[ G.R. No.

132529, February 02, 2001 ]

SUSAN NICDAO CARIÑO, PETITIONER, VS. SUSAN YEE

CARIÑO, RESPONDENT.

DECISION

YNARES-SANTIAGO, J.:

The issue for resolution in the case at bar hinges on the validity
of the two marriages contracted by the deceased SPO4
Santiago S. Cariño, whose "death benefits" is now the subject of
the controversy between the two Susans whom he married.

Before this Court is a petition for review on certiorari seeking to

set aside the decision[1] of the Court of Appeals in CA-G.R. CV
No. 51263, which affirmed in toto the decision[2] of the Regional
Trial Court of Quezon City, Branch 87, in Civil Case No. Q-93-
18632.

During the lifetime of the late SPO4 Santiago S. Cariño, he

contracted two marriages, the first was on June 20, 1969, with
petitioner Susan Nicdao Cariño (hereafter referred to as Susan
Nicdao), with whom he had two offsprings, namely, Sahlee and
Sandee Cariño; and the second was on November 10, 1992,
with respondent Susan Yee Cariño (hereafter referred to as
Susan Yee), with whom he had no children in their almost ten
year cohabitation starting way back in 1982.

In 1988, SPO4 Santiago S. Cariño became ill and bedridden due

to diabetes complicated by pulmonary tuberculosis. He passed
away on November 23, 1992, under the care of Susan Yee, who
spent for his medical and burial expenses. Both petitioner and
respondent filed claims for monetary benefits and financial
assistance pertaining to the deceased from various government
agencies. Petitioner Susan Nicdao was able to collect a total of
Page 1 of 109
P146,000.00 from "MBAI, PCCUI, Commutation, NAPOLCOM,
[and] Pag-ibig,"[3] while respondent Susan Yee received a total
of P21,000.00 from "GSIS Life, Burial (GSIS) and burial
(SSS)."[4]

On December 14, 1993, respondent Susan Yee filed the instant

case for collection of sum of money against petitioner Susan
Nicdao praying, inter alia, that petitioner be ordered to return to
her at least one-half of the one hundred forty-six thousand pesos
(P146,000.00) collectively denominated as "death benefits"
which she (petitioner) received from "MBAI, PCCUI,
Commutation, NAPOLCOM, [and] Pag-ibig." Despite service of
summons, petitioner failed to file her answer, prompting the trial
court to declare her in default.

Respondent Susan Yee admitted that her marriage to the

deceased took place during the subsistence of, and without first
obtaining a judicial declaration of nullity of, the marriage
between petitioner and the deceased. She, however, claimed
that she had no knowledge of the previous marriage and that
she became aware of it only at the funeral of the deceased,
where she met petitioner who introduced herself as the wife of
the deceased. To bolster her action for collection of sum of
money, respondent contended that the marriage of petitioner
and the deceased is void ab initio because the same was
solemnized without the required marriage license. In support
thereof, respondent presented: 1) the marriage certificate of the
deceased and the petitioner which bears no marriage license
number;[5] and 2) a certification dated March 9, 1994, from the
Local Civil Registrar of San Juan, Metro Manila, which reads -
This is to certify that this Office has no record of marriage
license of the spouses SANTIAGO CARINO (sic) and
SUSAN NICDAO, who are married in this municipality on
June 20, 1969. Hence, we cannot issue as requested a
true copy or transcription of Marriage License number
from the records of this archives.
Page 2 of 109
 This certification is issued upon the request of Mrs. Susan
Yee Cariño for whatever legal purpose it may serve. [6]

On August 28, 1995, the trial court ruled in favor of respondent,

Susan Yee, holding as follows:

WHEREFORE, the defendant is hereby ordered to pay

the plaintiff the sum of P73,000.00, half of the amount
which was paid to her in the form of death benefits arising
from the death of SPO4 Santiago S. Cariño, plus
attorney's fees in the amount of P5,000.00, and costs of
suit.

IT IS SO ORDERED.[7]

On appeal by petitioner to the Court of Appeals, the latter

affirmed in toto the decision of the trial court. Hence, the instant
petition, contending that:

I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED
IN AFFIRMING THE FINDINGS OF THE LOWER COURT
THAT VDA. DE CONSUEGRA VS. GSIS IS APPLICABLE TO
THE CASE AT BAR.

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED

IN APPLYING EQUITY IN THE INSTANT CASE INSTEAD OF
THE CLEAR AND UNEQUIVOCAL MANDATE OF THE FAMILY
CODE.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED

Page 3 of 109
IN NOT FINDING THE CASE OF VDA. DE CONSUEGRA VS
GSIS TO HAVE BEEN MODIFIED, AMENDED AND EVEN
ABANDONED BY THE ENACTMENT OF THE FAMILY
CODE.[8]

Under Article 40 of the Family Code, 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 void. Meaning, where the absolute nullity of a previous
marriage is sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law, for said
projected marriage to be free from legal infirmity, is a final
judgment declaring the previous marriage void. [9] However, for
purposes other than remarriage, no judicial action is necessary
to declare a marriage an absolute nullity. For other purposes,
such as but not limited to the determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter,
the court may pass upon the validity of marriage even after the
death of the parties thereto, and even in a suit not directly
instituted to question the validity of said marriage, so long as it is
essential to the determination of the case. [10] In such instances,
evidence must be adduced, testimonial or documentary, to
prove the existence of grounds rendering such a previous
marriage an absolute nullity. These need not be limited solely to
an earlier final judgment of a court declaring such previous
marriage void.[11]

It is clear therefore that the Court is clothed with sufficient

authority to pass upon the validity of the two marriages in this
case, as the same is essential to the determination of who is
rightfully entitled to the subject "death benefits" of the deceased.

Under the Civil Code, which was the law in force when the
marriage of petitioner Susan Nicdao and the deceased was
Page 4 of 109
solemnized in 1969, a valid marriage license is a requisite of
marriage,[12] and the absence thereof, subject to certain
exceptions,[13] renders the marriage void ab initio.[14]

In the case at bar, there is no question that the marriage of

petitioner and the deceased does not fall within the marriages
exempt from the license requirement. A marriage license,
therefore, was indispensable to the validity of their marriage.
This notwithstanding, the records reveal that the marriage
contract of petitioner and the deceased bears no marriage
license number and, as certified by the Local Civil Registrar of
San Juan, Metro Manila, their office has no record of such
marriage license. In Republic v. Court of Appeals,[15] the Court
held that such a certification is adequate to prove the non-
issuance of a marriage license. Absent any circumstance of
suspicion, as in the present case, the certification issued by the
local civil registrar enjoys probative value, he being the officer
charged under the law to keep a record of all data relative to the
issuance of a marriage license.

Such being the case, the presumed validity of the marriage of

petitioner and the deceased has been sufficiently overcome. It
then became the burden of petitioner to prove that their marriage
is valid and that they secured the required marriage license.
Although she was declared in default before the trial court,
petitioner could have squarely met the issue and explained the
absence of a marriage license in her pleadings before the Court
of Appeals and this Court. But petitioner conveniently avoided
the issue and chose to refrain from pursuing an argument that
will put her case in jeopardy. Hence, the presumed validity of
their marriage cannot stand.

It is beyond cavil, therefore, that the marriage between petitioner

Susan Nicdao and the deceased, having been solemnized
without the necessary marriage license, and not being one of the
marriages exempt from the marriage license requirement, is
Page 5 of 109
undoubtedly void ab initio.

It does not follow from the foregoing disquisition, however, that

since the marriage of petitioner and the deceased is declared
void ab initio, the "death benefits" under scrutiny would now be
awarded to respondent Susan Yee. To reiterate, under Article 40
of the Family Code, for purposes of remarriage, there must first
be a prior judicial declaration of the nullity of a previous
marriage, though void, before a party can enter into a second
marriage, otherwise, the second marriage would also be void.

Accordingly, the declaration in the instant case of nullity of the

previous marriage of the deceased and petitioner Susan Nicdao
does not validate the second marriage of the deceased with
respondent Susan Yee. The fact remains that their marriage was
solemnized without first obtaining a judicial decree declaring the
marriage of petitioner Susan Nicdao and the deceased void.
Hence, the marriage of respondent Susan Yee and the
deceased is, likewise, void ab initio.

One of the effects of the declaration of nullity of marriage is the

separation of the property of the spouses according to the
applicable property regime.[16] Considering that the two
marriages are void ab initio, the applicable property regime
would not be absolute community or conjugal partnership of
property, but rather, be governed by the provisions of Articles
147 and 148 of the Family Code on "Property Regime of Unions
Without Marriage."

Under Article 148 of the Family Code, which refers to the

property regime of bigamous marriages, adulterous
relationships, relationships in a state of concubine, relationships
where both man and woman are married to other persons,
multiple alliances of the same married man, [17] -
"... [O]nly the properties acquired by both of the parties
through their actual joint contribution of money, property,
Page 6 of 109
 or industry shall be owned by them in common in
proportion to their respective contributions ..."

In this property regime, the properties acquired by the parties

through their actual joint contribution shall belong to the co-
ownership. Wages and salaries earned by each party belong to
him or her exclusively. Then too, contributions in the form of
care of the home, children and household, or spiritual or moral
inspiration, are excluded in this regime. [18]

Considering that the marriage of respondent Susan Yee and the

deceased is a bigamous marriage, having been solemnized
during the subsistence of a previous marriage then presumed to
be valid (between petitioner and the deceased), the application
of Article 148 is therefore in order.

The disputed P146,000.00 from MBAI [AFP Mutual Benefit

Association, Inc.], NAPOLCOM, Commutation, Pag-ibig, and
PCCUI, are clearly renumerations, incentives and benefits from
governmental agencies earned by the deceased as a police
officer. Unless respondent Susan Yee presents proof to the
contrary, it could not be said that she contributed money,
property or industry in the acquisition of these monetary
benefits. Hence, they are not owned in common by respondent
and the deceased, but belong to the deceased alone and
respondent has no right whatsoever to claim the same. By
intestate succession, the said "death benefits" of the deceased
shall pass to his legal heirs. And, respondent, not being the legal
wife of the deceased is not one of them.

As to the property regime of petitioner Susan Nicdao and the

deceased, Article 147 of the Family Code governs. This article
applies to unions of parties who are legally capacitated and not
barred by any impediment to contract marriage, but whose
marriage is nonetheless void for other reasons, like the absence
of a marriage license. Article 147 of the Family Code reads -
Page 7 of 109
 Art. 147. When a man and a woman who are capacitated
to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under
a void marriage, their wages and salaries shall be owned
by them in equal shares and the property acquired by
both of them through their work or industry shall be
governed by the rules on co-ownership.

In the absence of proof to the contrary, properties

acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or industry,
and shall be owned by them in equal shares. For
purposes of this Article, a party who did not participate in
the acquisition by the other party of any property shall be
deemed to have contributed jointly in the acquisition
thereof if the former's efforts consisted in the care and
maintenance of the family and of the household.

xxxxxxxxx

When only one of the parties to a void marriage is in good

faith, the share of the party in bad faith in the co-
ownership shall be forfeited in favor of their common
children. In case of default of or waiver by any or all of the
common children or their descendants, each vacant
share shall belong to the respective surviving
descendants. In the absence of descendants, such share
shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the
cohabitation.

In contrast to Article 148, under the foregoing article, wages and

salaries earned by either party during the cohabitation shall be
owned by the parties in equal shares and will be divided equally
between them, even if only one party earned the wages and the
other did not contribute thereto.[19] Conformably, even if the
Page 8 of 109
disputed "death benefits" were earned by the deceased alone as
a government employee, Article 147 creates a co-ownership in
respect thereto, entitling the petitioner to share one-half thereof.
As there is no allegation of bad faith in the present case, both
parties of the first marriage are presumed to be in good faith.
Thus, one-half of the subject "death benefits" under scrutiny
shall go to the petitioner as her share in the property regime,
and the other half pertaining to the deceased shall pass by,
intestate succession, to his legal heirs, namely, his children with
Susan Nicdao.

In affirming the decision of the trial court, the Court of Appeals

relied on the case of Vda. de Consuegra v. Government Service
Insurance System,[20] where the Court awarded one-half of the
retirement benefits of the deceased to the first wife and the other
half, to the second wife, holding that:

"... [S]ince the defendant's first marriage has not been

dissolved or declared void the conjugal partnership
established by that marriage has not ceased. Nor has the
first wife lost or relinquished her status as putative heir of
her husband under the new Civil Code, entitled to share
in his estate upon his death should she survive him.
Consequently, whether as conjugal partner in a still
subsisting marriage or as such putative heir she has an
interest in the husband's share in the property here in
dispute...." And with respect to the right of the second
wife, this Court observed that although the second
marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still
there is need for judicial declaration of such nullity. And
inasmuch as the conjugal partnership formed by the
second marriage was dissolved before judicial declaration
of its nullity, "[t]he only just and equitable solution in this
case would be to recognize the right of the second wife to
her share of one-half in the property acquired by her and
Page 9 of 109
 her husband, and consider the other half as pertaining to
the conjugal partnership of the first marriage." [21]

It should be stressed, however, that the aforecited decision is

premised on the rule which requires a prior and separate judicial
declaration of nullity of marriage. This is the reason why in the
said case, the Court determined the rights of the parties in
accordance with their existing property regime.

In Domingo v. Court of Appeals,[22] however, the Court,

construing Article 40 of the Family Code, clarified that a prior
and separate declaration of nullity of a marriage is an all
important condition precedent only for purposes of remarriage.
That is, if a party who is previously married wishes to contract a
second marriage, he or she has to obtain first a judicial decree
declaring the first marriage void, before he or she could contract
said second marriage, otherwise the second marriage would be
void. The same rule applies even if the first marriage is patently
void because the parties are not free to determine for
themselves the validity or invalidity or their marriage. However,
for purposes other than to remarry, like for filing a case for
collection of sum of money anchored on a marriage claimed to
be valid, no prior and separate judicial declaration of nullity is
necessary. All that a party has to do is to present evidence,
testimonial or documentary, that would prove that the marriage
from which his or her rights flow is in fact valid. Thereupon, the
court, if material to the determination of the issues before it, will
rule on the status of the marriage involved and proceed to
determine the rights of the parties in accordance with the
applicable laws and jurisprudence. Thus, in Niñal v. Bayadog,[23]
the Court explained:

[T]he court may pass upon the validity of marriage even

in a suit not directly instituted to question the same so
long as it is essential to the determination of the case.
This is without prejudice to any issue that may arise in the
Page 10 of 109
 case. When such need arises, a final judgment of
declaration of nullity is necessary even if the purpose is
other than to remarry. The clause "on the basis of a final
judgment declaring such previous marriage void" in
Article 40 of the Family Code connoted that such final
judgment need not be obtained only for purpose of
remarriage.

WHEREFORE, the petition is GRANTED, and the decision of

the Court of Appeals in CA-G.R. CV No. 51263 which affirmed
the decision of the Regional Trial Court of Quezon City ordering
petitioner to pay respondent the sum of P73,000.00 plus
attorney's fees in the amount of P5,000.00, is REVERSED and
SET ASIDE. The complaint in Civil Case No. Q-93-18632, is
hereby DISMISSED. No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J, Kapunan, and Pardo, JJ., concur.

