“The most familiar ground for nullity is psychological incapacity under Article 36 of the Family Code. It is the claim that one or both of the spouses is “psychologically incapacitated to perform and comply with the essential marital obligations at the time of the celebration of their marriage”.^[2]

The amount of legalese in that last sentence speaks of how complicated such a case for psychological incapacity can get. The Supreme Court has defined psychological incapacity as “the downright incapacity or inability to take cognizance of and to assume the basic marital obligations.”^[3]

 

UPDATE:

Most recently, in the case of Tan-Andal v. Andal, G.R. No. 196359, May 11, 2021 the Supreme Court has unanimously modified the interpretation of the requirements of psychological incapacity, thus:

“The Court pronounced that psychological incapacity is not a medical but a legal concept. It refers to a personal condition that prevents a spouse to comply with fundamental marital obligations only in relation to a specific partner that may exist at the time of the marriage but may have revealed through behavior subsequent to the ceremonies. It need not be a mental or personality disorder. It need not be a permanent and incurable condition. Therefore, the testimony of psychologist or psychiatrist is not mandatory in all cases. The totality of the evidence must show clear and convincing evidence to cause the declaration of nullity of marriage.”

This groundbreaking, unanimous decision is an important change from previous court rulings. It opens the way to a more liberal grant of applications for nullity of marriage.

 

Previous court rulings

The burden of proving psychological incapacity is on the plaintiff. The plaintiff must prove that the incapacitated party, based on his or her actions or behavior, suffers a serious psychological disorder that completely disables him or her from understanding and discharging the essential obligations of the marital state. The psychological problem must be grave, must have existed at the time of marriage, and must be incurable.^[4]

 

There has been a lot of jurisprudence on psychological incapacity. Decades of Supreme Court rulings have laid down, restated and reconsidered not just what it is in practice, but also how to prove it in court. These cases reveal a shifting, evolving field of law. Since the Family Code is spare on its definition of “psychological incapacity” the Supreme Court decisions first had to define the scope of the term, and then fix, relax, revise and reiterate the procedures by which to prove it.

It’s gotten pretty complicated. A review of the cases shows an odd mix of reactionary wariness of ‘psychological incapacity’ as providing for the “most liberal divorce procedure in the world”^[5] mingled with a continuing exegesis of the surprisingly less conservative Catholic Church doctrine on the concept^[6] (Article 36 was lifted in spirit from Catholic canon law).

In November 2016,^[7]the Supreme Court reaffirmed the guidelines which have been in place since 1997:

1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity

2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision

3) The incapacity must be proven to be existing at ‘the time of the celebration’ of the marriage.

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

5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.

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.*

7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. 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 Guidelines incorporate the basic requirements established in Santos v. Court of Appeals that psychological incapacity must be characterized by: (a) gravity; (b) juridical antecedence; and (c) incurability. These requisites must be strictly complied with, as the grant of a petition for nullity of marriage based on psychological incapacity must be confined only to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.

The recent case of Tan-Andal v. Andal changes these interpretations, particularly by dispensing permanence and incurability, and by highlighting that the incapacity may be only with respect to one person and not to others.

A fairly recent example is Kalaw vs. Fernandez^[8]. In 2011, the Supreme Court actually denied Kalaw’s petition for the declaration of nullity of his marriage under Article 36. In 2015, however, the Supreme Court reversed itself and granted Kalaw’s petition after all.

On reconsideration, the Supreme Court gave credence to the testimony of expert witnesses who testified to the psychological incapacity of Kalaw’s wife. These expert witnesses included a psychologist and a priest who was also a canon law expert of the Catholic Church:

After a long and hard second look, we consider it improper and unwarranted to give to such expert opinions a merely generalized consideration and treatment, least of all to dismiss their value as inadequate basis for the declaration of the nullity of the marriage. Instead, we hold that said experts sufficiently and competently described the psychological incapacity of the respondent within the standards of Article 36 of the Family Code. We uphold the conclusions reached by the two expert witnesses because they were largely drawn from the case records and affidavits, and should not anymore be disputed after the RTC itself had accepted the veracity of the petitioner’s factual premises.

The findings of Kalaw’s expert witnesses who testified to the psychology of his wife were upheld by the Supreme Court even though they had not personally examined her:

The expert opinion of Dr. Gates was ultimately necessary herein to enable the trial court to properly determine the issue of psychological incapacity of the respondent (if not also of the petitioner). Consequently, the lack of personal examination and interview of the person diagnosed with personality disorder, like the respondent, did not per se invalidate the findings of the experts. The Court has stressed in Marcos v. Marcos that there is no requirement for one to be declared psychologically incapacitated to be personally examined by a physician, because what is important is the presence of evidence that adequately establishes the party’s psychological incapacity. Hence, “if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to.”

