G.R. No.

112019 January 4, 1995

LEOUEL SANTOS, petitioner,

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

VITUG, J.:

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

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

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

It was in Iloilo City where Leouel, who then held the rank of First Lieutenant in the Philippine Army,
first met Julia. The meeting later proved to be an eventful day for Leouel and Julia. On 20 September
1986, the two exchanged vows before Municipal Trial Court Judge Cornelio G. Lazaro of Iloilo City,
followed, shortly thereafter, by a church wedding. Leouel and Julia lived with the latter's parents at
the J. Bedia Compound, La Paz, Iloilo City. On 18 July 1987, Julia gave birth to a baby boy, and he
was christened Leouel Santos, Jr. The ecstasy, however, did not last long. It was bound to happen,
Leouel averred, because of the frequent interference by Julia's parents into the young spouses family
affairs. Occasionally, the couple would also start a "quarrel" over a number of other things, like when
and where the couple should start living independently from Julia's parents or whenever Julia would
express resentment on Leouel's spending a few days with his own parents.

On 18 May 1988, Julia finally left for the United Sates of America to work as a nurse despite Leouel's
pleas to so dissuade her. Seven months after her departure, or on 01 January 1989, Julia called up
Leouel for the first time by long distance telephone. She promised to return home upon the expiration
of her contract in July 1989. She never did. When Leouel got a chance to visit the United States,
where he underwent a training program under the auspices of the Armed Forces of the Philippines
from 01 April up to 25 August 1990, he desperately tried to locate, or to somehow get in touch with,
Julia but all his efforts were of no avail.

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

On 31 May 1991, respondent Julia, in her answer (through counsel), opposed the complaint and
denied its allegations, claiming, in main, that it was the petitioner who had, in fact, been irresponsible
and incompetent.
A possible collusion between the parties to obtain a decree of nullity of their marriage was ruled out
by the Office of the Provincial Prosecutor (in its report to the court).

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

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

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

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

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

. . . (T)here is no leave, there is no affection for (him) because respondent Julia

Rosario Bedia-Santos failed all these years to communicate with the petitioner. A wife
who does not care to inform her husband about her whereabouts for a period of five
years, more or less, is psychologically incapacitated.

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

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

xxx xxx xxx

Art. 36. . . .

(7) Those marriages contracted by any party who, at the time of the celebration, was
wanting in the sufficient use of reason or judgment to understand the essential nature
of marriage or was psychologically or mentally incapacitated to discharge the
essential marital obligations, even if such lack of incapacity is made manifest after the
celebration.

On subparagraph (7), which as lifted from the Canon Law, Justice (Jose B.L.) Reyes
suggested that they say "wanting in sufficient use," but Justice (Eduardo) Caguioa
preferred to say "wanting in the sufficient use." On the other hand, Justice Reyes
proposed that they say "wanting in sufficient reason." Justice Caguioa, however,
pointed out that the idea is that one is not lacking in judgment but that he is lacking in
the exercise of judgment. He added that lack of judgment would make the marriage
voidable. Judge (Alicia Sempio-) Diy remarked that lack of judgment is more serious
than insufficient use of judgment and yet the latter would make the marriage null and
void and the former only voidable. Justice Caguioa suggested that subparagraph (7)
be modified to read:
 "That contracted by any party who, at the time of the celebration, was
psychologically incapacitated to discharge the essential marital
obligations, even if such lack of incapacity is made manifest after the
celebration."

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

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

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

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

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

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

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

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

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

Justice Reyes remarked that in insanity, at the time of the marriage, it is not apparent.

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

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

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

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

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

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

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

xxx xxx xxx

Justice Puno formulated the next Article as follows:

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

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

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

Dean Gupit read what Bishop Cruz said on the matter in the minutes of their February
9, 1984 meeting:

"On the third ground, Bishop Cruz indicated that the phrase
"psychological or mental impotence" is an invention of some
 churchmen who are moralists but not canonists, that is why it is
considered a weak phrase. He said that the Code of Canon Law
would rather express it as "psychological or mental incapacity to
discharge . . ."

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

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

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

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

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

prospective in application.

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

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

The members voted as follows:

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

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

(3) Prof. Baviera abstained.

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

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

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

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

Canon 1095. They are incapable of contracting marriage:

1. who lack sufficient use of reason;

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

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

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

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

One author, Ladislas Orsy, S.J., in his treaties, 10

giving an account on how the third paragraph of Canon
1095 has been framed, states:

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

Those who cannot assume the essential obligations of marriage

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

then a broader one followed:

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

psychicam) . . . (cf. SCH/1980, canon 1049);

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

finally, a new version was promulgated:

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

 So the progress was from psycho-sexual to psychological anomaly, then the term
anomaly was altogether eliminated. it would be, however, incorrect to draw the
conclusion that the cause of the incapacity need not be some kind of psychological
disorder; after all, normal and healthy person should be able to assume the ordinary
obligations of marriage.

Fr. Orsy concedes that the term "psychological incapacity" defies any precise definition since
psychological causes can be of an infinite variety.

