Relaxation of Rules in the Declaration of Nullity of Marriage based on Psychological Incapacity

SC relaxes rules on psychological incapacity as ground to annul marriages, says the news title in a
popular newspaper. While the news article does not mention the title of the case, its clearly abundant
that it refers to the 2015 case of Valerio E. Kalaw vs. Ma. Elena Fernandez (G.R. No. 166357, 14
January 2015). Did the Supreme Court, in the case of Kalaw, relax the rules on petitions for
declaration of nullity of marriage based on psychological incapacity? Lets discuss this question and,
at the same time, highlight ten matters that may be of interest to those seeking answers.

1. The rules provided in Molina remain valid

Practitioners refer to the guidelines for the interpretation and application of Article 36 as the Molina
Doctrine, considering that the set of guidelines were first compiled in the 1997 case of Republic vs.
Court of Appeals and Roridel Olaviano Molina (G.R. No. 108763). There are eight guidelines: (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 medically or clinically identified, alleged in the
complaint, sufficiently proven by experts and 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; and, (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state.

In Kalaw, the Supreme Court reiterated its categorical statement, made in a 2009 case, that we are
not suggesting the abandonment of Molina in this case. The set of guidelines in Molina, therefore,
stays.

The pronouncement in Kalaw that is closest to relaxation of the guidelines is its reiteration that
the foregoing guidelines have turned out to be rigid, such that their application to every instance
practically condemned the petitions for declaration of nullity to the fate of certain rejection. There is
no doubt that the Molina Doctrine is strict, but there is also no doubt that countless petitions have been
granted pursuant to its guidelines.

The Court did not relax the rules when it reconsidered the Kalaw ruling. On the contrary, the ruling
falls under the ambit of the Molina guidelines. The first time the Supreme Court decided Kalaw in 2011,
with Justice Mariano C. Del Castillo as the ponente, the Court dismissed the petition for insufficiency of
evidence. There was no sufficient evidence to prove the alleged acts of the respondent wife
constant mahjong sessions, visits to the beauty parlor, going out with friends, adultery, and neglect
of their children. While it was shown that the respondent-wife played mahjong (bringing the kids with
her), the petitioner-husband failed to show the FREQUENCY of the mahjong sessions. There is no
proof that the mahjong sessions were so frequent that respondent neglected her family. In other
words, the allegations, which served as the bases or underlying premises of the conclusions of his
experts, were not actually proven.

In 2015, with Justice Lucas Bersamin as ponente, the Supreme Court reconsidered its earlier decision.
The Supreme Court, lest it be misunderstood, explicitly stated that its not abandoning Molina. The
Court, bound by the same set of proven facts, clarified that the failure to show the frequency of
mahjong sessions does not preclude a finding of psychological incapacity. Its not the FREQUENCY
of the mahjong sessions; its the fact that the respondent-wife should have known that bringing her
children along her children of very tender ages to her mahjong sessions would expose them to a
culture of gambling and other vices that would erode their moral fiber. This, based on the totality of
facts in the case, supports the finding of psychological incapacity. This ruling is very much consistent
with the Molina Doctrine. There is no relaxation of the rules in this respect.

The label that the Court relaxed the rules is most likely derived from the Courts statement that the
rules set forth in Molina are rigid. This is bolstered by the apparent expression of regret, also reiterated
in Kalaw, that in hindsight, it may have been inappropriate for the Court to impose a rigid set of rules,
as the one in Molina, in resolving all cases of psychological incapacity. In my opinion, and as
discussed below, the term rigid should not be understood along the lines of relaxed as an antonym.

