Chapter 2 - Persons and Family

PERSONS AND FAMILY RELATION | Notes by Patricia Candaza
CHAPTER 2: MARRIAGES EXEMPT FROM LICENSE REQUIREMENT
Article 27. In case either or both the contracting parties are at the point of death, the marriage
may be solemnized without the necessity of a marriage license and shall remain valid even if
the ailing party subsequently survives.
Article 28. If the residence of either party is so located that there are no means of transportation
to enable such party to appear personally before a local civil registrar, the marriage may be
solemnized without necessity of a marriage license.
Article 29. In cases provided for in the two preceding articles, the solemnizing officer shall state
in an affidavit executed before the local civil registrar or any other person legally authorized to
administer oaths that the marriage was performed in articulo mortis or that the residence of
either party, specifying the barrio or barangay, is so located that there are no means of
transportation to enable such party to appear personally before the local civil registrar and that
the officer took the necessary steps to ascertain the ages and relationship of the contracting
parties and the absence of a legal impediment to the marriage.
Article 30. The original of the affidavit required in the last preceding article, together with a
legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to
the local civil registrar of the municipality where it was performed within the period of thirty
days after the performance of the marriage.
Article 31. A marriage in articulo mortis between passengers or crew members may also be
solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the
plane is in flight, but also during stopovers of ports of call.
Article 32. A military commander of a unit, who is a commissioned officer, shall likewise have
the authority to solemnize marriages in articulo mortis between persons within the zones of
military operation, whether members of the armed forces or civilians.
Article 33. Marriages among Muslims or among members of the ethnic cultural communities
may be performed validly without the necessity of a marriage license, provided they are
solemnized in accordance with their customs, rites or practices.
Article 34. No license shall be necessary for the marriage of a man and woman who have lived
together as husband and wife for at least five years and without any legal impediment to marry
each other. The contracting parties shall state the foregoing facts in an affidavit before any
person authorized by law to administer oaths. The solemnizing officer shall also state under
oath that he ascertained the qualifications of the contracting parties and found no legal
impediment to the marriage.
Exemption from marriage license:
1. Articulo mortis - at the point of death

 Any of those enumerated in Article 7 may solemnize such marriage
i. Ship captain/airplane chief – only marriage under articulo mortis (may
conduct even at stopovers)
ii. Priest, rabi, imam, minister, judges – regular marriages & articulo mortis
iii. Consuls – only in the consular office and both Filipinos
iv. Mayors- under local government code
2. Conducted in far and remove areas/places – residence is located in an area where there are
no means of transportation to enable parties to appear before the local civil registrar
3. Muslims or Ethnic cultural communities – must be performed in accordance with their
customs, rites and practices
 Must be between muslims
 If one party is Christian then it is still under the Family Code and not under the Muslim
Code
4. Ratification of Marital Cohabitation
i. they must live as such for at least five years characterized by exclusivity and
continuity that is unbroken
ii. they must be without any legal impediment to marry each other.
 Manzano v. Sanchez: it is not necessary for a man and a woman to have no legal impediment to
marry each other during the 5-year cohabitation since the absence of a legal impediment is necessary
ONLY at the time of the marriage ceremony. The case of Manzano was highly criticized because it
encourages immorality.
NIÑAL vs. BAYADOG
FACTS: Pepito Niñal was married to Teodulfa Bellones on September 1974. Out of their marriage
were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 1985.
One year and 8 months thereafter, Pepito and respondent Norma Badayog got married without
any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11,
1986 stating that they had lived together as husband and wife for at least five years and were thus
exempt from securing a marriage license. On February 1997, Pepito died in a car accident. After
their father's death, the main case here is the settlement of the estate. But then petitioners filed a
petition for declaration of nullity of the marriage of Pepito to Norma alleging that the said
marriage was void for lack of a marriage license.
RULING: The 5-year period should be the years immediately before the day of the marriage and it
should be a period of cohabitation characterized by exclusivity — meaning no third party was
involved at anytime within the 5 years and continuity — that is unbroken. Otherwise, if that
continuous 5-year cohabitation is computed without any distinction as to whether the parties were
capacitated to marry each other during the entire five years, then the law would be sanctioning
immorality and encouraging parties to have common law relationships and placing them on the
same footing with those who lived faithfully with their spouse. In this case, at the time of Pepito
and respondent's marriage, it cannot be said that they have lived with each other as husband and
wife for at least five years prior to their wedding day. Even assuming that Pepito and his first wife
had separated in fact, and thereafter both Pepito and respondent had started living with each other
that has already lasted for five years, the fact remains that their five-year period cohabitation was
not the cohabitation contemplated by law.
Note: In this ruling the SC used the Civil Code since at the time the 2 nd marriage was celebrated, the Family
Code was not yet in effect. And under the old civil code, it is clearly stated that there must be no legal
impediment throughout the 5 year period of cohabitation.
OFFICE of the COURT ADMIN vs. JUDGES NECESSARIO, ACOSTA, TORMIS & ROSALES
FACTS: This is an administrative case that stemmed from the Memorandum of the OCA. The
judicial audit team created by the
OCA reported alleged irregularities in the solemnization of marriages in several branches of the
MTCC and RTC in Cebu City. Certain package fees were offered to interested parties by "fixers" or
"facilitators" for instant marriages. So a female and male lawyer of the audit team went undercover
as a couple looking to get married. They went to the Palace of Justice and inside Branch 4, a
woman named Helen approached and assisted the female lawyer. When the female lawyer asked if
the marriage process could be rushed, Helen assured the lawyer that the marriage could be
solemnized the next day, but the marriage certificate would only be dated the day the marriage
license becomes available. Helen also guaranteed the regularity of the process for a fee of three
thousand pesos (P3,000) only. The team reported that out of the 643 marriage certificates examined,
280 marriages were solemnized under Article 34 of the Family Code. There is also an unusual
number of marriage licenses obtained from the local civil registrars of the towns of Barili and
Liloan, Cebu.
RULING: Marriages of exceptional character such as those made under Article 34 are, doubtless,
the exceptions to the rule on the indispensability of the formal requisite of a marriage license.
Under the rules of statutory construction, exceptions as a general rule should be strictly but
reasonably construed. The affidavits of cohabitation should not be issued and accepted pro forma
particularly in view of the settled rulings of the Court on this matter. The five-year period of
cohabitation should be one of a perfect union valid under the law but rendered imperfect only by
the absence of the marriage contract. The parties should have been capacitated to marry each other
during the ENTIRE period and NOT only at the time of the marriage.
Notes: SC clarified the rules that the contracting parties must be legally capacitated during the entire
period of cohabitation and not only at the time of the marriage.
 A judge cannot notarize the Affidavit of Cohabitation whose marriage he will solemnize.
The duty of the judge as the solemnizing officer is only to check if indeed the parties
have cohabited for at least 5 years without legal impediment to marry.
TUPAL vs. JUDGE REMEGIO V. ROJO

FACTS:
Rex M. Tupal filed with the OCA a complaint against Judge Remegio V. Rojo for violating the
Code of Judicial Conduct and for gross ignorance of the law. Judge Rojo presides in MTCC, Branch
5, Bacolod City, Negros Occidental. Judge Rojo allegedly solemnized marriages without the
required marriage license. He instead notarized affidavits of cohabitation and issued them to the
contracting parties. He notarized these affidavits on the day of the parties’ marriage. These
"package marriages" are allegedly common in Bacolod City.
RULING:
As a solemnizing officer, the judge’s only duty involving the affidavit of cohabitation is to examine
whether the parties have indeed lived together for at least five years without legal impediment to
marry. Affidavits of cohabitation are documents not connected with the judge’s official function
and duty to solemnize marriages. Notarizing affidavits of cohabitation is inconsistent with the
duty to examine the parties’ requirements for marriage. If the solemnizing officer notarized the
affidavit of cohabitation, he cannot objectively examine and review the affidavit’s statements
before performing the marriage ceremony. Should there be any irregularity or false statements in
the affidavit of cohabitation he notarized, he cannot be expected to admit that he solemnized the
marriage despite the irregularity or false allegation. Thus, judges cannot notarize the affidavits of
cohabitation of the parties whose marriage they will solemnize. Affidavits of cohabitation are
documents not connected with their official function and duty to solemnize marriages.
 The falsity of an affidavit of marital cohabitation, where the parties have fallen short of
the five-year requirement effectively renders the marriage void ab initio for the lack of a
marriage license.
REPUBLIC VS. DAYOT
FACTS:
Jose and Felisa were married at the Pasay City Hall. The marriage was solemnized by Rev. Tomas
V. Atienza. In lieu of a marriage license, Jose and Felisa executed a sworn affidavit, also dated 24
November 1986, attesting that both of them had attained the age of maturity, and that being
unmarried, they had lived together as husband and wife for at least five years. On 7 July 1993, Jose
filed a Complaint for Annulment and/or Declaration of Nullity of Marriage with the RTC, Laguna.
He contended that his marriage with Felisa was a sham, as no marriage ceremony was celebrated
between the parties; that he did not execute the sworn affidavit stating that he and Felisa had lived
as husband and wife for at least five years; and that his consent to the marriage was secured
through fraud.
RULING:
The falsity of the allegation in the sworn affidavit relating to the period of Jose and Felisa’s
cohabitation, which would have qualified their marriage as an exception to the requirement for a
marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that the law
precisely required to be deposed and attested to by the parties under oath. If the essential matter in
the sworn affidavit is a lie, then it is but a mere scrap of paper, without force and effect. Hence, it is
as if there was no affidavit at all. An action for nullity of marriage is imprescriptible. Jose and
Felisa’s marriage was celebrated sans a marriage license. No other conclusion can be reached
except that it is void ab initio.
DE CASTRO VS. ASSIDAO-DE CASTRO
FACTS:
Petitioner and respondent became sweethearts in 1991 and planned to get married, thus they
applied for a marriage license in September 1994. They had their first sexual relation sometime in
October 1994, and had regularly engaged in sex thereafter. When the couple went back to the Civil
Registrar, the marriage license had already expired. Thus, in order to push through with the plan,
in lieu of a marriage license, they executed an affidavit dated March 1995 stating that they had
been living together as husband and wife for at least five years. The couple got married on the
same date. In 1998, respondent filed a complaint for support against petitioner. Petitioner denied
that he is married to respondent, claiming that their marriage is void ab initio since the marriage
was facilitated by a fake affidavit; and that he was merely prevailed upon by respondent to sign
the marriage contract to save her from embarrassment due to her pregnant state. He also averred
that they never lived together as husband and wife and that he has never seen nor acknowledged
the child.
RULING:
The falsity of the affidavit cannot be considered as a mere irregularity in the formal requisites of
marriage. The law dispenses with the marriage license requirement for a man and a woman who
have lived together and exclusively with each other as husband and wife for a continuous and
unbroken period of at least five years before the marriage. The aim of this provision is to avoid
exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage due to the publication of every applicant’s name
for a marriage license. In the instant case, there was no "scandalous cohabitation" to protect; in fact,
there was nO cohabitation at all. The false affidavit which petitioner and respondent executed so
they could push through with the marriage has no value whatsoever; it is a mere scrap of paper.
They were not exempt from the marriage license requirement. Their failure to obtain and present a
marriage license renders their marriage void ab initio.
CHAPTER 3: VOID AND VOIDABLE MARRIAGES
VOID VOIDABLE
 void from the very beginning (ab initio) o Valid until annulled
 Does not produce any legal effect
o Can never be ratified (cannot be cured) o Can be ratified or confirmed by free
cohabitation or prescription
o can be assailed collaterally ( a nullity of o Cannot be assailed collaterally except in a
marriage can be directly attacked even if direct proceeding (you file a case in court
its is not the main principal issues of a to declare your marriage void)
case)
o Can be questioned even after death o can only be assailed during the lifetime of
the parties
o Action is imprescriptible o Period of 5 years within which to annul
the marriage, after such period then you
cannot annul
o most of voidable marriages have defects
or vices in consent (fraud, intimidation,
undue influence)
o can only be assailed by the parties of the o can be assailed by other persons not
marriage parties to the marriage
o Declaration of Nullity of Marriage o Annulment of Marriage
MALLION vs. ALCANTARA (2006)
FACTS:
On October 24, 1995, petitioner Oscar P. Mallion filed a petition with the RTC of San Pablo City
seeking a declaration of nullity of his marriage to respondent Editha Alcantara under Article 36 of
the Family Code, citing respondent’s alleged psychological incapacity. The case was docketed as
Civil Case No. SP 4341-95. After trial on the merits, the RTC denied the petition upon the finding
that petitioner "failed to adduce preponderant evidence." The appeal filed with the Court of
Appeals was likewise dismissed for failure of petitioner to pay the docket and other lawful fees
within the reglementary period.
After the decision in Civil Case No. SP 4341-95 attained finality; petitioner filed on July 12, 1999
another petition for declaration of nullity of marriage with the RTC of San Pablo City, this time
alleging that his marriage with respondent was null and void due to the fact that it was celebrated
without a valid marriage license. For her part, respondent filed an answer with a motion to dismiss
praying for the dismissal of the petition on the ground of res judicata and forum shopping.
RULING:
By definition, a cause of action is the act or omission by which a party violates the right of another.
In both petitions, petitioner has the same cause - the declaration of nullity of his marriage to
respondent. What differs is the ground upon which the cause of action is predicated. The present
action for declaration of nullity of marriage on the ground of lack of marriage license is barred by
the decision in Civil Case No. SP 4341-95 which already attained finality.
o Note: SC directed the dismissal of the subsequent case because it violated the rule on splitting-a-cause
of action. An action to declare a marriage void is only one cause of action. Served as res judicata
Article 35. The following marriages shall be void from the beginning:
1) Those contracted by any party below eighteen years or age even with the consent of
parents;
2) Those solemnized by any person not legally authorized to perform marriages unless such
marriages were contracted with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
3) Those solemnized without license, except those covered by the preceding Chapter;
4) Those contracted through mistake of one contracting party as to the identity of the other;
and
5) Those subsequent marriage that are void under Article 53
TYPES OF VOID MARRIAGES:

