marriage
was entered into. 4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered
equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the
ponencia, the Court held that the failure of the wife to return home from the U.S. or to
communicate with her husband for more then five years is not proof of her psychological
incapacity as to render the marriage a nullity. 5 Therefore, Art. 36 is inapplicable and the marriages
remain valid and subsisting.

However in the recent case of Chi Ming Tsoi v. Court of Appeals, 6 this Court upheld both the
Regional Trial Court and the Court of Appeals in declaring the presence of psychological
incapacity on the part of the husband. Said petitioner husband, after ten (10) months' sleeping
with his wife never had coitus with her, a fact he did not deny but he alleged that it was due to the
physical disorder of his wife which, however, he failed to prove. Goaded by the indifference and
stubborn refusal of her husband to fulfill a basic marital obligation described as "to procreate
children based on the universal principle that procreation of children through sexual cooperation
is the basic end of marriage," the wife brought the action in the lower court to declare the
marriage null.
The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch I) on Psychological incapacity concluded:

If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to
stubborn refusal. Senseless and protracted refusal is equivalent to psychological
incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse
with his or her spouse is considered a sign of psychological incapacity.

We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves
trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but
sustain the studied judgment of respondent appellate court.

1 concur with the majority opinion that the herein marriage remains valid and subsisting absent
psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the
spouses.

VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia,
and I find to be most helpful the guidelines that he prepared for the bench and the bar in the
proper appreciation of Article 36 of Executive Order No. 209 ("The Family Code of the
Philippines"). The term "psychological incapacity" was neither defined nor exemplified by the
Family Code. Thus —

Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only
after its solemnization.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which
drafted the Code explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case
basis, guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals which, although
not binding on the civil courts, may be given persuasive effect since the provision
was taken from Canon Law. 1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon
Law —

Canon 1095. (The following persons) are incapable of contracting marriage; (those)
—

1. who lack sufficient use of reason;

 2. who suffer from a grave defect of discretion of judgment concerning essential
matrimonial rights and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential
obligations of marriage —

that should give that much value to Canon Law jurisprudence as an aid to the
interpretation and construction of the statutory enactment. 2

The principles in the proper application of the law teach us that the several provisions of a Code
must be read like a congruent whole. Thus, in determining the import of "psychological
incapacity" under Article 36, one must also read it along with, albeit to be taken as distinct from,
the other grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise, but
for distinct reasons, render the marriage merely voidable, or Article 55 that could justify a petition
for legal separation. Care must be observed so that these various circumstances are not applied
so indiscriminately as if the law were indifferent on the matter.

I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals; 3 viz:

(T)he use of the phrase "psychological incapacity" under Article 36 of the Code
has not been meant to comprehend all such possible cases of psychoses as,
likewise mentioned by some ecclesiastical authorities, extremely low intelligence,
immaturity, and like circumstances. . . Article 36 of the Family Code cannot be
taken and construed independently of, but must stand in conjunction with, existing
precepts in our law on marriage. Thus correlated, "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 which, as so expressed by
Article 68 of the Family Code, include their mutual obligations to live together,
observe love, respect and fidelity and render help and support. There is hardly any
doubt that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability of the spouse to have
sexual relations with the other. This conclusion is implicit under Article 54 of the
Family Code which considers children conceived prior to the judicial declaration of
nullity of the void marriage to be "legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state
of a party being of unsound mind or concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism, merely renders the marriage contract
voidable pursuant to Article 46, Family Code. If drug addiction, habitual
alcoholism, lesbianism or homosexuality should occur only during the marriage,
they become mere grounds for legal separation under Article 55 of the Family
Code. These provisions of the Code, however, do not necessarily preclude the
possibility of these various circumstances being themselves, depending on the
degree and severity of the disorder, indicia of psychological
incapacity. 4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under
Article 36 of the Family Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, the psychological incapacity must relate to the inability, not mere refusal, to understand,
assume end discharge the basic marital obligations of living together, observing love, respect and
fidelity and rendering mutual help and support;

Third, the psychologic condition must exist at the time the marriage is contracted although its
overt manifestations and the marriage may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few
observers would suspect, as another form of absolute divorce or, as still others would also put it,
to be a alternative to divorce; however, the fact still remains that the language of the law has failed
to carry out, even if true, any such intendment. It might have indeed turned out for the better, if it
were otherwise, there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal command on how
the State should regard marriage and the family, thus —

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family

and shall be protected by the State.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution . . . .

Section 1, Article XV:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the
specific issue there resolved but for the tone it has set. The Court there has held that
constitutional provisions are to be considered mandatory unless by necessary implication, a
different intention is manifest such that to have them enforced strictly would cause more harm
than by disregarding them. It is quite clear to me that the constitutional mandate on marriage and
the family has not been meant to be simply directory in character, nor for mere expediency or
convenience, but one that demands a meaningful, not half-hearted, respect.

Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the
peculiar facts of the case. As to whether or not the 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. In Leouel Santos v. Court of Appeals and Julia Rosario-Bedia Santos, G.R. No.
112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was
psychological incapacity on the part of the wife to discharge the duties of a wife in a valid
marriage. The facts of the present case, after an indepth study, do not support a similar
conclusion. Obviously, each case must be judged, not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts. In the field of 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 actual millieu and the
appellate court must, as much as possible, avoid substituting its own judgment for that of the trial
court.

ROMERO, J., separate opinion:

The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial
Court ruling. upheld petitioner Solicitor General's position that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, for the latter "is not simply the
neglect by the parties to the marriage of their responsibilities and duties, but a defect in their
Psychological nature which renders them incapable of performing such marital responsibilities
and duties.

In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so
much "psychological incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. "It is not enough to prove that the parties failed to meet
their responsibilities and duties as married persons; it is essential that they must be shown to be
incapable of doing so, due to some psychological (not physical) illness."

I would add that neither should the incapacity be the result of mental illness. For if it were due to
insanity or defects in the mental faculties short of insanity, there is a resultant defect of vice of
consent, thus rendering the marriage annulable under Art. 45 of the Family Code.

That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to
exclude mental inability to understand the essential nature of marriage and focus strictly on
psychological incapacity is demonstrated in the way the provision in question underwent
revisions.

At the Committee meeting of July 26, 1986, the draft provision read:

(7) Those marriages 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.

The twists and turns which the ensuing discussion took finally produced the following revised
provision even before the session was over:

(7) That contracted by any party who, at the time of the celebration, was
psychologically incapacitated to discharge the essential marital obligations, even
if such lack or incapacity becomes manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any reference to "wanting
in the sufficient use of reason or judgment to understand the essential nature or marriage" and to
"mentally incapacitated." It was explained that these phrases refer to "defects in the mental
faculties vitiating consent, which is not the idea . . . but lack of appreciation of one's marital
obligation." There being a defect in consent, "it is clear that it should be a ground for voidable
marriage because there is the appearance of consent and it is capable of convalidation for the
simple reason that there are lucid intervals and there are sanity is curable. . . . Psychological
incapacity does not refer to mental faculties and has nothing to do with consent; it refers to
obligations attendant to
marriage." 1

My own position as a member of the Committee then was that psychological incapacity is, in a
sense, insanity of a lesser degree.

As to the proposal of Justice Caguioa to use the term "psychological or mental impotence,"
Archbishop Oscar Cruz opined in he earlier February 9, 1984 session that this term "is an
invention of some churchmen who are moralists but not canonists, that is why it is considered a
weak phrase." He said that the Code of Canon Law would rather express it as "psychological or
mental incapacity to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may
be psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of
Art. 36 is: "Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to the other spouse,
not necessarily absolutely against everyone of the same sex."

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is
incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of
how they will determine curability and Justice Caguioa agreed that it would be more problematic.
Yet the possibility that one may be cured after the psychological incapacity becomes manifest
after the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice
Caguioa suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:

1. lack of one or more of the essential requisites of marriage as

contract;

2. reasons of public policy;

3. special cases and special situations.