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

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

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

It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the
deliberations of the Family Code Revision Committee itself, that the use of the phrase "psychological
incapacity" under Article 36 of the Code has not been meant to comprehend all such possible cases
of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence,
immaturity, and like circumstances (cited in Fr. Artemio Baluma's "Void and Voidable Marriages in the
Family Code and their Parallels in Canon Law," quoting from the Diagnostic Statistical Manual of
Mental Disorder by the American Psychiatric Association; Edward Hudson's "Handbook II for
Marriage Nullity Cases"). Article 36 of the Family Code cannot be taken and construed independently
of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated,
"psychological incapacity" should refer to no less than a mental (not physical) incapacity that causes
a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code,
include their mutual obligations to live together, observe love, respect and fidelity and render help
and support. There is hardly any doubt that the intendment of the law has been to confine the
meaning of "psychological incapacity" to the most serious cases of personality disorders clearly
demonstrative of an utter intensitivity or inability to give meaning and significance to the marriage.
This pschologic condition must exist at the time the marriage is celebrated. The law does not
evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the
other. This conclusion is implicit under Article 54 of the Family Code which considers children
conceived prior to the judicial declaration of nullity of the void marriage to be "legitimate."

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

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

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

Art. 1. Marriage is a special contract of permanent union between a man a woman

entered into in accordance with law for the establishment of conjugal and family life. It
is the foundation of the family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject to stipulation,
except that marriage settlements may fix the property relations during the marriage
within the limits provided by this Code. (Emphasis supplied.)

Our Constitution is no less emphatic:

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

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

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

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

WHEREFORE, the petition is DENIED.

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

Feliciano, J., is on leave.

Separate Opinions

PADILLA, J., dissenting:

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

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

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

While it is true that the board term "psychological incapacity" can open the doors to abuse by couples
who may wish to have an easy way out of their marriage, there are, however, enough safeguards
against this contingency, among which, is the intervention by the State, through the public
prosecutor, to guard against collusion between the parties and/or fabrication of evidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ROMERO, J., concurring:

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

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

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

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

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

woman entered into in accordance with law for the establishment of
conjugal and family life. It is an inviolable social institution whose
nature, consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by
law."

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

as well as the following implementing provisions:

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

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

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

xxx xxx xxx

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

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

Admittedly, the provision on psychological incapacity, just like any other provision of law, is open to
abuse. To prevent this, "the court shall take order the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to prevent collusion between the parties and to take care
that evidence is not fabricated or suppressed." 2 Moreover, the judge, in interpreting the provision on a
case-to-case basis, must be guided by "experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals which, although not binding on the civil
courts, may be given persuasive effect since the provisions was taken from Canon Law." 3
The constitutional and statutory provisions on the family 4 will remain the lodestar which our society will
hope to achieve ultimately. Therefore, the inclusion of Article 36 is not to be taken as an abandonment of
the ideal which we all cherish. If at all, it is a recognition of the reality that some marriages, by reason of
the incapacity of one of the contracting parties, fall short of this ideal; thus, the parties are constrained to
find a way of putting an end to their union through some legally-accepted means.

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

Separate Opinions

PADILLA, J., dissenting:

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

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

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

While it is true that the board term "psychological incapacity" can open the doors to abuse by couples
who may wish to have an easy way out of their marriage, there are, however, enough safeguards
against this contingency, among which, is the intervention by the State, through the public
prosecutor, to guard against collusion between the parties and/or fabrication of evidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ROMERO, J., concurring:

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

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

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

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

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

woman entered into in accordance with law for the establishment of
conjugal and family life. It is an inviolable social institution whose
nature, consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by
law."

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

"(7) Those marriages contracted by any party who, at the time of the
celebration, was wanting in the sufficient use of reason or judgment to
understand the essential nature of marriage or was psychologically or
 mentally incapacitated to discharge the essential marital obligations,
even if such lack of incapacity is made manifest after the celebration."

as well as the following implementing provisions:

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

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

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

xxx xxx xxx

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

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

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

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

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

SECOND DIVISION

G.R. No. 119190 January 16, 1997

CHI MING TSOI, petitioner,

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

TORRES, JR., J.:

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

Who is to blame when a marriage fails?

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

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

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

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

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

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

It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were
supposed to enjoy making love, or having sexual intercourse, with each other, the defendant
just went to bed, slept on one side thereof, then turned his back and went to sleep . There
was no sexual intercourse between them during the first night. The same thing happened on
the second, third and fourth nights.
In an effort to have their honeymoon in a private place where they can enjoy together during
their first week as husband and wife, they went to Baguio City. But, they did so together with
her mother, an uncle, his mother and his nephew. They were all invited by the defendant to
join them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no
sexual intercourse between them, since the defendant avoided her by taking a long walk
during siesta time or by just sleeping on a rocking chair located at the living room. They slept
together in the same room and on the same bed since May 22, 1988 until March 15, 1989.
But during this period, there was no attempt of sexual intercourse between them. [S]he
claims, that she did not: even see her husband's private parts nor did he see hers.

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

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

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

The plaintiff is not willing to reconcile with her husband.

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

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

The defendant admitted that since their marriage on May 22, 1988, until their separation on
March 15, 1989, there was no sexual contact between them. But, the reason for this,
according to the defendant, was that everytime he wants to have sexual intercourse with his
wife, she always avoided him and whenever he caresses her private parts, she always
removed his hands. The defendant claims, that he forced his wife to have sex with him only
once but he did not continue because she was shaking and she did not like it. So he stopped.

There are two (2) reasons, according to the defendant , why the plaintiff filed this case
against him, and these are: (1) that she is afraid that she will be forced to return the pieces of
jewelry of his mother, and, (2) that her husband, the defendant, will consummate their
marriage.