1. BELOW 18 YEARS OF AGE
o Even if the marriage is done with the consent of the parents it is still void. The defect cannot
be cured.
2. SOLEMNIZED BY A PERSON NOT LEGALLY AUTHORIZED TO PERFORM
MARRIAGES
o XPN: when either or both parties believed in good faith that the solemnizing officer had the
legal authority to do so when in fact he or she has none, in such case the marriage is valid.
o GOOD FAITH is addressed to the contracting parties and not to the solemnizing officer.
Only part in the Family Code that where you can find good faith as a ground to validate
what is otherwise a void marriage since the
 General rule is: when a marriage is void it cannot produce anything and good faith is
not a defense
3. NO MARRIAGE LICENSE
o XPNS: Article 27, 28, 29, 30, 31, 33, and 34 of the FC
4. BIGAMOUS OR POLYGAMOUS MARRIAGES
o Bigamous – when there is a prior, subsisting marriage which has not been legally dissolved
(first marriage must have been valid and if a subsequent marriage is contracted without
judicial declaration of nullity of the first marriage, then the subsequent marriage is also void
because it violated Article 40)
Art 40. States that a judicial declaration of nullity must first be obtained before any of the
contracting parties is to remarry
o Polygamous – more than 2 (3 or 4) and a prior, subsisting marriage which has not been
legally dissolved
5. CONTRACTED THROUGH MISTAKE OF ONE CONTRACTING PARTY AS TO THE
IDENTIY OF THE OTHER
o Ex. The contracting party did not intend to marry the other, as this person is not the person
he/she knew before the marriage
o Does not include mistake in name, the character of the person, or in his or her attributes, his
or her religion, social standing, pedigree etc.
6. THOSE SUBSEQUENT MARRIAGES THAT ARE VOID UNDER ARTICLE 53.
o Such decree of nullity or annulment shall be recorded in the appropriate civil registry, and
must undertake the liquidation, partition and distribution of the properties
o Non-compliance will render the subsequent marriage void.
Article 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. (As
amended by Executive Order Number 227)
Brief History of the Origin of Psychological Incapacity as a ground for annulment.
A provision not found in the original draft of the Family Code. It contained a chapter on absolute
divorce. But the Roman Catholic Church was very much against it, and they lobbied and opposed
the approval of absolute divorce in the Family Code. So the provision on absolute divorce was
removed. But the framers of the Family Code and the members of Congress wanted to have a
provision in the Family Code where couples who are no longer living together and whose
marriages could never be saved, may be allowed to find another partner. So the framers copied the
provisions of the Canon Law.
The Church has been annulling marriages. There is even a Matrimonial Tribunal of the Roman
Catholic Church and they grant annulment of marriages. So the framers studied the basis for the
annulment granted by the church. In Canon 1095 of the Canon Law provides for 3 grounds for the
annulment of marriages:
Canon 1095. The following are incapable of contracting marriage:
1. those who lack sufficient use of reason;  
2. those who suffer from a grave lack of discretion of judgment concerning the essential
matrimonial rights and obligations to be mutually given and accepted;  
3. those who, because of causes of a psychological nature, are unable to assume the essential
obligations of marriage.  
However, the Canon Law does not provide for an exact definition of “Psychological Incapacity”.
So the framers decided to copy the ground and incorporated the same in the Family Code. The
ground was then introduced as an amendment 11 days after Cory Aquino signed the original draft
of the Family Code.
President Aquino approved the Family Code through EO 279, and she signed it on July 6, of 1987.
On July 17 or 11 days after, Cory Aquino signed another EO 227, which introduced some
amendments to the Family Code.
PSYCHOLOGICAL INCAPACITY
The law does not define what psychological incapacity is and therefore, the determination is left
solely with the courts on a case-to-case basis. Determination of psychological incapacity “depends
on the facts of the case. Each case must be judged, not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts.”
Psychological incapacity “to comply with the essential marital obligations.”
3 ELEMENTS OF PSYCHOLOGICAL INCAPACITY 
1. Juridical antecedence - The incapacity of the spouse must already be existing at the time of the
celebration of the marriage. But it was discovered by the other spouse only during the marriage.
2. Gravity - The defect must be very serious 
3. Incurability
The Supreme Court repeats these 3 elements every time they decide cases regarding psychological
incapacity. The 3 elements must be present, if one is absent there is no psychological incapacity.
Psychological incapacity according to the SC does not mean insanity. An insane person does not
know what he is doing. A psychologically incapacitated person, knows very well what he is doing.
He is aware, he just can’t perform an essential marital obligation.
It is clear from the foregoing elements that the intention 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.  
LEOUEL SANTOS vs. CA
Note: This was the first case where the term “psychological incapacity” was discussed by the Supreme
Court.
FACTS :
Leouel Santos, a member of the Army, met Julia Rosario Bedia in Iloilo City. In September 1986,
they got married. The couple later lived with Julia’s parents. Julia gave birth to their son in 1987.
Their marriage, however, was marred by the frequent interference of Julia’s parents, as averred by
Leouel. The couple also occasionally quarrelled about as to, among other things, when should they
start living independently from Julia’s parents. In 1988, Julia went to the US to work as a nurse
despite Leouel’s opposition. 7 months later, she and Leouel got to talk and she promised to return
home in 1989. She never went home that year. In 1990, Leouel got the chance to be in the US due to
a military training. During his stay, he desperately tried to locate his wife but to no avail. Leouel, in
an effort to at least have his wife come home, filed a petition to nullify their marriage due to Julia’s
alleged psychological incapacity. Leouel asserted that due to Julia’s failure to return home or at
least communicate with him even with all his effort constitutes psychological incapacity. Julia filed
an opposition; she said that it is Leouel who is incompetent. The prosecutor ascertained that there
is no collusion between the two. Leouel’s petition is however denied by the lower and appellate
court.
ISSUE: Whether or not psychological incapacity is attendant to the case at bar.
HELD:
No. Before deciding on the case, the SC noted that the Family Code did not define the term
“psychological incapacity”, which is adopted from the Catholic Canon Law. But basing it on the
deliberations of the Family Code Revision Committee, the provision in PI, adopted with less
specificity than expected, has been designed to allow some resiliency in its application. The FCRC
did not give any examples of PI for fear that the giving of examples would limit the applicability of
the provision under the principle of ejusdem generis. Rather, the FCRC would like the judge to
interpret the provision on a case-to-case basis, guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of church tribunals which, although not
binding on the civil courts, may be given persuasive effect since the provision was taken from
Canon Law. The term “psychological incapacity” defies any precise definition since psychological
causes can be of an infinite variety.
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. PI 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 (Art. 68),
include their mutual obligations to live together, observe love, respect and fidelity and render help
and support. The intendment of the law has been to confine the meaning of PI to the most serious
cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give
meaning and significance to the marriage. This psychological condition must exist at the time the
marriage is celebrated. The SC also notes that PI 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.
In the case at bar, although Leouel stands aggrieved, his petition must be dismissed because the
alleged PI of his wife is not clearly shown by the factual settings presented. The factual settings do
not come close to the standard required to decree a nullity of marriage.
REPUBLIC vs. CA and MOLINA
Note: Provides for the Guidelines in Applying Article 36 of the Family Code. The SC was alarmed because
lower court judges, due to the wide leeway given to them in determining the applicability of Article 36, laid
down the jurisprudential guidelines in determining the presence of Psychological incapacity.
FACTS :
In 1985, Roridel Olaviano married Reynaldo Molina. They begot one child. But in 1990, Roridel
filed a petition to have her marriage be declared void on the ground that Reynaldo is
psychologically incapacitated to perform the essential marital obligations.
Roridel alleged that Reynaldo was a highly immature and habitually quarrelsome 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. A psychologist testified in favor of Roridel and the doctor’s
testimony was given weight by the trial court hence, the marriage was declared void. The decision
was affirmed by the Court of Appeals.
ISSUE: Whether or not the finding of psychological incapacity is proper.
HELD:
No. 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 “irreconcilable differences” and
“conflicting personalities” in no wise constitutes psychological incapacity.
The Supreme Court also noted in this case that there has been a difficulty by courts and lawyers in
applying the concept of psychological incapacity. Hence, the SC handed down the following
guidelines in the interpretation and application of Art. 36 of the Family Code:
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, 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 echoes this constitutional edict on marriage and the family and emphasizes their
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 psychically ill to such an extent that the person could
not have known the obligations he was assuming, or knowing them, could not have given 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, nevertheless such root cause
must be identified as a psychological illness and its incapacitating nature fully explained. Qualified
psychiatrists and clinical psychologists may give expert evidence.
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 characterological peculiarities, mood changes,
occasional emotional outbursts” cannot be accepted as root causes. The illness must be shown as
downright incapacity or inability, not 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.”
Since the purpose of including such provision in our Family Code is to harmonize our civil laws
with the religious faith of our people, it stands to reason that to achieve such harmonization, great
persuasive weight should be given to decisions of such appellate tribunal. Ideally— subject to our
law on evidence—what is decreed as canonically invalid should also be decreed civilly void.
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 be handed down unless the Solicitor General
issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the petition. 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. (No longer
applicable)
CHI MING TSOI vs. CA and GAINA LAO-TSOI
FACTS:
Ching married Gina on May 22, 1988 at the Manila Cathedral, Intramuros, Manila as evidenced by
their marriage contract. After the celebration they had a reception and then proceeded to the house
of the Ching Ming Tsoi’s mother. There they slept together on the same bed in the same room for
the first night of their married life.
Gina’s version: that contrary to her expectations that as newlyweds they were supposed to enjoy
making love that night of their marriage, or having sexual intercourse, with each other, Ching
however just went to bed, slept on one side and then turned his back and went to sleep. There was
no sexual intercourse between them that night. The same thing happened on the second, third and
fourth nights.
In an effort to have their honey moon 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 Ching’s
mother, uncle and nephew as they were all invited by her husband. There was no sexual
intercourse between them for four days in Baguio since Ching 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 (day of their
marriage) until March 15, 1989 (ten months). But during this period there was no attempt of sexual
intercourse between them. Gina 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.
Results were that Gina is healthy, normal and still a virgin while Ching’s examination was kept
confidential up to this time.
Gina claims that her husband is impotent, a closet homosexual as he did not show his penis. She
said she had observed him using an eyebrow pencil and sometimes the cleansing cream of his
mother. She also said her husband only married her to acquire or maintain his residency status
here in the country and to publicly maintain the appearance of a normal man
Ching’s version: he claims that if their marriage shall be annulled by reason of psychological
incapacity, the fault lies with Gina. He does not want their marriage annulled for reasons of (1) that
he loves her very much (2) that he has no defect on his part and he is physically and
psychologically capable (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.
Ching admitted that since his marriage to Gina there was no sexual contact between them. But, the
reason for this, according to the defendant, was that every time 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.
ISSUE:
Whether or not Ching is psychologically incapacitated to comply with the essential marital
obligations of marriage
HELD:
The Supreme Court affirmed the decisions of the trial court and Court of Appeals in rendering as
VOID the marriage entered into by Ching and Gina on May 22, 1988. No costs.
The Supreme Court held that the prolonged refusal of a spouse to have sexual intercourse with his
or her spouse is considered a sign of psychological incapacity. 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.
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-fulfilment 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
this marital obligation is equivalent to psychological incapacity.
While the law provides that the husband and the wife are obliged to live together, observe mutual
love, respect and fidelity, the sanction therefore 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
cruellest 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 that 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.
NYMPHOMANIAC
A wife who is a nymphomaniac may be considered psychologically incapacitated. She cannot