2. Expert testimony is decisive

If theres anything in Kalaw that can be construed as a relaxation or departure from the Molina
Doctrine, its the rule on expert witnesses. Guideline No. 2 in Molina provides that the root cause of
the psychological incapacity must be medically or clinically identified, alleged in the complaint,
sufficiently proven by experts and clearly explained in the decision. However, it has been established
in previous cases that expert testimony is not a requisite in psychological incapacity cases. In other
words, the absence of an expert witness does not automatically result to a denial of the petition. In a
number of cases, including the case of Mendoza vs. Republic (G.R. No. 157649, 12 November 2012),
the Supreme Court had the occasion to state that the expert opinions of psychologists are not
conditions sine qua non in the granting of petitions for declaration of nullity of marriage, although the
Court added that the actual medical examinationwas to be dispensed with only if the totality of
evidence presented was enough to support a finding of his psychological incapacity. The requirement
of the totality of evidence is also not new, having been discussed in similar cases prior to Kalaw.

Going back to the value of expert testimonies, the Supreme Court in Kalaw restated the rule that in
the task of ascertaining the presence of psychological incapacity as a ground for the nullity of marriage,
the courts, which are concededly not endowed with expertise in the field of psychology, must of
necessity rely on the opinions of experts in order to inform themselves on the matter, and thus enable
themselves to arrive at an intelligent and judicious judgment. There is no relaxation of the rules in
this respect.

Incidentally, in one of our cases, the judge noted that it is for the court not the psychologist to
conclude that one or both parties is/are psychologically incapacitated. Indeed, the existence of
psychological incapacity is a legal conclusion, which is within the exclusive province of the court, but
this does not preclude the expert witness from expressing a similar opinion, pointing to the exact
condition or personality disorder of the spouse/s.

3. The psychologist need not personally examine the incapacitated

spouse
The usual objection raised against the testimony of the expert witness, especially when the services
of the expert witness has been obtained by the petitioner-spouse and there is a conclusion that the
respondent-spouse is psychologically incapacitated, is the usual inability of the psychologist to
examine or interview the respondent spouse. In Kalaw, the Supreme Court reiterated the rule that the
lack of personal examination and interview of the person diagnosed with personality disorderdid not
per se invalidate the findings of the experts. There is no relaxation of the rules in this respect.
The opinion of the expert opinion should not be lightly brushed aside in the presence of the totality of
evidence in the case. This is the reason why, in the cases we are handling, we require the client to
present other witnesses to corroborate the clients testimony on the facts which constitute the basis
for the finding of the personality disorder and, ultimately, psychological incapacity. While clients initially
complain about the presentation of other witnesses, we make it a point to carefully explain that this is
needed to avoid an outright denial of the petition.

4. Article 36 is patterned after Church doctrines

It has been said that the Philippines is the only country in the whole world that does not have divorce.
This, of course, did not deter the Office of the Solicitor General (OSG) to make, in the language of the
Supreme Court, an exaggeration in Molina that Article 36 is the most liberal divorce procedure in
the world. In Kalaw, the Supreme Court noted that it was sensitive to the exaggeration of the OSG
when it enunciated the rigid rules in Molina. The unintended consequences of Molina, however, has
taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic
personality anomaly, which, like termites, consume little by little the very foundation of their families,
our basic social institutions. Far from what was intended by the Court, Molina has become a strait-
jacket, forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in conveniently
applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and
the like, to continuously debase and pervert the sanctity of marriage. Ironically, the Roman Rota has
annulled marriages on account of the personality disorders of the said individuals.

Article 36 is patterned after Church rules. As noted in Molina: Since the purpose of including such
provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it
stands to reason that to achieve such harmonization, great persuasive weight should be given to
decisions of such appellate tribunal. Ideally subject to our law on evidence what is decreed as
canonically invalid should also be decreed civilly void.

5. Article 36 protects the family

The first guideline under Molina provides that any doubt should be resolved in favor of the existence
and continuation of the marriage and against its dissolution and nullity. Marriage is protected under
the Constitution and existing laws. In case of DOUBT in petitions for nullity cases, the doubt must be
resolved in favor of the validity of marriage. In other words, the petition must be examined strictly in
favor of the validity of marriage. If the issue can be resolved both ways for or against declaration of
nullity the issue must be resolved in favor of marriage, which means that petition must be dismissed.