Puno J., on official leave.

[1]
Rollo, pp. 43-47.
[2]
Rollo, pp. 49-55.
[3]
Exhibit "F", Records, p. 38.
[4]
Ibid.
[5]
Exhibit "D-1", Records, p. 36
[6]
Exhibit "E", Records, p. 37.
[7]
Rollo, p. 55.
[8]
Rollo, p. 18.
[9]
Domingo v. Court of Appeals, 226 SCRA 572, 579 [1993].
[10]
Niñal, et al., v. Bayadog, G.R. No. 133778, March 14, 2000.
[11]
Domingo v. Court of Appeals, supra.
[12]
ART. 53. No marriage shall be solemnized unless all these requisites are
complied with:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;

Page 11 of 109
 (3) Authority of the person performing the marriage; and
(4) A marriage license, except in a marriage of exceptional character.
[13]
ART. 58. Save marriages of an exceptional character authorized in
Chapter 2 of this Title, but not those under Article 75, no marriage shall be
solemnized without a license first being issued by the local civil registrar of
the municipality where either contracting party habitually resides.
[14]
ART. 80. The following marriages shall be void from the beginning:

xxxxxxxxx
(3) Those solemnized without a marriage license, save marriages of
exceptional character;
xxxxxxxxx
[15]
236 SCRA 257, 261-262; citing the Rules of Court, Rule 132, Section 29.
[16]
Art. 50. The effects provided for in paragraphs (2), (3), (4) and (5) of
Article 43 and in Article 44 shall also apply in proper cases to marriages
which are declared void ab initio or annulled by final judgment under Articles
40 and 45.
The final judgment in such cases shall provide for the liquidation, partition,
and distribution of the properties of the spouses, the custody and support of
the common children, and the delivery of their presumptive legitimes, unless
such matters had been adjudicated in previous judicial proceedings.
xxxxxxxxx
Art. 43. The termination of the subsequent marriage referred to in the
preceding Article shall produce the following effects:

xxxxxxxxx

(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;

xxxxxxxxx

Art. 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.

Page 12 of 109
[17]
Sempio-Diy, Handbook on the Family Code of the Philippines, p. 233-234
(1995).
[18]
Id., p. 234.
[19]
Id., p. 230.
[20]
37 SCRA 316 [1971].
[21]
Id., p. 326.
[22]
Supra.
[23]
Supra.

Page 13 of 109
 [ G.R. No. 109975, February 09, 2001 ]

REPUBLIC OF THE PHILIPPINES, PETITIONER, VS.

ERLINDA MATIAS DAGDAG, RESPONDENT.

DECISION

QUISUMBING, J.:

For review on certiorari is the decision[1]of the Court of Appeals

dated April 22, 1993, in CA-G.R. CV No. 34378, which affirmed
the decision of the Regi onal Trial Court of Olongapo City in Civil
Case No. 380-0-90 declaring the marriage of Erlinda Matias
Dagdag and Avelino Dagdag void under Article 36 of the Family
Code.

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. [2] The marriage
certificate was issued by the Office of the Local Civil Registrar of
the Municipality of Cuyapo, Nueva Ecija, on October 20, 1988.

Erlinda and Avelino begot two children, namely: Avelyn M.

Dagdag, born on January 16, 1978; and Eden M. Dagdag, born
on April 21, 1982.[3] Their birth certificates were issued by the
Office of the Local Civil Registrar of the Municipality of Cuyapo,
Nueva Ecija, also on October 20, 1988.

Erlinda and Avelino lived in a house in District 8, Cuyapo, Nueva

Ecija, located at the back of the house of their in-laws.[4] A week
after the wedding, Avelino started leaving his family without
explanation. He would disappear for months, suddenly reappear
for a few months, 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
Page 14 of 109
physical injuries on her.[5]

On October 1993, he left his family again and that was the last
they heard from him. Erlinda was constrained to look for a job in
Olongapo City as a manicurist to support herself and her
children. Finally, Erlinda learned that Avelino was imprisoned for
some crime,[6] and that he escaped from jail on October 22,
1985.[7] A certification therefor dated February 14, 1990, was
issued by Jail Warden Orlando S. Limon. Avelino remains at-
large to date.

On July 3, 1990, Erlinda filed with the Regional Trial Court of

Olongapo City a petition for judicial declaration of nullity of
marriage on the ground of psychological incapacity under Article
36 of the Family Code.[8] Since Avelino could not be located,
summons was served by publication in the Olongapo News, a
newspaper of general circulation, on September 3, 10, and 17,
1990.[9] Subsequently, a hearing was conducted to establish
jurisdictional facts. Thereafter, on December 17, 1990, the date
set for presentation of evidence, only Erlinda and her counsel
appeared. Erlinda testified and presented her sister-in-law,
Virginia Dagdag, as her only witness.

Virginia testified that she is married to the brother of Avelino.

She and her husband live in Olongapo City but they spend their
vacations at the house of Avelino's parents in Cuyapo, Nueva
Ecija. She testified that Erlinda and Avelino always quarrelled,
and that Avelino never stayed for long at the couple's house.
She knew that Avelino had been gone for a long time now, and
that she pitied Erlinda and the children. [10]

Thereafter, Erlinda rested her case. 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
Page 15 of 109
decision.

In compliance with the Order, 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. [11]

On December 27, 1990, without waiting for the investigating

prosecutor's manifestation dated December 5, 1990, the trial
court rendered a decision[12] declaring the marriage of Erlinda
and Avelino void under Article 36 of the Family Code, disposing
thus:
"WHEREFORE, and viewed from the foregoing considerations,
the Court hereby declares the marriage celebrated at Cuyapo,
Nueva Ecija between Erlinda Matias and Avelino Dagdag on 7
September 1975 to be null and void.

The Local Civil Registrar of Cuyapo, Nueva Ecija is hereby

ordered to enter into his Book of Marriage this declaration after
this decision shall have become final and executory.

SO ORDERED."
On January 29, 1991, 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. After requiring
Erlinda to comment, the trial court denied the Motion for
Reconsideration in an Order dated August 21, 1991 as
follows:[13]
"This resolves the Motion for Reconsideration of the
Decision of this Honorable Court dated December 27,
1990 filed by the Solicitor-General. The observation of the
Page 16 of 109
movant is to the effect that `Mere alcoholism and
abusiveness are not enough to show psychological
incapacity. Nor is abandonment. These are common in
marriage. There must be showing that these traits,
stemmed from psychological incapacity existing at the
time of celebration of the marriage.'

In the case at bar, the abandonment is prolonged as the

husband left his wife and children since 1983. The
defendant, while in jail escaped and whose present
whereabouts are unknown. He failed to support his family
for the same period of time, actuations clearly indicative
of the failure of the husband to comply with the essential
marital obligations of marriage defined and enumerated
under Article 68 of the Family Code. These findings of
facts are uncontroverted.

Defendant's character traits, by their nature, existed at the

time of marriage and became manifest only after the
marriage. In rerum natura, these traits are manifestations
of lack of marital responsibility and appear now to be
incurable. Nothing can be graver since the family
members are now left to fend for themselves. Contrary to
the opinion of the Solicitor-General, these are not
common in marriage.

Let it be said that the provisions of Article 36 of the New

Family Code, to assuage the sensibilities of the more
numerous church, is a substitute for divorce (See:
Sempio Diy, New Family Code, p. 36) in order to dissolve
marriages that exist only in name.

WHEREFORE, and the foregoing considered, the motion

for Reconsideration aforecited is DENIED for lack of
merit.

Page 17 of 109
 SO ORDERED"

The Solicitor General appealed to the Court of Appeals, raising

the sole assignment of error that:
THE LOWER COURT ERRED IN DECLARING
APPELLEE'S MARRIAGE TO AVELINO DAGDAG NULL
AND VOID ON THE GROUND OF PSYCHOLOGICAL
INCAPACITY OF THE LATTER, PURSUANT TO
ARTICLE 36 OF THE FAMILY CODE, THE
PSYCHOLOGICAL INCAPACITY OF THE NATURE
CONTEMPLATED BY THE LAW NOT HAVING BEEN
PROVEN TO EXIST.[14]

On April 22, 1993, the Court of Appeals rendered a decision[15]

affirming the decision of the trial court, disposing thus:
"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. Necessarily, the
plaintiff is now endowed with the right to seek the judicial
declaration of nullity of their marriage under Article 36 of the
Family Code. Defendant's constant non-fulfillment of any of such
obligations is continously (sic) destroying the integrity or
wholeness of his marriage with the plaintiff. (Pineda, The Family
Code of the Philippines Annotated, 1992 Ed., p. 46)." [16]
Hence, the present petition for review, [17] filed by the Solicitor
General.

The Solicitor General contends that the alleged psychological

incapacity of Avelino Dagdag is not of the nature contemplated
by Article 36 of the Family Code. According to him, the Court of
Appeals made an erroneous and incorrect interpretation of the
phrase "psychological incapacity" and an incorrect application
thereof to the facts of the case. Respondent, in her Comment,
insists that the facts constituting psychological incapacity were
Page 18 of 109
proven by preponderance of evidence during trial.

At issue is whether or not the trial court and the Court of Appeals
correctly declared 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.

Article 36 of the Family Code provides -

"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."

Whether or not psychological incapacity exists in a given case

calling for annulment of a marriage, depends crucially, more
than in any field of the law, on the facts of the case. Each case
must be judged, not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts. In
regard to psychological incapacity as a ground for annulment of
marriage, it is trite to say that no case is on "all fours" with
another case. The trial judge must take pains in examining the
factual milieu and the appellate court must, as much as possible,
avoid substituting its own judgment for that of the trial court. [18]

In Republic v. Court of Appeals and Molina,[19] the Court laid

down the following GUIDELINES in the interpretation and
application of Article 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. x x
x
Page 19 of 109
(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 (Salita vs.
Magtolis, 233 SCRA 100, June 13, 1994), nevertheless
such root cause must be identified as a psychological
illness and its incapacitating nature fully explained. Expert
evidence may be given by qualified psychiatrists and
clinical psychologists.

(3) The incapacity must be proven to be existing at "the

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

(4) Such incapacity must also be shown to be medically

or clinically permanent or incurable. Such incurability may
be absolute or even relative only in regard to the other
spouse, not necessarily absolutely against everyone of
the same sex. Furthermore, such incapacity must be
relevant to the assumption of marriage obligations, not
necessarily to those not related to marriage, like the
exercise of a profession or employment in a job. Hence, a
Page 20 of 109
pediatrician may be effective in diagnosing illnesses of
children and prescribing medicine to cure them but may
not be psychologically capacitated to procreate, bear and
raise his/her own children as an essential obligation of
marriage.

(5) Such illness must be grave enough to bring about the

disability of the party to assume the essential obligations
of marriage. Thus, "mild characteriological peculiarities,
mood changes, occasional emotional outbursts" cannot
be accepted as root causes. The illness must be shown
as downright incapacity or inability, 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 [20]
as regards the husband and wife as well as Articles 220,
221 and 225 of the same Code[21] 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. x x x

(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
Page 21 of 109
 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."[22]

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 No. 2 which
requires that the root cause of psychological incapacity must be
medically or clinically identified and sufficiently 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.

In the case of Hernandez v. Court of Appeals,[23] we affirmed the

dismissal of the trial court and Court of Appeals of the petition
for annulment on the ground of dearth of the evidence
presented. We further explained therein that -
"Moreover, expert testimony should have been presented to
establish the precise cause of private respondent's
psychological incapacity, if any, in order to show that it existed at
the inception of the marriage. The burden of proof to show the
nullity of the marriage rests upon petitioner. The Court is mindful
of the policy of the 1987 Constitution to protect and strengthen
the family as the basic autonomous social institution and
marriage as the foundation of the family. (Art. II, Sec. 12, Art.
XV, Secs. 1-2) Thus, any doubt should be resolved in favor of
Page 22 of 109
the validity of the marriage. (citing Republic of the Philippines v.
Court of Appeals, supra.)"[24]

WHEREFORE, the present petition is GRANTED. The assailed

Decision of the Court of Appeals dated April 22, 1993, in CA-
G.R. CV No. 34378 is REVERSED and SET ASIDE.

No pronouncement as to costs.

SO ORDERED.

Bellosillo (Chairman), Mendoza, Buena, and De Leon, Jr., JJ.,

concur.

[1]
Rollo, pp. 28-38.
[2]
Id. at 29.
[3]
Id. at 30-31.
[4]
TSN, December 17, 1990, p. 6; Records, p. 47.
[5]
Rollo, p. 29.
[6]
The records did not specify what crime.
[7]
Records, p. 32.
[8]
Originally, Article 39 of the Family Code provided: "Art. 39. The action or
defense for the declaration of absolute nullity of a marriage shall not
prescribe. However, in the case of marriage celebrated before the effectivity
of this Code and falling under Article 36, such action or defense shall
prescribe in ten years after this Code shall have taken effect." However,
Republic Act No. 8533 was eventually enacted and approved on February 23,
1998, which amended Article 39 to read as follows: "Art. 39. The action or
defense for the declaration of absolute nullity of a marriage shall not
prescribe."
[9]
RTC Records, p. 16.
[10]
TSN, December 17, 1990, pp. 22-23.
[11]
RTC Records, p. 33.
[12]
Id. at 38-40.
[13]
Id. at 96.
[14]
Rollo, p. 10.
[15]
Id. at 28-38.
[16]
Id. at 37-38 only.
[17]
Id. at 6-26.
Page 23 of 109
[18]
Republic v. Court of Appeals, 268 SCRA 198, 214 (1997), Padilla, J.,
Separate Statement.
[19]
268 SCRA 198 (1997).
[20]
Article 68, Family Code. The husband and wife are obliged to live
together, observe mutual love, respect and fidelity, and render mutual help
and support.
Art. 69, Family Code. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall decide. x x x
Art. 70, Family Code. The spouses are jointly responsible for the
support of the family. The expenses for such support and other conjugal
obligations shall be paid from the community property and, in the absence
thereof, from the income or fruits of their separate properties. In case of
insufficiency or absence of said income or fruits, such obligations shall be
satisfied from their separate properties.
Art. 71, Family Code. The management of the household shall be the
right and duty of both spouses. The expenses for such management shall be
paid in accordance with the provisions of Article 70.
[21]
Article 220, Family Code. The parents and those exercising parental
authority shall have with respect to their unemancipated children or wards the
following rights and duties:
(1) To keep them in their company, to support, educate and instruct
them by right precept and good example, and to provide for their
upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel,
companionship and understanding;
(3) To provide them with moral and spiritual guidance, inculcate in
them honesty, integrity, self-discipline, self-reliance, industry and
thrift, stimulate their interest in civic affairs, and inspire in them
compliance with the duties of citizenship;
(4) To enhance, protect, preserve and maintain their physical and
mental health at all times;
(5) To furnish them with good and wholesome educational materials,
supervise their activities, recreation and association with others,
protect them from bad company, and prevent them from acquiring
habits detrimental to their health, studies and morals;
(6) To represent them in all matters affecting their interests;
(7) To demand from them respect and obedience;
(8) To impose discipline on them as may be required under the
circumstances; and
(9) To perform such other duties as are imposed by law upon parents
and guardians.
Art. 221. Parents and other persons exercising parental authority
shall be civilly liable for the injuries and damages caused by the acts or
Page 24 of 109
omissions of their unemancipated children living in their company and under
their parental authority subject to the appropriate defenses provided by law.
Art. 225. The father and the mother shall, jointly exercise legal guardianship
over the property of their unemancipated common child without the necessity
of a court appointment. In case of disagreement, the father's decision shall
prevail, unless there is a judicial order to the contrary.
Where the market value of the property or the annual income of the child
exceeds P50,000.00, the parent concerned shall be required to furnish a
bond in such amount as the court may determine, but not less than ten per
centum (10%) of the value of the property or annual income, to guarantee the
performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper court of
the place where the child resides, or, if the child resides in a foreign country,
in the proper court of the place where the property or any part thereof is
situated.

