Psychological incapacity revisited

"While norms and public perception are important, people cannot be tied to marriages that make them extremely unhappy."


The concept of psychological incapacity was introduced for the first time in 1987, in Executive Order (E.O.) No. 209 and as amended by E.O. 227, otherwise known as the Family Code of the Philippines. While the Family Code was published on August 4, 1987, it took effect only on August 3, 1988, or one year after its publication (Article 257, Family Code).

I was a first-year law student when the Family Code was published. We were required to study both the law on Persons and Family Relations and the Family Code since the former was still in effect and the latter was the law that we would have to study for the bar examinations.    

Interestingly, the concept of psychological incapacity was taken from Canon 1095, paragraph 3 of the 1983 Canon Law, which enumerates those who are incapable or unfit to contract marriage. It referred specifically to “those who are not able to assume the essential obligations of marriage for causes of a psychic nature” (Canon 1095, paragraph 3).

The Civil Code Revision Committee adopted the third paragraph as grounds for nullity of marriage for the following reasons: (a) as a substitute to divorce; (b) as a solution to the problem of Church-annulled marriages; and (c) as a remedy for those “who are imprisoned by a marriage that exists in name only as they have long separated” (Sempio Dy, Handbook on the Family Code).

The reasons given by the Committee mirrored the changing times. In the 80s, women started to be more vocal about how they feel about their relationships and their desire not to be confined to marriages that were in truth nonexistent. They also realized that while norms and public perception are important, they cannot be tied to marriages that make them extremely unhappy.

Psychological incapacity, if present in either or both of the spouses and proven in court, leads to nullity of marriage. It was a readily available legal option to Filipino spouses in the late 80s and 90s who do not desire or cannot afford to change their Filipino citizenship and thereafter apply for a decree of divorce in a foreign land.

The concept of psychological incapacity was also intended to give a legal window to married couples who may have previously obtained a church-decreed annulment but needed a civil law basis to sever the marriage.

From the time of the effectivity of the Family Code until the promulgation of the case of Republic v. Molina (Molina), the courts have been inundated with petitions to declare marriages void on the grounds of psychological incapacity. In the said case, the Solicitor General labelled Article 36 (psychological incapacity) as the “most liberal divorce procedure in the world” (G.R. No. 108763, February 13, 1997).

A careful observation of the development of psychological incapacity in nullity cases from 1988 to 1997 will reveal that some parties and lawyers have abused it. Married couples, wanting to get out of the marriage, have colluded; one accepts the blame and intentionally does not oppose the Petition.  In other instances, the non-answering spouse or defendant was declared in default.

The Molina case is just the first step in stopping the abuses of and collusion by the parties. The case declared that 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 (G.R. No. 108763, February 13, 1997).

Furthermore, the evidence must convince the court that the parties, or at least one of them, was mentally or physically ill to such an extent that the person could not have known his or her marital obligations. The psychological incapacity must also be proven to be existing at "the time of the celebration" of the marriage, and that such an incapacity is incurable (G.R. No. 108763, February 13, 1997).

The Molina case required the trial court to 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 to the petition (G.R. No. 108763, February 13, 1997).

This case changed the manner by which nullity cases on the grounds of psychological incapacity were to be handled. The lawyer and the party had to see to it that the Petition included the supporting medical or clinical findings of an expert. Lawyers will not dare file a Petition unless the expert findings of a psychiatrist or psychologist are appended to it.

Lawyers will also not file a Petition if he or she cannot prove that the psychological incapacity was existing at the time of the celebration of the marriage, it being grave and incurable (G.R. No. 108763, February 13, 1997). In preparing the Petition, lawyers were mindful of the duty of the Solicitor General as similar to a defensor vinculi or the “defender of the bond.” This means that he will uphold the validity of the disputed marriage until sufficient evidence is given to nullify it (Catholic Dictionary, Catholic Culture).