This Constitutional protection of marriage, however, does not apply to void marriages. As reiterated
by the Supreme Court in Kalaw, Article 36 protects the institution of marriage the fulfillment of the
constitutional mandate for the State to protect marriage as an inviolable social institution only relates
to a valid marriage. No protection can be accorded to a marriage that is null and void ab initio, because
such a marriage has no legal existence.

Indeed, Article 36 of the Family Code, in classifying marriages contracted by a psychologically

incapacitated person as a nullity, should be deemed as an implement of this constitutional protection
of marriage. Given the avowed State interest in promoting marriage as the foundation of the family,
which in turn serves as the foundation of the nation, there is a corresponding interest for the State to
defend against marriages ill-equipped to promote family life. Void ab initio marriages under Article 36
do not further the initiatives of the State concerning marriage and family, as they promote wedlock
among persons who, for reasons independent of their will, are not capacitated to understand or comply
with the essential obligations of marriage.
Heres the dilemma that I see: the determination whether the marriage is void (in which case it loses
any protection under the Constitution) is done at the latter part of the trial (the decision), while the
application of the presumption of the validity of marriage (as well as the strict interpretation in favor of
validity) exists at the time of filing of the very same petition.

In my opinion, there is no inconsistency, and there is no relaxation of the rules. A presumption can
always be overturned by contrary evidence. Once contrary evidence is admitted and the marriage is
declared void, then the presumption loses any value and the marriage cease to be constitutionally
protected. Under this scenario, it does not help to be saddled with presumptions (or assumptions,
predilections or generalizations) at the start of the petition. The task is to examine the evidence and
look at the totality of the case. In the words of the Supreme Court, we reiterate once more the
principle that each case must be judged, not on the basis of a priori assumptions, predilections or
generalizations but according to its own facts. There should be no rigid application of Molina and
Article 36 of the Family Code must not be so strictly and too literally read and applied given the clear
intendment of the drafters to adopt its enacted version of less specificity obviously to enable some
resiliency in its application.

6. Article 36 has no definition

Psychological incapacity is characterized as as a ground for the nullity of marriage under Article 36
of the Family Code refers to a serious psychological illness afflicting a party even prior to the
celebration of the marriage that is permanent as to deprive the party of the awareness of the duties
and responsibilities of the matrimonial bond he or she was about to assume.

However, the Family Code has not defined the term psychological incapacity. The committee that
drafted the Family Code decided to adopt a provision with less specificity than expected in order to
have the law allow some resiliency in its application. The intent of the commitee is to give courts
sufficient leeway to interpret the provision on a case-to-case basis, guided by experience, the findings
of experts and researchers in psychological disciplines, and the decisions of church tribunals that had
persuasive effect by virtue of the provision itself having been taken from the Canon Law.

The intended resiliency of Article 36 had, somehow, been rendered ineffectual by the imposition of a
set of strict standards in Molina, yet the Supreme Court still maintains that it is not abandoning Molina.

7. One or both spouses can be psychologically incapacitated

In the Kalaw case, the petitioner-husband alleges that the respondent-wife is psychologically
incapacitated. The wife, in her answer, denies her psychological incapacity and alleges that the
husband is the one psychologically incapacitated. Both spouses presented expert witnesses to
support each others allegation that the other spouse is psychologically incapacitated.

In the original Kalaw case, the Court focused solely on the psychological incapacity of the wife,
concluding that there was insufficient evidence; the Court did not discuss the incapacity of the
husband. This appears to be consistent with the first guideline in Molina the burden of proof to
show the nullity of the marriage belongs to the plaintiff.

In the reconsidered Kalaw case, the Court declared BOTH spouses as psychologically incapacitated.
While it can be argued that this is a deviation, or relaxation, of the rule that was followed in the
original Kalaw case, there is no basis for such argument.
As a rule, the burden of proving the existence of psychological incapacity is with the petitioner. This is
based on the basic rule that he who alleges must prove the allegation. This basic rule, stated in another
manner, simply means that the person who alleges psychological incapacity must prove such
psychological incapacity.