The petition shall be docketed as a summary special proceeding in which all

incidents and issues regarding the performance of the obligations referred to
in the second paragraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when

the child is under substitute parental authority, or the guardian is a stranger,
or a parent has remarried, in which case the ordinary rules on guardianship
shall apply.
[22]
Id. at 209-213.
[23]
320 SCRA 76 (1999).
[24]
Id. at 88.

Page 25 of 109
 [ A.M. No. MTJ-00-1329 (formerly A.M. No. OCA IPI No. 99-
706-MTJ), March 08, 2001 ]

HERMINIA BORJA-MANZANO, PETITIONER, VS. JUDGE

ROQUE R. SANCHEZ, MTC, INFANTA, PANGASINAN,
RESPONDENT.

RESOLUTION

DAVIDE JR., C.J.:

The solemnization of a marriage between two contracting parties

who were both bound by a prior existing marriage is the bone of
contention of the instant complaint against respondent Judge
Roque R. Sanchez, Municipal Trial Court, Infanta, Pangasinan.
For this act, complainant Herminia Borja-Manzano charges
respondent Judge with gross ignorance of the law in a sworn
Complaint-Affidavit filed with the Office of the Court
Administrator on 12 May 1999.

Complainant avers that she was the lawful wife of the late David
Manzano, having been married to him on 21 May 1966 in San
Gabriel Archangel Parish, Araneta Avenue, Caloocan City. [1]
Four children were born out of that marriage.[2] On 22 March
1993, however, her husband contracted another marriage with
one Luzviminda Payao before respondent Judge. [3] When
respondent Judge solemnized said marriage, he knew or ought
to know that the same was void and bigamous, as the marriage
contract clearly stated that both contracting parties were
"separated."

Respondent Judge, on the other hand, claims in his Comment

that when he officiated the marriage between Manzano and
Page 26 of 109
Payao he did not know that Manzano was legally married. What
he knew was that the two had been living together as husband
and wife for seven years already without the benefit of marriage,
as manifested in their joint affidavit. [4] According to him, had he
known that the late Manzano was married, he would have
advised the latter not to marry again; otherwise, he (Manzano)
could be charged with bigamy. He then prayed that the
complaint be dismissed for lack of merit and for being designed
merely to harass him.

After an evaluation of the Complaint and the Comment, the

Court Administrator recommended that respondent Judge be
found guilty of gross ignorance of the law and be ordered to pay
a fine of P2,000, with a warning that a repetition of the same or
similar act would be dealt with more severely.

On 25 October 2000, this Court required the parties to manifest

whether they were willing to submit the case for resolution on
the basis of the pleadings thus filed. Complainant answered in
the affirmative.

For his part, respondent Judge filed a Manifestation reiterating

his plea for the dismissal of the complaint and setting aside his
earlier Comment. He therein invites the attention of the Court to
two separate affidavits[5] of the late Manzano and of Payao,
which were allegedly unearthed by a member of his staff upon
his instruction. In those affidavits, both David Manzano and
Luzviminda Payao expressly stated that they were married to
Herminia Borja and Domingo Relos, respectively; and that since
their respective marriages had been marked by constant
quarrels, they had both left their families and had never
Page 27 of 109
cohabited or communicated with their spouses anymore.
Respondent Judge alleges that on the basis of those affidavits,
he agreed to solemnize the marriage in question in accordance
with Article 34 of the Family Code.

We find merit in the complaint.

Article 34 of the Family Code provides:

No license shall be necessary for the marriage of a man

and a 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.

For this provision on legal ratification of marital cohabitation to

apply, the following requisites must concur:

1. The man and woman must have been living together as

husband and wife for at least five years before the
marriage;

2. The parties must have no legal impediment to marry each

other;

3. The fact of absence of legal impediment between the

parties must be present at the time of marriage;

Page 28 of 109
 4. The parties must execute an affidavit stating that they
have lived together for at least five years [and are without
legal impediment to marry each other]; and

5. The solemnizing officer must execute a sworn statement

that he had ascertained the qualifications of the parties
and that he had found no legal impediment to their
marriage.[6]

Not all of these requirements are present in the case at bar. It is

significant to note that in their separate affidavits executed on 22
March 1993 and sworn to before respondent Judge himself,
David Manzano and Luzviminda Payao expressly stated the fact
of their prior existing marriage. Also, in their marriage contract, it
was indicated that both were "separated."

Respondent Judge knew or ought to know that a subsisting

previous marriage is a diriment impediment, which would make
the subsequent marriage null and void.[7] In fact, in his
Comment, he stated that had he known that the late Manzano
was married he would have discouraged him from contracting
another marriage. And respondent Judge cannot deny
knowledge of Manzano's and Payao's subsisting previous
marriage, as the same was clearly stated in their separate
affidavits which were subscribed and sworn to before him.

The fact that Manzano and Payao had been living apart from
their respective spouses for a long time already is immaterial.
Article 63(1) of the Family Code allows spouses who have
obtained a decree of legal separation to live separately from
each other, but in such a case the marriage bonds are not
severed. Elsewise stated, legal separation does not dissolve the

Page 29 of 109
marriage tie, much less authorize the parties to remarry. This
holds true all the more when the separation is merely de facto,
as in the case at bar.

Neither can respondent Judge take refuge on the Joint Affidavit

of David Manzano and Luzviminda Payao stating that they had
been cohabiting as husband and wife for seven years. Just like
separation, free and voluntary cohabitation with another person
for at least five years does not severe the tie of a subsisting
previous marriage. Marital cohabitation for a long period of time
between two individuals who are legally capacitated to marry
each other is merely a ground for exemption from marriage
license. It could not serve as a justification for respondent Judge
to solemnize a subsequent marriage vitiated by the impediment
of a prior existing marriage.

Clearly, respondent Judge demonstrated gross ignorance of the

law when he solemnized a void and bigamous marriage. The
maxim "ignorance of the law excuses no one" has special
application to judges,[8] who, under Rule 1.01 of the Code of
Judicial Conduct, should be the embodiment of competence,
integrity, and independence. It is highly imperative that judges
be conversant with the law and basic legal principles. [9] And
when the law transgressed is simple and elementary, the failure
to know it constitutes gross ignorance of the law. [10]

ACCORDINGLY, the recommendation of the Court

Administrator is hereby ADOPTED, with the MODIFICATION
that the amount of fine to be imposed upon respondent Judge
Roque Sanchez is increased to P20,000.

Page 30 of 109
SO ORDERED.

Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

[1]
Annex "A" of Complaint.
[2]
Annexes "B" to "E" of Complaint.
[3]
Annex "F" of Complaint.
[4]
Attached to the Marriage Contract (Annex "F" of Complaint).
[5]
Annexes "B" and "C" of Respondent Judge's Manifestation.
[6]
DISIDERIO P. JURADO, CIVIL LAW REVIEWER 63 (1989).
[7]
Article 41, Family Code.
[8]
Espiritu v. Jovellanos, 280 SCRA 579, 589 [1997]; Vercide v. Hernandez,
A.M. No. MTJ-00-1265, 6 April 2000.
[9]
Macasasa v. Imbing, 312 SCRA 385, 395 [1999].
[10]
Madredijo v. Loyao, 316 SCRA 544, 568 [1999]; Agunday v. Tresvalles,
319 SCRA 134, 146 [1999]; Villanueva v. Almazan, A.M. No. MTJ-99-1221,
16 March 2000.

Page 31 of 109
 [ G.R. No. 136921, April 17, 2001 ]

LORNA GUILLEN PESCA, PETITIONER, VS. ZOSIMO A.

PESCA, RESPONDENT.

DECISION

VITUG, J.:

Submitted for review is the decision of the Court of Appeals,

promulgated on 27 May 1998, in C.A. G.R. CV. No. 52374,
reversing the decision of the Regional Trial Court ("RTC") of
Caloocan City, Branch 130, which has declared the marriage
between petitioner and respondent to be null and void ab initio
on the ground of psychological incapacity on the part of
respondent.

Petitioner Lorna G. Pesca and respondent Zosimo A. Pesca first

met sometime in 1975 while on board an inter-island vessel
bound for Bacolod City. After a whirlwind courtship, they got
married on 03 March 1975. Initially, the young couple did not
live together as petitioner was still a student in college and
respondent, a seaman, had to leave the country on board an
ocean-going vessel barely a month after the marriage. Six
months later, the young couple established their residence in
Quezon City until they were able to build their own house in
Caloocan City where they finally resided. It was blissful
marriage for the couple during the two months of the year that
they could stay together - when respondent was on
vacation. The union begot four children, 19-year old Ruhem, 17-
year old Rez, 11-year old Ryan, and 9-year old Richie.

Page 32 of 109
It started in 1988, petitioner said, when she noticed that
respondent surprisingly showed signs of "psychological
incapacity" to perform his marital covenant. His "true color" of
being an emotionally immature and irresponsible husband
became apparent. He was cruel and violent. He was a habitual
drinker, staying with friends daily from 4:00 o'clock in the
afternoon until 1:00 o'clock in the morning. When cautioned to
stop or, to at least, minimize his drinking, respondent would
beat, slap and kick her. At one time, he chased petitioner with a
loaded shotgun and threatened to kill her in the presence of the
children. The children themselves were not spared from
physical violence.

Finally, on 19 November 1992, petitioner and her children left

the conjugal abode to live in the house of her sister in Quezon
City as they could no longer bear his violent ways. Two months
later, petitioner decided to forgive respondent, and she returned
home to give him a chance to change. But, to her dismay, things
did not so turn out as expected. Indeed, matters became worse.

On the morning of 22 March 1994, about eight o'clock,

respondent assaulted petitioner for about half an hour in the
presence of the children. She was battered black and blue. She
submitted herself to medical examination at the Quezon City
General Hospital, which diagnosed her injuries as contusions
and abrasions. Petitioner filed a complaint with the barangay
authorities, and a case was filed against respondent for slight
physical injuries. He was convicted by the Metropolitan Trial
Court of Caloocan City and sentenced to eleven days of
imprisonment.

Page 33 of 109
This time, petitioner and her children left the conjugal home for
good and stayed with her sister. Eventually, they decided to rent
an apartment. Petitioner sued respondent before the Regional
Trial Court for the declaration of nullity of their marriage invoking
psychological incapacity. Petitioner likewise sought the custody
of her minor children and prayed for support pendente lite.

Summons, together with a copy of the complaint, was served on

respondent on 25 April 1994 by personal service by the sheriff.
As respondent failed to file an answer or to enter his appearance
within the reglementary period, the trial court ordered the city
prosecutor to look into a possible collusion between the parties.
Prosecutor Rosa C. Reyes, on 03 August 1994, submitted her
report to the effect that she found no evidence to establish that
there was collusion between the parties.

On 11 January 1995, respondent belatedly filed, without leave of

court, an answer, and the same, although filed late, was
admitted by the court. In his answer, respondent admitted the
fact of his marriage with petitioner and the birth of their children.
He also confirmed the veracity of Annex "A" of the complaint
which listed the conjugal property. Respondent vehemently
denied, however, the allegation that he was psychologically
incapacitated.

On 15 November 1995, following hearings conducted by it, the

trial court rendered its decision declaring the marriage between
petitioner and respondent to be null and void ab initio on the
basis of psychological incapacity on the part of respondent and
ordered the liquidation of the conjugal partnership.

Page 34 of 109
Respondent appealed the above decision to the Court of
Appeals, contending that the trial court erred, particularly, in
holding that there was legal basis to declare the marriage null
and void and in denying his motion to reopen the case.

The Court of Appeals reversed the decision of the trial court and
declared the marriage between petitioner and respondent valid
and subsisting. The appellate court said:

"Definitely the appellee has not established the following: That

the appellant showed signs of mental incapacity as would cause
him to be truly incognitive of the basic marital covenant, as so
provided for in Article 68 of the Family Code; that the incapacity
is grave, has preceded the marriage and is incurable; that his
incapacity to meet his marital responsibility is because of a
psychological, not physical illness; that the root cause of the
incapacity has been identified medically or clinically, and has
been proven by an expert; and that the incapacity is permanent
and incurable in nature.

"The burden of proof to show the nullity of marriage lies in the

plaintiff and any doubt should be resolved in favor of the
existence and continuation of the marriage and against its
dissolution and nullity."[1]

Petitioner, in her plea to this Court, would have the decision of

the Court of Appeals reversed on the thesis that the doctrine
enunciated in Santos vs. Court of Appeals, [2] promulgated on 14
January 1995, as well as the guidelines set out in Republic vs.
Court of Appeals and Molina,[3] promulgated on 13 February
1997, should have no retroactive application and, on the

Page 35 of 109
assumption that the Molina ruling could be applied retroactively,
the guidelines therein outlined should be taken to be merely
advisory and not mandatory in nature. In any case, petitioner
argues, the application of the Santos and Molina dicta should
warrant only a remand of the case to the trial court for further
proceedings and not its dismissal.

Be that as it may, respondent submits, the appellate court did

not err in its assailed decision for there is absolutely no evidence
that has been shown to prove psychological incapacity on his
part as the term has been so defined in Santos.

Indeed, there is no merit in the petition.

The term "psychological incapacity," as a ground for the

declaration of nullity of a marriage under Article 36 of the Family
Code, has been explained by the Court in Santos and reiterated
in Molina. The Court, in Santos, concluded:

"It should be obvious, looking at all the foregoing disquisitions,

including, and most importantly, the deliberations of the Family
Code Revision Committee itself, that the use of the phrase
`psychological incapacity' under Article 36 of the Code has not
been meant to comprehend all such possible cases of
psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like
circumstances (cited in Fr. Artemio Balumad's `Void and
Voidable Marriages in the Family Code and their Parallels in
Canon Law,' quoting form the Diagnostic Statistical Manuel of
Mental Disorder by the American Psychiatric Association;
Edward Hudson's `Handbook II for Marriage Nullity

Page 36 of 109
Cases'). Article 36 of the Family Code cannot be taken and
construed independently of, but must stand in conjunction with,
existing precepts in our law on marriage. Thus correlated,
`psychological incapacity' should refer to no less than a mental
(not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly
must be assumed and discharged by the parties to the marriage
which, as so expressed by Article 68 of the Family Code, include
their mutual obligations to live together, observe love, respect
and fidelity and render help and support. There is hardly any
doubt that the intendment of the law has been to confine the
meaning of `psychological incapacity' to the most serious cases
of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the
marriage. This psychologic condition must exist at the time the
marriage is celebrated."