The ground of psychological incapacity was subsumed under "special cases and special
situations," hence its special treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling
marriages that even comes close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such
marriage which stands valid until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are
void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters,
now open to fresh winds of change in keeping with the more permissive mores and practices of
the time, took a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting
marriage: "3. (those) who, because of causes of a psychological nature, are unable to assume the
essential obligations of marriage" provided the model for what is now Art. 36 of the Family Code:
"A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its solemnization.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with
respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the
voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it actually
declares the marriage null and void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal annulment
process which entails a full tribunal procedure with a Court selection and a formal hearing.

Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties
as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil
marriage, not being congruent with those laid down by Canon Law, the former being more strict,
quite a number of married couples have found themselves in limbo — freed from the marriage
bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under
state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into
live-in relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law
Revision Committee decided to engraft the Canon Law concept of psychological incapacity into
the Family Code — and classified the same as a ground for declaring marriages void ab initio or
totally in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide
directly for psychological incapacity, in effect recognized the same indirectly from a combination
of three old canons: "Canon #1081 required persons to 'be capable according to law' in order to
give valid consent; Canon #1082 required that persons 'be at least not ignorant' of the major
elements required in marriage; and Canon #1087 (the force and fear category) required that
internal and external freedom be present in order for consent to be valid. This line of
interpretation produced two distinct but related grounds for annulment, called 'lack of due
discretion' and 'lack of due competence.' Lack of due discretion means that the person did not
have the ability to give valid consent at the time of the wedding and therefore the union is invalid.
Lack of due competence means that the person was incapable of carrying out the obligations of
the promise he or she made during the wedding ceremony.

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual
disorders such as homosexuality and nymphomania laid the foundation for a broader approach to
the kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for
the first time in several cases that the capacity to give valid consent at the time of marriage was
probably not present in persons who had displayed such problems shortly after the marriage. The
nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated a
cautious willingness to use this kind of hindsight, the way was paved for what came after 1970.
Diocesan Tribunals began to accept proof of serious psychological problems that manifested
themselves shortly after the ceremony as proof of an inability to give valid consent at the time of
the ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert became
increasingly important in such cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to give professional opinions
about a party's mental at the time of the wedding. These opinions were rarely challenged and
tended to be accepted as decisive evidence of lack of valid consent.
The Church took pains to point out that its new openness in this area did not amount to the
addition of new grounds for annulment, but rather was an accommodation by the Church to the
advances made in psychology during the past decades. There was now the expertise to provide
the all-important connecting link between a marriage breakdown and premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to
that of a covenant. The result of this was that it could no longer be assumed in annulment cases
that a person who could intellectually understand the concept of marriage could necessarily give
valid consent to marry. The ability to both grasp and assume the real obligations of a mature,
lifelong commitment are now considered a necessary prerequisite to valid matrimonial consent. 2

Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to
sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both
spouses from assuming or carrying out the essential obligations of marriage. For marriage . . . is
not merely cohabitation or the right of the spouses to each others' body for heterosexual acts, but
is, in its totality, the right to the community of the whole of life, i.e., the right to a developing.
lifelong relationship. Rotal decisions since 1973 have refined the meaning of psychological or
psychic capacity for marriage as presupposing the development of an adult personality; as
meaning the capacity of the spouses to give themselves to each other and to accept the other as a
distinct person; that the spouses must be 'other oriented' since the obligations of marriage are
rooted in a self-giving love; and that the spouses must have the capacity for interpersonal
relationship because marriage is more than just a physical reality but involves a true intertwining
of personalities. The fulfillment of the obligations of marriage depends. according to Church
decisions, on the strength of this interpersonal relationship. A serious incapacity for interpersonal
sharing and support is held to impair the relationship and consequently, the ability to fulfill the
essential marital obligations. The marital capacity of one spouse is not considered in isolation but
in reference to the fundamental relationship to the other spouse. 3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital
relationship:

The courts consider the following elements crucial to the marital commitment: (1) a
permanent and faithful commitment to the marriage partner; (2) openness to
children and partner; (3) stability; (4) emotional maturity; (5) financial
responsibility; (6) an ability to cope with the ordinary stresses and strains of
marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions that might
lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion

even with the best intentions of the parties. Among the psychic factors possibly
giving rise to his or her inability to fulfill marital obligations are the following: (1)
antisocial personality with its fundamental lack of loyalty to persons or sense of
moral values; (2) hyperesthesia, where the individual has no real freedom of sexual
choice; (3) the inadequate personality where personal responses consistently
fallshort of reasonable expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts whether
he or she has a case for an annulment on any other terms. A situation that does
not fit into any of the more traditional categories often fits very easily into the
psychological category.
 As new as the psychological grounds are, experts are already detecting a shift in
their use. Whereas originally the emphasis was on the parties' inability to exercise
proper judgment at the time of the marriage (lack of due discretion), recent cases
seem to be concentrating on the parties' to assume or carry out their
responsibilities an obligations as promised (lack of due competence). An
advantage to using the ground of lack of due competence is that the at the time the
marriage was entered into civil divorce and breakup of the family almost is of
someone's failure out marital responsibilities as promised at the time the marriage
was entered into. 4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered
equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the
ponencia, the Court held that the failure of the wife to return home from the U.S. or to
communicate with her husband for more then five years is not proof of her psychological
incapacity as to render the marriage a nullity. 5 Therefore, Art. 36 is inapplicable and the marriages
remain valid and subsisting.

However in the recent case of Chi Ming Tsoi v. Court of Appeals, 6 this Court upheld both the
Regional Trial Court and the Court of Appeals in declaring the presence of psychological
incapacity on the part of the husband. Said petitioner husband, after ten (10) months' sleeping
with his wife never had coitus with her, a fact he did not deny but he alleged that it was due to the
physical disorder of his wife which, however, he failed to prove. Goaded by the indifference and
stubborn refusal of her husband to fulfill a basic marital obligation described as "to procreate
children based on the universal principle that procreation of children through sexual cooperation
is the basic end of marriage," the wife brought the action in the lower court to declare the
marriage null.

The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch I) on Psychological incapacity concluded:

If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to
stubborn refusal. Senseless and protracted refusal is equivalent to psychological
incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse
with his or her spouse is considered a sign of psychological incapacity.

We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves
trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but
sustain the studied judgment of respondent appellate court.

1 concur with the majority opinion that the herein marriage remains valid and subsisting absent
psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the
spouses.

VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia,
and I find to be most helpful the guidelines that he prepared for the bench and the bar in the
proper appreciation of Article 36 of Executive Order No. 209 ("The Family Code of the
Philippines"). The term "psychological incapacity" was neither defined nor exemplified by the
Family Code. Thus —

Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only
after its solemnization.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which
drafted the Code explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case
basis, guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals which, although
not binding on the civil courts, may be given persuasive effect since the provision
was taken from Canon Law. 1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon
Law —

Canon 1095. (The following persons) are incapable of contracting marriage; (those)
—

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essential

matrimonial rights and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential
obligations of marriage —

that should give that much value to Canon Law jurisprudence as an aid to the
interpretation and construction of the statutory enactment. 2

The principles in the proper application of the law teach us that the several provisions of a Code
must be read like a congruent whole. Thus, in determining the import of "psychological
incapacity" under Article 36, one must also read it along with, albeit to be taken as distinct from,
the other grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise, but
for distinct reasons, render the marriage merely voidable, or Article 55 that could justify a petition
for legal separation. Care must be observed so that these various circumstances are not applied
so indiscriminately as if the law were indifferent on the matter.