The defendant insisted that their marriage will remain valid because they are still very young
and there is still a chance to overcome their differences.
 The defendant submitted himself to a physical examination. His penis was examined by Dr.
Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof,
Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is no
evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C")

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

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

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

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

SO ORDERED.

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

Hence, the instant petition.

Petitioner alleges that the respondent Court of Appeals erred:

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

II

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

III

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

IV

in affirming the annulment of the marriage between the parties decreed by the lower court
without fully satisfying itself that there was no collusion between them.
We find the petition to be bereft of merit.

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

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

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

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

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

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

The case has reached this Court because petitioner does not want their marriage to be annulled.
This only shows that there is no collusion between the parties. When petitioner admitted that he and
his wife (private respondent) have never had sexual contact with each other, he must have been only
telling the truth. We are reproducing the relevant portion of the challenged resolution denying
petitioner's Motion for Reconsideration, penned with magisterial lucidity by Associate Justice Minerva
Gonzaga-Reyes, viz:

The judgment of the trial court which was affirmed by this Court is not based on a stipulation
of facts. The issue of whether or not the appellant is psychologically incapacitated to
discharge a basic marital obligation was resolved upon a review of both the documentary and
testimonial evidence on record. Appellant admitted that he did not have sexual relations with
his wife after almost ten months of cohabitation, and it appears that he is not suffering from
any physical disability. Such abnormal reluctance or unwillingness to consummate his
marriage is strongly indicative of a serious personality disorder which to the mind of this Court
clearly demonstrates an 'utter insensitivity or inability to give meaning and significance to the
marriage' within the meaning of Article 36 of the Family Code (See Santos vs. Court of
Appeals, G.R. No. 112019, January 4, 1995). 4

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

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

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

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

If a spouse, although physically capable but simply refuses to perform his or her essential
marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals
attribute the causes to psychological incapacity than to stubborn refusal. Senseless and
protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a
spouse to have sexual intercourse with his or her spouse is considered a sign of
psychological incapacity. 6

Evidently, one of the essential marital obligations under the Family Code is "To procreate children
based on the universal principle that procreation of children through sexual cooperation is the basic
end of marriage." Constant non- fulfillment of this obligation will finally destroy the integrity or
wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the
parties to fulfill the above marital obligation is equivalent to psychological incapacity.

As aptly stated by the respondent court,

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

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

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

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

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

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

SO ORDERED.

Regalado, Romero, Puno and Mendoza, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 108763 February 13, 1997

REPUBLIC OF THE PHILIPPINES,

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

PANGANIBAN, J.:

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

Before us is a petition for review on certiorari under Rule 45 challenging the January 25, 1993
Decision 1 of the Court of Appeals 2 in CA-G.R. CV No. 34858 affirming in toto the May 14, 1991
decision of the Regional Trial Court of La Trinidad, 3 Benguet, which declared the marriage of
respondent Roridel Olaviano Molina to Reynaldo Molina void ab initio, on the ground of
"psychological incapacity" under Article 36 of the Family Code.

The Facts

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

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

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

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

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

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

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

5. That the respondent is not asking for damages;

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

Evidence for herein respondent wife consisted of her own testimony and that of her friends
Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G. Lalas, a social worker, and
of Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio General Hospital and Medical
Center. She also submitted documents marked as Exhibits "A" to "E-1." Reynaldo did not
present any evidence as he appeared only during the pre-trial conference.

On May 14, 1991, the trial court rendered judgment declaring the marriage void. The appeal of
petitioner was denied by the Court of Appeals which affirmed in toto the RTC's decision.
Hence, the present recourse.

The Issue

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

In denying the Solicitor General's appeal, the respondent Court relied 5 heavily on the trial
court's findings "that the marriage between the parties broke up because of their opposing and
conflicting personalities." Then, it added it sown opinion that "the Civil Code Revision Committee
(hereinafter referred to as Committee) intended to liberalize the application of our civil laws on
personal and family rights. . . ." It concluded that:
 As ground for annulment of marriage, We view psychologically incapacity as a
broad range of mental and behavioral conduct on the part of one spouse
indicative of how he or she regards the marital union, his or her personal
relationship with the other spouse, as well as his or her conduct in the long
haul for the attainment of the principal objectives of marriage. If said conduct,
observed and considered as a whole, tends to cause the union to self-destruct
because it defeats the very objectives of marriage, then there is enough reason
to leave the spouses to their individual fates.

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

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

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

The Court's Ruling

The petition is meritorious.

In Leouel Santos vs. Court of Appeals 6 this Court, speaking thru Mr. Justice Jose C. Vitug, ruled
that "psychological incapacity should refer to no less than a mental (nor physical) incapacity . . .
and that (t)here is hardly any doubt that the intendment of the law has been to confine the meaning
of 'psychological incapacity' to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and significance to the
marriage. This psychologic condition must exist at the time the marriage is celebrated." Citing Dr.
Gerardo Veloso, a former presiding judge of the Metropolitan Marriage Tribunal of the Catholic
Archdiocese of Manila, 7 Justice Vitug wrote that "the psychological incapacity must be
characterized by (a) gravity, (b) juridical antecedence, and (c) incurability."