The "doctrine of stare decisis," ordained in Article 8 of the Civil

Code, expresses that judicial decisions applying or interpreting
the law shall form part of the legal system of the
Philippines. The rule follows the settled legal maxim - "legis
interpretado legis vim obtinet" - that the interpretation placed
upon the written law by a competent court has the force of law. [4]
The interpretation or construction placed by the courts
establishes the contemporaneous legislative intent of the
law. The latter as so interpreted and construed would thus
constitute a part of that law as of the date the statute is
enacted. It is only when a prior ruling of this Court finds itself
later overruled, and a different view is adopted, that the new
doctrine may have to be applied prospectively in favor of parties
who have relied on the old doctrine and have acted in good faith
Page 37 of 109
in accordance therewith[5] under the familiar rule of "lex prospicit,
non respicit."

The phrase "psychological incapacity," borrowed from Canon

law, is an entirely novel provision in our statute books, and, until
the relatively recent enactment of the Family Code, the concept
has escaped jurisprudential attention. It is in Santos when, for
the first time, the Court has given life to the term. Molina, that
followed, has additionally provided procedural guidelines to
assist the courts and the parties in trying cases for annulment of
marriages grounded on psychological incapacity. Molina has
strengthened, not overturned, Santos.

At all events, petitioner has utterly failed, both in her allegations

in the complaint and in her evidence, to make out a case of
psychological incapacity on the part of respondent, let alone at
the time of solemnization of the contract, so as to warrant a
declaration of nullity of the marriage. Emotional immaturity and
irresponsibility, invoked by her, cannot be equated with
psychological incapacity.

The Court reiterates its reminder that marriage is an inviolable

social institution and the foundation of the family[6] that the State
cherishes and protects. While the Court commisserates with
petitioner in her unhappy marital relationship with respondent,
totally terminating that relationship, however, may not
necessarily be the fitting denouement to it. In these cases, the
law has not quite given up, neither should we.

WHEREFORE, the herein petition is DENIED. No costs.

Page 38 of 109
SO ORDERED.

Melo, (Chairman), Panganiban, Gonzaga-Reyes, and Sandoval-

Gutierrez, JJ., concur.

[1]
Rollo, pp. 42-43.
[2]
240 SCRA 20
[3]
268 SCRA 198.
[4]
People vs. Jabinal, 55 SCRA 607.
[5]
Unciano Paramedical College, Inc. vs. Court of Appeals, 221
SCRA 285; Tanada vs. Guingona, 235 SCRA 507; Columbia
Pictures, Inc., vs. Court of Appeals, 261 SCRA 144.
[6]
See Section 2, Article XV, 1987 Constitution.

Page 39 of 109
 [ G.R. No. 138322, October 02, 2001 ]

GRACE J. GARCIA, A.K.A. GRACE J. GARCIA-RECIO,

PETITIONER,VS. REDERICK A. RECIO, RESPONDENT.

DECISION

PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our

jurisdiction, provided such decree is valid according to the
national law of the foreigner. However, the divorce decree and
the governing personal law of the alien spouse who obtained the
divorce must be proven. Our courts do not take judicial notice of
foreign laws and judgments; hence, like any other facts, both the
divorce decree and the national law of the alien must be alleged
and proven according to our law on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of

Court, seeking to nullify the January 7, 1999 Decision [1] and the
March 24, 1999 Order[2] of the Regional Trial Court of
Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The
assailed Decision disposed as follows:

"WHEREFORE, this Court declares the marriage between

Grace J. Garcia and Rederick A. Recio solemnized on January
12, 1994 at Cabanatuan City as dissolved and both parties can
now remarry under existing and applicable laws to any and/or
both parties."[3]

Page 40 of 109
The assailed Order denied reconsideration of the above-quoted
Decision.

The Facts

Rederick A. Recio, a Filipino, was married to Editha Samson, an

Australian citizen, in Malabon, Rizal, on March 1, 1987. [4] They
lived together as husband and wife in Australia. On May 18,
1989, [5] a decree of divorce, purportedly dissolving the marriage,
was issued by an Australian family court.

On June 26, 1992, respondent became an Australian citizen, as

shown by a "Certificate of Australian Citizenship" issued by the
Australian government.[6] Petitioner -- a Filipina -- and
respondent were married on January 12, 1994 in Our Lady of
Perpetual Help Church in Cabanatuan City. [7] In their application
for a marriage license, respondent was declared as "single" and
"Filipino."[8]

Starting October 22, 1995, petitioner and respondent lived

separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their conjugal
assets were divided on May 16, 1996, in accordance with their
Statutory Declarations secured in Australia.[9]

On March 3, 1998, petitioner filed a Complaint for Declaration of

Nullity of Marriage[10] in the court a quo, on the ground of bigamy
-- respondent allegedly had a prior subsisting marriage at the
time he married her on January 12, 1994. She claimed that she
learned of respondent's marriage to Editha Samson only in
November, 1997.

Page 41 of 109
In his Answer, respondent averred that, as far back as 1993, he
had revealed to petitioner his prior marriage and its subsequent
dissolution.[11] He contended that his first marriage to an
Australian citizen had been validly dissolved by a divorce decree
obtained in Australia in 1989;[12] thus, he was legally capacitated
to marry petitioner in 1994.

On July 7, 1998 -- or about five years after the couple's wedding

and while the suit for the declaration of nullity was pending --
respondent was able to secure a divorce decree from a family
court in Sydney, Australia because the "marriage ha[d]
irretrievably broken down."[13]

Respondent prayed in his Answer that the Complaint be

dismissed on the ground that it stated no cause of action. [14] The
Office of the Solicitor General agreed with respondent. [15] The
court marked and admitted the documentary evidence of both
parties.[16] After they submitted their respective memoranda, the
case was submitted for resolution.[17]

Thereafter, the trial court rendered the assailed Decision and

Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground

that the divorce issued in Australia was valid and recognized in
the Philippines. It deemed the marriage ended, but not on the
basis of any defect in an essential element of the marriage; that
is, respondent's alleged lack of legal capacity to
Page 42 of 109
remarry. Rather, it based its Decision on the divorce decree
obtained by respondent. The Australian divorce had ended the
marriage; thus, there was no more marital union to nullify or
annul.

Hence, this Petition.[18]

Issues

Petitioner submits the following issues for our consideration:

"1

The trial court gravely erred in finding that the divorce decree
obtained in Australia by the respondent ipso facto terminated his
first marriage to Editha Samson thereby capacitating him to
contract a second marriage with the petitioner.

"2

The failure of the respondent, who is now a naturalized

Australian, to present a certificate of legal capacity to marry
constitutes absence of a substantial requisite voiding the
petitioner's marriage to the respondent

"3

The trial court seriously erred in the application of Art. 26 of the

Family Code in this case.

"4

Page 43 of 109
The trial court patently and grievously erred in disregarding Arts.
11, 13, 21, 35, 40, 52 and 53 of the Family Code as the
applicable provisions in this case.

"5

The trial court gravely erred in pronouncing that the divorce

decree obtained by the respondent in Australia ipso facto
capacitated the parties to remarry, without first securing a
recognition of the judgment granting the divorce decree before
our courts."[19]

The Petition raises five issues, but for purposes of this Decision,
we shall concentrate on two pivotal ones: (1) whether the
divorce between respondent and Editha Samson was proven,
and (2) whether respondent was proven to be legally
capacitated to marry petitioner. Because of our ruling on these
two, there is no more necessity to take up the rest.

The Court's Ruling

The Petition is partly meritorious.

First Issue:

Proving the Divorce Between

Respondent and Editha Samson

Petitioner assails the trial court's recognition of the divorce

between respondent and Editha Samson. Citing Adong v.
Page 44 of 109
Cheong Seng Gee,[20] petitioner argues that the divorce decree,
like any other foreign judgment, may be given recognition in this
jurisdiction only upon proof of the existence of (1) the foreign law
allowing absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish
these elements.

Petitioner adds that, based on the first paragraph of Article 26 of

the Family Code, marriages solemnized abroad are governed by
the law of the place where they were celebrated (the lex loci
celebrationis). In effect, the Code requires the presentation of
the foreign law to show the conformity of the marriage in
question to the legal requirements of the place where the
marriage was performed.

At the outset, we lay the following basic legal principles as the

take-off points for our discussion. Philippine law does not
provide for absolute divorce; hence, our courts cannot grant it. [21]
A marriage between two Filipinos cannot be dissolved even by a
divorce obtained abroad, because of Articles 15 [22] and 17[23] of
the Civil Code.[24] In mixed marriages involving a Filipino and a
foreigner, Article 26[25] of the Family Code allows the former to
contract a subsequent marriage in case the divorce is "validly
obtained abroad by the alien spouse capacitating him or her to
remarry."[26] A divorce obtained abroad by a couple, who are
both aliens, may be recognized in the Philippines, provided it is
consistent with their respective national laws. [27]

A comparison between marriage and divorce, as far as pleading

and proof are concerned, can be made. Van Dorn v. Romillo Jr.
decrees that "aliens may obtain divorces abroad, which may be
Page 45 of 109
recognized in the Philippines, provided they are valid according
to their national law."[28] Therefore, before a foreign divorce
decree can be recognized by our courts, the party pleading it
must prove the divorce as a fact and demonstrate its conformity
to the foreign law allowing it.[29] Presentation solely of the
divorce decree is insufficient.

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in

evidence, it must first comply with the registration requirements
under Articles 11, 13 and 52 of the Family Code. These articles
read as follows:

"ART. 11. Where a marriage license is required, each of the

contracting parties shall file separately a sworn application for
such license with the proper local civil registrar which shall
specify the following:

xxx xx
x xxx

"(5) If previously married, how, when and where the

previous marriage was dissolved or annulled;

xxx xx
x x x x"

"ART. 13. In case either of the contracting parties has been

previously married, the applicant shall be required to

Page 46 of 109
"ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to furnish,
instead of the birth or baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse
or the judicial decree of the absolute divorce, or the judicial
decree of annulment or declaration of nullity of his or her
previous marriage. x x x.

"ART. 52. The judgment of annulment or of absolute nullity of

the marriage, the partition and distribution of the properties of
the spouses, and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect their
persons."

Respondent, on the other hand, argues that the Australian

divorce decree is a public document -- a written official act of an
Australian family court. Therefore, it requires no further proof of
its authenticity and due execution.

Respondent is getting ahead of himself. Before a foreign

judgment is given presumptive evidentiary value, the document
must first be presented and admitted in evidence. [30] A divorce
obtained abroad is proven by the divorce decree itself. Indeed
the best evidence of a judgment is the judgment itself. [31] The
decree purports to be a written act or record of an act of an
official body or tribunal of a foreign country. [32]

Under Sections 24 and 25 of Rule 132, on the other hand, a

writing or document may be proven as a public or official record
of a foreign country by either (1) an official publication or (2) a
Page 47 of 109
copy thereof attested[33] by the officer having legal custody of the
document. If the record is not kept in the Philippines, such copy
must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and
(b) authenticated by the seal of his office. [34]

The divorce decree between respondent and Editha Samson

appears to be an authentic one issued by an Australian family
court.[35] However, appearance is not sufficient; compliance with
the aforementioned rules on evidence must be demonstrated.

Fortunately for respondent's cause, when the divorce decree of

May 18, 1989 was submitted in evidence, counsel for petitioner
objected, not to its admissibility, but only to the fact that it had
not been registered in the Local Civil Registry of Cabanatuan
City.[36] The trial court ruled that it was admissible, subject to
petitioner's qualification.[37] Hence, it was admitted in evidence
and accorded weight by the judge. Indeed, petitioner's failure to
object properly rendered the divorce decree admissible as a
written act of the Family Court of Sydney, Australia. [38]

Compliance with the quoted articles (11, 13 and 52) of the

Family Code is not necessary; respondent was no longer bound
by Philippine personal laws after he acquired Australian
citizenship in 1992.[39] Naturalization is the legal act of adopting
an alien and clothing him with the political and civil rights
belonging to a citizen.[40] Naturalized citizens, freed from the
protective cloak of their former states, don the attires of their
adoptive countries. By becoming an Australian, respondent
severed his allegiance to the Philippines and the vinculum juris
Page 48 of 109
that had tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian

divorce law falls upon petitioner, because she is the party
challenging the validity of a foreign judgment. He contends that
petitioner was satisfied with the original of the divorce decree
and was cognizant of the marital laws of Australia, because she
had lived and worked in that country for quite a long
time. Besides, the Australian divorce law is allegedly known by
Philippine courts; thus, judges may take judicial notice of foreign
laws in the exercise of sound discretion.

We are not persuaded. The burden of proof lies with "the party
who alleges the existence of a fact or thing necessary in the
prosecution or defense of an action." [41] In civil cases, plaintiffs
have the burden of proving the material allegations of the
complaint when those are denied by the answer; and defendants
have the burden of proving the material allegations in their
answer when they introduce new matters. [42] Since the divorce
was a defense raised by respondent, the burden of proving the
pertinent Australian law validating it falls squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take

judicial notice of foreign laws.[43] Like any other facts, they must
be alleged and proved. Australian marital laws are not among
those matters that judges are supposed to know by reason of
their judicial function.[44] The power of judicial notice must be
exercised with caution, and every reasonable doubt upon the
subject should be resolved in the negative.
Page 49 of 109
 Second Issue:
Respondent's Legal Capacity
to Remarry

Petitioner contends that, in view of the insufficient proof of the

divorce, respondent was legally incapacitated to marry her in
1994. Hence, she concludes that their marriage was void ab
initio.

Respondent replies that the Australian divorce decree, which

was validly admitted in evidence, adequately established his
legal capacity to marry under Australian law.

Respondent's contention is untenable. In its strict legal sense,

divorce means the legal dissolution of a lawful union for a cause
arising after marriage. But divorces are of different types. The
two basic ones are (1) absolute divorce or a vinculo matrimonii
and (2) limited divorce or a mensa et thoro. The first kind
terminates the marriage, while the second suspends it and
leaves the bond in full force.[45] There is no showing in the case
at bar which type of divorce was procured by respondent.

Respondent presented a decree nisi or an interlocutory decree --

a conditional or provisional judgment of divorce. It is in effect
the same as a separation from bed and board, although an
absolute divorce may follow after the lapse of the prescribed
period during which no reconciliation is effected. [46]

Even after the divorce becomes absolute, the court may under
some foreign statutes and practices, still restrict
remarriage. Under some other jurisdictions, remarriage may be
Page 50 of 109
limited by statute; thus, the guilty party in a divorce which was
granted on the ground of adultery may be prohibited from
marrying again. The court may allow a remarriage only after
proof of good behavior.[47]

On its face, the herein Australian divorce decree contains a

restriction that reads:

"1. A party to a marriage who marries again before this

decree becomes absolute (unless the other party has died)
commits the offence of bigamy."[48]

This quotation bolsters our contention that the divorce obtained

by respondent may have been restricted. It did not absolutely
establish his legal capacity to remarry according to his national
law. Hence, we find no basis for the ruling of the trial court,
which erroneously assumed that the Australian divorce ipso
facto restored respondent's capacity to remarry despite the
paucity of evidence on this matter.