I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals; 3 viz:

(T)he use of the phrase "psychological incapacity" under Article 36 of the Code
has not been meant to comprehend all such possible cases of psychoses as,
likewise mentioned by some ecclesiastical authorities, extremely low intelligence,
immaturity, and like circumstances. . . Article 36 of the Family Code cannot be
taken and construed independently of, but must stand in conjunction with, existing
precepts in our law on marriage. Thus correlated, "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 which, as so expressed by
 Article 68 of the Family Code, include their mutual obligations to live together,
observe love, respect and fidelity and render help and support. There is hardly any
doubt that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability of the spouse to have
sexual relations with the other. This conclusion is implicit under Article 54 of the
Family Code which considers children conceived prior to the judicial declaration of
nullity of the void marriage to be "legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state
of a party being of unsound mind or concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism, merely renders the marriage contract
voidable pursuant to Article 46, Family Code. If drug addiction, habitual
alcoholism, lesbianism or homosexuality should occur only during the marriage,
they become mere grounds for legal separation under Article 55 of the Family
Code. These provisions of the Code, however, do not necessarily preclude the
possibility of these various circumstances being themselves, depending on the
degree and severity of the disorder, indicia of psychological
incapacity. 4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under
Article 36 of the Family Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, the psychological incapacity must relate to the inability, not mere refusal, to understand,
assume end discharge the basic marital obligations of living together, observing love, respect and
fidelity and rendering mutual help and support;

Third, the psychologic condition must exist at the time the marriage is contracted although its
overt manifestations and the marriage may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few
observers would suspect, as another form of absolute divorce or, as still others would also put it,
to be a alternative to divorce; however, the fact still remains that the language of the law has failed
to carry out, even if true, any such intendment. It might have indeed turned out for the better, if it
were otherwise, there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal command on how
the State should regard marriage and the family, thus —

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family

and shall be protected by the State.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution . . . .

Section 1, Article XV:

 Sec. 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the
specific issue there resolved but for the tone it has set. The Court there has held that
constitutional provisions are to be considered mandatory unless by necessary implication, a
different intention is manifest such that to have them enforced strictly would cause more harm
than by disregarding them. It is quite clear to me that the constitutional mandate on marriage and
the family has not been meant to be simply directory in character, nor for mere expediency or
convenience, but one that demands a meaningful, not half-hearted, respect.

Footnotes

1 Rollo pp. 25-33.

2 Sixteenth Division composed of J., Segundino G. Chua, ponente and chairman

JJ., Serafin V.C. Guingona and Ricardo P. Galvez, concurring.

3 Presided by Judge Heilia S. Mallare-Phillipps.

4 Solemnized by Fr. Jesus C. Encinas.

5 The Court of Appeals reproduced in its Decision a substantial portion of the RTC
Decision is follows:

"To sustain her claim that respondent is psychologically incapacitated to comply

with his marital obligations, petitioner testified that he is immature, irresponsible,
dependent, disrespectful, arrogant, a chronic liar, and an infidel. These
characteristics of respondent are based on petitioner's testimony that the former
failed to be gainfully employed after he was relieved from the office of the
Government Corporate Counsel sometime in February, 1986. leaving petitioner as
the sole breadwinner of the family. Also when they were separated in fact,
respondent practically abandoned both petitioner-mother and son except during
the first few months of separation when respondent regularly visited his son and
gave him a monthly allowance of P1,000.00 for about two to four months.
Respondent is likewise dependent on his parents for financial aid and support as
he has no savings, preferring to spend his money with his friends and peers. A
year after their marriage, respondent informed petitioner that he bought a house
and lot at BF Homes, Parañaque for about a million pesos. They then transferred
there only for the petitioner to discover a few months later that they were actually
renting the house with the respondent's parents responsible for the payment of the
rentals. Aside from this. respondent would also lie about his salary and ability. And
that at present, respondent is living with his mistress and their child. which fact he
does not deny.

It is unfortunate that the marriage between petitioner and respondent turned sour if
we look at the background of their relationship. During their college days, when
they were still going steady, respondent observed petitioner to be conservative,
homely, and intelligent causing him to believe then that she would make an ideal
wife and mother. Likewise, petitioner fell in love with respondent because of his
thoughtfulness and gentleness. After a year, however, they decided to break their
relationship because of some differences in their personalities. Almost five (5)
years later, while they were working in Manila, petitioner and respondent rekindled
their love affair. They became very close and petitioner was glad to observe a more
mature respondent. Believing that they know each other much better after two
years of going steady, they decided to settle down and get married. It would seem.
therefore, that petitioner and respondent knew each other well and were then
prepared for married life.

During their marriage, however, the true personalities of the parties cropped-up
and dominated their life together. Unexpectedly on both their parts, petitioner and
respondent failed to respond properly to the situation. This failure resulted in their
frequent arguments and fighting's. In fact, even with the intervention and help of
their parents who arranged for their possible reconciliation, the parties could not
come to terms.

It seems clear at this stage that the marriage between the parties broke-up because
of their opposing and conflicting personalities (sic). Neither of them can accept
and understand the weakness of the other. No one gives in and instead, blame
each other for whatever problem or misunderstanding/s they encounter. In fine,
respondent cannot be solely responsible for the failure of other (sic) marriage.
Rather, this resulted because both parties cannot relate to each other as husband
and wife which is unique and requisite in marriage.

Marriage is a special contract of permanent union between a man and a woman

with the basic objective of establishing a conjugal and family life. (Article 1, Family
Code). The unique element of permanency of union signifies a continuing,
developing, and lifelong relationship between the parties. Towards this end, the
parties must fully understand and accept the (implications and consequences of
being permanently) united in marriage. And the maintenance of this relationship
demands from the parties, among others, determination to succeed in their
marriage as well as heartfelt understanding, acceptance, cooperation, and support
for each other. Thus, the Family Code requires them to live together, to observe
mutual (love, respect and fidelity, and render mutual help and support. Failure to
observe) and perform these fundamental roles of a husband and a wife will most
likely lead to the break-up of the marriage. Such is the unfortunate situation in this
case. (Decision, pp. 5-8; Original Records, pp. 70-73).

6 240 SCRA 20, 34, January 4, 1995.

7 Quoted from Justice Alicia Sempio-Diy, Handbook on the Family Code, First
Edition, 1988.

8 TSN, April 6, 1991, p. 5.

9 The National Appellate Matrimonial Tribunal reviews all decisions of the marriage
tribunals of each archdiocese in the country. Aside from heading the Appellate
Tribunal, Most. Rev. Cruz is also incumbent president of the Catholic Bishops'
Conference of the Philippines, Archbishop of Dagupan-Lingayen, and holds the
degrees of Doctor of Canon Law and Doctor of Divinity. Archbishop Cruz was also
Secretary-General of the Second Plenary Council of the Philippines — PCP II —
held from January 20, 1991 to February 17, 1991, which is the rough equivalent of a
parliament or a constitutional convention in the Philippine Church, and where the
ponente, who was a Council member, had the privilege of being overwhelmed by
his keen mind and prayerful discernments.
10 Justice Puno was a former member of the Court of Appeals, retired Minister of
Justice, author, noted civil law professor and the law practitioner.

Article XV

THE FAMILY

Sec. 1. The State recognizes the Filipino Family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family

and shall be protected by the state.

Sec. 3. The State shall defend:

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

(2) 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;

(3) The right of the family to a family living wage and income;

(4) The right of families or family associations to participate in the planning and
implementation of policies and programs that affect them.

Sec. 4. The family has the duty to care for its elderly members but the state may
also do so through just programs of social security.

Art. 1 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.

13 Salita vs. Magtolis, 233 SCRA 100, June 13, 1994.

14 This text is taken from the Memorandum of Archbishop Cruz. On the other
hand, the text used in Santos v. CA reads:

"Canon 1095. They are incapable of contracting marriage:

xxx xxx xxx

3. Who for causes of psychological nature are unable to assume the essential
obligations of marriage.
 The difference in wording between this and that in Arch. Cruz's Memorandum is
due to the fact that the original Canon is written in Latin and both versions are
differently-worded English translations.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 112019 January 4, 1995

LEOUEL SANTOS, petitioner,

vs.
THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIA-SANTOS,
respondents.

VITUG, J.:

Concededly a highly, if not indeed the most likely, controversial provision introduced by the
Family Code is Article 36 (as amended by E.O. No. 227 dated 17 July 1987), which declares:

Art. 36. A marriage contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential marital obligations
of marriage, shall likewise be void even if such incapacity becomes manifest only
after its solemnization.