Verily, the totality of the evidence must show a link, medical or the like, between the acts that manifest psychological incapacity and the psychological disorder itself. If other evidence showing that a certain condition could possibly result from an assumed state of facts existed in the record, the expert opinion should be admissible and be weighed as an aid for the court in interpreting such other evidence on the causation. Indeed, an expert opinion on psychological incapacity should be considered as conjectural or speculative and without any probative value only in the absence of other evidence to establish causation. The expert’s findings under such circumstances would not constitute hearsay that would justify their exclusion as evidence.

This is so, considering that any ruling that brands the scientific and technical procedure adopted by Dr. Gates as weakened by bias should be eschewed if it was clear that her psychiatric evaluation had been based on the parties’ upbringing and psychodynamics. In that context, Dr. Gates’ expert opinion should be considered not in isolation but along with the other evidence presented here.

Expert witnesses are important for establishing the psychological incapacity. However, whether or not psychological incapacity is established depends on the totality of the evidence in the case. Despite some deference to expert witnesses, a high standard of proof requiring more evidence — in particular the evidence of the facts on which an expert bases her opinion — is demanded in cases under Article 36.

 

This high standard of proof was the reason that the Supreme Court denied a petition in the 2016 case of Matudan vs. Republic and Matudan^[9]:

Indeed, “[w]hat is important is the presence of evidence that can adequately establish the party’s psychological condition.” [T]he complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage.” Petitioner’s judicial affidavit and testimony during trial, however, fail to show gravity and juridical antecedence. While he complained that Marilyn lacked a sense of guilt and was involved in “activities defying social and moral ethics,” and that she was, among others, irrational, irresponsible, immature, and self-centered, he nonetheless failed to sufficiently and particularly elaborate on these allegations, particularly the degree of Marilyn’s claimed irresponsibility, immaturity, or selfishness. This is compounded by the fact that petitioner contradicted his own claims by testifying that he and Marilyn were happily married and never had a fight, which is why they begot four children; and the only reason for his filing Civil Case No. Q-08-62827 was Marilyn’s complete abandonment of the marriage and family when she left to work abroad.

‘Psychological incapacity,’ as a ground to nullify a marriage under Article 36 of the Family Code, should refer to no less than a mental – not merely physical – incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68 of the Family Code, among others, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly 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.

Although an apparently one-sided presentation of evidence was upheld in Kalaw, Matudan offers a cautionary counter-example for such a strategy. In Matudan the Supreme Court looked askance at an expert’s psychological assessment of the wife without the benefit of personally examining her:

We cannot help but note that Dr. Tayag’s conclusions about the respondent’s psychological incapacity were based on the information fed to her by only one side — the petitioner — whose bias in favor of her cause cannot be doubted. While this circumstance alone does not disqualify the psychologist for reasons of bias, her report, testimony and conclusions deserve the application of a more rigid and stringent set of standards in the manner we discussed above. For, effectively, Dr. Tayag only diagnosed the respondent from the prism of a third party account; she did not actually hear, see and evaluate the respondent and how he would have reacted and responded to the doctor’s probes.

Dr. Tayag, in her report, merely summarized the petitioner’s narrations, and on this basis characterized the respondent to be a self-centered, egocentric, and unremorseful person who ‘believes that the world revolves around him’; and who ‘used love as a . . . deceptive tactic for exploiting the confidence [petitioner] extended towards him.’

We find these observations and conclusions insufficiently in depth and comprehensive to warrant the conclusion that a psychological incapacity existed that prevented the respondent from complying with the essential obligations of marriage. It failed to identify the root cause of the respondent’s narcissistic personality disorder and to prove that it existed at the inception of the marriage. Neither did it explain the incapacitating nature of the alleged disorder, nor show that the respondent was really incapable of fulfilling his duties due to some incapacity of a psychological, not physical, nature. Thus, we cannot avoid but conclude that Dr. Tayag’s conclusion in her Report — i.e.. that the respondent suffered ‘Narcissistic Personality Disorder with traces of Antisocial Personality Disorder declared to be grave and incurable’ — is an unfounded statement, not a necessary inference from her previous characterization and portrayal of the respondent.

While the various tests administered on the petitioner could have been used as a fair gauge to assess her own. psychological condition, this same statement cannot be made with respect to the respondent’s condition. To make conclusions and generalizations on the respondent’s psychological condition based on the information fed by only one side is, to our mind, not different from admitting hearsay evidence as proof of the truthfulness of the content of such evidence.

All told, there is a lot to overcome in a petition for declaration of nullity under Article 36. The more well established the basis for an expert’s opinion is, the better it will be taken by the Court. The more credible evidence a petitioner can present, the better the chances that the petition will be granted.

 

Atty. Francesco C. Britanico

References

[1] There remains no divorce in the Philippines save in the case of Muslim marriages under Sharia law.
[2] Kalaw vs. Ferndandez, G.R. No. 166357, September 19, 2011.
[3] Ibid.
[4] Ibid.
[5] Republic vs. Court of Appeals and Molina, G.R. No. 108763, February 13, 1997.
[6] Kalaw vs. Fernandez, G.R. No. 166357, January 14, 2015
[7] Matudan vs. Republic and Matudan, G.R. No. 203284, November 14, 2016
[8] Supra.
[9] Supra.