We also reject the claim of respondent that the divorce decree

raises a disputable presumption or presumptive evidence as to
his civil status based on Section 48, Rule 39 [49] of the Rules of
Court, for the simple reason that no proof has been presented
on the legal effects of the divorce decree obtained under
Australian laws.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by

Page 51 of 109
Article 21 of the Family Code was not submitted together with
the application for a marriage license. According to her, its
absence is proof that respondent did not have legal capacity to
remarry.

We clarify. To repeat, the legal capacity to contract marriage is

determined by the national law of the party concerned. The
certificate mentioned in Article 21 of the Family Code would
have been sufficient to establish the legal capacity of
respondent, had he duly presented it in court. A duly
authenticated and admitted certificate is prima facie evidence of
legal capacity to marry on the part of the alien applicant for a
marriage license.[50]

As it is, however, there is absolutely no evidence that proves

respondent's legal capacity to marry petitioner. A review of the
records before this Court shows that only the following exhibits
were presented before the lower court: (1) for petitioner: (a)
Exhibit "A" - Complaint;[51] (b) Exhibit "B" - Certificate of Marriage
Between Rederick A. Recio (Filipino-Australian) and Grace J.
Garcia (Filipino) on January 12, 1994 in Cabanatuan City,
Nueva Ecija;[52] (c) Exhibit "C" - Certificate of Marriage Between
Rederick A. Recio (Filipino) and Editha D. Samson (Australian)
on March 1, 1987 in Malabon, Metro Manila; [53] (d) Exhibit "D" -
Office of the City Registrar of Cabanatuan City Certification that
no information of annulment between Rederick A. Recio and
Editha D. Samson was in its records;[54] and (e) Exhibit "E" -
Certificate of Australian Citizenship of Rederick A. Recio; [55] (2)
for respondent: (a) Exhibit "1" -- Amended Answer;[56] (b) Exhibit
"2" - Family Law Act 1975 Decree Nisi of Dissolution of Marriage
in the Family Court of Australia;[57] (c) Exhibit "3" - Certificate of
Page 52 of 109
Australian Citizenship of Rederick A. Recio; [58] (d) Exhibit "4" -
Decree Nisi of Dissolution of Marriage in the Family Court of
Australia Certificate;[59] and Exhibit "5" -- Statutory Declaration of
the Legal Separation Between Rederick A. Recio and Grace J.
Garcia Recio since October 22, 1995. [60]

Based on the above records, we cannot conclude that

respondent, who was then a naturalized Australian citizen, was
legally capacitated to marry petitioner on January 12, 1994. We
agree with petitioner's contention that the court a quo erred in
finding that the divorce decree ipso facto clothed respondent
with the legal capacity to remarry without requiring him to
adduce sufficient evidence to show the Australian personal law
governing his status; or at the very least, to prove his legal
capacity to contract the second marriage.

Neither can we grant petitioner's prayer to declare her marriage

to respondent null and void on the ground of bigamy. After all, it
may turn out that under Australian law, he was really capacitated
to marry petitioner as a direct result of the divorce
decree. Hence, we believe that the most judicious course is to
remand this case to the trial court to receive evidence, if any,
which show petitioner's legal capacity to marry
petitioner. Failing in that, then the court a quo may declare a
nullity of the parties' marriage on the ground of bigamy, there
being already in evidence two existing marriage certificates,
which were both obtained in the Philippines, one in Malabon,
Metro Manila dated March 1, 1987 and the other, in Cabanatuan
City dated January 12, 1994.

WHEREFORE, in the interest of orderly procedure and

Page 53 of 109
substantial justice, we REMAND the case to the court a quo for
the purpose of receiving evidence which conclusively show
respondent's legal capacity to marry petitioner; and failing in
that, of declaring the parties' marriage void on the ground of
bigamy, as above discussed. No costs.

SO ORDERED.

Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.

[1]
Penned by Judge Feliciano V. Buenaventura; rollo, pp. 7-9.
[2]
Rollo, p. 10.
[3]
Ibid., p. 9.
[4]
Rollo, p. 37.
[5]
Ibid., p. 47.
[6]
Id., p. 44.
[7]
Id., p. 36.
[8]
Annex "1"; temporary rollo, p. 9.
[9]
The couple secured an Australian "Statutory Declaration" of
their legal separation and division of conjugal assets. See
Annexes "3" and "4" of Respondent's Comment; rollo, p. 48.
[10]
Id., pp. 33-35.
[11]
Id., p. 39.
[12]
Amended Answer, p. 2; rollo, p. 39.
[13]
Id., pp. 77-78.
[14]
Id., p. 43.
[15]
Rollo, pp. 48-51.
[16]
TSN, December 16, 1998, pp. 1-8; records, pp. 172-179.
[17]
RTC Order of December 16, 1998; ibid., p. 203.
[18]
The case was deemed submitted for decision on January 11,

Page 54 of 109
2000, upon this Court's receipt of the Memorandum for
petitioner, signed by Atty. Olivia Velasco-Jacoba. The
Memorandum for respondent, signed by Atty. Gloria V. Gomez
of Gomez and Associates, had been filed on December 10,
1999.
[19]
Petitioner's Memorandum, pp. 8-9; rollo, pp. 242-243.
[20]
43 Phil. 43, 49, March 3, 1922.
[21]
Ruben F. Balane, "Family Courts and Significant
Jurisprudence in Family Law," Journal of the Integrated Bar of
the Philippines, 1st & 2nd Quarters, 2001, Vol. XXVII, No. 1, p.
25.
[22]
"ART. 15. Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad."
[23]
"ART. 17. The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the laws of the
country in which they are executed.
xxx xxx xxx
"Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country."
[24]
Tenchaves v. Escano 15 SCRA 355, 362, November 29,
1965; Barretto Gonzalez v. Gonzalez, 58 Phil. 67, 71-72, March
7, 1933.
[25]
"Art. 26. All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5),
and (6), 36, 37, and 38. (71a)
Page 55 of 109
"Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under
Philippine law." (As amended by EO 227, prom. July 27, 1987)
[26]
Cf. Van Dorn v. Romillo Jr., 139 SCRA 139, 143-144,
October 8, 1985; and Pilapil v. Ibay-Somera, 174 SCRA 653,
663, June 30, 1989.
[27]
Van Dorn v. Romillo Jr., supra.
[28]
Ibid., p. 143.
[29]
For a detailed discussion of Van Dorn, see Salonga, Private
International Law, 1995 ed. pp. 295-300. See also Jose C.
Vitug, Compendium of Civil Law and Jurisprudence, 1993 ed., p.
16;
[30]
"SEC. 19. Classes of documents.--For the purpose of their
presentation in evidence, documents are either public or private.

"Public documents are:

"(a) The written official acts, or records of the official acts

of the sovereign authority, official bodies and tribunals, and
public officers, whether in the Philippines, or of a foreign country.

xxx xxx x x x."

[31]
Burr W. Jones, Commentaries on the Law of Evidence in
Civil Cases, Vol. IV, 1926 ed., p. 3511; §3, Rule 130 of the
Rules on Evidence provides that "when the subject of inquiry is
the contents of a document, no evidence shall be admissible
other than the original document itself."
[32]
"SEC. 19. Classes of documents.-- For the purpose of their

Page 56 of 109
presentation in evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts
of the sovereign authority, official bodies and tribunals, and
public officers, whether in the Philippines, or of a foreign country.
xxx xxx x x x."
[33]
"Sec. 25. What attestation of copy must state. - Whenever a
copy of a document or record is attested for the purpose of
evidence, the attestation must state, in substance, that the copy
is a correct copy of the original, or a specific part thereof, as the
case may be. The attestation must be under the official seal of
the attesting officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court."
[34]
"Sec. 24. Proof of official record.--The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the
legal custody of the record, or by his deputy, and accompanied,
if the record is not kept in the Philippines, with a certificate that
such officer has the custody. If the office in which the record is
kept is in a foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general, consul,
vice-consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in
which the record is kept, and authenticated by the seal of his
office."

See also Asiavest Ltd. v. Court of Appeals, 296 SCRA 539, 550-
551, September 25, 1998; Pacific Asia Overseas Shipping Corp.
v. National Labor Relations Commission, 161 SCRA 122, 133-
134, May 6, 1988.

Page 57 of 109
[35]
The transcript of stenographic notes states that the original
copies of the divorce decrees were presented in court (TSN,
December 16, 1998, p. 5; records, p. 176), but only photocopies
of the same documents were attached to the records (Records,
Index of Exhibits, p. 1.).
[36]
TSN, December 15, 1998, p. 7; records, p. 178.
[37]
TSN, December 16, 1998, p. 7; records, p. 178.
[38]
People v. Yatco, 97 Phil. 941, 945, November 28, 1955;
Marella v. Reyes, 12 Phil. 1, 3, November 10, 1908; People v.
Diaz, 271 SCRA 504, 516, April 18, 1997; De la Torre v. Court of
Appeals, 294 SCRA 196, 203-204, August 14, 1998; Maunlad
Savings & Loan Asso., Inc. v. Court of Appeals, GR No. 114942,
November 27, 2000, pp. 8-9.
[39]
Art. 15, Civil Code.
[40]
Joaquin Bernas, The 1987 Constitution of the Republic of the
Philippines: A Commentary, 1996 ed., p. 566.
[41]
Ricardo J. Francisco, Evidence: Rules of Court in the
Philippines, second edition, p. 382.
[42]
Ibid., p. 384.
[43]
Wildvalley Shipping Co., Ltd. v. Court of Appeals, GR No.
119602, October 6, 2000, p. 7.
[44]
Francisco, p. 29, citing De los Angeles v. Cabahug, 106 Phil.
839, December 29, 1959.
[45]
27A CJS, 15-17, §1.
[46]
Ibid., p. 611-613, §161.
[47]
27A CJS, 625, §162.
[48]
Rollo, p. 36.
[49]
"SEC. 48. Effect of foreign judgments or final orders.--The
effect of a judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or final order
is as follows:
Page 58 of 109
xxx xxx xxx

"(b) In case of a judgment or final order against a person,

the judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title.
"In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact."

[50]
In passing, we note that the absence of the said certificate is
merely an irregularity in complying with the formal requirement
for procuring a marriage license. Under Article 4 of the Family
Code, an irregularity will not affect the validity of a marriage
celebrated on the basis of a marriage license issued without that
certificate. (Vitug, Compendium, pp. 120-126; Sempio-Diy,
Handbook on the Family Code of the Philippines, 1997 reprint,
p. 17; Rufus Rodriguez, The Family Code of the Philippines
Annotated, 1990 ed., p. 42; Melencio Sta. Maria Jr., Persons
and Family Relations Law, 1999 ed., p. 146.)

[51]
Records, pp. 1-3.
[52]
Ibid., p. 4.
[53]
Id., p. 5.
[54]
Id., p. 180.
[55]
Id., pp. 170-171.
[56]
Id., pp. 84-89.
[57]
Id., pp. 181-182.
[58]
Id., pp. 40-41.

Page 59 of 109
[59]
Id., p. 183.
[60]
Id., pp. 184-187.

Page 60 of 109
 [ G.R. No. 126010, December 08, 1999 ]

LUCITA ESTRELLA HERNANDEZ, PETITIONER VS. COURT

OF APPEALS AND MARIO C. HERNANDEZ,
RESPONDENTS.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari of the decision [1] of the

Court of Appeals, dated January 30, 1996, affirming the decision
of the Regional Trial Court, Branch 18, Tagaytay City, dated
April 10, 1993, which dismissed the petition for annulment of
marriage filed by petitioner.

Petitioner Lucita Estrella Hernandez and private respondent

Mario C. Hernandez were married at the Silang Catholic Parish
Church in Silang, Cavite on January 1, 1981 (Exh. A).[2] Three
children were born to them, namely, Maie, who was born on May
3, 1982 (Exh. B),[3] Lyra, born on May 22, 1985 (Exh. C), [4] and
Marian, born on June 15, 1989 (Exh. D). [5]

On July 10, 1992, petitioner filed before the Regional Trial Court,
Branch 18, Tagaytay City, a petition seeking the annulment of
her marriage to private respondent on the ground of
psychological incapacity of the latter. She alleged that from the
time of their marriage up to the time of the filing of the suit,
private respondent failed to perform his obligation to support the
family and contribute to the management of the household,
devoting most of his time engaging in drinking sprees with his
friends. She further claimed that private respondent, after they

Page 61 of 109
were married, cohabited with another woman with whom he had
an illegitimate child, while having affairs with different women,
and that, because of his promiscuity, private respondent
endangered her health by infecting her with a sexually
transmissible disease (STD). She averred that private
respondent was irresponsible, immature and unprepared for the
duties of a married life. Petitioner prayed that for having
abandoned the family, private respondent be ordered to give
support to their three children in the total amount of P9,000.00
every month; that she be awarded the custody of their children;
and that she be adjudged as the sole owner of a parcel of land
located at Don Gregorio Subdivision I in Bo. Bucal, Dasmariñas,
Cavite, purchased during the marriage, as well as the jeep which
private respondent took with him when he left the conjugal home
on June 12, 1992.[6]

On October 8, 1992, because of private respondent’s failure to

file his answer, the trial court issued an order directing the
assistant provincial prosecutor to conduct an investigation to
determine if there was collusion between the parties. [7] Only
petitioner appeared at the investigation on November 5, 1992.
Nevertheless, the prosecutor found no evidence of collusion and
recommended that the case be set for trial.[8]

Based on the evidence presented by the petitioner, the facts are

as follows:[9]

Petitioner and private respondent met in 1977 at the Philippine

Christian University in Dasmariñas, Cavite. Petitioner, who is
five years older than private respondent, was then in her first
year of teaching zoology and botany. Private respondent, a
Page 62 of 109
college freshman, was her student for two consecutive
semesters. They became sweethearts in February 1979 when
she was no longer private respondent’s teacher. On January 1,
1981, they were married.

Private respondent continued his studies for two more years. His
parents paid for his tuition fees, while petitioner provided his
allowances and other financial needs. The family income came
from petitioner’s salary as a faculty member of the Philippine
Christian University. Petitioner augmented her earnings by
selling “Tupperware” products, as well as engaging in the buy-
and-sell of coffee, rice and polvoron.