The present petition for review on certiorari, at the instance of Leouel Santos ("Leouel"), brings into fore the above provision which
is now invoked by him. Undaunted by the decisions of the court a quo 1 and the Court of Appeal, 2 Leouel persists
in beseeching its application in his attempt to have his marriage with herein private respondent,
Julia Rosario Bedia-Santos ("Julia"), declared a nullity.

It was in Iloilo City where Leouel, who then held the rank of First Lieutenant in the Philippine Army, first
met Julia. The meeting later proved to be an eventful day for Leouel and Julia. On 20 September 1986,
the two exchanged vows before Municipal Trial Court Judge Cornelio G. Lazaro of Iloilo City, followed,
shortly thereafter, by a church wedding. Leouel and Julia lived with the latter's parents at the J. Bedia
Compound, La Paz, Iloilo City. On 18 July 1987, Julia gave birth to a baby boy, and he was christened
Leouel Santos, Jr. The ecstasy, however, did not last long. It was bound to happen, Leouel averred,
because of the frequent interference by Julia's parents into the young spouses family affairs.
Occasionally, the couple would also start a "quarrel" over a number of other things, like when and where
the couple should start living independently from Julia's parents or whenever Julia would express
resentment on Leouel's spending a few days with his own parents.
On 18 May 1988, Julia finally left for the United Sates of America to work as a nurse despite Leouel's
pleas to so dissuade her. Seven months after her departure, or on 01 January 1989, Julia called up
Leouel for the first time by long distance telephone. She promised to return home upon the expiration of
her contract in July 1989. She never did. When Leouel got a chance to visit the United States, where he
underwent a training program under the auspices of the Armed Forces of the Philippines from 01 April up
to 25 August 1990, he desperately tried to locate, or to somehow get in touch with, Julia but all his efforts
were of no avail.

Having failed to get Julia to somehow come home, Leouel filed with the regional trial Court of Negros
Oriental, Branch 30, a complaint for "Voiding of marriage Under Article 36 of the Family Code" (docketed,
Civil Case No. 9814). Summons was served by publication in a newspaper of general circulation in
Negros Oriental.

On 31 May 1991, respondent Julia, in her answer (through counsel), opposed the complaint and denied
its allegations, claiming, in main, that it was the petitioner who had, in fact, been irresponsible and
incompetent.

A possible collusion between the parties to obtain a decree of nullity of their marriage was ruled out by
the Office of the Provincial Prosecutor (in its report to the court).

On 25 October 1991, after pre-trial conferences had repeatedly been set, albeit unsuccessfully, by the
court, Julia ultimately filed a manifestation, stating that she would neither appear nor submit evidence.

On 06 November 1991, the court a quo finally dismissed the complaint for lack of merit. 3

Leouel appealed to the Court of Appeal. The latter affirmed the decision of the trial court. 4

The petition should be denied not only because of its non-compliance with Circular 28-91, which requires
a certification of non-shopping, but also for its lack of merit.

Leouel argues that the failure of Julia to return home, or at the very least to communicate with him, for
more than five years are circumstances that clearly show her being psychologically incapacitated to enter
into married life. In his own words, Leouel asserts:

. . . (T)here is no leave, there is no affection for (him) because respondent Julia Rosario
Bedia-Santos failed all these years to communicate with the petitioner. A wife who does
not care to inform her husband about her whereabouts for a period of five years, more or
less, is psychologically incapacitated.

The family Code did not define the term "psychological incapacity." The deliberations during the sessions
of the Family Code Revision Committee, which has drafted the Code, can, however, provide an insight on
the import of the provision.

Art. 35. The following marriages shall be void from the beginning:

xxx xxx xxx

Art. 36. . . .

(7) Those marriages 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.
On subparagraph (7), which as lifted from the Canon Law, Justice (Jose B.L.) Reyes
suggested that they say "wanting in sufficient use," but Justice (Eduardo) Caguioa
preferred to say "wanting in the sufficient use." On the other hand, Justice Reyes
proposed that they say "wanting in sufficient reason." Justice Caguioa, however, pointed
out that the idea is that one is not lacking in judgment but that he is lacking in the
exercise of judgment. He added that lack of judgment would make the marriage voidable.
Judge (Alicia Sempio-) Diy remarked that lack of judgment is more serious than
insufficient use of judgment and yet the latter would make the marriage null and void and
the former only voidable. Justice Caguioa suggested that subparagraph (7) be modified
to read:

"That contracted by any party who, at the time of the celebration, was
psychologically incapacitated to discharge the essential marital
obligations, even if such lack of incapacity is made manifest after the
celebration."

Justice Caguioa explained that the phrase "was wanting in sufficient use of reason of
judgment to understand the essential nature of marriage" refers to defects in the mental
faculties vitiating consent, which is not the idea in subparagraph (7), but lack of
appreciation of one's marital obligations.

Judge Diy raised the question: Since "insanity" is also a psychological or mental
incapacity, why is "insanity" only a ground for annulment and not for declaration or
nullity? In reply, Justice Caguioa explained that in insanity, there is the appearance of
consent, which is the reason why it is a ground for voidable marriages, while
subparagraph (7) does not refer to consent but to the very essence of marital obligations.

Prof. (Araceli) Baviera suggested that, in subparagraph (7), the word "mentally" be
deleted, with which Justice Caguioa concurred. Judge Diy, however, prefers to retain the
word "mentally."

Justice Caguioa remarked that subparagraph (7) refers to psychological impotence.

Justice (Ricardo) Puno stated that sometimes a person may be psychologically impotent
with one but not with another. Justice (Leonor Ines-) Luciano said that it is called
selective impotency.

Dean (Fortunato) Gupit stated that the confusion lies in the fact that in inserting the
Canon Law annulment in the Family Code, the Committee used a language which
describes a ground for voidable marriages under the Civil Code. Justice Caguioa added
that in Canon Law, there are voidable marriages under the Canon Law, there are no
voidable marriages Dean Gupit said that this is precisely the reason why they should
make a distinction.

Justice Puno remarked that in Canon Law, the defects in marriage cannot be cured.

Justice Reyes pointed out that the problem is: Why is "insanity" a ground for void ab initio
marriages? In reply, Justice Caguioa explained that insanity is curable and there are lucid
intervals, while psychological incapacity is not.

On another point, Justice Puno suggested that the phrase "even if such lack or incapacity
is made manifest" be modified to read "even if such lack or incapacity becomes
manifest."

Justice Reyes remarked that in insanity, at the time of the marriage, it is not apparent.
Justice Caguioa stated that there are two interpretations of the phrase "psychological or
mentally incapacitated" — in the first one, there is vitiation of consent because one does
not know all the consequences of the marriages, and if he had known these completely,
he might not have consented to the marriage.

xxx xxx xxx

Prof. Bautista stated that he is in favor of making psychological incapacity a ground for
voidable marriages since otherwise it will encourage one who really understood the
consequences of marriage to claim that he did not and to make excuses for invalidating
the marriage by acting as if he did not understand the obligations of marriage. Dean
Gupit added that it is a loose way of providing for divorce.

xxx xxx xxx

Justice Caguioa explained that his point is that in the case of incapacity by reason of
defects in the mental faculties, which is less than insanity, there is a defect in consent
and, therefore, it is clear that it should be a ground for voidable marriage because there is
the appearance of consent and it is capable of convalidation for the simple reason that
there are lucid intervals and there are cases when the insanity is curable. He emphasized
that psychological incapacity does not refer to mental faculties and has nothing to do with
consent; it refers to obligations attendant to marriage.

xxx xxx xxx

On psychological incapacity, Prof. (Flerida Ruth P.) Romero inquired if they do not
consider it as going to the very essence of consent. She asked if they are really removing
it from consent. In reply, Justice Caguioa explained that, ultimately, consent in general is
effected but he stressed that his point is that it is not principally a vitiation of consent
since there is a valid consent. He objected to the lumping together of the validity of the
marriage celebration and the obligations attendant to marriage, which are completely
different from each other, because they require a different capacity, which is eighteen
years of age, for marriage but in contract, it is different. Justice Puno, however, felt that
psychological incapacity is still a kind of vice of consent and that it should not be
classified as a voidable marriage which is incapable of convalidation; it should be
convalidated but there should be no prescription. In other words, as long as the defect
has not been cured, there is always a right to annul the marriage and if the defect has
been really cured, it should be a defense in the action for annulment so that when the
action for annulment is instituted, the issue can be raised that actually, although one
might have been psychologically incapacitated, at the time the action is brought, it is no
longer true that he has no concept of the consequence of marriage.