perform an essential marital obligation – fidelity, to be faithful to the husband. A nymphomaniac
can never be satisfied or contended with the husband alone. They will always look for other men
who will satisfy their sexual desires. Even if they know that they should not have sex with other
men, their mind dictates that they have to do it. So they are not able to perform an essential marital
obligation.
PERSONAL MEDICAL OR PSYCHOLOGICAL EXAMINATION

First Ruling of the Court in Marcos vs Marcos : Not a requirement for the declaration of
psychological incapacity. There is no need to subject the spouse to a psychological test.
MARCOS vs MARCOS
FACTS :
Wilson and Brenda were military personnel working at the Malacañang. They got married in 1982.
After the EDSA Revolution, they left the military and led a civilian life.
However, Wilson found it hard to get a job while Brenda’s business started to take off as a result of
her hard work. Unfortunately, due to Wilson’s failure to engage in any gainful employment, the
spouses frequently quarrelled. Wilson would verbally and physically abuse Brenda and would
even force her to have sex with him even if Brenda’s too tired from work. Wilson would also
excessively chastise their children even for slight mistakes.
In 1994, Brenda had too much of Wilson’s abuses. She decided to file a petition to have their
marriage be annulled on the ground of psychological incapacity. Brenda alleged that Wilson’s
drunkenness, joblessness, and failure to give material and moral support to his family constitute
psychological incapacity. During the pendency of the case, Brenda requested Wilson to undergo
psychological examination but Wilson refused to submit himself to tests. Brenda submitted herself
to tests and was also interviewed by a competent psychologist as to the psychological state of her
husband.
After said interview, the psychologist submitted that Wilson is psychologically incapacitated. The
Regional Trial Court granted Brenda’s petition. On appeal, the Court of Appeals reversed the RTC
on the ground that the petition should not have been granted because Wilson’s psychological
incapacity was never proven due to the fact that Wilson was never subjected to psychological
evaluation.
ISSUE: Whether or not psychological examination is required as a condition sine qua non for a
declaration of psychological incapacity.
HELD: No. Psychological incapacity, as a ground for declaring the nullity of a marriage, may be
established by the totality of evidence presented. There is no requirement, however, that the
respondent in an annulment case should be examined by a physician or a psychologist as a
condition sine qua non for such declaration.
In this case, Wilson refused to submit himself to psychological evaluation. Hence, his psychological
incapacity may be ascertained through other sources. Further, in the case of Republic vs. CA and
Molina, the guidelines set therein did not require that a physician examine the person to be
declared psychologically incapacitated. In fact, the root cause may be “medically or clinically
identified.” What is important is the presence of evidence that can adequately establish the party’s
psychological condition. For indeed, if the totality of evidence presented is enough to sustain a
finding of psychological incapacity, then actual medical examination of the person concerned need
not be resorted to.
But in this case, was Wilson’s psychological incapacity proven?
No. The Supreme Court used the totality of evidence rule. Based on the totality of evidence
presented, Brenda failed to establish that Wilson is psychologically incapacitated. Psychological
Incapacity must exist at the time of the marriage. In this case, Wilson’s behavior only arose when
he failed to find gainful employment. Verily, the behavior of Wilson can be attributed to the fact
that he had lost his job and was not gainfully employed for a period of more than six years. It was
during this period that he became intermittently drunk, failed to give material and moral support,
and even left the family home.
Second Ruling : In Matias vs. Dagdag. The Court said “expert testimony of a psychologist
evaluating the behavioural pattern of a person allegedly suffering a psychological incapacity are
extremely helpful.”
RP vs. ERLINDA MATIAS DAGDAG
FACTS:
On September 7, 1975, Erlinda Matias, 16 years old, married Avelino Parangan Dagdag, 20 years
old, at the Iglesia Filipina Independent Church in Cuyapo, Nueva Ecija. The marriage certificate
was issued by the Office of the Local Civil Registrar of the Municipality of on October 20, 1988.
Erlinda and Avelino begot two children. The birth certificates were issued by the Office of the
Local Civil Registrar of the Municipality of Cuyapo, Nueva Ecija also on October 20, 1988. A week
after the wedding, Avelino started leaving his family without explanation. He would disappear for
months, suddenly re-appear for a few months, and then disappear again. During the times when
he was with his family, he indulged in drinking sprees with friends and would return home drunk.
He would force his wife to submit to sexual intercourse and if she refused, he would inflict
physical injuries to her.
In October 1993, he left his family again and that was the last that they heard from him. Erlinda
learned that Avelino was imprisoned for some crime, and that he escaped from jail and remains at
large to-date. In July 1990, Erlinda filed with the RTC of Olongapo City a petition for judicial
declaration of nullity of marriage on the ground of psychological incapacity. Since Avelino could
not be located, summons was served by publication in the Olongapo News, a newspaper of
general circulation. On the date set for presentation of evidence, only Erlinda and her counsel
appeared. Erlinda testified and presented her sister-in-law as her only witness.
The trial court issued an Order giving the investigating prosecutor until January 2, 1991 to manifest
in writing whether or not he would present controverting evidence, and stating that should he fail
to file said manifestation, the case would be deemed submitted for decision. The Investigating
Prosecutor conducted an investigation and found that there was no collusion between the parties.
However, he intended to intervene in the case to avoid fabrication of evidence. Without waiting for
the investigating prosecutor’s manifestation, the trial court declared the marriage of Erlinda and
Avelino void under Article 36. The investigating prosecutor filed a Motion to Set Aside Judgment
on the ground that the decision was prematurely rendered since he was given until January 2, 1991
to manifest whether he was presenting controverting evidence. The Office of the Solicitor General
likewise filed a Motion for Reconsideration of the decision on the ground that the same is not in
accordance with the evidence and the law. Since the trial court denied the Motion for
Reconsideration, the Solicitor General appealed to the CA. The CA affirmed the decision of the trial
court holding that “Avelino Dagdag is psychologically incapacitated not only because he failed to
perform the duties and obligations of a married person but because he is emotionally immature
and irresponsible, an alcoholic, and a criminal.”
ISSUE:
Did the CA correctly declare the marriage as null and void under Article 36 of the Family Code, on
the ground that the husband suffers from psychological incapacity, as he is emotionally immature
and irresponsible, a habitual alcoholic, and a fugitive from justice?
HELD:
Whether or not psychological incapacity exists in a given case calling for annulment of a marriage,
depends crucially, more than in any field of law, on the facts of the case. Each case must be
judged, not on the basis of a priori assumptions, predilections or generalizations but according
to its own facts. In regard to psychological incapacity as a ground for annulment of marriage, it
is trite to say that no case is on “all fours” with another case. The trial judge must take pains in
examining the factual milieu and the appellate court must, as much as possible, avoid substituting
its own judgment for that of the trial court.
In REPUBLIC VS. MOLINA, the Court laid down the GUIDELINES in the interpretation of
Article 36 of the Family Code.
Taking into consideration these guidelines, it is evident that Erlinda failed to comply with the
above-mentioned evidentiary requirements. Erlinda failed to comply with guideline number 2
which requires that the root cause of psychological incapacity must be medically or clinically
proven by experts, since no psychiatrist or medical doctor testified as to the alleged psychological
incapacity of her husband. Further, the allegation that the husband is a fugitive from justice was
not sufficiently proven. In fact, the crime for which he was arrested was not even alleged. The
investigating prosecutor was likewise not given an opportunity to present controverting evidence
since the trial court’s decision was prematurely rendered.
Guideline Number 7 : WEIGHT OF THE DECISION OF THE MATRIMONIAL TRIBUNAL OF