On the other hand, in the present case, there is no clear showing to us that the psychological
defect spoken of is an incapacity. It appears to us to be more of a "difficulty," if not outright
"refusal" or "neglect" in the performance of some marital obligations. Mere showing of
"irreconciliable differences" and "conflicting personalities" in no wise constitutes
psychological incapacity. It is not enough to prove that the parties failed to meet their
responsibilities and duties as married persons; it is essential that they must be shown to
be incapable of doing so, due to some psychological (nor physical) illness.

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

COURT
 Q It is therefore the recommendation of the psychiatrist based on
your findings that it is better for the Court to annul (sic) the
marriage?

A Yes, Your Honor.

Q There is no hope for the marriage?

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

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

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

A Yes, Your Honor.

Q Neither are they psychologically unfit for their professions?

A Yes, Your Honor.

The Court has no more questions.

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

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

From their submissions and the Court's own deliberations, the following guidelines in the
interpretation and application of Art. 36 of the Family Code are hereby handed down for the
guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt
should be resolved in favor of the existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our Constitution and our laws
cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an
entire Article on the Family, 11 recognizing it "as the foundation of the nation." It decrees marriage
as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the
family and marriage are to be "protected" by the state.
The Family Code 12 echoes this constitutional edict on marriage and the family and emphasizes
the permanence, inviolability and solidarity

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

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

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

(5) Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes,
occasional emotional outbursts" cannot be accepted as root causes. The illness must be
shown as downright incapacity or inability, nor a refusal, neglect or difficulty, much less ill
will. In other words, there is a natal or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively incapacitates the person from
really accepting and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the
Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same
Code in regard to parents and their children. Such non-complied marital obligation(s) must
also be stated in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church
in the Philippines, while not controlling or decisive, should be given great respect by our
courts. It is clear that Article 36 was taken by the Family Code Revision Committee from
Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which
provides:

The following are incapable of contracting marriage: Those who are unable to
assume the essential obligations of marriage due to causes of psychological
nature. 14
Since the purpose of including such provision in our Family Code is to harmonize our civil
laws with the religious faith of our people, it stands to reason that to achieve such
harmonization, great persuasive weight should be given to decision of such appellate
tribunal. Ideally subject to our law on evidence what is decreed as canonically invalid
should also be decreed civilly void.

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

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision shall he handed down unless the Solicitor
General issues a certification, which will be quoted in the decision, briefly staring therein his
reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor
General, along with the prosecuting attorney, shall submit to the court such certification
within fifteen (15) days from the date the case is deemed submitted for resolution of the court.
The Solicitor General shall discharge the equivalent function of the defensor
vinculicontemplated under Canon 1095.

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

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

SO ORDERED.

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

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

Separate Opinions

PADILLA, J., concuring opinion:

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

ROMERO, J., separate opinion:

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

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

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

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

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

(7) Those marriages contracted by any party who, at the time of the celebration,
was wanting in the sufficient use of reason or judgment to understand the
essential nature of marriage or was psychologically or mentally incapacitated
to discharge the essential marital obligations, even if such lack of incapacity is
made manifest after the celebration.

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

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

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

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

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

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

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

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

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

contract;

2. reasons of public policy;

3. special cases and special situations.

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

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

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

On the other hand, for reasons of public policy or lack of essential requisites, some marriages
are void from the beginning.
With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the
drafters, now open to fresh winds of change in keeping with the more permissive mores and
practices of the time, took a leaf from the relatively liberal provisions of Canon Law.

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

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

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

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

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

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

Furthermore, and equally significant, the professional opinion of a psychological expert

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

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

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

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

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

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

Fr. Green goes on to speak about some of the psychological conditions that
might lead to the failure of a marriage:
 At stake is a type of constitutional impairment precluding conjugal communion
even with the best intentions of the parties. Among the psychic factors
possibly giving rise to his or her inability to fulfill marital obligations are the
following: (1) antisocial personality with its fundamental lack of loyalty to
persons or sense of moral values; (2) hyperesthesia, where the individual has
no real freedom of sexual choice; (3) the inadequate personality where
personal responses consistently fallshort of reasonable expectations.

xxx xxx xxx

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

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

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

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

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

If a spouse, although physically capable but simply refuses to perform his or

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

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

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

VITUG, J., concurring:

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

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

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

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

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

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

(those)

1. who lack sufficient use of reason;

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

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

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

that should give that much value to Canon Law jurisprudence as an aid to the
interpretation and construction of the statutory enactment. 2
The principles in the proper application of the law teach us that the several provisions of a
Code must be read like a congruent whole. Thus, in determining the import of "psychological
incapacity" under Article 36, one must also read it along with, albeit to be taken as distinct
from, the other grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would
likewise, but for distinct reasons, render the marriage merely voidable, or Article 55 that could
justify a petition for legal separation. Care must be observed so that these various
circumstances are not applied so indiscriminately as if the law were indifferent on the matter.

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

(T)he use of the phrase "psychological incapacity" under Article 36 of the Code
has not been meant to comprehend all such possible cases of psychoses as,
likewise mentioned by some ecclesiastical authorities, extremely low
intelligence, immaturity, and like circumstances. . . Article 36 of the Family
Code cannot be taken and construed independently of, but must stand in
conjunction with, existing precepts in our law on marriage. Thus correlated,
"psychological incapacity" should refer to no less than a mental (not physical)
incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties
to the marriage which, as so expressed by Article 68 of the Family Code,
include their mutual obligations to live together, observe love, respect and
fidelity and render help and support. There is hardly any doubt that the
intendment of the law has been to confine the meaning of "psychological
incapacity" to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability of the spouse to have sexual
relations with the other. This conclusion is implicit under Article 54 of the
Family Code which considers children conceived prior to the judicial
declaration of nullity of the void marriage to be "legitimate."