Prof. (Esteban) Bautista raised the question: Will not cohabitation be a defense? In
response, Justice Puno stated that even the bearing of children and cohabitation should
not be a sign that psychological incapacity has been cured.

Prof. Romero opined that psychological incapacity is still insanity of a lesser degree.
Justice Luciano suggested that they invite a psychiatrist, who is the expert on this matter.
Justice Caguioa, however, reiterated that psychological incapacity is not a defect in the
mind but in the understanding of the consequences of marriage, and therefore, a
psychiatrist will not be a help.

Prof. Bautista stated that, in the same manner that there is a lucid interval in insanity,
there are also momentary periods when there is an understanding of the consequences
of marriage. Justice Reyes and Dean Gupit remarked that the ground of psychological
incapacity will not apply if the marriage was contracted at the time when there is
understanding of the consequences of marriage. 5

xxx xxx xxx

Judge Diy proposed that they include physical incapacity to copulate among the grounds
for void marriages. Justice Reyes commented that in some instances the impotence that
in some instances the impotence is only temporary and only with respect to a particular
person. Judge Diy stated that they can specify that it is incurable. Justice Caguioa
remarked that the term "incurable" has a different meaning in law and in medicine. Judge
Diy stated that "psychological incapacity" can also be cured. Justice Caguioa, however,
pointed out that "psychological incapacity" is incurable.

Justice Puno observed that under the present draft provision, it is enough to show that at
the time of the celebration of the marriage, one was psychologically incapacitated so that
later on if already he can comply with the essential marital obligations, the marriage is still
void ab initio. Justice Caguioa explained that since in divorce, the psychological
incapacity may occur after the marriage, in void marriages, it has to be at the time of the
celebration of marriage. He, however, stressed that the idea in the provision is that at the
time of the celebration of the marriage, one is psychologically incapacitated to comply
with the essential marital obligations, which incapacity continues and later becomes
manifest.

Justice Puno and Judge Diy, however, pointed out that it is possible that after the
marriage, one's psychological incapacity become manifest but later on he is cured.
Justice Reyes and Justice Caguioa opined that the remedy in this case is to allow him to
remarry. 6

xxx xxx xxx

Justice Puno formulated the next Article as follows:

Art. 37. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated, to comply with the
essential obligations of marriage shall likewise be void from the
beginning even if such incapacity becomes manifest after its
solemnization.

Justice Caguioa suggested that "even if" be substituted with "although." On the other
hand, Prof. Bautista proposed that the clause "although such incapacity becomes
manifest after its solemnization" be deleted since it may encourage one to create the
manifestation of psychological incapacity. Justice Caguioa pointed out that, as in other
provisions, they cannot argue on the basis of abuse.

Judge Diy suggested that they also include mental and physical incapacities, which are
lesser in degree than psychological incapacity. Justice Caguioa explained that mental
and physical incapacities are vices of consent while psychological incapacity is not a
species of vice or consent.

Dean Gupit read what Bishop Cruz said on the matter in the minutes of their February 9,
1984 meeting:
 "On the third ground, Bishop Cruz indicated that the phrase
"psychological or mental impotence" is an invention of some churchmen
who are moralists but not canonists, that is why it is considered a weak
phrase. He said that the Code of Canon Law would rather express it as
"psychological or mental incapacity to discharge . . ."

Justice Caguioa remarked that they deleted the word "mental" precisely to distinguish it
from vice of consent. He explained that "psychological incapacity" refers to lack of
understanding of the essential obligations of marriage.

Justice Puno reminded the members that, at the last meeting, they have decided not to
go into the classification of "psychological incapacity" because there was a lot of debate
on it and that this is precisely the reason why they classified it as a special case.

At this point, Justice Puno, remarked that, since there having been annulments of
marriages arising from psychological incapacity, Civil Law should not reconcile with
Canon Law because it is a new ground even under Canon Law.

Prof. Romero raised the question: With this common provision in Civil Law and in Canon
Law, are they going to have a provision in the Family Code to the effect that marriages
annulled or declared void by the church on the ground of psychological incapacity is
automatically annulled in Civil Law? The other members replied negatively.

Justice Puno and Prof. Romero inquired if Article 37 should be retroactive or prospective
in application.

Justice Diy opined that she was for its retroactivity because it is their answer to the
problem of church annulments of marriages, which are still valid under the Civil Law. On
the other hand, Justice Reyes and Justice Puno were concerned about the avalanche of
cases.

Dean Gupit suggested that they put the issue to a vote, which the Committee approved.

The members voted as follows:

(1) Justice Reyes, Justice Puno and Prof. Romero were for prospectivity.

(2) Justice Caguioa, Judge Diy, Dean Gupit, Prof. Bautista and Director Eufemio were for
retroactivity.

(3) Prof. Baviera abstained.

Justice Caguioa suggested that they put in the prescriptive period of ten years within
which the action for declaration of nullity of the marriage should be filed in court. The
Committee approved the suggestion. 7

It could well be that, in sum, the Family Code Revision Committee in ultimately deciding to adopt the
provision with less specificity than expected, has in fact, so designed the law as to allow some resiliency
in its application. Mme. Justice Alicia V. Sempio-Diy, a member of the Code Committee, has been quoted
by Mr. Justice Josue N. Bellosillo in Salita vs. Hon. Magtolis (G.R. No. 106429, 13 June 1994); thus: 8

The Committee did not give any examples of psychological incapacity for fear that the
giving of examples would limit the applicability of the provision under the principle of
 ejusdem generis. Rather, the Committee would like the judge to interpret the provision on
a case-to-case basis, guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals which, although not
binding on the civil courts, may be given persuasive effect since the provision was taken
from Canon Law.

A part of the provision is similar to Canon 1095 of the New Code of Canon Law, 9 which reads:

Canon 1095. They are incapable of contracting marriage:

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essentila

matrimonial rights and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential obligations
of marriage. (Emphasis supplied.)

Accordingly, although neither decisive nor even perhaps all that persuasive for having no juridical or
secular effect, the jurisprudence under Canon Law prevailing at the time of the code's enactment,
nevertheless, cannot be dismissed as impertinent for its value as an aid, at least, to the interpretation or
construction of the codal provision.

One author, Ladislas Orsy, S.J., in his treaties, 10 giving an account on how the third paragraph of Canon
1095 has been framed, states:

The history of the drafting of this canon does not leave any doubt that the legislator
intended, indeed, to broaden the rule. A strict and narrow norm was proposed first:

Those who cannot assume the essential obligations of marriage because

of a grave psycho-sexual anomaly (ob gravem anomaliam
psychosexualem) are unable to contract marriage (cf. SCH/1975, canon
297, a new canon, novus);

then a broader one followed:

. . . because of a grave psychological anomaly (ob gravem anomaliam psychicam) . . .

(cf. SCH/1980, canon 1049);

then the same wording was retained in the text submitted to the pope (cf. SCH/1982,
canon 1095, 3);

finally, a new version was promulgated:

because of causes of a psychological nature (ob causas naturae psychiae).

So the progress was from psycho-sexual to psychological anomaly, then the term
anomaly was altogether eliminated. it would be, however, incorrect to draw the
conclusion that the cause of the incapacity need not be some kind of psychological
disorder; after all, normal and healthy person should be able to assume the ordinary
obligations of marriage.
Fr. Orsy concedes that the term "psychological incapacity" defies any precise definition since
psychological causes can be of an infinite variety.