THE ROMAN CATHOLIC CHURCH
Must be given great weight and should have persuasive and effect. Mainly because we copied the
provision on psychological incapacity from the Canon Law. This guideline as enunciated in the
Case of Molina, was first applied in the case of Antonio vs. Reyes :
ANTONIO vs. REYES G.R. No. 155800

FACTS:
In 1990, Leo married Marie, the latter being ten years his senior. In 1993, Leo filed to annul the
marriage due to Marie’s Psychological Incapacity. Leo claimed that Marie persistently lied about
herself, the people around her, her occupation, income, educational attainment and other events or
things. She would claim that she is a psychologist but she is not. She’d claim she is a singer with
the company Blackgold and that she is the latter’s number 1 money maker but she’s not. She’d also
spend lavishly as opposed to her monthly income. She fabricates things and people only to serve
her make believe world. Leo presented an expert that proved Marie’s PI. Marie denied all Leo’s
allegations and also presented an expert to prove her case. The RTC ruled against Marie and
annulled the marriage. The Matrimonial Tribunal of the church also annulled the marriage and
was affirmed by the Vatican’s Roman Rata. The CA reversed the decision hence the appeal.
ISSUE:
1. How should the decision of the Matrimonial Tribunal of the Church be appreciated; 2.
Whether or not PI is attendant to the case. 
HELD:
1. The Court of Appeals clearly erred when it failed to take into consideration the fact that the
marriage of the parties was annulled by the Catholic Church. The appellate court apparently
deemed this detail totally inconsequential as no reference was made to it anywhere in the assailed
decision despite petitioner’s efforts to bring the matter to its attention. Such deliberate ignorance is
in contravention of Molina, which held that 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.
As noted earlier, the Metropolitan Tribunal of the Archdiocese of Manila decreed the invalidity of
the marriage in question, citing the "lack of due discretion" on the part of respondent. Such decree
of nullity was affirmed by both the National Appellate Matrimonial Tribunal, and the Roman Rota
of the Vatican. In fact, respondent’s psychological incapacity was considered so grave that a
restrictive clause was appended to the sentence of nullity prohibiting respondent from contracting
another marriage without the Tribunal’s consent.
Evidently, the conclusion of psychological incapacity was arrived at not only by the trial court, but
also by canonical bodies. Yet, we must clarify the proper import of the Church rulings annulling
the marriage in this case. They hold sway since they are drawn from a similar recognition, as the
trial court, of the veracity of petitioner’s allegations. Had the trial court instead appreciated
respondent’s version as correct, and the appellate court affirmed such conclusion, the rulings of
the Catholic Church on this matter would have diminished persuasive value. After all, it is the
factual findings of the judicial trier of facts, and not that of the canonical courts, that are
accorded significant recognition by this Court.
2. Yes, Psychological Incapacity is attendant. The guidelines established in the Molina case is
properly established in the case at bar.
The SC also emphasized what fraud means as contemplated in Art 45 (3) of the FC vis-a-vis Art 46
of the FC. In PI, the misrepresentation done by Marie points to her inadequacy to cope with her
marital obligations, kindred to psychological incapacity. In Art 45 (3), marriage may be annulled if
the consent of either party was obtained by fraud, and Article 46 which enumerates the
circumstances constituting fraud under the previous article, clarifies that “no other
misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of marriage.” These provisions of Art 45 (3)
and Art 46 cannot be applied in the case at bar because the misrepresentations done by Marie is not
considered as fraud but rather such misrepresentations constitute her aberrant behaviour which
further constitutes PI. Her misrepresentations are not lies sought to vitiate Leo’s consent to marry
her. Her misrepresentations are evidence that Marie cannot simply distinguish fiction/fantasy
from reality, which is so grave, and it falls under the fourth guideline laid down in the Molina
Case.
DISCUSSION : The husband in this case also filed a case of annulment in the Matrimonial Tribunal
of the Church. The annulment was granted. The decisions of the Tribunal are reviewed by the
Roman Rota of the Vatican which affirmed the decision of the Tribunal. Because of that, the
Supreme Court gave great weight to the case and granted the petition. Due to the prior grant of
annulment by the Tribunal which was affirmed by the Vatican, the Court also granted the petition
in order to show respect to the decision of the Church.
ThedecisionoftheNationalAppellateMatrimonialTribunaltobegivenweightandrespectbyourcour
tsmustbeanchoredin Canon 1095 par. 3 which is the basis of Article 36. Thus if the decision is based
on par. 2 of Canon 1095, the court should not give weight to it. (Najera vs. Najera)
Reiterated in the case of Mallilin vs. Jamesolamin
MALLILIN VS. JAMESOLAMIN
FACTS:
Robert and Luz were married in 1972. They begot three children. On 16 March 1994, Robert filed a
case for annulment of their marriage on the ground of psychological incapacity under Article 36 of
the Family Code. Robert’s petition was tried by the family court (RTC) of CDO. Robert alleged that
at the time of the celebration of their marriage, Luz was suffering from psychological and mental
incapacity and unpreparedness to enter into such marital life and to comply with its essential
obligations and responsibilities. He alleged that such incapacity became even more apparent
during their marriage when Luz exhibited clear manifestation of immaturity, irresponsibility,
deficiency of independent rational judgment, and inability to cope with the heavy and oftentimes
demanding obligation of a parent. (In the meantime, Robert’s petition with Metropolitan Tribunal and
the National Matrimonial Tribunal of the Catholic Church was granted and their marriage declared void)
After the hearing, the family court granted the petition but the Court of Appeals reversed family
court and declared that there is no psychological incapacity.
ISSUE : Whether or not the Court of Appeals is correct in declaring that there is no psychological
incapacity to warrant annulment of marriage.
RULING : Court of Appeals is correct.
What is “psychological incapacity” within the meaning of Article 36 of the Family Code of the
Philippines?
“Psychological incapacity,” as a ground to nullify a marriage under Article 36 of the Family Code,
should refer to no less than a mental – not merely 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 in Article 68 of the Family Code,
among others, include their mutual obligations to live together; observe love, respect and fidelity;
and render help and support. There is hardly a 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.”
What characterizes “psychological incapacity” to constitute grounds for annulment of marriage?
a) gravity c) incurability b) juridical antecedence and
“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 only emerge after the marriage. It must be
incurable or, even if it were otherwise, the cure would be beyond the means of the party involved.”
Guidelines in resolving petitions for declaration of nullity of marriage.
“(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt
should be resolved in favor of the existence and continuation of the marriage and against its
dissolution and nullity.
“(2) The root cause of the psychological incapacity must be (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.
“(3) The incapacity must be proven to be existing at “the time of the celebration” of the marriage.
“(4) Such incapacity must also be shown to be medically or clinically permanent or incurable.
“(5) Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, “mild characteriological peculiarities, mood changes,
occasional emotional outbursts” cannot be accepted as root causes.
“(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family
Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in
regard to parents and their children. Such non-complied marital obligation(s) must also be stated
in the petition, proven by evidence and included in the text of the decision.
“(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church
in the Philippines, while not controlling or decisive, should be given great respect by our courts.
“(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear
as counsel for the state.”
When can the evidence of psychological incapacity be considered as medically and clinically
indentified?
“Based on the records, Robert failed to prove that Luz’s disposition of not cleaning the room,
preparing their meal, washing the clothes, and propensity for dating and receiving different male
visitors, was grave, deeply rooted, and incurable within the parameters of jurisprudence on
psychological incapacity. The alleged failure of Luz to assume her duties as a wife and as a mother,
as well as her emotional immaturity, irresponsibility and infidelity, cannot rise to the level of
psychological incapacity that justifies the nullification of the parties’ marriage. The Court has
repeatedly stressed that psychological incapacity contemplates “downright incapacity or inability
to take cognizance of and to assume the basic marital obligations,” not merely the refusal, neglect
or difficulty, much less ill will, on the part of the errant spouse. Indeed, to be declared clinically or
medically incurable is one thing; to refuse or be reluctant to perform one’s duties is another.
Psychological incapacity refers only to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and significance to the
marriage.”
Is sexual perversion or promiscuity of an errant spouse alone enough to constitute psychological

incapacity? When can sexual promiscuity be considered psychological incapacity?
“No. As correctly found by the CA, sexual infidelity or perversion and abandonment do not, by
themselves, constitute grounds for declaring a marriage void based on psychological incapacity.
Robert argues that the series of sexual indiscretion of Luz were external manifestations of the
psychological defect that she was suffering within her person, which could be considered as
nymphomania or “excessive sex hunger.” Other than his allegations, however, no other
convincing evidence was adduced to prove that these sexual indiscretions were considered as
nymphomania, and that it was grave, deeply rooted, and incurable within the term of
psychological incapacity embodied in Article 36. To stress, Robert’s testimony alone is
insufficient to prove the existence of psychological incapacity.” “.... respondent’s act of living an
adulterous life cannot automatically be equated with a psychological disorder, especially when no
specific evidence was shown that promiscuity was a trait already existing at the inception of
marriage. The petitioner must be able to establish that the respondent’s unfaithfulness was a
manifestation of a disordered personality, which made her completely unable to discharge the
essential obligations of the marital state.”
(Please observe however the tenor of the underscored portion of the decision. Robert’s argument that
nymphomania constitutes psychological incapacity might have been considered had it been backed up with
proper evidence.
What is the probative value of the decision of the National Matrimonial Tribunal of the
Catholic Church?
“...the decision of the Metropolitan Tribunal is insufficient to prove the psychological incapacity of
Luz. Although it is true that in the case of Republic v. Court of Appeals and Molina, the Court
stated that interpretations given by the NAMT of the Catholic Church in the Philippines, while not
controlling or decisive, should be given great respect by our courts, still it is subject to the law on
evidence. Thus: Since the purpose of including such provision in our Family Code is to harmonize
our civil laws with the religious faith of our people, it stands to reason that to achieve such
harmonization, great persuasive weight should be given to decisions of such appellate tribunal.
Ideally – subject to our law on evidence – what is decreed as [canonically] invalid should be
decreed civilly void x x x. Pertinently, Rule 132, Section 34 of the Rules of Evidence provides: The
court shall consider no evidence which has not been formally offered. The purpose of which the evidence is
offered must be specified. In this regard, the belated presentation of the decision of the NAMT cannot
be given value since it was not offered during the trial, and the Court has in no way of ascertaining
the evidence considered by the same tribunal.
In this regard, the belated presentation of the decision of the NAMT cannot be given value since it
was not offered during the trial, and the Court has in no way of ascertaining the evidence
considered by the same tribunal.
Granting that it was offered and admitted, it must be pointed out that the basis of the declaration
of nullity of marriage by the NAMT was not the third paragraph of Canon 1095 which mentions
causes of a psychological nature similar to Article 36 of the Family Code, but the second
paragraph of Canon 1095 which refers to those who suffer from grave lack of discretion of
judgment concerning essential matrimonial rights and obligations to be mutually given and
accepted.
Hence, Robert’s reliance on the NAMT decision is misplaced. To repeat, the decision of the NAMT
was based on the second paragraph of Canon 1095 which refers to those who suffer from a grave
lack of discretion of judgment concerning essential matrimonial rights and obligations to be
mutually given and accepted, a cause not of psychological nature under Article 36 of the Family
Code. A cause of psychological nature similar to Article 36 is covered by the third paragraph of
Canon 1095 of the Code of Canon Law (Santos v. Santos)
Guideline Number 8 : No longer applicable. The guideline reflects that the judges are somehow
under the authority of the Solicitor General, thus the Supreme Court issued an Administrative
Circular (A.M 02-11-10) removing such guideline.
THE PARTY WHO IS DECLARED PYSCHOLOGICALLY INCAPACITATED MAY STILL