From 1983 up to 1986, as private respondent could not find a

stable job, it was agreed that he would help petitioner in her
businesses by delivering orders to customers. However,
because her husband was a spendthrift and had other women,
petitioner’s business suffered. Private respondent often had
smoking and drinking sprees with his friends and betted on
fighting cocks. In 1982, after the birth of their first child, petitioner
discovered two love letters written by a certain Realita Villena to
private respondent. She knew Villena as a married student
whose husband was working in Saudi Arabia. When petitioner
confronted private respondent, he admitted having an extra-
marital affair with Villena. Petitioner then pleaded with Villena to
end her relationship with private respondent. For his part, private
respondent said he would end the affairs, but he did not keep his
promise. Instead, he left the conjugal home and abandoned
petitioner and their child. When private respondent came back,
however, petitioner accepted him, despite private respondent’s
infidelity in the hope of saving their marriage.
Page 63 of 109
Upon the recommendation of a family friend, private respondent
was able to get a job at Reynolds Philippines, Inc. in San
Agustin, Dasmariñas, Cavite in 1986. However, private
respondent was employed only until March 31, 1991, because
he availed himself of the early retirement plan offered by the
company. He received P53,000.00 in retirement pay, but instead
of spending the amount for the needs of the family, private
respondent spent the money on himself and consumed the
entire amount within four months of his retirement.

While private respondent worked at Reynolds Philippines, Inc.,

his smoking, drinking, gambling and womanizing became worse.
Petitioner discovered that private respondent carried on
relationships with different women. He had relations with a
certain Edna who worked at Yazaki; Angie, who was an operator
of a billiard hall; Tess, a “Japayuki”; Myrna Macatangay, a
secretary at the Road Master Driver’s School in Bayan,
Dasmariñas, Cavite, with whom he cohabited for quite a while;
and, Ruth Oliva, by whom he had a daughter named Margie P.
Oliva, born on September 15, 1989 (Exh. E).[10] When
petitioner confronted private respondent about his relationship
with Tess, he beat her up, as a result of which she was confined
at the De la Salle University Medical Center in Dasmariñas,
Cavite on July 4-5, 1990 because of cerebral concussion (Exh.
F).[11]

According to petitioner, private respondent engaged in extreme

promiscuous conduct during the latter part of 1986. As a result,
private respondent contracted gonorrhea and infected petitioner.
They both received treatment at the Zapote Medical Specialists
Page 64 of 109
Center in Zapote, Bacoor, Cavite from October 22, 1986 until
March 13, 1987 (Exhs. G & H).[12]

Petitioner averred that on one occasion of a heated argument,

private respondent hit their eldest child who was then barely a
year old. Private respondent is not close to any of their children
as he was never affectionate and hardly spent time with them.

On July 17, 1979, petitioner entered into a contract to sell (Exh.

J)[13] with F & C Realty Corporation whereby she agreed to buy
from the latter a parcel of land at the Don Gregorio Heights
Subdivision I in Bo. Bucal, Dasmariñas, Cavite and placed a
partial payment of P31,330.00. On May 26, 1987, after full
payment of the amount of P51,067.10, inclusive of interests from
monthly installments, a deed of absolute sale (Exh. K) [14] was
executed in her favor and TCT No. T-221529 (Exh. M)[15] was
duly issued.

According to petitioner, on August 1, 1992, she sent a

handwritten letter[16] to private respondent expressing her
frustration over the fact that her efforts to save their marriage
proved futile. In her letter, petitioner also stated that she was
allowing him to sell their owner-type jeepney[17] and to divide the
proceeds of the sale between the two of them. Petitioner also
told private respondent of her intention to file a petition for the
annulment of their marriage.

It does not appear that private respondent ever replied to

petitioner’s letter. By this time, he had already abandoned
petitioner and their children. In October 1992, petitioner learned
that private respondent left for the Middle East. Since then,
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private respondent’s whereabouts had been unknown.

Ester Alfaro, petitioner’s childhood friend and co-teacher at the

Philippine Christian University, testified during the hearing on the
petition for annulment. She said that sometime in June 1979,
petitioner introduced private respondent to her (Alfaro) as the
former’s sweetheart. Alfaro said she was not impressed with
private respondent who was her student in accounting. She
observed private respondent to be fun-loving, spending most of
his time with campus friends. In November 1980, when
petitioner asked Alfaro to be one of the secondary sponsors at
her forthcoming wedding, Alfaro wanted to dissuade petitioner
from going through with the wedding because she thought
private respondent was not ready for married life as he was then
unemployed. True enough, although the couple appeared happy
during the early part of their marriage, it was not long thereafter
that private respondent started drinking with his friends and
going home late at night. Alfaro corroborated petitioner’s claim
that private respondent was a habitual drunkard who carried on
relationships with different women and continued hanging out
with his friends. She also confirmed that petitioner was once
hospitalized because she was beaten up by private respondent.
After the first year of petitioner’s marriage, Alfaro tried to talk to
private respondent, but the latter accused her of meddling with
their marital life. Alfaro said that private respondent was not
close to his children and that he had abandoned petitioner. [18]

On April 10, 1993, the trial court rendered a decision[19]

dismissing the petition for annulment of marriage filed by
petitioner. The pertinent portion of the decision reads: [20]

Page 66 of 109
The Court can underscore the fact that the circumstances
mentioned by the petitioner in support of her claim that
respondent was “psychologically incapacitated” to marry her are
among the grounds cited by the law as valid reasons for the
grant of legal separation (Article 55 of the Family Code) - not as
grounds for a declaration of nullity of marriages or annulment
thereof. Thus, Article 55 of the same code reads as follows:

Art. 55. A petition for legal separation may be filed on any of the
following grounds:

(1) Repeated physical violence or grossly abusive conduct

directed against the petitioner, a common child, or a child of the
petitioner;
....
(5) Drug addiction or habitual alcoholism of the respondent;
....

(8) Sexual infidelity or perversion;

....
(10) Abandonment of petitioner by respondent without justifiable
cause for more than one year.
....
If indeed Article 36 of the Family Code of the Philippines, which
mentions psychological incapacity as a ground for the
declaration of the nullity of a marriage, has intended to include
the above-stated circumstances as constitutive of such
incapacity, then the same would not have been enumerated as
grounds for legal separation.

In the same manner, this Court is not disposed to grant relief in

Page 67 of 109
favor of the petitioner under Article 46, paragraph (3) of the
Family Code of the Philippines, as there is no dispute that the
“gonorrhea” transmitted to the petitioner by respondent occurred
sometime in 1986, or five (5) years after petitioner’s marriage
with respondent was celebrated in 1981. The provisions of
Article 46, paragraph (3) of the same law should be taken in
conjunction with Article 45, paragraph (3) of the same code, and
a careful reading of the two (2) provisions of the law would
require the existence of this ground (fraud) at the time of the
celebration of the marriage. Hence, the annulment of petitioner’s
marriage with the respondent on this ground, as alleged and
proved in the instant case, cannot be legally accepted by the
Court.

Petitioner appealed to the Court of Appeals which, on January

30, 1996, rendered its decision affirming the decision of the trial
court. Citing the ruling in Santos v. Court of Appeals,[21] the
Court of Appeals held:[22]

It is clear in the above law and jurisprudence that the

psychological incapacity of a spouse, as a ground for declaration
of nullity of marriage, must exist at the time of the celebration of
marriage. More so, chronic sexual infidelity, abandonment,
gambling and use of prohibited drugs are not grounds per se, of
psychological incapacity of a spouse.

We agree with the Solicitor General that petitioner-appellant

failed to prove that her respondent-husband was psychologically
incapacitated at the time of the celebration of the marriage.
Certainly, petitioner-appellant’s declaration that at the time of
their marriage her respondent-husband’s character was on the
“borderline between a responsible person and the happy-go-
Page 68 of 109
lucky,” could not constitute the psychological incapacity in
contemplation of Article 36 of the Family Code. In fact,
petitioner-appellant herself ascribed said attitude to her
respondent-husband’s youth and very good looks, who was
admittedly several years younger than petitioner-appellant who,
herself, happened to be the college professor of her respondent-
husband. Petitioner-appellant even described her respondent-
husband not as a problem student but a normal one (p. 24, tsn,
Dec. 8, 1992).

The acts and attitudes complained of by petitioner-appellant

happened after the marriage and there is no proof that the same
have already existed at the time of the celebration of the
marriage to constitute the psychological incapacity under Article
36 of the Family Code.

Hence, this petition. Petitioner contends that the respondent

Court of Appeals erred ¾

I. IN FINDING THAT THE PSYCHOLOGICAL INCAPACITY OF

THE PRIVATE RESPONDENT TO COMPLY WITH HIS
ESSENTIAL MARITAL OBLIGATIONS DID NOT EXIST FROM
THE TIME OF THE CELEBRATION OF THE MARRIAGE.

II. IN RULING THAT PRIVATE RESPONDENT WAS NOT

PSYCHOLOGICALLY INCAPACITATED TO COMPLY WITH
HIS ESSENTIAL MARITAL OBLIGATIONS.

III. IN AFFIRMING THE DECISION OF THE TRIAL COURT

DENYING THE AWARD OF PERMANENT CUSTODY OF THE
CHILDREN TO PETITIONER.

Page 69 of 109
IV. IN AFFIRMING THE DECISION OF THE TRIAL COURT
DENYING THE PRAYER FOR ISSUANCE OF AN ORDER
REQUIRING PRIVATE RESPONDENT TO GIVE SUPPORT TO
THE THREE CHILDREN IN THE AMOUNT OF P3,000.00 PER
CHILD.

V. IN NOT DECLARING THE REAL PROPERTY ACQUIRED

BY PETITIONER AS HER EXCLUSIVE PROPERTY.

The issue in this case is whether or not the marriage of

petitioner and private respondent should be annulled on the
ground of private respondent’s psychological incapacity.

Petitioner alleges that the Court of Appeals erred in holding that

petitioner failed to show that private respondent’s psychological
incapacity existed at the time of the celebration of the marriage.
She argues that the fact that the acts of incapacity of private
respondent became manifest only after the celebration of their
marriage should not be a bar to the annulment of their marriage.

Art. 36 of the Family Code states:

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.[23]

In Santos v. Court of Appeals,[24] we held:

“Psychological incapacity” should refer to no less than a mental

(not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly
Page 70 of 109
must be assumed and discharged by the parties to the marriage
which, as so expressed by Article 68 of the Family Code, include
their mutual obligations to live together, observe love, respect
and fidelity and render help and support. There is hardly any
doubt that the intendment of the law has been to confine the
meaning of “psychological incapacity” to the most serious cases
of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the
marriage. This psychological condition must exist at the time the
marriage is celebrated. The law does not evidently envision,
upon the other hand, an inability of the spouse to have sexual
relations with the other. This conclusion is implicit under Article
54 of the Family Code which considers children conceived prior
to the judicial declaration of nullity of the void marriage to be
“legitimate.”

The other forms of psychoses, if existing at the inception of

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

Until further statutory and jurisprudential parameters are

established, every circumstance that may have some bearing on
Page 71 of 109
the degree, extent, and other conditions of that incapacity must,
in every case, be carefully examined and evaluated so that no
precipitate and indiscriminate nullity is peremptorily decreed.
The well-considered opinions of psychiatrists, psychologists, and
persons with expertise in psychological disciplines might be
helpful or even desirable.

In the instant case, other than her self-serving declarations,

petitioner failed to establish the fact that at the time they were
married, private respondent was suffering from a psychological
defect which in fact deprived him of the ability to assume the
essential duties of marriage and its concomitant responsibilities.
As the Court of Appeals pointed out, no evidence was presented
to show that private respondent was not cognizant of the basic
marital obligations. It was not sufficiently proved that private
respondent was really incapable of fulfilling his duties due to
some incapacity of a psychological nature, and not merely
physical. Petitioner says that at the outset of their marriage,
private respondent showed lack of drive to work for his family.
Private respondent’s parents and petitioner supported him
through college. After his schooling, although he eventually
found a job, he availed himself of the early retirement plan
offered by his employer and spent the entire amount he received
on himself. For a greater part of their marital life, private
respondent was out of job and did not have the initiative to look
for another. He indulged in vices and engaged in philandering,
and later abandoned his family. Petitioner concludes that private
respondent’s condition is incurable, causing the disintegration of
their union and defeating the very objectives of marriage.

However, private respondent’s alleged habitual alcoholism,

sexual infidelity or perversion, and abandonment do not by
Page 72 of 109
themselves constitute grounds for finding that he is suffering
from a psychological incapacity within the contemplation of the
Family Code. It must be shown that these acts are
manifestations of a disordered personality which make private
respondent completely unable to discharge the essential
obligations of the marital state, and not merely due to private
respondent’s youth and self-conscious feeling of being
handsome, as the appellate court held. As pointed out in
Republic of the Philippines v. Court of Appeals:[25]

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 ¾ not physical, although its
manifestations and/or symptoms may be physical. The evidence
must convince the court that the parties, or one of them, was
mentally or physically ill to such an extent that the person could
not have known the obligations he was assuming, or knowing
them, could not have given valid assumption thereof. Although
no example of such incapacity need be given here so as not to
limit the application of the provision under the principle of
ejusdem generis (citing Salita v. Magtolis, supra) nevertheless
such root cause must be identified as a psychological illness and
its incapacitating nature fully explained. Expert evidence may be
given by qualified psychiatrists and clinical psychologists.

Moreover, expert testimony should have been presented to

establish the precise cause of private respondent’s
psychological incapacity, if any, in order to show that it existed at
the inception of the marriage. The burden of proof to show the
nullity of the marriage rests upon petitioner. The Court is mindful
Page 73 of 109
of the policy of the 1987 Constitution to protect and strengthen
the family as the basic autonomous social institution and
marriage as the foundation of the family. [26] Thus, any doubt
should be resolved in favor of the validity of the marriage. [27]

We, therefore, find no reason to reverse the ruling of respondent

Court of Appeals whose conclusions, affirming the trial court’s
finding with regard to the non-existence of private respondent’s
psychological incapacity at the time of the marriage, are entitled
to great weight and even finality.[28] Only where it is shown that
such findings are whimsical, capricious, and arbitrary can these
be overturned.

The conclusion we have reached makes it unnecessary for us to

pass upon petitioner’s contentions on the issue of permanent
custody of children, the amount for their respective support, and
the declaration of exclusive ownership of petitioner over the real
property. These matters may more appropriately be litigated in a
separate proceeding for legal separation, dissolution of property
regime, and/or custody of children which petitioner may bring.

WHEREFORE, the decision of the Court of Appeals is

AFFIRMED.

SO ORDERED.

Bellosillo (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ.,

concur.

Page 74 of 109
[1]
Per Justice Lourdes K. Tayao-Jaguros and concurred in by
Justices Jorge S. Imperial (Chairman) and B.A. Adefuin-De la
Cruz.
[2]
RTC Records, p. 7.
[3]
Id., p. 8.
[4]
Id., p. 9.
[5]
Id., p. 10.
[6]
Petition, RTC Records, pp. 1-4.
[7]
RTC Records, p. 24.
[8]
Id., p. 25.
[9]
TSN, pp. 6-56, Nov. 13, 1992; pp. 3-31, Dec. 8, 1992.
[10]
RTC Records, p. 37.
[11]
Id., p. 38.
[12]
Id., pp. 39-40a.
13]
Id., pp. 41-43.
[14]
Id., pp. 44-45.
[15]
Id., p. 47.
[16]
Id., pp. 49-51.
[17]
17 Id., p. 48.
[18]
TSN, pp. 32-68, Dec. 8, 1992.
[19]
Per Acting Presiding Judge Eleuterio F. Guerrero.
[20]
RTC Records, pp. 58-59.
[21]
310 Phil. 22 (1995).
[22]
Rollo, pp. 44-46.
[23]
As amended by E.O. No. 227 dated July 17, 1987.
[24]
Supra, at 40-41.
[25]
335 Phil. 664, 676-680 (1997).
[26]
See Art. II, §12; Art. XV, §§1-2.
[27]
Republic of the Philippines v. Court of Appeals, supra.
[28]
Tuason v. Court of Appeals, 326 Phil. 169 (1996).