In a book, entitled "Canons and Commentaries on Marriage," written by Ignatius Gramunt, Javier Hervada
and LeRoy Wauck, the following explanation appears:

This incapacity consists of the following: (a) a true inability to commit oneself to the
essentials of marriage. Some psychosexual disorders and other disorders of personality
can be the psychic cause of this defect, which is here described in legal terms. This
particular type of incapacity consists of a real inability to render what is due by the
contract. This could be compared to the incapacity of a farmer to enter a binding contract
to deliver the crops which he cannot possibly reap; (b) this inability to commit oneself
must refer to the essential obligations of marriage: the conjugal act, the community of life
and love, the rendering of mutual help, the procreation and education of offspring; (c) the
inability must be tantamount to a psychological abnormality. The mere difficulty of
assuming these obligations, which could be overcome by normal effort, obviously does
not constitute incapacity. The canon contemplates a true psychological disorder which
incapacitates a person from giving what is due (cf. John Paul II, Address to R. Rota, Feb.
5, 1987). However, if the marriage is to be declared invalid under this incapacity, it must
be proved not only that the person is afflicted by a psychological defect, but that the
defect did in fact deprive the person, at the moment of giving consent, of the ability to
assume the essential duties of marriage and consequently of the possibility of being
bound by these duties.

Justice Sempio-Diy 11 cites with approval the work of Dr. Gerardo Veloso, a former Presiding Judge of the
Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch 1), who opines that
psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c)
incurability. The incapacity must be grave or serious such that the party would be incapable of carrying
out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the
marriage, although the overt manifestations may emerge only after the marriage; and it must be incurable
or, even if it were otherwise, the cure would be beyond the means of the party involved.

It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the
deliberations of the Family Code Revision Committee itself, that the use of the phrase "psychological
incapacity" under Article 36 of the Code has not been meant to comprehend all such possible cases of
psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence,
immaturity, and like circumstances (cited in Fr. Artemio Baluma's "Void and Voidable Marriages in the
Family Code and their Parallels in Canon Law," quoting from the Diagnostic Statistical Manual of Mental
Disorder by the American Psychiatric Association; Edward Hudson's "Handbook II for Marriage Nullity
Cases"). Article 36 of the Family Code cannot be taken and construed independently of, but must stand in
conjunction with, existing precepts in our law on marriage. Thus correlated, "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 which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help and support. There is hardly any doubt that
the intendment of the law has been to confine the meaning of "psychological incapacity" to the most
serious cases of personality disorders clearly demonstrative of an utter intensitivity or inability to give
meaning and significance to the marriage. This pschologic condition must exist at the time the marriage is
celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have
sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which
considers children conceived prior to the judicial declaration of nullity of the void marriage to be
"legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of
unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism,
merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction,
habitual alcholism, lesbianism or homosexuality should occur only during the marriage, they become
mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code,
however, do not necessarily preclude the possibility of these various circumstances being themselves,
depending on the degree and severity of the disorder, indicia of psychological incapacity.

Until further statutory and jurisprudential parameters are established, every circumstance that may have
some bearing on the degree, extent, and other conditions of that incapacity must, in every case, be
carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed.
The well-considered opinions of psychiatrists, psychologists, and persons with expertise in psychological
disciplines might be helpful or even desirable.

Marriage is not an adventure but a lifetime commitment. We should continue to be reminded that innate in
our society, then enshrined in our Civil Code, and even now still indelible in Article 1 of the Family Code,
is that —

Art. 1. Marriage is a special contract of permanent union between a man 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. (Emphasis supplied.)

Our Constitution is no less emphatic:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total development.

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and
shall be protected by the State. (Article XV, 1987 Constitution).

The above provisions express so well and so distinctly the basic nucleus of our laws on marriage and the
family, and they are doubt the tenets we still hold on to.

The factual settings in the case at bench, in no measure at all, can come close to the standards required
to decree a nullity of marriage. Undeniably and understandably, Leouel stands aggrieved, even
desperate, in his present situation. Regrettably, neither law nor society itself can always provide all the
specific answers to every individual problem.

WHEREFORE, the petition is DENIED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno Kapunan and
Mendoza, JJ., concur.

Feliciano, J., is on leave.

 Separate Opinions

PADILLA, J., dissenting:

It is difficult to dissent from a well-written and studied opinion as Mr. Justice Vitug's
ponencia. But, after an extended reflection on the facts of this case, I cannot see my
way clear into holding, as the majority do, that there is no ground for the declaration of
nullity of the marriage between petitioner and private respondent.

To my mind, it is clear that private respondent has been shown to be psychologically

incapacitated to comply with at least one essential marital obligation, i.e. that of living
and cohabiting with her husband, herein petitioner. On the other hand, it has not been
shown that petitioner does not deserve to live and cohabit with his wife, herein private
respondent.

There appears to be no disagreement that the term "psychological incapacity" defies

precision in definition. But, as used in Article 36 of the Family Code as a ground for the
declaration of nullity of a marriage, the intent of the framers of the Code is evidently to
expand and liberalize the grounds for nullifying a marriage, as well pointed out by
Madam Justice Flerida Ruth P. Romero in her separate opinion in this case.

While it is true that the board term "psychological incapacity" can open the doors to
abuse by couples who may wish to have an easy way out of their marriage, there are,
however, enough 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.

In their case at bench, it has been abundantly established that private respondent Julia
Rosario Bedia-Santos exhibits specific behavior which, to my mind, shows that she is
psychologically incapacitated to fulfill her essential marital obligations, to writ:

a. It took her seven (7) months after she left for the United States to call
up her husband.

b. Julia promised to return home after her job contract expired in July
1989, but she never did and neither is there any showing that she
informed her husband (herein petitioner) of her whereabouts in the U.S.A.

c. When petitioner went to the United States on a mission for the

Philippine Army, he exerted efforts to "touch base" with Julia; there were
no similar efforts on the part of Julia; there were no similar efforts on the
part of Julia to do the same.
 d. When petitioner filed this suit, more than five (5) years had elapsed,
without Julia indicating her plans to rejoin the petitioner or her
whereabouts.

e. When petitioner filed this case in the trial court, Julia, in her answer,
claimed that it is the former who has been irresponsible and incompetent.

f. During the trial, Julia waived her right to appear and submit evidence.

A spouse's obligation to live and cohabit with his/her partner in marriage is a basic
ground rule in marriage, unless there are overpowering compelling reasons such as, for
instance, an incurable contagious disease on the part of a spouse or cruelty of one
partner, bordering on insanity. There may also be instances when, for economic and
practical reasons, husband and wife have to live separately, but the marital bond
between the spouses always remains. Mutual love and respect for each other would, in
such cases, compel the absent spouse to at least have regular contracts with the other
to inform the latter of his/her condition and whereabouts.

In the present case, it is apparent that private respondent Julia Rosario Bedia-Santos
has no intention of cohabiting with petitioner, her husband, or maintaining contact with
him. In fact, her acts eloquently show that she does not want her husband to know of
her whereabouts and neither has she any intention of living and cohabiting with him.

To me there appears to be, on the part of private respondent, an unmistakeable

indication of psychological incapacity to comply with her essential marital obligations,
although these indications were made manifest after the celebration of the marriage.

It would be a great injustice, I believe, to petitioner for this Court to give a much too
restrictive interpretation of the law and compel the petitioner to continue to be married to
a wife who for purposes of fulfilling her marital duties has, for all practical purposes,
ceased to exist.

Besides, there are public policy considerations involved in the ruling the Court makes
today. Is it not, in effect directly or indirectly, facilitating the transformation of petitioner
into a "habitual tryster" or one forced to maintain illicit relations with another woman or
women with emerging problems of illegitimate children, simply because he is denied by
private respondent, his wife, the companionship and conjugal love which he has sought
from her and to which he is legally entitled?

I do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute
divorce but I submit that we should not constrict it to non-recognition of its evident
purpose and thus deny to one like petitioner, an opportunity to turn a new leaf in his life
by declaring his marriage a nullity by reason of his wife's psychological incapacity to
perform an essential marital obligation.
I therefore vote to GRANT the petition and to DECLARE the marriage between
petitioner Leouel Santos and private respondent Julia Rosario Bedia-Santos VOID on
the basis of Article 36 of the Family Code.