The Supreme Court did not stop with the Molina case; the 1997 Rules on Civil Procedure disallowed the declaration of default in annulment, nullity, or legal separation cases (Section (e), Rule 9). It also issued in 2003 the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages to apply primarily to such types of cases (A.M. No. 02-11-10-SC).

However, those who want to have a “quick fix” continued to explore and exploit the legal system. There were judges who were charged administratively for declaring marriages void without the knowledge of the other spouse of the existence of the proceedings or the filing of the action. Some lawyers were also guilty, because to do this would mean that the lawyer submitted the wrong address for the defendant.

In May 2021, the Supreme Court promulgated the case of Tan-Andal v. Andal, which departed from the restrictive guidelines laid down in the Molina case. The Andal case declared that the plaintiff-spouse must prove his or her case of psychological incapacity with clear and convincing evidence. This quantum of proof is more than preponderant evidence but less than proof beyond reasonable doubt (G.R. No. 196359, May 11, 2021).

The Molina guideline, relying on the Santos Case, required that psychological incapacity must be medically or clinically identified and sufficiently proven by experts. By equating psychological incapacity to a "mental incapacity" and to "personality disorders," the Supreme Court then went against the intent behind Article 36 (G.R. No. 196359, May 11, 2021).

The Code Committee was clear that psychological incapacity is not a mental incapacity, differentiating “mental” from “psychological”. Justice Eduardo P. Caguioa, a member of the Code Committee, said that "mental" would give the wrong impression of psychological incapacity being a vice of consent (G.R. No. 196359, May 11, 2021).    

The Supreme Court in the Andal case abandoned the second Molina guideline. Psychological incapacity is neither a mental incapacity nor a personality disorder that must be proven through expert opinion. There must be proof, however, of the durable or enduring aspects of a person's personality, termed "personality structure," which manifests itself through clear acts of dysfunctionality that undermines the family and makes it impossible to comply with his or her essential marital obligations (G.R. No. 196359, May 11, 2021).

Proof of these aspects of personality need not be given by an expert. Ordinary witnesses who have been present in the life of the spouses before the latter contracted marriage may testify on behaviors that they have consistently observed from the supposedly incapacitated spouse. From there, the judge will decide if these behaviors are indicative of a true and serious incapacity to assume the essential marital obligations (G.R. No. 196359, May 11, 2021).

The Supreme Court amended the third Molina guideline by holding that the psychological incapacity contemplated in Article 36 of the Family Code is incurable, not in the medical, but in the legal sense. This means that the incapacity is so enduring and persistent with respect to a specific partner, and contemplates a situation where the couple's respective personality structures are so incompatible and antagonistic that the only result would be the inevitable and irreparable breakdown of the marriage (G.R. No. 196359, May 11, 2021).

With respect to gravity, the requirement is retained; but not in the sense that the psychological incapacity must be shown to be a serious or dangerous illness. In other words, it must be shown that the incapacity is caused by a genuinely serious psychic cause (G.R. No. 196359, May 11, 2021). This is consistent with Canon 1095, which says that the inability to assume the essential obligations of marriage must be of a psychic nature.

In summary, psychological incapacity consists of clear acts of dysfunctionality that show a lack of understanding and concomitant compliance with one's essential marital obligations due to psychic causes. It is not an illness that has to be clinically identified; hence, expert opinion is not required (G.R. No. 196359, May 11, 2021).

The Supreme Court, citing the case of Marcos v. Marcos, explained that personal examination of the allegedly psychologically incapacitated spouse is "not [required] for a declaration of [nullity of marriage due to] psychological incapacity”. As long as the totality of evidence, sufficiently proves the psychological incapacity of one or both of the spouses, a decree of nullity of marriage may be issued (G.R. No. 196359, May 11, 2021).

For a predominantly Christian country, the availability of a legal recourse to dissolve marital union may appear to erode the very fabric of marriage as a basic social institution. However, must the State protect marriages wherein love, dignity and respect no longer exist?

Topics: Tranquil G.S. Salvador III , psychological incapacity
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