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

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

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

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

Third, the psychologic condition must exist at the time the marriage is contracted although its
overt manifestations and the marriage may occur only thereafter; and
Fourth, the mental disorder must be grave or serious and incurable.

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

Section 2, Article XV:

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

family and shall be protected by the State.

Section 12, Article II:

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

Section 1, Article XV:

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

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

Separate Opinions

PADILLA, J., concuring opinion:

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

ROMERO, J., separate opinion:

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

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

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

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

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

(7) Those marriages contracted by any party who, at the time of the celebration,
was wanting in the sufficient use of reason or judgment to understand the
essential nature of marriage or was psychologically or mentally incapacitated
to discharge the essential marital obligations, even if such lack of incapacity is
made manifest after the celebration.

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

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

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

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

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

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

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

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

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

contract;

2. reasons of public policy;

3. special cases and special situations.

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

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

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

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

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the
drafters, now open to fresh winds of change in keeping with the more permissive mores and
practices of the time, took a leaf from the relatively liberal provisions of Canon Law.
Canon 1095 which states, inter alia, that the following persons are incapable of contracting
marriage: "3. (those) who, because of causes of a psychological nature, are unable to assume
the essential obligations of marriage" provided the model for what is now Art. 36 of the Family
Code: "A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes manifest only after its solemnization.

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

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

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

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

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual
disorders such as homosexuality and nymphomania laid the foundation for a broader
approach to the kind of proof necessary for psychological grounds for annulment. The Rota
had reasoned for the first time in several cases that the capacity to give valid consent at the
time of marriage was probably not present in persons who had displayed such problems
shortly after the marriage. The nature of this change was nothing short of revolutionary. Once
the Rota itself had demonstrated a cautious willingness to use this kind of hindsight, the way
was paved for what came after 1970. Diocesan Tribunals began to accept proof of serious
psychological problems that manifested themselves shortly after the ceremony as proof of an
inability to give valid consent at the time of the ceremony.
Furthermore, and equally significant, the professional opinion of a psychological expert
became increasingly important in such cases. Data about the person's entire life, both before
and after the ceremony, were presented to these experts and they were asked to give
professional opinions about a party's mental at the time of the wedding. These opinions were
rarely challenged and tended to be accepted as decisive evidence of lack of valid consent.

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

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

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

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

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

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

At stake is a type of constitutional impairment precluding conjugal communion

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

xxx xxx xxx

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

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

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

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

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

If a spouse, although physically capable but simply refuses to perform his or

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

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

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

VITUG, J., concurring:

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

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

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

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

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

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

(those)

1. who lack sufficient use of reason;

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

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

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

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

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

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

(T)he use of the phrase "psychological incapacity" under Article 36 of the Code
has not been meant to comprehend all such possible cases of psychoses as,
likewise mentioned by some ecclesiastical authorities, extremely low
intelligence, immaturity, and like circumstances. . . Article 36 of the Family
Code cannot be taken and construed independently of, but must stand in
conjunction with, existing precepts in our law on marriage. Thus correlated,
"psychological incapacity" should refer to no less than a mental (not physical)
incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties
to the marriage which, as so expressed by Article 68 of the Family Code,
include their mutual obligations to live together, observe love, respect and
fidelity and render help and support. There is hardly any doubt that the
intendment of the law has been to confine the meaning of "psychological
incapacity" to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability of the spouse to have sexual
relations with the other. This conclusion is implicit under Article 54 of the
Family Code which considers children conceived prior to the judicial
declaration of nullity of the void marriage to be "legitimate."

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

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

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

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

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

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

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

Section 2, Article XV:

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

family and shall be protected by the State.

Section 12, Article II:

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

Section 1, Article XV:

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

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

Footnotes

1 Rollo pp. 25-33.

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

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

3 Presided by Judge Heilia S. Mallare-Phillipps.

4 Solemnized by Fr. Jesus C. Encinas.

5 The Court of Appeals reproduced in its Decision a substantial portion of the

RTC Decision is follows:

"To sustain her claim that respondent is psychologically incapacitated to

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

It is unfortunate that the marriage between petitioner and respondent turned

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

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

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

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

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

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

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

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

9 The National Appellate Matrimonial Tribunal reviews all decisions of the

marriage tribunals of each archdiocese in the country. Aside from heading the
Appellate Tribunal, Most. Rev. Cruz is also incumbent president of the Catholic
Bishops' Conference of the Philippines, Archbishop of Dagupan-Lingayen, and
holds the degrees of Doctor of Canon Law and Doctor of Divinity. Archbishop
Cruz was also Secretary-General of the Second Plenary Council of the
Philippines PCP II held from January 20, 1991 to February 17, 1991, which
is the rough equivalent of a parliament or a constitutional convention in the
Philippine Church, and where the ponente, who was a Council member, had the
privilege of being overwhelmed by his keen mind and prayerful discernments.

10 Justice Puno was a former member of the Court of Appeals, retired Minister
of Justice, author, noted civil law professor and the law practitioner.

Article XV

THE FAMILY

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

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

family and shall be protected by the state.