CONTRACT MARRIAGE
The party who is declared psychologically incapacitated by the court may still contract marriage since this is
a very limited and personal ground. Moreover, it does not mean that just because a person is psychologically
incapacitated to perform his/her marital obligations with his or her current spouse, he/she will also
psychologically incapacitated by another partner.
MORAL DAMAGES
Moral damages cannot be recovered from the guilty party in an action for declaration of nullity of marriage
on the ground of psychological incapacity. This is because a psychological incapacitated person is not aware
of his incapacity and therefore cannot be held answerable for moral damage. There is no bad faith on the
part of the guilty spouse, hence, there is no basis for the grant of moral damages
RELAXATION OF THE MOLINA DOCTRINE
With the promulgation of the Molina Doctrine, it has now become very much difficult for the
courts to grant petitions to declare the marriage void under Article 36, because the jurisprudential
guidelines laid down by the SC in the Molina case is very strict that is difficult now to have a
favourable judgement.  
Because of that the Supreme Court decided to relax the rules, and this was incorporated in the case
of Eduard Ngo Te vs Rowena Yu Te. In this case the SC criticized the Molina doctrine saying that :
 
“In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the
one in Molina, in resolving all cases of psychological incapacity. Understandably, the Court was
then alarmed by the deluge of petitions for the dissolution of marital bonds, and was sensitive to
the OSGs exaggeration of Article 36 as the most liberal divorce procedure in the world. The
unintended consequences of Molina, however, has taken its toll on people who have to live with
deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites,
consume little by little the very foundation of their families, our basic social institutions. Far from
what was intended by the Court, Molina has become a strait-jacket, forcing all sizes to fit into
and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has
allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to
continuously debase and pervert the sanctity of marriage. Ironically, the Roman Rota has
annulled marriages on account of the personality disorders of the said individuals.
 The Court need not worry about the possible abuse of the remedy provided by Article 36, for
there are ample safeguards against this contingency, among which is the intervention by the State,
through the public prosecutor, to guard against collusion between the parties and/or fabrication of
evidence. The Court should rather be alarmed by the rising number of cases involving marital
abuse, child abuse, domestic violence and incestuous rape.
 In dissolving marital bonds on account of either party’s psychological incapacity, the Court is not
demolishing the foundation of families, but it is actually protecting the sanctity of marriage,
because it refuses to allow a person afflicted with a psychological disorder, who cannot comply
with or assume the essential marital obligations, from remaining in that sacred bond. It may be
stressed that the infliction of physical violence, constitutional indolence or laziness, drug
dependence or addiction, and psychosexual anomaly are manifestations of a sociopathic
personality anomaly. Let it be noted that in Article 36, there is no marriage to speak of in the first
place, as the same is void from the very beginning. To indulge in imagery, the declaration of
nullity under Article 36 will simply provide a decent burial to a stillborn marriage.  
The prospect of a possible remarriage by the freed spouses should not pose too much of a concern
for the Court. First and foremost, because it is none of its business6. And second, because the
judicial declaration of psychological incapacity operates as a warning or a lesson learned. On one
hand, the normal spouse would have become vigilant, and never again marry a person with a
personality disorder. On the other hand, a would-be spouse of the psychologically incapacitated
runs the risk of the latter’s disorder recurring in their marriage.
 Lest it be misunderstood, we are not suggesting the abandonment of Molina in this case. We
simply declare that, as aptly stated by Justice Dante O. Tinga in Antonio v. Reyes, there is need to
emphasize other perspectives as well which should govern the disposition of petitions for
declaration of nullity under Article 36. At the risk of being redundant, we reiterate once more the
principle that each case must be judged, not on the basis of a priori assumptions, predilections
or generalizations but according to its own facts. And, to repeat for emphasis, courts should
interpret the provision on a case-to-case basis; guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of church tribunals.
VALERIO KALAW vs. ELENA FERNANDEZ
FACTS:
In the case at bar, Kalaw presented the testimonies of two supposed expert witnesses who
concluded that respondent is psychologically incapacitated. Petitioner’s experts heavily relied on
petitioner’s allegations of respondent’s constant mahjong sessions, visits to the beauty parlor,
going out with friends, adultery, and neglect of their children. Petitioner’s experts opined that
respondent’s alleged habits, when performed constantly to the detriment of quality and quantity of
time devoted to her duties as mother and wife, constitute a psychological incapacity in the form of
NPD.
However, the Supreme Court in its September 19, 2011 decision dismissed the complaint for
declaration of nullity of the marriage on the ground that there was no factual basis for the
conclusion of psychological incapacity.
ISSUE:
HELD:
YES. The Court in granting the Motion for Reconsideration held that Fernandez was indeed
psychologically incapacitated as they relaxed the previously set forth guidelines with regard to this
case.
Note: Molina guidelines were not abandoned, expert opinions were just given much respect in this case.
Guidelines too rigid, thus relaxed IN THIS CASE

The Court held that the guidelines set in the case of Republic v. CA have turned out to be rigid,
such that their application to every instance practically condemned the petitions for declaration of
nullity to the fate of certain rejection. But Article 36 of the Family Code must not be so strictly and
too literally read and applied given the clear intendment of the drafters to adopt its enacted
version of “less specificity” obviously to enable “some resiliency in its application.” Instead, every
court should approach the issue of nullity “not on the basis of a priori assumptions, predilections
or generalizations, but according to its own facts” in recognition of the verity that no case would be
on “all fours” with the next one in the field of psychological incapacity as a ground for the nullity
of marriage; hence, every “trial judge must take pains in examining the factual milieu and the
appellate court must, as much as possible, avoid substituting its own judgment for that of the
trial court.
In the task of ascertaining the presence of psychological incapacity as a ground for the nullity of
marriage, the courts, which are concededly not endowed with expertise in the field of psychology, must of
necessity rely on the opinions of experts in order to inform themselves on the matter, and thus enable
themselves to arrive at an intelligent and judicious judgment. Indeed, the conditions for the malady of
being grave, antecedent and incurable demand the in-depth diagnosis by experts.
Personal examination by party not required; totality of evidence must be considered
We have to stress that the fulfillment of the constitutional mandate for the State to protect marriage
as an inviolable social institution only relates to a valid marriage. No protection can be accorded to
a marriage that is null and void ab initio, because such a marriage has no legal existence.
There is no requirement for one to be declared psychologically incapacitated to be personally

examined by a physician, because what is important is the presence of evidence that adequately
establishes the party’s psychological incapacity. Hence, “if the totality of evidence presented is
enough to sustain a finding of psychological incapacity, then actual medical examination of the
person concerned need not be resorted to.”
Verily, the totality of the evidence must show a link, medical or the like, between the acts that
manifest psychological incapacity and the psychological disorder itself. If other evidence showing
that a certain condition could possibly result from an assumed state of facts existed in the record,
the expert opinion should be admissible and be weighed as an aid for the court in interpreting such
other evidence on the causation.
Indeed, an expert opinion on psychological incapacity should be considered as conjectural or