ROMERO, J., concurring:

I agree under the circumstances of the case, petitioner is not entitled to have his
marriage declared a nullity on the ground of psychological incapacity of private
respondent.

However, as a member of both the Family Law Revision Committee of the Integrated
Bar of the Philippines and the Civil Code Revision Committee of the UP Law Center, I
wish to add some observations. The letter 1 dated April 15, 1985 of then Judge Alicia V. Sempio-
Diy written in behalf of the Family Law and Civil Code Revision Committee to then Assemblywoman
Mercedes Cojuangco-Teodoro traced the background of the inclusion of the present Article 36 in the
Family Code.

During its early meetings, the Family Law Committee had thought of including a chapter
on absolute divorce in the draft of a new Family Code (Book I of the Civil Code) that it
had been tasked by the IBP and the UP Law Center to prepare. In fact, some members
of the Committee were in favor of a no-fault divorce between the spouses after a number
of years of separation, legal or de-facto. Justice J.B.L. Reyes was then requested to
prepare a proposal for an action for dissolution of marriage and the effects thereof based
on two grounds: (a) five continuous years of separation between the spouses, with or
without a judicial decree of legal separation, and (b) whenever a married person would
have obtained a decree of absolute divorce in another country. Actually, such a proposal
is one for absolute divorce but called by another name. Later, even the Civil Code
Revision Committee took time to discuss the proposal of Justice Reyes on this matter.

Subsequently, however, when the Civil Code Revision Committee and Family Law
Committee started holding joint meetings on the preparation of the draft of the New
Family Code, they agreed and formulated the definition of marriage as —

"a special contract of permanent partnership between a man and a

woman entered into in accordance with law for the establishment of
conjugal and family life. It is 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 law."

With the above definition, and considering the Christian traditional concept of marriage of
the Filipino people as a permanent, inviolable, indissoluble social institution upon which
the family and society are founded, and also realizing the strong opposition that any
provision on absolute divorce would encounter from the Catholic Church and the Catholic
sector of our citizenry to whom the great majority of our people belong, the two
Committees in their joint meetings did not pursue the idea of absolute divorce and
instead opted for an action for judicial declaration of invalidity of marriage based on
grounds available in the Canon Law. It was thought that such an action would not only be
an acceptable alternative to divorce but would also solve the nagging problem of church
annulments of marriages on grounds not recognized by the civil law of the State. Justice
Reyes was thus requested to again prepare a draft of provisions on such action for
celebration of invalidity of marriage. Still later, to avoid the overlapping of provisions on
 void marriages as found in the present Civil Code and those proposed by Justice Reyes
on judicial declaration of invalidity of marriage on grounds similar to the Canon Law, the
two Committees now working as a Joint Committee in the preparation of a New Family
Code decided to consolidate the present provisions on void marriages with the proposals
of Justice Reyes. The result was the inclusion of an additional kind of void marriage in the
enumeration of void marriages in the present Civil Code, to wit:

"(7) Those marriages 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."

as well as the following implementing provisions:

"Art. 32. The absolute nullity of a marriage may be invoked or pleaded

only on the basis of a final judgment declaring the marriage void, without
prejudice to the provision of Article 34."

"Art. 33. The action or defense for the declaration of the absolute nullity
of a marriage shall not prescribe."

xxx xxx xxx

It is believed that many hopelessly broken marriages in our country today may already
dissolved or annulled on the grounds proposed by the Joint Committee on declaration of
nullity as well as annulment of marriages, thus rendering an absolute divorce law
unnecessary. In fact, during a conference with Father Gerald Healy of the Ateneo
University as well as another meeting with Archbishop Oscar Cruz of the Archdiocese of
Pampanga, the Joint Committee was informed that since Vatican II, the Catholic Church
has been declaring marriages null and void on the ground of "lack of due discretion" for
causes that, in other jurisdictions, would be clear grounds for divorce, like teen-age or
premature marriages; marriage to a man who, because of some personality disorder or
disturbance, cannot support a family; the foolish or ridiculous choice of a spouse by an
otherwise perfectly normal person; marriage to a woman who refuses to cohabit with her
husband or who refuses to have children. Bishop Cruz also informed the Committee that
they have found out in tribunal work that a lot of machismo among husbands are
manifestations of their sociopathic personality anomaly, like inflicting physical violence
upon their wives, constitutional indolence or laziness, drug dependence or addiction, and
psychological anomaly. . . . (Emphasis supplied)

Clearly, by incorporating what is now Article 36 into the Family Code, the Revision Committee referred to
above intended to add another ground to those already listed in the Civil Code as grounds for nullifying a
marriage, thus expanding or liberalizing the same. Inherent in the inclusion of the provision on
psychological incapacity was the understanding that every petition for declaration of nullity based on it
should be treated on a case-to-case basis; hence, the absence of a definition and an enumeration of what
constitutes psychological incapacity. Moreover, the Committee feared that the giving of examples would
limit the applicability of the provision under the principle of ejusdem generis. But the law requires that the
same be existing at the time of marriage although it be manifested later.

Admittedly, the provision on psychological incapacity, just like any other provision of law, is open to
abuse. To prevent this, "the court shall take order the prosecuting attorney or fiscal assigned to it to
appear 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." 2 Moreover, the judge, in interpreting the provision on a case-
to-case basis, must be guided by "experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be
given persuasive effect since the provisions was taken from Canon Law." 3

The constitutional and statutory provisions on the family 4 will remain the lodestar which our society will
hope to achieve ultimately. Therefore, the inclusion of Article 36 is not to be taken as an abandonment of
the ideal which we all cherish. If at all, it is a recognition of the reality that some marriages, by reason of
the incapacity of one of the contracting parties, fall short of this ideal; thus, the parties are constrained to
find a way of putting an end to their union through some legally-accepted means.

Any criticism directed at the way that judges have interpreted the provision since its enactment as to
render it easier for unhappily-married couples to separate is addressed, not to the wisdom of the
lawmakers but to the manner by which some members of the Bench have implemented the provision.
These are not interchangeable, each being separate and distinct from the other.

Separate Opinions

PADILLA, J., dissenting:

It is difficult to dissent from a well-written and studied opinion as Mr. Justice Vitug's ponencia. But, after
an extended reflection on the facts of this case, I cannot see my way clear into holding, as the majority
do, that there is no ground for the declaration of nullity of the marriage between petitioner and private
respondent.

To my mind, it is clear that private respondent has been shown to be psychologically incapacitated to
comply with at least one essential marital obligation, i.e. that of living and cohabiting with her husband,
herein petitioner. On the other hand, it has not been shown that petitioner does not deserve to live and
cohabit with his wife, herein private respondent.

There appears to be no disagreement that the term "psychological incapacity" defies precision in
definition. But, as used in Article 36 of the Family Code as a ground for the declaration of nullity of a
marriage, the intent of the framers of the Code is evidently to expand and liberalize the grounds for
nullifying a marriage, as well pointed out by Madam Justice Flerida Ruth P. Romero in her separate
opinion in this case.

While it is true that the board term "psychological incapacity" can open the doors to abuse by couples
who may wish to have an easy way out of their marriage, there are, however, enough 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.

In their case at bench, it has been abundantly established that private respondent Julia Rosario Bedia-
Santos exhibits specific behavior which, to my mind, shows that she is psychologically incapacitated to
fulfill her essential marital obligations, to writ:

a. It took her seven (7) months after she left for the United States to call up her husband.

b. Julia promised to return home after her job contract expired in July 1989, but she never
did and neither is there any showing that she informed her husband (herein petitioner) of
her whereabouts in the U.S.A.
 c. When petitioner went to the United States on a mission for the Philippine Army, he
exerted efforts to "touch base" with Julia; there were no similar efforts on the part of Julia;
there were no similar efforts on the part of Julia to do the same.

d. When petitioner filed this suit, more than five (5) years had elapsed, without Julia
indicating her plans to rejoin the petitioner or her whereabouts.

e. When petitioner filed this case in the trial court, Julia, in her answer, claimed that it is
the former who has been irresponsible and incompetent.

f. During the trial, Julia waived her right to appear and submit evidence.