Sec. 3. The State shall defend:

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

(2) The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty. exploitation, and
other conditions prejudicial to their development;

(3) The right of the family to a family living wage and income;
(4) The right of families or family associations to participate in the planning and
implementation of policies and programs that affect them.

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

Art. 1 Marriage is a special contract of permanent union between a man and a

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

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

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

"Canon 1095. They are incapable of contracting marriage:

xxx xxx xxx

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

The difference in wording between this and that in Arch. Cruz's Memorandum is
due to the fact that the original Canon is written in Latin and both versions are
differently-worded English translations.

ROMERO, J., separate opinion:

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).

6 G.R. No. 119190 (1997).

VITUG, J., concurring:

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 Appeals, 240 SCRA 20.

3 Supra.

4 At pages 34-35.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 126010 December 8, 1999

LUCITA ESTRELLA HERNANDEZ, petitioner,

vs.
COURT OF APPEALS and MARIO C. HERNANDEZ, respondents.

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 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, Dasmarias, 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 Dasmarias,
Cavite. Petitioner, who is five years older than private respondent, was then in her first year of
teaching zoology and botany. Private respondent, a 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.

Upon the recommendation of a family friend, private respondent was able to get a job at Reynolds
Philippines, Inc. in San Agustin, Dasmarias, 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, Dasmarias, 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 Dasmarias, 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 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, Dasmarias, 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 fill 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, 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

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;

xxx xxx xxx

 (5) Drug addiction or habitual alcoholism of the respondent;

xxx xxx xxx

(8) Sexual infidelity or perversion;

xxx xxx xxx

(10) Abandonment of petitioner by respondent without justifiable

cause for more than one year.

xxx xxx xxx

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 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 nullify 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-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

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.

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 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 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 themselves constitute grounds for finding that he is suffering from
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 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 obligations he
was assuming, or knowing them, could not have given valid assumption thereof.
Although no example of such incapacity need given here so as not to limit the
application of the provision under the principle of ejusdem generis (citing Salaita 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 rests 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. 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 Appeal is AFFIRMED.

SO ORDERED.

Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 136490 October 19, 2000

BRENDA B. MARCOS, petitioner,

vs.
WILSON G. MARCOS, respondent.

DECISION

PANGANIBAN, J.:

Psychological incapacity, as a ground for declaring the nullity of a marriage, may be established by
the totality of evidence presented. There is no requirement, however, that the respondent should be
examined by a physician or a psychologist as a conditio sine qua non for such declaration.

The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the July
24, 1998 Decision1 of the Court of Appeals (CA) in CA-GR CV No. 55588, which disposed as follows:

"WHEREFORE, the contested decision is set aside and the marriage between the parties is hereby
declared valid."2

Also challenged by petitioner is the December 3, 1998 CA Resolution denying her Motion for
Reconsideration.

Earlier, the Regional Trial Court (RTC) had ruled thus:

"WHEREFORE, the marriage between petitioner Brenda B. Marcos and respondent Wilson G.
Marcos, solemnized on September 6, 1982 in Pasig City is declared null and void ab initio pursuant
to Art. 36 of the Family Code. The conjugal properties, if any, is dissolved [sic] in accordance with
Articles 126 and 129 of the same Code in relation to Articles 50, 51 and 52 relative to the delivery of
the legitime of [the] parties' children. In the best interest and welfare of the minor children, their
custody is granted to petitioner subject to the visitation rights of respondent.

"Upon finality of this Decision, furnish copy each to the Office of the Civil Registrar of Pasig City
where the marriage was solemnized, the National Census and Statistics Office, Manila and the
Register of Deeds of Mandaluyong City for their appropriate action consistent with this Decision.

"SO ORDERED."

The Facts

The facts as found by the Court of Appeals are as follows:

"It was established during the trial that the parties were married twice: (1) on September 6, 1982
which was solemnized by Judge Eriberto H. Espiritu at the Municipal Court of Pasig (Exh. A); and (2)
on May 8, 1983 which was solemnized by Rev. Eduardo L. Eleazar, Command Chaplain, at the
Presidential Security Command Chapel in Malacaang Park, Manila (Exh. A-1). Out of their
marriage, five (5) children were born (Exhs. B, C, D, E and F).

"Appellant Wilson G. Marcos joined the Armed Forces of the Philippines in 1973. Later on, he was
transferred to the Presidential Security Command in Malacaang during the Marcos Regime.
Appellee Brenda B. Marcos, on the other hand, joined the Women's Auxilliary Corps under the
Philippine Air Force in 1978. After the Edsa Revolution, both of them sought a discharge from the
military service.

"They first met sometime in 1980 when both of them were assigned at the Malacaang Palace, she
as an escort of Imee Marcos and he as a Presidential Guard of President Ferdinand Marcos.
Through telephone conversations, they became acquainted and eventually became sweethearts.

"After their marriage on September 6, 1982, they resided at No. 1702 Daisy Street, Hulo Bliss,
Mandaluyong, a housing unit which she acquired from the Bliss Development Corporation when she
was still single.

"After the downfall of President Marcos, he left the military service in 1987 and then engaged in
different business ventures that did not however prosper. As a wife, she always urged him to look for
work so that their children would see him, instead of her, as the head of the family and a good
provider. Due to his failure to engage in any gainful employment, they would often quarrel and as a
consequence, he would hit and beat her. He would even force her to have sex with him despite her
weariness. He would also inflict physical harm on their children for a slight mistake and was so
severe in the way he chastised them. Thus, for several times during their cohabitation, he would
leave their house. In 1992, they were already living separately.