speculative and without any probative value only in the absence of other evidence to establish
causation. The expert’s findings under such circumstances would not constitute hearsay that
would justify their exclusion as evidence.
Expert opinion considered as decisive evidence as to psychological and emotional temperaments
The findings of the Regional Trial Court (RTC) on the existence or non-existence of a party’s
psychological incapacity should be final and binding for as long as such findings and
evaluation of the testimonies of witnesses and other evidence are not shown to be clearly and
manifestly erroneous. In every situation where the findings of the trial court are sufficiently
supported by the facts and evidence presented during trial, the appellate court should restrain
itself from substituting its own judgment. It is not enough reason to ignore the findings and
evaluation by the trial court and substitute our own as an appellate tribunal only because the
Constitution and the Family Code regard marriage as an inviolable social institution. We have to
stress that the fulfilment of the constitutional mandate for the State to protect marriage as an
inviolable social institution only relates to a valid marriage. No protection can be accorded to a
marriage that is null and void ab initio, because such a marriage has no legal existence
The findings and evaluation by the RTC as the trial court deserved credence because it was in the
better position to view and examine the demeanor of the witnesses while they were testifying. The
position and role of the trial judge in the appreciation of the evidence showing the psychological
incapacity were not to be downplayed but should be accorded due importance and respect.
The Court considered it improper and unwarranted to give to such expert opinions a merely
generalized consideration and treatment, least of all to dismiss their value as inadequate basis for
the declaration of the nullity of the marriage. Instead, we hold that said experts sufficiently and
competently described the psychological incapacity of the respondent within the standards of
Article 36 of the Family Code. We uphold the conclusions reached by the two expert witnesses
because they were largely drawn from the case records and affidavits, and should not anymore be
disputed after the RTC itself had accepted the veracity of the petitioner’s factual premises.
The Court also held that the courts must accord weight to expert testimony on the psychological
and mental state of the parties in cases for the declaration of the nullity of marriages, for by the
very nature of Article 36 of the Family Code the courts, “despite having the primary task and burden of
decision-making, must not discount but, instead, must consider as decisive evidence the expert opinion on
the psychological and mental temperaments of the parties.”
Willfully exposing children to gambling constitutes neglect of parental duties
The frequency of the respondent’s mahjong playing should not have delimited our determination
of the presence or absence of psychological incapacity. Instead, the determinant should be her
obvious failure to fully appreciate the duties and responsibilities of parenthood at the time she
made her marital vows. Had she fully appreciated such duties and responsibilities, she would have
known that bringing along her children of very tender ages to her mahjong sessions would expose
them to a culture of gambling and other vices that would erode their moral fiber. Nonetheless, the
long-term effects of the respondent’s obsessive mahjong playing surely impacted on her family
life, particularly on her very young children.
The fact that the respondent brought her children with her to her mahjong sessions did not only
point to her neglect of parental duties, but also manifested her tendency to expose them to a
culture of gambling. Her willfully exposing her children to the culture of gambling on every
occasion of her mahjong sessions was a very grave and serious act of subordinating their needs for
parenting to the gratification of her own personal and escapist desires.
The respondent revealed her wanton disregard for her children’s moral and mental development.
This disregard violated her duty as a parent to safeguard and protect her children.
Note: This case was denied by the lower courts, and when it was first appealed to the Supreme Court, the
Court denied the petition ruling saying that there was no psychological incapacity. But a motion for
reconsideration was filed, and it was then that the Court reversed the ruling. (The phrases emphasized by
dean, are in bold letters)
Seven days after the promulgation of Kalaw, came the case of GLENN VIÑAS vs. MARY GRACE
PAREL-VIÑAS, where the Court again denied the petition. According to the Supreme Court :
“The lack of personal examination or assessment of the respondent by a psychologist or psychiatrist is not
necessarily fatal in a petition for the declaration of nullity of marriage. If the totality of evidence presented is
enough to sustain a finding of psychological incapacity, then actual medical examination of the person
concerned need not be resorted to.
In the instant petition, however, the cumulative testimonies of Glenn, Dr. Tayag and Rodelito, and the
documentary evidence offered do not sufficiently prove the root cause, gravity and incurability of Mary
Grace’s condition. The evidence merely shows that Mary Grace is outgoing, strong-willed and not inclined to
perform household chores. Further, she is employed in Dubai and is romantically-involved with another man.
She has not been maintaining lines of communication with Glenn at the time the latter filed the petition
before the RTC. Glenn, on the other hand, is conservative, family-oriented and is the exact opposite of Mary
Grace. While Glenn and Mary Grace possess incompatible personalities, the latter’s acts and traits do not
necessarily indicate psychological incapacity.”
Note: Every time the court denies a petition, it never fails to cite the 3 elements of psychological
incapacity. If one element is lacking, then the petition will be denied.
OTHER CASES : 
Ting vs Velez-Ting : The Supreme Court said that the respondent failed to prove that the
psychological incapacity was existing at the time of marriage.
Rumbauav.Rumbaua: “In Bier v.Bier,we ruled that it was not enough that respondent, alleged to be
psychologically incapacitated, had difficulty in complying with his marital obligations, or was unwilling to
perform these obligations. Proof of a natal or supervening disabling factor – an adverse integral element in
the respondent’s personality structure that effectively incapacitated him from complying with his essential
marital obligations – had to be shown and was not shown in this cited case.
In the present case, the respondent’s stubborn refusal to cohabit with the petitioner was doubtlessly
irresponsible, but it was never proven to be rooted in some psychological illness. x x x Likewise, the
respondent’s act of living with another woman four years into the marriage cannot automatically be equated
with a psychological disorder, especially when no specific evidence was shown that promiscuity was a trait
already existing at the inception of marriage. In fact, petitioner herself admitted that respondent was caring
and faithful when they were going steady and for a time after their marriage; their problems only came in
later.”
AscuevavsRepublic–dependent personality disorder is a form of psychological incapacity.
Article 37. Marriages between the following are incestuous and void from the beginning,
whether the relationship between the parties be legitimate or illegitimate:
1) between ascendants and descendants of any degree; and

2) between brothers and sisters, whether of the full or half-blood
REASONS FOR THE PROHIBITION OF INCESTUOUS MARRIAGE
1. universally condemned as grossly indecent, immoral and inimical to the purity and
happiness of the family and the welfare of future generations
2. it has been scientifically proven that intermarriages very often result in deficient and
degenerate offsprings
Article 38. The following marriage shall be void from the beginning for reasons of public
policy:
1. Between collateral blood relatives, whether legitimate or illegitimate, up to fourth civil

degree;
2. Between step-parents and step-children;
3. Between parents-in-law and children-in-law
4. Between the adopting parent and the adopted child
5. Between the surviving spouse of the adopting parents and the adopted child
6. Between the surviving spouse of the adopted child and the adopter
7. Between an adopted child and a legitimate child of the adopter;
8. Between the adopted children of the same adopter;
9. Between parties where one, with the intention to marry the other, killed that other
person’s spouse or his or her own spouse.
REASONS FOR PROHIBITION OF VOID MARRIAGES
o Marriages described therein are against public policy. It is the policy of the state to foster
normal, peaceful and wholesome integral nuclear family unit which would constitute the
very foundation of society.
o Under the 7th prohibition” If Illegitimate, there is no prohibition
If you are an adopted child you cannot marry the legitimate child of your adopter, but if
illegitimate, it is not covered by the prohibition.
o The enumeration is exclusive. Those not included is deemed excluded. Thus the following
marriages are VALID:
o A. Between the adopted child and the illegitimate child of the adopter;
o B. Between the adopter and the relatives of the adopted; 
o C. Between step brothers and step sisters 
o D. Between brothers-in-law and sisters-in-law
Article 39. The action or defense for the declaration of absolute nullity of a marriage shall
not prescribe. (As amended by EO 227)
PRESCRIPTION
When the marriage is void,there is no prescription 
oUnder the Old Law, it used to provide for a prescriptive period for Article 36, only if the marriage
was celebrated before the effectivity of the Family Code. If you were married before August 3,
1988, you can have your marriage declared void on the ground of psychological incapacity only
within the first 10 years from the effectivity of the the Family Code. Thus only from August 3, 1988
until August of 1998.
o All other forms of void marriages, there was no prescriptive period. 
o RA 8533 removed the 10-year prescriptive period. The applicable rule now is that even if you
were married in the 1950s or 1940s, you can still have you marriage declared void now under
Article 36, since there is no more prescriptive period under psychological incapacity.
General Rule : No other person, other than the parties to the marriage (husband and wife) may file
for the declaration of nullity of marriage or the annulment of the marriage.
XPN: Parents may ask that the marriage of their daughter/son be declared void in cases of
Voidable Marriages where their child is between 18-21 and there was absence of consent on the
part of the parents.
Even the guilty spouse may have the marriage declared void (Chi Ming Tsoi case)  
An action to declare the marriage void on the ground of psychological incapacity can be filed even
by the incapacitated  spouse.  
Thelawdoesnotprohibittheguiltyspousefrombringingtheactionincourtasavoidmarriageisnotratifiabl
eandtheinpari  delicto rule will not apply here.
In Ninal v. Bayadog: prescription odes not hold anymore because said resolution provides that only the
husband and the wife can file the case, and if filed the case will be closed or terminated if during its pendency,
either the husband or wife should die.
Parents cannot file a case for nullity in relation to the marriage of their children. Neither can an heir file such
a case in relation to the marriage of his or her parent within another.
In Fujiki v. Marinay: “a petition for absolute nullity of void marriage may be filed solely by the husband
and wife—it refers to the husband or the wife of the subsisting marriage”
In Perez v. Court of Appeals: “the second wife has no legal interest to justify her intervention”
SUMMARY:
The void marriages are found in Articles 35, 36, 37, 38, 40, 53.  
Void marriages under Article 35 are Void ab initio marriages because of absence of any essential or
formal requisites  
Void marriages under Article 36 are void because a party is psychologically incapacitated  
Void marriages under Article 37 are void because there are incestuous marriages  
Void marriages under Article 38 since they are against public policy  
If the marriage is void, action to declare it void is imprescriptible  
Article 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage.
Judicial Declaration of Nullity
o If a marriage between two contracting parties is void ab initio, any one of them cannot
contract a subsequent valid marriage without a previous judicial declaration of nullity of the
previous void marriage.
o The status of a subsequent marriage depends upon the time of the solemnization of the said
subsequent marriage.
o DOES NOT CONTEMPLATE A BIGAMOUS MARRIAGE: This provides that if your
marriage is void, have it declared void by the court before you can contract another  
It is true that if a marriage is void, it does not produce any legal effect. It is as if there was no
marriage  
o BUT for purposes of remarriage, have it declared void first otherwise the 2nd marriage is also
void .
The void marriage under Art. 40 refers to 2nd marriage contracted while the 1st marriage was still
subsisting even if that 1st  marriage is OBVIOUSLY null and void  
• When 1st marriage is void, law considers it non-existent. Is there a need to have it declared void?
SC in the past has been very  inconsistent8
o People vs Mendoza, People vs Aragon (decided 1950’s; already abandoned)
SC said there is no need for judicial declaration of nullity of marriage that is really void since it
is as if that marriage does not exist
o SC has now abandoned the above doctrine. This is now the prevailing rule: Gomez vs.
Lipara (1970), Consuegra vs. GSIS
There is a need for judicial declaration of marriage before contracting a 2nd marriage o There
has been a lot of flip-flopping in many cases but in 1986, the framers decided to incorporate in the
Family Code a
specific provision to solve the flip-flopping of the SC. Art. 40 now provides the rule.
• If you violate this, 2nd marriage is also void under Art. 40. Furthermore, the SC has been
consistent in saying that this is not only  void but also BIGAMOUS (settled rule). You can
be charged for Bigamy  
CASES
James Capili vs. Tismo  
o SC: Jurisprudence is replete with cases holding that the accused may still be charged with a crime
of bigamy even if there is a subsequent declaration of nullity of the 2 nd marriage so long as the 1st
marriage was still subsisting when the 2nd was celebrated
What is important is that when you contracted the 2nd, the 1st marriage was subsisting even if the
1st was void ab initio marriage
People vs. Odtojan
o SC: The issue is not novel. We have already ruled upon this that there is bigamy when the 1st
marriage still subsists when the 2nd was contracted. Even if the 1st marriage was subsequently
declared void, what is important is that when he contracted the 2nd, the 1st was not yet declared
void. He is liable for bigamy.
Article 41. A marriage contracted by any person during subsistence of a previous marriage shall
be null and void, unless before the celebration of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present has a well-founded belief that the
absent spouse was already dead. In case of disappearance where there is danger of death under
the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only
two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the
spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
Article 42. The subsequent marriage referred to in the preceding article shall be automatically
terminated by the recording of the affidavit of reappearance of the absent spouse, unless there
is a judgment annulling the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil
registry of the residence of the parties to the subsequent marriage at the instance of any
interested person, with due notice to the spouses of the subsequent marriage and without
prejudice to the fact of reappearance being judicially determined in case such fact is disputed.
BIGAMOUS MARRIAGE
General rule: a marriage contracted during the lifetime of the first spouse is null and void.
Bigamous marriage is void ab initio.
XPN: if your spouse from your 1st marriage is presumed to be dead provided that you must first
obtain a judicial declaration of presumptive death of the absent spouse
You may have your spouse declared presumptively dead for the instances provided for purposes
of remarriage
4 years absence - well founded belief that the absent spouse is already dead
2 years – there is danger of death under the circumstances in Article 391.
o The rule is that if your spouse is already dead, you are now a widower/widow and thus
you can remarry. But if you are not sure if your spouse is really dead, you can remarry but
you must go to court and have your absent declared presumptively dead otherwise you will
be liable again for BIGAMY and 2nd marriage is VOID  
instances when the disappearance of spouse is considered UNDER GREAT DANGER OF DEATH:
 Article 391. The following shall be presumed dead for all purposes, including the division of the
estate among the heirs:  
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the vessel or aeroplane;
o The law says the vessel or airplane disappeared or is lost. It does not say plane crashed or vessel
sank. The ship really is lost like those that disappear in the Bermuda Triangle.
o If your spouse rode an airplane and it crashed, it was declared there is no survivor, you don’t
have to wait for 2 years. He really died there. But if the plane just disappeared, we can’t tell where
it went, you have to wait 2 years.
(2) A person in the armed forces who has taken part in war, and has been missing for four years;  
(3) A person who has been in danger of death under other circumstances and his existence has not
been known for four  years. o This refers to condition analogous to the 1st two. If after 4 years
you have not heard any word from your  absent spouse and you have reasonable ground to
believe he is dead, you can go to court and have him declared presumptively dead and you can
remarry  
• PURPOSE of declaration of presumptive death: To protect the present spouse from possible
prosecution of bigamy in case the 1st or absent spouse turns out to be alive. You cannot be
liable for bigamy if you have that declaration  
• This judicial declaration is a SUMMARY PROCEEDING under the Rules on Summary Judicial
Proceedings  
General Rule: Judicial declaration of presumptive death is required as such is a presumption that arises
from law
. XPN: No judicial declaration of presumption of death is needed in cases of Article 390 and 391 of
the Civil Code before the effectivity of the Family Code, since these are presumption that arises
from law  Article 390:  
• - The person has been absent for 7 years, it being unknown whether or not the absentee still
 lives.  
• - The absentee shall be presumed dead for all purposes except for succession, in which
cases,  the absentee shall be presumed dead after the lapse of 10 years.  Article 391:  
An absentee who is 75 years old and above is presumed dead if he has been absent for 5  years,
still unknown whether or not the absentee is still alive.  The decision of the court declaring the spouse
presumptively dead under article 41 is unappealable and is immediately executor since it falls under the
Summary Judicial Proceedings in the Family Law.  
REQUIREMENTS FOR DECLARATION OF PRESUMPTIVE DEATH
1.The absentee spouse must have been absent for 4 or 2 years under the circumstance prescribed
 by law.  
2.The present spouse must not know the whereabouts of the absent spouse.  
3.There must be a well-founded belief that the absent spouse is already dead.  
4.There must be an institution of a summary action for the declaration of presumptive death of the
 absent spouse.  
5.There must be final judgment declaring the absent spouse presumptively dead.  
CASES  
Republic vs Nolasco  
FACTS: Nolasco is a Filipino seaman who married a British woman and then they lived in the
province. Nolasco went back to work and he left the wife together with his mother. The wife said
she’s going to process some papers in Manila but never returned. When he came back, he never
saw her again. They never had any communication.
After several years, he filed a petition to declare the British wife as presumptively dead. He was
asked what he did to find her. He said he exerted all efforts. When their ship was docked in
England, he tried to look for her in London for several days. But during cross-examination, it was
found out that he knew that his wife is not from London but from Liverpool, England. It is about
300 miles from London.
RULING: Nolasco did not exert enough effort to locate his wife. His petition was not anchored on
a well-founded belief that the absent spouse is really dead. Show to the court that you have
sufficient basis to presume that your spouse is already dead.
Republic vs Cantor
SC: There are 4 essential requisites for the declaration of presumptive death
1.The absent spouse has been missing for 4 or 2 consecutive years as the case may be  
2.The present spouse wishes to remarry
Art. 41 is a new provision, and this is only important if you want to