Page 75 of 109
 [ G.R. No. 108763, February 13, 1997 ]

REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. COURT

OF APPEALS AND RORIDEL OLAVIANO MOLINA,
RESPONDENTS.
DECISION

PANGANIBAN, J.:

The Family Code of the Philippines provides an entirely new

ground (in addition to those enumerated in the Civil Code) to
assail the validity of a marriage, namely, “psychological
incapacity.” Since the Code’s effectivity, our courts have been
swamped with various petitions to declare marriages void based
on this ground. Although this Court had interpreted the meaning
of psychological incapacity in the recent case of Santos vs.
Court of Appeals, still many judges and lawyers find difficulty in
applying said novel provision in specific cases. In the present
case and in the context of the herein assailed Decision of the
Court of Appeals, the Solicitor General has labelled --
exaggerated to be sure but nonetheless expressive of his
frustration -- Article 36 as the “most liberal divorce procedure in
the world.” Hence, this Court in addition to resolving the present
case, finds the need to lay down specific guidelines in the
interpretation and application of Article 36 of the Family Code.

Before us is a petition for review on certiorari under Rule 45

challenging the January 25, 1993 Decision [1] of the Court of
Appeals[2] in CA-G.R. CV No. 34858 affirming in toto the May 14,
1991 decision of the Regional Trial Court of La Trinidad,[3]
Benguet, which declared the marriage of respondent Roridel
Olaviano Molina to Reynaldo Molina void ab initio, on the ground
Page 76 of 109
of “psychological incapacity” under Article 36 of the Family
Code.

The Facts

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

Page 77 of 109
In his Answer filed on August 28, 1989, Reynaldo admitted that
he and Roridel could no longer live together as husband and
wife, but contended that their misunderstandings and frequent
quarrels were due to (1) Roridel’s strange behavior of insisting
on maintaining her group of friends even after their marriage; (2)
Roridel’s refusal to perform some of her marital duties such as
cooking meals; and (3) Roridel’s failure to run the household and
handle their finances.

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

stipulated:

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

2. That out of their marriage, a child named Albert Andre

Olaviano Molina was born on July 29, 1986;

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

years;

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

5. That the respondent is not asking for damages;

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

petitioner wife.”
Evidence for herein respondent wife consisted of her own
testimony and that of her friends Rosemarie Ventura and Maria
Leonora Padilla as well as of Ruth G. Lalas, a social worker, and

Page 78 of 109
of Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio
General Hospital and Medical Center. She also submitted
documents marked as Exhibits “A” to “E-1.” Reynaldo did not
present any evidence as he appeared only during the pre-trial
conference.

On May 14, 1991, the trial court rendered judgment declaring

the marriage void. The appeal of petitioner was denied by the
Court of Appeals which affirmed in toto the RTC’s decision.
Hence, the present recourse.

The Issue

In his petition, the Solicitor General insists that “the Court of

Appeals made an erroneous and incorrect interpretation of the
phrase ‘psychological incapacity’ (as provided under Art. 36 of
the Family Code) and made an incorrect application thereof to
the facts of the case,” adding that the appealed Decision tended
“to establish in effect the most liberal divorce procedure in the
world which is anathema to our culture.”

In denying the Solicitor General’s appeal, the respondent Court

relied[5] heavily on the trial court’s findings “that the marriage
between the parties broke up because of their opposing and
conflicting personalities.” Then, it added its own opinion that “the
Civil Code Revision Committee (hereinafter referred to as the
Committee) intended to liberalize the application of our civil laws
on personal and family rights x x x.” It concluded that:

“As a ground for annulment of marriage, We view psychological

incapacity as a broad range of mental and behavioral conduct
on the part of one spouse indicative of how he or she regards
Page 79 of 109
the marital union, his or her personal relationship with the other
spouse, as well as his or her conduct in the long haul for the
attainment of the principal objectives of marriage. If said
conduct, observed and considered as a whole, tends to cause
the union to self-destruct because it defeats the very objectives
of marriage, then there is enough reason to leave the spouses to
their individual fates.

In the case at bar, We find that the trial judge committed no

indiscretion in analyzing and deciding the instant case, as it did,
hence, We find no cogent reason to disturb the findings and
conclusions thus made.”

Respondent, in her Memorandum, adopts these discussions of

the Court of Appeals.

The petitioner, on the other hand, argues that “opposing and

conflicting personalities” is not equivalent to psychological
incapacity, explaining that such ground “is not simply the neglect
by the parties to the marriage of their responsibilities and duties,
but a defect in their psychological nature which renders them
incapable of performing such marital responsibilities and duties.”

The Court’s Ruling

The petition is meritorious.

In Leouel Santos vs. Court of Appeals,[6]this Court, speaking thru

Mr. Justice Jose C. Vitug, ruled that “psychological incapacity
should refer to no less than a mental (not physical) incapacity x
x x and that (t)here is hardly any doubt that the intendment of
the law has been to confine the meaning of ‘psychological
Page 80 of 109
incapacity’ to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability to give
meaning and significance to the marriage. This psychologic
condition must exist at the time the marriage is celebrated.”
Citing Dr. Gerardo Veloso, a former presiding judge of the
Metropolitan Marriage Tribunal of the Catholic Archdiocese of
Manila,[7] Justice Vitug wrote that “the psychological incapacity
must be characterized by (a) gravity, (b) juridical antecedence,
and (c) incurability.”

On the other hand, in the present case, there is no clear

showing to us that the psychological defect spoken of is an
incapacity. It appears to us to be more of a “difficulty,” if not
outright “refusal” or “neglect” in the performance of some marital
obligations. Mere showing of “irreconciliable differences” and
“conflicting personalities” in no wise constitutes psychological
incapacity. It is not enough to prove that the parties failed to
meet their responsibilities and duties as married persons; it is
essential that they must be shown to be incapable of doing so,
due to some psychological (not physical) illness.

The evidence adduced by respondent merely showed that she

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

“COURT

Q It is therefore the recommendation of the psychiatrist based

Page 81 of 109
on your findings that it is better for the Court to annul (sic) the
marriage?
A Yes, Your Honor.

Q There is no hope for the marriage?

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

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

psychologically unfit for each other but they are psychologically
fit with other parties?
A Yes, Your Honor.

Q Neither are they psychologically unfit for their professions?

A Yes, Your Honor.

The Court has no more questions.”

In the case of Reynaldo, there is no showing that his alleged
personality traits were constitutive of psychological incapacity
existing at the time of marriage celebration. While some effort
was made to prove that there was a failure to fulfill pre-nuptial
impressions of “thoughtfulness and gentleness” on Reynaldo’s
part and of being “conservative, homely and intelligent” on the
part of Roridel, such failure of expectation is not indicative of
antecedent psychological incapacity. If at all, it merely shows
love’s temporary blindness to the faults and blemishes of the
beloved.

During its deliberations, the Court decided to go beyond merely

ruling on the facts of this case vis-a-vis existing law and
jurisprudence. In view of the novelty of Art. 36 of the Family
Code and the difficulty experienced by many trial courts in
Page 82 of 109
interpreting and applying it, the Court decided to invite two amici
curiae, namely, the Most Reverend Oscar V. Cruz, [9] Vicar
Judicial (Presiding Judge) of the National Appellate Matrimonial
Tribunal of the Catholic Church in the Philippines, and Justice
Ricardo C. Puno,[10] a member of the Family Code Revision
Committee. The Court takes this occasion to thank these friends
of the Court for their informative and interesting discussions
during the oral argument on December 3, 1996, which they
followed up with written memoranda.

From their submissions and the Court’s own deliberations, the

following guidelines in the interpretation and application of Art.
36 of the Family Code are hereby handed down for the guidance
of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage

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

The Family Code [12] echoes this constitutional edict on marriage

and the family and emphasizes 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)
Page 83 of 109
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,[13] nevertheless such root cause must be
identified as a psychological illness and its incapacitating nature
fully explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.

(3) The incapacity must be proven to be existing at “the time of

the celebration” of the marriage. The evidence must show that
the illness was existing when the parties exchanged their “I
do’s.” The manifestation of the illness need not be perceivable at
such time, but the illness itself must have attached at such
moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or

clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the
assumption of marriage obligations, not necessarily to those not
related to marriage, like the exercise of a profession or
employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure
Page 84 of 109
them but may not be psychologically capacitated to procreate,
bear and raise his/her own children as an essential obligation of
marriage.

(5) Such illness must be grave enough to bring about the

disability of the party to assume the essential obligations of
marriage. Thus, “mild characteriological peculiarities, mood
changes, occasional emotional outbursts” cannot be accepted
as root causes. The illness must be shown as downright
incapacity or inability, 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:

Page 85 of 109
“The following are incapable of contracting marriage: Those who
are unable to assume the essential obligations of marriage due
to causes of psychological nature.” [14]

Since the purpose of including such provision in our Family

Code is to harmonize our civil laws with the religious faith of our
people, it stands to reason that to achieve such harmonization,
great persuasive weight should be given to 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.

Page 86 of 109
In the instant case and applying Leouel Santos, we have already
ruled to grant the petition. Such ruling becomes even more
cogent with the use of the foregoing guidelines.

WHEREFORE, the petition is GRANTED. The assailed Decision

is REVERSED and SET ASIDE. The marriage of Roridel
Olaviano to Reynaldo Molina subsists and remains valid.
SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno,

Kapunan, Mendoza, Francisco, Hermosisima, Jr., and Torres,
Jr., JJ., concur
Padilla, J., See Separate Statement.
Romero, J., See Separate Statement.
Vitug, J., Please see Concurring opinion.

[1]
Rollo pp. 25-33.
[2]
Sixteenth Division composed of J. Segundino G. Chua,
ponente and chairman; JJ. Serafin V.C. Guingona and Ricardo
P. Galvez, concurring.
[3]
Presided by Judge Heilia S. Mallare-Phillipps.
[4]
Solemnized by Fr. Jesus G. Encinas.
[5]
The Court of Appeals reproduced in its Decision a substantial
portion of the RTC Decision as follows:

“To sustain her claim that respondent is psychologically

incapacitated to comply with his marital obligations, petitioner
testified that he is immature, irresponsible, dependent,
disrespectful, arrogant, a chronic liar, and an infidel. These
characteristics of respondent are based on petitioner’s testimony
Page 87 of 109
that the former failed to be gainfully employed after he was
relieved from the Office of the Government Corporate Counsel
sometime in February, 1986, leaving petitioner as the sole
breadwinner of the family. Also when they were separated in
fact, respondent practically abandoned both petitioner-mother
and son except during the first few months of separation when
respondent regularly visited his son and gave him a monthly
allowance of P1,000.00 for about two to four months.
Respondent is likewise dependent on his parents for financial
aid and support as he has no savings, preferring to spend his
money with his friends and peers. A year after their marriage,
respondent informed petitioner that he bought a house and lot at
BF Homes, Parañaque for about a million pesos. They then
transferred there only for the petitioner to discover a few months
later that they were actually renting the house with the
respondent’s parents responsible for the payment of the rentals.
Aside from this, respondent would also lie about his salary and
ability. And that at present, respondent is living with his mistress
and their child, which fact he does not deny.

It is unfortunate that the marriage between petitioner and

respondent turned sour if we look at the background of their
relationship. During their college days, when they were still
going steady, respondent observed petitioner to be
conservative, homely, and intelligent causing him to believe then
that she would make an ideal wife and mother. Likewise,
petitioner fell in love with respondent because of his
thoughtfulness and gentleness. After a year, however, they
decided to break their relationship because of some differences
in their personalities. Almost five (5) years later, while they were
working in Manila, petitioner and respondent rekindled their love
Page 88 of 109
affair. They became very close and petitioner was glad to
observe a more mature respondent. Believing that they knew
each other much better after two years of going steady, they
decided to settle down and get married. It would seem,
therefore, that petitioner and respondent knew each other well
and were then prepared for married life.

During their marriage, however, the true personalities of the

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

It seems clear at this stage that the marriage between the

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

Marriage is a special contract of permanent union between a

man and woman with the basic objective of establishing a
conjugal and family life. (Article 1, Family Code). The unique
element of permanency of union signifies a continuing,
developing, and lifelong relationship between the parties.
Towards this end, the parties must fully understand and accept
Page 89 of 109
the (implications and consequences of being permanently)
united in marriage. And the maintenance of this relationship
demands from the parties, among others, determination to
succeed in their marriage as well as heartfelt understanding,
acceptance, cooperation, and support for each other. Thus, the
Family Code requires them to live together, to observe mutual
(love, respect and fidelity, and render mutual help and support.
Failure to observe) and perform these fundamental roles of a
husband and a wife will most likely lead to the break-up of the
marriage. Such is the unfortunate situation in this case."
(Decision, pp. 5-8; Original Records, pp. 70-73)

[6]
240 SCRA 20, 34, January 4, 1995.
[7]
Quoted from Justice Alicia Sempio-Diy, Handbook on the
Family Code, First Edition, 1988.
[8]
TSN, April 6, 1991, p. 5.
[9]
The National Appellate Matrimonial Tribunal reviews all
decisions of the marriage tribunals of each archdiocese or
diocese in the country. Aside from heading the Appellate
Tribunal, Most. Rev. Cruz is also incumbent president of the
Catholic Bishop's Conferrence of the Philippines, Archbishop of
Dagupan Lingayen, and holds the degrees of Doctor of Canon
Law and Doctor of Divinity. Archbishop Cruz was also
Secretaary General of the Second Plenary Council of the
Philippines -PCP II- held from January 20, 1991 to February 17,
1991, which is the rough equivalent of a parliament or
constitutional convention in the Philippine Church, and where
the ponente, who was a council member, had the privilege of
being overwhelmed by his keen mind and prayerful
discernments.
[10]
Justice Puno was a former member of the Court of Appeals,
Page 90 of 109
retired Minister of Justice, author, noted civil law professor and
law practitioner.
[11]

“ARTICLE XV”

THE FAMILY

Section 1. The State recognizes the Filipino Family as the

foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the

foundation of the family and shall be protected by the state.

Section 3. The state shall defend;

(1) The right of spouses to found a family in accordance with

their religious convictions and the demands of responsible
parenthood;

(2) The right of children to assistance, including proper care and

nutrition, and specialprotection from all forms of neglect, abuse,
cruelty, exploitation , and other conditions prejudicial to their
development;

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

(4) The right of families or family associations to participate in

the planning and implementation of policies and programs that
affect them.