"All the while, she was engrossed in the business of selling "magic uling" and chickens. While she
was still in the military, she would first make deliveries early in the morning before going to
Malacaang. When she was discharged from the military service, she concentrated on her business.
Then, she became a supplier in the Armed Forces of the Philippines until she was able to put up a
trading and construction company, NS Ness Trading and Construction Development Corporation.

"The 'straw that broke the camel's back' took place on October 16, 1994, when they had a bitter
quarrel. As they were already living separately, she did not want him to stay in their house anymore.
On that day, when she saw him in their house, she was so angry that she lambasted him. He then
turned violent, inflicting physical harm on her and even on her mother who came to her aid. The
following day, October 17, 1994, she and their children left the house and sought refuge in her
sister's house.

"On October 19, 1994, she submitted herself [to] medical examination at the Mandaluyong Medical
Center where her injuries were diagnosed as contusions (Exh. G, Records, 153).

"Sometime in August 1995, she together with her two sisters and driver, went to him at the Bliss unit
in Mandaluyong to look for their missing child, Niko. Upon seeing them, he got mad. After knowing
the reason for their unexpected presence, he ran after them with a samurai and even [beat] her
driver.

"At the time of the filing of this case, she and their children were renting a house in Camella,
Paraaque, while the appellant was residing at the Bliss unit in Mandaluyong.
"In the case study conducted by Social Worker Sonia C. Millan, the children described their father as
cruel and physically abusive to them (Exh. UU, Records, pp. 85-100).

"The appellee submitted herself to psychologist Natividad A. Dayan, Ph.D., for psychological
evaluation (Exh. YY, Records, pp. 207-216), while the appellant on the other hand, did not.

"The court a quo found the appellant to be psychologically incapacitated to perform his marital
obligations mainly because of his failure to find work to support his family and his violent attitude
towards appellee and their children, x x x."3

Ruling of the Court of Appeals

Reversing the RTC, the CA held that psychological incapacity had not been established by the
totality of the evidence presented. It ratiocinated in this wise:

"Essential in a petition for annulment is the allegation of the root cause of the spouse's psychological
incapacity which should also be medically or clinically identified, sufficiently proven by experts and
clearly explained in the decision. The incapacity must be proven to be existing at the time of the
celebration of the marriage and shown to be medically or clinically permanent or incurable. It must
also be grave enough to bring about the disability of the parties to assume the essential obligations
of marriage as set forth in Articles 68 to 71 and Articles 220 to 225 of the Family Code and such non-
complied marital obligations must similarly be alleged in the petition, established by evidence and
explained in the decision.

"In the case before us, the appellant was not subjected to any psychological or psychiatric
evaluation. The psychological findings about the appellant by psychiatrist Natividad Dayan were
based only on the interviews conducted with the appellee. Expert evidence by qualified psychiatrists
and clinical psychologists is essential if only to prove that the parties were or any one of them was
mentally or psychically ill to be truly incognitive of the marital obligations he or she was assuming, or
as would make him or her x x x unable to assume them. In fact, he offered testimonial evidence to
show that he [was] not psychologically incapacitated. The root cause of his supposed incapacity was
not alleged in the petition, nor medically or clinically identified as a psychological illness or sufficiently
proven by an expert. Similarly, there is no evidence at all that would show that the appellant was
suffering from an incapacity which [was] psychological or mental - not physical to the extent that he
could not have known the obligations he was assuming: that the incapacity [was] grave, ha[d]
preceded the marriage and [was] incurable."4

Hence, this Petition.5

Issues

In her Memorandum,6 petitioner presents for this Court's consideration the following issues:

"I. Whether or not the Honorable Court of Appeals could set aside the findings by the
Regional Trial Court of psychological incapacity of a respondent in a Petition for declaration
of nullity of marriage simply because the respondent did not subject himself to psychological
evaluation.

II. Whether or not the totality of evidence presented and the demeanor of all the witnesses
should be the basis of the determination of the merits of the Petition."7
The Court's Ruling

We agree with petitioner that the personal medical or psychological examination of respondent is not
a requirement for a declaration of psychological incapacity. Nevertheless, the totality of the evidence
she presented does not show such incapacity.

Preliminary Issue: Need for Personal Medical Examination

Petitioner contends that the testimonies and the results of various tests that were submitted to
determine respondent's psychological incapacity to perform the obligations of marriage should not
have been brushed aside by the Court of Appeals, simply because respondent had not taken those
tests himself. Petitioner adds that the CA should have realized that under the circumstances, she had
no choice but to rely on other sources of information in order to determine the psychological capacity
of respondent, who had refused to submit himself to such tests.

In Republic v. CA and Molina,8 the guidelines governing the application and the interpretation
of psychological incapacity referred to in Article 36 of the Family Code9 were laid down by this Court
as follows:

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

xxx xxx xxx

2) The root cause of the psychological incapacity must be: (a) medically or clinically
identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the Family Code requires that the incapacity must be
psychological - not physical, although its manifestations and/or symptoms may be physical.
The evidence must convince the court that the parties, or one of them, was mentally or
psychically ill to such an extent that the person could not have known the obligations he was
assuming, or knowing them, could not have given valid assumption thereof. Although no
example of such incapacity need be given here so as not to limit the application of the
provision under the principle of ejusdem generis, nevertheless such root cause must be
identified as a psychological illness and its incapacitating nature fully explained. 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 them but 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.

xxx xxx xxx

(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."10

The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos v.
Court of Appeals:11 "psychological incapacity must be characterized by (a) gravity (b) juridical
antecedence, and (c) incurability." The foregoing guidelines do not require that a physician examine
the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or
clinically identified." What is important is the presence of evidence that can adequately establish the
party's psychological condition. For indeed, if the totality of evidence presented is enough to sustain
a finding of psychological incapacity, then actual medical examination of the person concerned need
not be resorted to.