REMARRY. If you have no intention to remarry, no need to go to court and have the
absent spouse declared presumptively dead.  
Why is there no need? There is already a provision in the Civil Code

regarding presumptive death
More than 7 years absence – he/she presumed dead by law  
10 years absence – purposes of opening up the estate for succession  
4 years – under great danger of death  
So in the Family Code regarding 4/2 years, this only applies for purposes
of remarriage  
3.Present spouse has well-founded belief that the absent spouse is dead
  Brought about by Republic vs. Nolasco  
4. Present spouse files a summary proceeding for declaration of presumptive death
Most of the cases under the Family Code are summary proceedings and this here is one of them
 
Valdez vs. Republic (2009)
Facts: Valdez was married to her husband in 1970 and he disappeared in

1974. These happened before the Family Code took effect. She waited for about 10
years. She tried to look but never found him. She finally decided to remarry in 1984,
still under the Civil Code (Family Code took effect in August 3, 1988, never forget
because this is the cut off!). She married a Filipino-American. While she was
processing her papers to go to USA, her application was denied because it was
discovered that she was still married to the 1st husband. When her petition was
denied, the Family Code was already effective. Her lawyer said, no problem! The
new Family Code says you can have your husband declared presumptively dead,
and so she filed a petition. OSG opposed because allegedly she did not exert earnest
efforts to look for him.  
SC: There is no need for Valdez to file a petition to declare her husband

presumptively dead. In the Civil Code, no judicial declaration of presumptive death
is required as such presumption arises from law. The present spouse may remarry
after the lapse of 7 or 4 years EVEN WITHOUT a judicial declaration of
presumptive death. Thus, if the disappearance of the husband and the subsequent
marriage of the wife 10 years after occur before the effectivity of the Family Code, the
marriage is valid even if there is no judicial declaration. The validity of the
subsequent marriage is determined by the law prevailing at the time of the marriage.
The Family Code, particularly Art. 41, cannot be applied retroactively. Proof of well-
founded belief is not required. In fact, the petition to declare the husband
presumptively dead is unnecessary.  
Bermudez vs. Loreno 
SC: A petition to declare your spouse presumptively dead under Art. 41 of

the FC is a petition that falls  under summary proceedings. Under the rule on
summary proceedings, the decision of the court in a   summary proceeding case is
FINAL, EXECUTORY AND UNAPPEALABLE. OSG was wrong in filing a notice of
appeal to the Court of Appeals. 
The appeal filed by the OSG was dismissed
Fermentino Tango vs. XXX
SC: The decision of a court declaring a spouse presumptively dead under

Art. 41 is unappealable and  immediately executory as it falls under the summary
judicial proceedings in Family Law. An aggrieved party may file a Petition for
certiorari under Rule 65. This is now the remedy to question the abuse of discretion
amounting to lack or excess of jurisdiction.  
This is what the OSG should have done. It should question based on grave
abuse of discretion. Go to the CA from the RTC. After, go to the SC by way of
Certiorari under Rule 45.  
SSS vs. Vda. De Baylon  
Facts:  The husband and wife were already separated. The husband
found another woman and wanted to marry her, but cannot because his 1 st marriage
was not annulled. So what he did is have his 1st wife declared presumptively dead.
The 1st wife did not object. So the husband now married again and he later on died.
He was to receive SSS benefit. The 2nd wife claimed it. But the 1st wife said, I’m the
legal wife. Give that to me.  SSS initially awarded it to the 2nd wife. However, it
later awarded the benefit to the 1st wife because according to it, the husband is
clearly in bad faith when he filed petition to declare presumptively dead the 1 st wife.
The 1st marriage was not dissolved. The judicial declaration of presumptive death is
of no moment. The 2nd wife went to the SC.  
SC: The declaration of presumptive death of the wife as declared by the

court cannot be overturned or disregarded by the SSS to award the death benefit of
the husband to the 1st wife because of its finding that the husband is in bad faith
when he filed the petition. That presumption of death can only be destroyed by the
reappearance of the absent spouse and execution of an affidavit of reappearance.
Without these, the presumption continues. Since the 1st wife did not reappear
despite knowledge that she was declared presumptively dead, the SSS does not have
authority to overrule the RTC. SSS has to follow the decision of the regular court. The
benefit should go to the 2nd wife.  
ARTICLE 42
o Reappearing spouse must execute Affidavit of Reappearance if he/she wants to get back the
present spouse and submit it to the office of the Local Civil Registrar where the present
spouse and 2nd spouse resides  
o Not only the reappearing spouse can execute the Affidavit – any interested party can  
o If the husband is not anymore willing, the children or even his parents can execute it
because they are considered interested  party. Even the 2nd husband is an interested party
and may execute the affidavit in order that he can return the wife to the 1st  spouse  
o Effect if reappearing spouse refuse to execute it and none is willing to execute: reappearing
spouse cannot remarry because  he is still married to the present spouse while the latter is
also married to the 2nd spouse and can continue living with the 2nd spouse. Thus, the wife
can continue living with the 2nd husband while the 1st cannot marry another woman  
ARTICLE 43. The termination of the subsequent marriage referred to in the preceding Article
shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to its termination shall be
considered legitimate;
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her
share of the net profits of the community property or conjugal partnership property shall be
forfeited in favor of the common children or, if there are none, the children of the guilty spouse
by a previous marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the
marriage in bad faith, such donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith
as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and intestate succession.
STATUS OF CHILDREN
o Children conceived during the subsequent marriage contemplated in Article 41 in cases of

presumptive death of one of the spouses and before termination of the same shall be
considered legitimate.
EFFECT OF TERMINATION ON THE PROPERTY REGIME
o The property regime shall be dissolved and liquidated

o The spouse shall divide the property equally or in accordance with the sharing stipulated in
a valid marriage settlement, unless there is a voluntary waiver of share by either of the
spouses upon the judicial separation of the property.
o These are the effects of the termination of the subsequent marriage because of the
reappearance of the absent spouse  
o Number 3:  Refers to donations propter nuptias (in favor of spouse in bad faith) or those
made before the marriage because spouses cannot donate to each other during the marriage
Example: Wife donated land to husband before marriage. Later, wife disappeared and
husband had her declared presumptively dead even if he knew she was alive. The husband
remarried and the 2nd wife also donated land to the husband before the marriage. 1st wife
reappeared and executed affidavit. The 2nd marriage is now dissolved. The donation made
by the 2nd wife is revoked by operation of law. Even if she did not want to revoke, it is still
revoked because it is automatic by operation of law.
o Number 4: The innocent spouse may revoke the designation of the other spouse who acted
in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as
irrevocable.
o If innocent spouse has made guilty spouse a beneficiary in life insurance policy, it can be
revoked even if irrevocable.
Article 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be
void ab initio and all donations by reason of marriage and testamentary dispositions made by one
in favor of the other are revoked by operation of law.
o if either spouse in subsequent marriage acted in bad faith, marriage is VOID under Art. 44.
 