Page 91 of 109
Section 4. The family has the duty to care for its elderly
members but the state may also do so through just programs of
social security."

[12]
"Art. 1. Marriage is a special contract of permanent union
between a man and a woman entered into in accordance with
law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution whose
nature, consequences, and incidents are governed by law and
not subject to stipulation, except that marriage settlements may
fix the property relations during the marriage within the limits
provided by this code."
[13]
Salita vs. Magtolis 233 SCRA 100, June 13, 1994.
[14]
This text is taken from the Memorandum of Archbishop Cruz.
On the other hand, the text used un Santos vs. CA reads:
xxx xxx xxx

3. Who for causes of psychological nature are unable to assume

the essential obligations of marriage.”

The differrence in wording between this and that in Arch. Cruz’s

Memorandum is due to the fact that the original Canon is written
in Latin and both versions are differently-worded English
translations.

SEPARATE STATEMENT
PADILLA, J.:

I concur in the result of the decision penned by Mr. Justice

Panganiban but only because of the peculiar facts of the case.
As to whether or not psychological incapacity exist in a given
Page 92 of 109
case calling for annulment of marriage, depends crucially, more
than in any field of the law, on the facts of the case. In Leouel
Santos v. Court of Appeals and Julia Rosario-Bedia Santos,
G.R. No. 112019, 4 January 1995, 240 SCRA 20-36, I
maintained, and I still maintain, that there was psychological
incapacity on the part of the wife to discharge the duties of a
wife in a valid marriage. The facts of the present case, after an
indepth study, do not support a similar conclusion. Obviously,
each case must be judged, not on the basis of a priori
assumptions, predilections or generalizations but according to its
own facts. In the field of psychological incapacity as a ground for
annulment of marriage, it is trite to say that no case is no “all
fours” with another case. The trial judge must take pains in
examining the factual millieu and the appellate court must, as
much as possible, avoid substituting its own judgment for that of
the trial court.
SEPARATE OPINION
ROMERO, J.:

The majority opinion, overturning that of the Court of appeals

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

In the present case, the alleged personality traits of Reynaldo,

the husband, did not constitute so much “psychological
incapacity” as a “difficulty,” if not outright “refusal” or “neglect” in
Page 93 of 109
the performance of some marital obligations. “It is not enough to
prove that the parties failed to meet their responsibilities and
duties as married persons; it is essential that they must be
shown to be incapable of doing so, due to some psychological
(not physical) illness.”

I would add that neither should the incapacity be the result of

mental illness. For if it were due to insanity or defects in the
mental faculties short of insanity, there is a resultant defect or
vice of consent, thus rendering the marriage annullable under
Art. 45 of the Family Code.

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

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

read:

“(7) Those marriages contracted by any party who, at the time of

the celebration, was wanting in the sufficient use of reason or
judgement to understand the essential nature of marriage or was
psychologically or mentally incapacitated to discharge the
essential marital obligations, even if such lack of incapacity is
made manifest after the celebration.”

The twist and turns which the ensuing discussion took finally

Page 94 of 109
produced the following revised provision even before the
session was over:

“(7) That contracted by any party who, at the time of the

celebration, was psychologically incapacitated to discharge the
essential marital obligations, even if such lack or incapacity
becomes manifest after the celebration.”

Noticeably, the immediately preceding formulation above has

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

My own position as a member of the Committee then was that

psychological incapacity is, in a sense, insanity of a lessor
degree.

As to the proposal of Justice Caguio to use the term

“psychological or mental impotence,” Archbishop Oscar Cruz
opined in the earlier February 9, 1984 session that this term “is
an invention of some churchmen who are moralist but not

Page 95 of 109
canonist, that is why it is considered a weak phrase.” He said
that the Code of Canon Law would rather express it as
“psychological or mental incapacity to discharge….” Justice
Ricardo C. Puno opined that sometimes a person may be
psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the

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

The Committee, through Prof. Araceli T. Barrera, considered the

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

For clarity, the Committee classified the bases for determining

void marriages, viz:

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

contract;

2. reasons of public policy;

Page 96 of 109
3. special cases and special situations.

The ground of psychological incapacity was subsumed under

“special cases and special situations,” hence its special
treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a

ground for avoiding or annulling marriages that even comes
close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the

time of the marriage, such marriage which stands valid until
annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of

essential requisites, some marriages are void from the
beginning.

With the revision of Book I of the Civil Code, particularly the

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

Canon 1095 which states, inter alia, that the following persons
are incapable of contracting marriage: “3. (those who, because
of causes of psychological nature, are unable to assume the
essential obligations of marriage” provided the model for what is
now Art. 36 of the Family Code: “A marriage contracted by any
Page 97 of 109
party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization.

It bears stressing that unlike in Civil Law, Canon Law recognizes

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

Such so-called church “annulments” are not recognized by the

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

It was precisely to provide a satisfactory solution to such

anomalous situations that the Civil Law Revision Committee
decided to engraft the Canon Law concept of psychological
Page 98 of 109
incapacity into the Family Code – and classified the same as a
ground for declaring marriages void ab initio or totally inexistent
from the beginning.

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

“Favorable annulment decisions by the Roman Rote in the

1950s and 1960s involving sexual disorders such as
homosexuality and nymphomania laid the foundation for a
broader approach to the kind of proof necessary for
psychological grounds for annulment. The Rota had reasoned
for the first time in several cases that the capacity to give valid
consent at the time of marriage was probably not present in
persons who had displayed such problems shortly after the
marriage. The nature of a cautious willingness to use this kind of
Page 99 of 109
hindsight, the way was paved for what came after 1970.
Diocesan Tribunals began to accept proof of serious
psychological problems that manifest themselves shortly after
the ceremony as proof of an inability to give valid consent at the
time of the ceremony.

Furthermore, and equally significant, the professional opinion of

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

The church took no pains to point out that its new openness in
this area did not amount to the addition of new grounds for
annulment, but rather was an accommodation by the Church to
the advances made in psychology during the past decades.
There was now the expertise to provide the all-important
connecting link between a marriage breakdown and premarital
causes.

During the 1970s, the Church broadened its whole idea of

marriage from that of a legal contract to that of a covenant. The
result of this was that it could no longer be assumed in
annulment cases that a person who could intellectually
understand the concept of marriage could necessarily give valid
consent to marry. The ability to both grasp and assume the real
obligations of a mature, lifelong commitment are now considered
a necessary prerequisite to valid matrimonial consent.” [2]
Page 100 of 109
Rotal decisions continued applying the concept of incipient
psychological incapacity, “not only to sexual anomalies but all
kinds of personality disorders that incapacitate a spouse or both
spouses from assuming or carrying out the essential obligations
of marriage. For marriage… is not merely cohabitation or the
right of the spouses to each other’s body for heterosexual acts,
but is, in its totality, the right to the community of the whole of
life; i.e., the right to a developing, lifelong relationship. Rotal
decision since 1973 have refined the meaning of psychological
or psychic capacity for marriage as presupposing the
development of an adult personality; as meaning the capacity of
the spouses to give themselves to each other and to accept the
other as a distinct person; that the spouses must be ‘other
oriented’ since the obligations of marriage are rooted in a self-
giving love; and that the spouses must have the capacity for
interpersonal relationship because marriage is more than just a
physical reality but involves a true intertwining of personalities.
The fulfillment of the obligations of marriage depends, according
to church decisions, on the strength of this interpersonal
relationship. A serious incapacity for interpersonal sharing and
support is held to impair the relationship and consequently, the
ability to fulfill the essential marital obligations. The marital
capacity of one spouse is not considered in isolation but in
reference to the fundamental relationship to the other spouse. [3]

Fr. Green, in an article in Catholic Mind, lists six elements

necessary to the mature marital relationship:

“The courts consider the following elements crucial to the marital

commitment: (1) a permanent and faithful commitment to the
Page 101 of 109
marriage partner; (2) openness to children and partner; (3)
stability; (4) emotional maturity; (5) financial responsibility; (6) an
ability to cope with the ordinary stresses and strains of marriage,
etc.”

Fr. Green goes on to speak about some of the psychological

conditions that might lead to the failure of a marriage:

“At stake is a type of constitutional impairment precluding

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

xxx xxx xxx

The psychological grounds are the best approach for anyone

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

As new as the psychological grounds are, experts are already

detecting a shift in their use. Whereas originally the emphasis
was on the parties’ inability to exercise proper judgment at the
time of the marriage (lack of due discretion), recent cases seem
to be concentrating on the parties’ incapacity to assume or carry
Page 102 of 109
out their responsibility and obligations as promised (lack of due
competence). An advantage to using the ground of lack of due
competence is that the at the time the marriage was entered into
civil divorce and breakup of the family almost always is proof of
someone’s failure to carry out marital responsibilities as
promised at the time the marriage was entered into.” [4]

In the instant case, ‘opposing and conflicting personalities” of the

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

However in the recent case of chi Ming Tsoi v. Court of

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

The Court, quoting Dr. Gerardo Veloso, a former Presiding

Page 103 of 109
Judge of the Metropolitan Marriage Tribunal of the Catholic
Archdiocese of Manila (Branch I) on psychological incapacity,
concluded:

“If a spouse, although physically capable but simply refuses to

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

We declared:

“This Court, finding the gravity of the failed relationship in which

the parties found themselves trapped in its mire of unfulfilled
vows and unconsumated marital obligations, can do no less but
sustain the studied judgment of respondent appellate court.”

I concur with the majority opinion that the herein marriage

remains valid and subsisting absent psychological incapacity
(under Art. 36 of the Family Code) on the part of either or both of
the spouses.

[1]
Justice Caguioa’s explanation in the Minutes of July 26, 1986
of the Civil Code Revision Committee of the U.P. Law Center.
[2]
Zwack, Joseph P., Annulment, A Step-by-Step Guide.
[3]
The Code of Canon Law, A Text and Commentary, The
Canon Law Society of America, Paulist Press, New York, 1985.
[4]
Zwack, Ibid., p. 47.
[5]
G.R. No. 112019, 240 SCRA 20 (1995).
Page 104 of 109
[6]
G.R. No. 119190 (1997).

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

“Art. 36. A marriage contracted by any party who, at the time of

the celebration, was psychologically incapacitated to comply
with the essential marital obligations of marriage, shall likewise
be void even if such incapacity becomes manifest only after its
solemnization.”
The Revision Committee, constituted under the auspices of the
U.P. Law Center, which drafted the Code explained:

“(T)he Committee would like the judge to interpret the provision

on a case-to-case basis, guided bt experience, the findings of
experts and researchers in psychological disciplines, and by
decision of church tribunals which, although, not binding on the
civil courts, may be given persuasive effect since the provision
was taken from Canon Law.” [1]
Article 36 of the Family Code was concededly taken from Canon
1095 of the New Code of Canon Law –

“Canon 1095. (The following persons) are incapable of

contracting marriage; (those) –
Page 105 of 109
“1. who lack sufficient use of reason;
“2. who suffer from a grave defect of discretion of judgment
concerning essential matrimonial rights and duties, to be given
and accepted mutually;
“3. who for causes of psychological nature are unable to assume
the essential obligations of marriage” –

that should give much value to Canon Law jurisprudence as an

aid to the interpretation and construction of the statutory
enactment.[2]

The principles in the proper application of the law teach us that

the several provisions of Code must be read like a congruent
whole. Thus, in determining the import of “psychological
incapacity” under Article 36, one must also read it along with,
albeit to be taken as distinct from, the other grounds enumerated
in the Code, like Articles 35, 37, 38, and 41 that would likewise,
but for distinct reasons, render the marriage void ab initio, or
Article 45 that would make the marriage merely voidable, or
Article 55 that could justify a petition for legal separation. Care
must be observed so that these various circumstances are not
applied so indiscriminately as if the law were indifferent on the
matter.

I would wish to reiterate the Court’s statement in Santos vs.

Court of Appeals;[3] viz:

“(T)he use of the phrase ‘psychological incapacity’ under Article

36 of the Code has not been meant to comprehend all such
possible cases of psychoses as. Likewise mentioned by some
ecclesiastical authorities, extremely low intelligence, immaturity,
Page 106 of 109
and like circumstances x x x. Article 36 of the Family Code
cannot be taken and construed independently of, but must
staned in conjunction with, existing precepts in our law on
marriage. Thus, correlated, ‘’psychological incapacity’ should
refer to no less than a mental (not physical) incapacity that
causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharge
by the parties to the marriage which, as so expressed by Article
68 of the Family Code,include their mutual obligation to live
together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law
has been to confine the meaning of ‘psychological incapacity’ to
the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning
and significance to the marriage. This psychologic condition
must exist at the time the marriage is celebrated. The law does
not evidently envision, upon the other hand, an inability of the
spouse to have sexual relations with the other. This conclusion
is implicit under Article 54 of the Family Code which considers
children conceived prior to the judicial declaration of nullity of the
void marriage to be ‘legitimate.’

“The other forms of psychoses, if existing at the inception of

marriage, like the state of a party being of unsound mind or
concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, merely renders the marriage
contract voidable pursuant to Article 46, Family Code. If drug
addiction, habitual alcoholism, lesbianism or homosexuality
should occur only during the marriage, they become mere
grounds for legal separation under Article 55 of the Family Code.
This provisions of the Code, however, do not necessarily
Page 107 of 109
preclude the possibility of these various circumstances being
themselves, depending on the degree and severity of the
disorder, indicia of psychological incapacity.” [4]

In fine, the term “psychological incapacity,” to be a ground for

the nullity of marriage under Article 36 of the Family Code, must
be able to pass the following test; viz:

First, the incapacity must be psychological or mental, not

physical, in nature;
Second, The psychological incapacity must relate to the
inability, not mere refusal, to understand, assume and discharge
the basic marital obligations of living together, observing love,
respect and fidelity and rendering mutual help and support;
Third, the psychologic conditions must exist at the time
the marriage is contracted although its overt manifestations may
occur only thereafter; and
Fourth, the mental disorder must be grave or serious and
incurable.

It may well be that the Family Code Revision Committee has

envisioned Article 36, as not a few observers would suspect, as
another form of absolute divorce or, as still others would also put
it, to be an alternative to divorce; however, the fact still remains
that the language of the law has failed to carry out, even if true,
any such intendment. It might have indeed turned out for the
better; if it were otherwise, there could be good reasons to doubt
the constitutionality of the measure. The fundamental law itself,
no less, has laid down in terse language its unequivocal
command on how the State should regard marriage and the
family, thus –
Section 2, Article XV:
“Sec. 2. Marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the
State.”
Page 108 of 109
 Section 12, Article II:
“Sec. 12. The State recognizes the sanctity of family life
and shall protect and strengthen the family as a basic
autonomous social institution x x x.”

Section 1, Article XV:

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

The case of Marcelino vs. Cruz, 121 SCRA 51, might

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

[1]
Mr. Justice Josue N. Bellosillo, quoting Mme. Justice Alicia V.
Sempio-Diy, in Salita vs. Hon. Magtolis, 233 SCRA 100.
[2]
In Santos vs. Court of Appeals, 240 SCRA 20.
[3]
Supra.
[4]
At pages 34-35.

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