Main Issue: Totality of Evidence Presented

The main question, then, is whether the totality of the evidence presented in the present case --
including the testimonies of petitioner, the common children, petitioner's sister and the social worker
-- was enough to sustain a finding that respondent was psychologically incapacitated.

We rule in the negative. Although this Court is sufficiently convinced that respondent failed to provide
material support to the family and may have resorted to physical abuse and abandonment, the
totality of his acts does not lead to a conclusion of psychological incapacity on his part. There is
absolutely no showing that his "defects" were already present at the inception of the marriage or that
they are incurable.
Verily, the behavior of respondent can be attributed to the fact that he had lost his job and was not
gainfully employed for a period of more than six years. It was during this period that he became
intermittently drunk, failed to give material and moral support, and even left the family home.

Thus, his alleged psychological illness was traced only to said period and not to the inception of the
marriage. Equally important, there is no evidence showing that his condition is incurable, especially
now that he is gainfully employed as a taxi driver. 1wphi1

Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the marital
bond at the time the causes therefor manifest themselves. It refers to a serious psychological illness
afflicting a party even before the celebration of the marriage. It is a malady so grave and so
permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond
one is about to assume. These marital obligations are those provided under Articles 68 to 71, 220,
221 and 225 of the Family Code.

Neither is Article 36 to be equated with legal separation, in which the grounds need not be rooted in
psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction,
drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like. 12 At best, the
evidence presented by petitioner refers only to grounds for legal separation, not for declaring a
marriage void.

Because Article 36 has been abused as a convenient divorce law, this Court laid down the procedural
requirements for its invocation in Molina. Petitioner, however, has not faithfully observed them.

In sum, this Court cannot declare the dissolution of the marriage for failure of petitioner to show that
the alleged psychological incapacity is characterized by gravity, juridical antecedence and
incurability; and for her failure to observe the guidelines outlined in Molina.

WHEREFORE, the Petition is DENIED and assailed Decision AFFIRMED, except that portion
requiring personal medical examination as a conditio sine qua non to a finding of psychological
incapacity. No costs.

SO ORDERED.

Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.

Footnotes

1
Penned by Justice Bernardo LL Salas with the concurrence of Justices Fermin A. Martin Jr.
(Division chairman) and Candido V. Rivera (member).

2
CA Decision, pp. 12-13; rollo, pp. 38-39.

3
CA Decision, pp. 5-7; rollo, pp. 31-33.

4
CA Decision, pp. 10-11; rollo, pp. 36-37.
5
This case was deemed submitted for resolution on February 24, 2000, upon receipt by this
Court of respondent's Memorandum, which was signed by Atty. Virgilio V. Macaraig.
Petitioner's Memorandum, signed by Atty. Rita Linda V. Jimeno, had been filed earlier on
November 5, 1999.

6
Rollo, p. 70; original in upper case.

7
Memorandum for petitioner, p. 6; rollo, p. 70.

8
268 SCRA 198, February 13, 1997, per Panganiban, J.

9
"Article 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes manifest only after its solemnization.

"The action for declaration of nullity of the marriage under this Article shall prescribe
in ten years after its celebration."

10
Supra, pp. 209-213.

11
240 SCRA 20, 34, January 4, 1995, per Vitug, J.

12
"Article 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;

(2) Physical violence or moral pressure to compel the petitioner to change religious or
political affiliation;

(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a

child of the petitioner, to engage in prostitution, or connivance in such corruption or
inducement;

(4) Final judgment sentencing the respondent to imprisonment of more than six years,
even if pardoned;

(5) Drug addiction or habitual alcoholism of the respondent;

(6) Lesbianism or homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent bigamous marriage, whether in

the Philippines or abroad;

(8) Sexual infidelity or perversion;

(9) Attempt by the respondent against the life of the petitioner; or

(10) Abandonment of petitioner by respondent without justifiable cause for more than
one year.
For purposes of this Article, the term 'child' shall include a child by nature or by
adoption."
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 109975 February 9, 2001

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
ERLINDA MATIAS DAGDAG, respondent.

QUISUMBING, J.:

For review on certiorari is the decision1 of the Court of Appeals dated April 22, 1993, in CA-G.R. CY
No. 34378, which affirmed the decision of the Regional 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 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 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 decision12 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 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. 1wphi1.nt

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.

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 A VELINO

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 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

(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 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 in 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 Code20 as regards the husband and wife as well as Articles 220, 221 and 225 of the
same Code21 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 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 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. CY No. 34378 is REVERSED and SET ASIDE.

No pronouncement as to costs.

SO ORDERED.

Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.

Footnote

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.

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.

Article 220, Family Code. The parents and those exercising parental authority shall have
21

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 maybe 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 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. 1wphi1.nt

22
Id. at 209-213.

23
320 SCRA 76 (1999).

24
Id. at 88.