VOIDABLE MARRIAGES
Article 45. A marriage may be annulled for any of the following causes, existing at the time of
the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years
of age or over but below twenty-one, and the marriage was solemnized without the consent of
the parents, guardian or person having substitute parental authority over the party, in that
order, unless after attaining the age of twenty-one, such party freely cohabited with the other
and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely
cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with
full knowledge of the facts constituting the fraud, freely cohabited with the other as husband
and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence,
unless the same having disappeared or ceased, such party thereafter freely cohabited with the
other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other,
and such incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and
appears to be incurable. (85a)
Article 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of
the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime
involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a
man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time
of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing

at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall

constitute such fraud as will give grounds for action for the annulment of marriage. (86a)
1) That the party in whose behalf it is sought to have the marriage annulled was eighteen
years of age or over but below twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having substitute parental authority over the
party, in that order, unless after attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as husband and wife
o If party to a marriage is between 18-21, party will have to present parental consent
o If parents do not give consent, marriage is voidable. Valid until annulled WHO CAN
ANNUL & PRESCRIPTIVE PERIODS:
o By the parents who did not give consent - any time before such party has reached the age of
21  
o By the party who did not secure the required parental consent - within 5 years after
attaining the age of 21  
o Action to declare marriage void is imprescriptible. If voidable, there is prescriptive period
o BASIS:
o Art. 47. The action for annulment of marriage must be filed by the following persons and
within the periods indicated herein: (1) For causes mentioned in number 1 of Article 45 by the
party whose parent or guardian did not give his or her consent, within five years after attaining the
age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any
time before such party has reached the age of twenty-one
(2) That either party was of unsound mind, unless such party after coming to reason, freely
cohabited with the other as husband and wife;
WHO CAN ANNUL & PRESCRIPTIVE PERIODS:
a. By the sane spouse, who had no knowledge of the other's insanity – at any time before the
death of either party
b. By any relative or guardian or person having legal charge of the insane – at any time before the
death of either party
c. By the insane spouse - during a lucid interval or after regaining sanity
BASIS:
Art. 47 (2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no
knowledge of the other's insanity; or by any relative or guardian or person having legal charge of
the insane, at any time before the death of either party, or by the insane spouse during a lucid
interval or after regaining sanity.
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with
full knowledge of the facts constituting the fraud, freely cohabited with the other as husband
and wife;
WHO CAN ANNUL & PRESCRIPTIVE PERIOD:
By the injured party - within 5 years after the discovery of the fraud (Art 47 (3)) Not all
deceit/fraud can invalidate the marriage
Article 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the
preceding Article:
(1)Non-disclosure of a previous conviction by final judgment of the other party of a crime
involving moral turpitude;
Example. Husband married wife and did not tell her he was an ex-convict for
rape/homicide/murder. It was only after marriage that the wife discovered. She may annul the
marriage on ground of fraud here in No.
Crime involving moral turpitude: reflects the bad character of person, examples are rape,
homicide, murder, robbery, theft
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a
man other than her husband;
o This is committed only by the wife

o This is a very serious fraud because there is the danger in the act of the wife in introducing
spurious blood into the family of the husband
o Like “human smuggling”
o If husband did not tell that he had previously impregnated someone, wife cannot ask for
annulment since there is no danger in introducing spurious blood into their family since it’s
another woman who will give birth
o Keyword CONCEALMENT
Bucat vs. Bucat: if the wife is already 7 months pregnant at the time of the marriage,
husband must have known of the pregnancy therefore he cannot anymore claim fraud
Aquino vs. Delizo: if the wife was still 5 months pregnant and she was plump, the
pregnancy may still be concealed
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of
the marriage; or
o “Regardless of its nature” – even if the STC is only mild and easy to cure or even just a few
days of antibiotics; still a ground of annulment
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at

the time of the marriage.
o No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall
constitute such fraud as will give ground for action for the annulment of marriage.
o If husband said before marriage he is very rich, that is not a ground if it turns out it’s not
true. Same if the wife before marriage declared she is a virgin even if she really was not.
These are not the frauds contemplated in this article.
(4) That the consent of either party was obtained by force, intimidation or undue influence,
unless the same having disappeared or ceased, such party thereafter freely cohabited with the
other as husband and wife;
o Consent refers to the time the spouse said I do. If that “I do” was obtained through forc,
etc..marriage can be annulled
o WHO CAN ANNUL & PRESCRIPTIVE PERIOD:
 by the injured party – within 5 years from the time the force, intimidation or undue
influence disappeared or ceased (Art.47 (4)).
(5) That either party was physically incapable of consummating the marriage with the other,
and such incapacity continues and appears to be incurable; or
Sex consummates marriage. If husband is not capable of performing it, it’s a ground for annulment
o Impotency is different from sterility. Sterility means he can perform sex but he cannot
produce a child. Impotency means husband is incapable of erection.
o If impotency is psychological, you can use Art. 36 like Chi Ming Tsoi. He was impotent
psychologically so it was psychological incapacity
o WHO CAN ANNUL & PRESCRIPTIVE PERIOD:
 Ø By the injured party - within 5 years after the marriage (Art. 47 (5))
Ø DOCTRINE OF TRIENNIAL COHABITATION: there is always the presumption of

potency that a man is potent when he married the wife. However, if the wife remains a virgin
for 3 years from marriage, the presumption is that the husband is impotent.
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and
appears to be incurable. (85a)
Differs from Art 46 (3) because there, the STD is not serious. Here, it is BOTH serious and
incurable, and existing before the marriage. In Art 46, concealment is an element, while here it is
not.
o WHO CAN ANNUL & PRESCRIPTIVE PERIOD: 
Ø By the injured party - within 5 years after the marriage (Art. 47 (5))
PROCEDURES in Annulment of Marriage and Declaration of Nullity of Marriage:
1. A complaint must be file in court. This is treated as a civil action.  

2. The court will prepare summons and will be served to the defendant.  
3. If there no answer from the defendant, this will not result to a default.  
4. The court will order the prosecutor to appear for the state and conduct an investigation
to determine whether or  not there is collusion between the parties.  
5. The parties will be invited to come to the prosecutor’s office in order for the prosecutor
to investigate.  
6. No judgment shall be based on stipulations of facts or confession of judgment.  
7. The support of the children while the case is pending shall be provided for.  
ARTICLE 47. The action for annulment of marriage must be filed by the following persons and
within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did
not give his or her consent, within five years after attaining the age of twenty-one, or by the
parent or guardian or person having legal charge of the minor, at any time before such party has
reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge
of the other's insanity; or by any relative or guardian or person having legal charge of the
insane, at any time before the death of either party, or by the insane spouse during a lucid
interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after
the discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from
the time the force, intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years
after the marriage.

Chapter 2 - Persons and Family

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PERSONS AND FAMILY RELATION | Notes by Patricia Candaza

CHAPTER 2: MARRIAGES EXEMPT FROM LICENSE REQUIREMENT

Exemption from marriage license:

1. Articulo mortis - at the point of death

NIÑAL vs. BAYADOG

TUPAL vs. JUDGE REMEGIO V. ROJO

REPUBLIC VS. DAYOT

DE CASTRO VS. ASSIDAO-DE CASTRO

CHAPTER 3: VOID AND VOIDABLE MARRIAGES

MALLION vs. ALCANTARA (2006)

TYPES OF VOID MARRIAGES:

Brief History of the Origin of Psychological Incapacity as a ground for annulment.

Canon 1095. The following are incapable of contracting marriage:

1. those who lack sufficient use of reason;

Psychological incapacity “to comply with the essential marital obligations.”

3 ELEMENTS OF PSYCHOLOGICAL INCAPACITY

2. Gravity - The defect must be very serious

LEOUEL SANTOS vs. CA

REPUBLIC vs. CA and MOLINA

ISSUE: Whether or not the finding of psychological incapacity is proper.

4. Such incapacity must also be shown to be medically or clinically permanent or incurable.

CHI MING TSOI vs. CA and GAINA LAO-TSOI

A wife who is a nymphomaniac may be considered psychologically incapacitated. She cannot

PERSONAL MEDICAL OR PSYCHOLOGICAL EXAMINATION

But in this case, was Wilson’s psychological incapacity proven?

RP vs. ERLINDA MATIAS DAGDAG

Guideline Number 7 : WEIGHT OF THE DECISION OF THE MATRIMONIAL TRIBUNAL OF

ANTONIO vs. REYES G.R. No. 155800

Reiterated in the case of Mallilin vs. Jamesolamin

MALLILIN VS. JAMESOLAMIN

RULING : Court of Appeals is correct.

What characterizes “psychological incapacity” to constitute grounds for annulment of marriage?

a) gravity c) incurability b) juridical antecedence and

Guidelines in resolving petitions for declaration of nullity of marriage.

Is sexual perversion or promiscuity of an errant spouse alone enough to constitute psychological

THE PARTY WHO IS DECLARED PYSCHOLOGICALLY INCAPACITATED MAY STILL

RELAXATION OF THE MOLINA DOCTRINE

VALERIO KALAW vs. ELENA FERNANDEZ

Guidelines too rigid, thus relaxed IN THIS CASE

Personal examination by party not required; totality of evidence must be considered

There is no requirement for one to be declared psychologically incapacitated to be personally

Indeed, an expert opinion on psychological incapacity should be considered as conjectural or

Expert opinion considered as decisive evidence as to psychological and emotional temperaments

Willfully exposing children to gambling constitutes neglect of parental duties

AscuevavsRepublic–dependent personality disorder is a form of psychological incapacity.

1) between ascendants and descendants of any degree; and

REASONS FOR THE PROHIBITION OF INCESTUOUS MARRIAGE

1. Between collateral blood relatives, whether legitimate or illegitimate, up to fourth civil

REASONS FOR PROHIBITION OF VOID MARRIAGES

When the marriage is void,there is no prescription

o All other forms of void marriages, there was no prescriptive period.

If the marriage is void, action to declare it void is imprescriptible

Judicial Declaration of Nullity

o People vs Mendoza, People vs Aragon (decided 1950’s; already abandoned)

James Capili vs. Tismo

People vs. Odtojan

2 years – there is danger of death under the circumstances in Article 391.

REQUIREMENTS FOR DECLARATION OF PRESUMPTIVE DEATH

2.The present spouse wishes to remarry

Art. 41 is a new provision, and this is only important if you want to

Why is there no need? There is already a provision in the Civil Code

More than 7 years absence – he/she presumed dead by law

10 years absence – purposes of opening up the estate for succession

1. those who lack sufficient use of reason;  

3 ELEMENTS OF PSYCHOLOGICAL INCAPACITY 

2. Gravity - The defect must be very serious 

a) gravity c) incurability b) juridical antecedence and

When the marriage is void,there is no prescription 

o All other forms of void marriages, there was no prescriptive period. 

If the marriage is void, action to declare it void is imprescriptible  

James Capili vs. Tismo  

More than 7 years absence – he/she presumed dead by law  

10 years absence – purposes of opening up the estate for succession  

4 years – under great danger of death  

  Brought about by Republic vs. Nolasco  

Facts: Valdez was married to her husband in 1970 and he disappeared in

SC: There is no need for Valdez to file a petition to declare her husband

Bermudez vs. Loreno 

SSS vs. Vda. De Baylon  

SC: The declaration of presumptive death of the wife as declared by the

o WHO CAN ANNUL & PRESCRIPTIVE PERIOD: 

1. A complaint must be file in court. This is treated as a civil action.  