A spouse's obligation to live and cohabit with his/her partner in marriage is a basic ground rule in
marriage, unless there are overpowering compelling reasons such as, for instance, an incurable
contagious disease on the part of a spouse or cruelty of one partner, bordering on insanity. There may
also be instances when, for economic and practical reasons, husband and wife have to live separately,
but the marital bond between the spouses always remains. Mutual love and respect for each other would,
in such cases, compel the absent spouse to at least have regular contracts with the other to inform the
latter of his/her condition and whereabouts.

In the present case, it is apparent that private respondent Julia Rosario Bedia-Santos has no intention of
cohabiting with petitioner, her husband, or maintaining contact with him. In fact, her acts eloquently show
that she does not want her husband to know of her whereabouts and neither has she any intention of
living and cohabiting with him.

To me there appears to be, on the part of private respondent, an unmistakeable indication of

psychological incapacity to comply with her essential marital obligations, although these indications were
made manifest after the celebration of the marriage.

It would be a great injustice, I believe, to petitioner for this Court to give a much too restrictive
interpretation of the law and compel the petitioner to continue to be married to a wife who for purposes of
fulfilling her marital duties has, for all practical purposes, ceased to exist.

Besides, there are public policy considerations involved in the ruling the Court makes today. Is it not, in
effect directly or indirectly, facilitating the transformation of petitioner into a "habitual tryster" or one forced
to maintain illicit relations with another woman or women with emerging problems of illegitimate children,
simply because he is denied by private respondent, his wife, the companionship and conjugal love which
he has sought from her and to which he is legally entitled?

I do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute divorce but I
submit that we should not constrict it to non-recognition of its evident purpose and thus deny to one like
petitioner, an opportunity to turn a new leaf in his life by declaring his marriage a nullity by reason of his
wife's psychological incapacity to perform an essential marital obligation.

I therefore vote to GRANT the petition and to DECLARE the marriage between petitioner Leouel Santos
and private respondent Julia Rosario Bedia-Santos VOID on the basis of Article 36 of the Family Code.

ROMERO, J., concurring:

I agree under the circumstances of the case, petitioner is not entitled to have his marriage declared a
nullity on the ground of psychological incapacity of private respondent.
However, as a member of both the Family Law Revision Committee of the Integrated Bar of the
Philippines and the Civil Code Revision Committee of the UP Law Center, I wish to add some
observations. The letter 1 dated April 15, 1985 of then Judge Alicia V. Sempio-Diy written in behalf of the
Family Law and Civil Code Revision Committee to then Assemblywoman Mercedes Cojuangco-Teodoro
traced the background of the inclusion of the present Article 36 in the Family Code.

During its early meetings, the Family Law Committee had thought of including a chapter
on absolute divorce in the draft of a new Family Code (Book I of the Civil Code) that it
had been tasked by the IBP and the UP Law Center to prepare. In fact, some members
of the Committee were in favor of a no-fault divorce between the spouses after a number
of years of separation, legal or de-facto. Justice J.B.L. Reyes was then requested to
prepare a proposal for an action for dissolution of marriage and the effects thereof based
on two grounds: (a) five continuous years of separation between the spouses, with or
without a judicial decree of legal separation, and (b) whenever a married person would
have obtained a decree of absolute divorce in another country. Actually, such a proposal
is one for absolute divorce but called by another name. Later, even the Civil Code
Revision Committee took time to discuss the proposal of Justice Reyes on this matter.

Subsequently, however, when the Civil Code Revision Committee and Family Law
Committee started holding joint meetings on the preparation of the draft of the New
Family Code, they agreed and formulated the definition of marriage as —

"a special contract of permanent partnership between a man and a

woman entered into in accordance with law for the establishment of
conjugal and family life. It is 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 law."

With the above definition, and considering the Christian traditional concept of marriage of
the Filipino people as a permanent, inviolable, indissoluble social institution upon which
the family and society are founded, and also realizing the strong opposition that any
provision on absolute divorce would encounter from the Catholic Church and the Catholic
sector of our citizenry to whom the great majority of our people belong, the two
Committees in their joint meetings did not pursue the idea of absolute divorce and
instead opted for an action for judicial declaration of invalidity of marriage based on
grounds available in the Canon Law. It was thought that such an action would not only be
an acceptable alternative to divorce but would also solve the nagging problem of church
annulments of marriages on grounds not recognized by the civil law of the State. Justice
Reyes was thus requested to again prepare a draft of provisions on such action for
celebration of invalidity of marriage. Still later, to avoid the overlapping of provisions on
void marriages as found in the present Civil Code and those proposed by Justice Reyes
on judicial declaration of invalidity of marriage on grounds similar to the Canon Law, the
two Committees now working as a Joint Committee in the preparation of a New Family
Code decided to consolidate the present provisions on void marriages with the proposals
of Justice Reyes. The result was the inclusion of an additional kind of void marriage in the
enumeration of void marriages in the present Civil Code, to wit:

"(7) Those marriages 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."

as well as the following implementing provisions:

 "Art. 32. The absolute nullity of a marriage may be invoked or pleaded
only on the basis of a final judgment declaring the marriage void, without
prejudice to the provision of Article 34."

"Art. 33. The action or defense for the declaration of the absolute nullity
of a marriage shall not prescribe."

xxx xxx xxx

It is believed that many hopelessly broken marriages in our country today may already
dissolved or annulled on the grounds proposed by the Joint Committee on declaration of
nullity as well as annulment of marriages, thus rendering an absolute divorce law
unnecessary. In fact, during a conference with Father Gerald Healy of the Ateneo
University as well as another meeting with Archbishop Oscar Cruz of the Archdiocese of
Pampanga, the Joint Committee was informed that since Vatican II, the Catholic Church
has been declaring marriages null and void on the ground of "lack of due discretion" for
causes that, in other jurisdictions, would be clear grounds for divorce, like teen-age or
premature marriages; marriage to a man who, because of some personality disorder or
disturbance, cannot support a family; the foolish or ridiculous choice of a spouse by an
otherwise perfectly normal person; marriage to a woman who refuses to cohabit with her
husband or who refuses to have children. Bishop Cruz also informed the Committee that
they have found out in tribunal work that a lot of machismo among husbands are
manifestations of their sociopathic personality anomaly, like inflicting physical violence
upon their wives, constitutional indolence or laziness, drug dependence or addiction, and
psychological anomaly. . . . (Emphasis supplied)

Clearly, by incorporating what is now Article 36 into the Family Code, the Revision Committee referred to
above intended to add another ground to those already listed in the Civil Code as grounds for nullifying a
marriage, thus expanding or liberalizing the same. Inherent in the inclusion of the provision on
psychological incapacity was the understanding that every petition for declaration of nullity based on it
should be treated on a case-to-case basis; hence, the absence of a definition and an enumeration of what
constitutes psychological incapacity. Moreover, the Committee feared that the giving of examples would
limit the applicability of the provision under the principle of ejusdem generis. But the law requires that the
same be existing at the time of marriage although it be manifested later.

Admittedly, the provision on psychological incapacity, just like any other provision of law, is open to
abuse. To prevent this, "the court shall take order the prosecuting attorney or fiscal assigned to it to
appear 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." 2 Moreover, the judge, in interpreting the provision on a case-
to-case basis, must be guided by "experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be
given persuasive effect since the provisions was taken from Canon Law." 3

The constitutional and statutory provisions on the family 4 will remain the lodestar which our society will
hope to achieve ultimately. Therefore, the inclusion of Article 36 is not to be taken as an abandonment of
the ideal which we all cherish. If at all, it is a recognition of the reality that some marriages, by reason of
the incapacity of one of the contracting parties, fall short of this ideal; thus, the parties are constrained to
find a way of putting an end to their union through some legally-accepted means.

Any criticism directed at the way that judges have interpreted the provision since its enactment as to
render it easier for unhappily-married couples to separate is addressed, not to the wisdom of the
lawmakers but to the manner by which some members of the Bench have implemented the provision.
These are not interchangeable, each being separate and distinct from the other.