Under the circumstances, the court has three options: (a) declare the WIFE as psychologically
incapacitated; (b) declare the HUSBAND as psychologically incapacitated; or (c) declare BOTH
spouses as psychologically incapacitated. It doesnt matter who raised the allegation of psychological
incapacity. In the words of the Supreme Court in the reconsidered decision: The courts are justified
in declaring a marriage null and void under Article 36 of the Family Code regardless of whether it is
the petitioner or the respondent who imputes the psychological incapacity to the other as long as the
imputation is fully substantiated with proof. Indeed, psychological incapacity may exist in one party
alone or in both of them, and if psychological incapacity of either or both is established, the marriage
has to be deemed null and void.

As far as remarriage is concerned, it doesnt really matter who between the spouses is psychologically
incapacitated there is absolutely no prohibition for the psychologically incapacitated spouse to
marry again.

Lets consider a number of scenarios. What if, in another case, the husband alleges that the wife is
psychologically incapacitated and the wife simply denies such allegation, without replying that the
husband is the one psychologically incapacitated? What if the husband alleges that wife is
psychologically incapacitated and the wife fails to answer? If, for one reason or another, evidence
shows that there is no basis for finding that the wife is psychologically incapacitated, but sufficient
evidence exists to support a finding of psychological incapacity on the part of the husband, can the
court still declare the existence of the psychological incapacity, albeit on the part of the husband?

8. Trial court decision is binding

In the original Kalaw case, the Supreme Court concluded that there is no factual basis for the
conclusion of psychological incapacityThe trial courts Decision merely summarized the allegations,
testimonies, and evidence of the respective parties, but it did not actually assess the veracity of these
allegations, the credibility of the witnesses, and the weight of the evidence. The trial court did not make
factual findings which can serve as bases for its legal conclusion of psychological incapacity.

In reconsidering its earlier decision in Kalaw, the Supreme Court cited the general rule that findings
of the Regional Trial Court (RTC) on the existence or non-existence of a partys psychological
incapacity should be final and binding for as long as such findings and evaluation of the testimonies
of witnesses and other evidence are not shown to be clearly and manifestly erroneous. In every
situation where the findings of the trial court are sufficiently supported by the facts and evidence
presented during trial, the appellate court should restrain itself from substituting its own judgment.

9. There are sufficient safeguards to protect marriage

Without a divorce law, and with the perceived relaxation of the rules on petitions for declaration of
nullity, its normal to be apprehensive about the deluge of cases that will choke court dockets. This
possible onslaught might also be interpreted as an attack on the institution of marriage.

In EACH and EVERY petition for annulment or declaration of nullity, the State (through the OSG and
the public prosecutors) is mandated by law to participate and ensure that the institution of marriage is
amply protected. According to the Supreme Court, it need not worry about the possible abuse of the
remedy provided by Article 36, for there are ample safeguards against this contingency, among which
is the intervention by the State, through the public prosecutor, to guard against collusion between the
parties and/or fabrication of evidence. The Court should rather be alarmed by the rising number of
cases involving marital abuse, child abuse, domestic violence and incestuous rape.

10. Other perspectives for Article 36

The Supreme Court took pains to stress in Kalaw, again pointing to an earlier case, that it is not
suggesting the abandonment of Molina in this case. It is not accurate to say that the Supreme Court
relaxed the psychological incapacity guidelines in Kalaw. Matters that can be interpreted in Kalaw as
a relaxation of the rules have been taken up in previous cases. Kalaw simply reiterates those
principles.

What the Supreme Court again pointed out in Kalaw is the need to emphasize other perspectives
that should guide courts in dealing with petitions for declaration of nullity under Article 36 of the Family
Code.

What are the other perspectives? The Supreme Court noted that Article 36 cases should not be
decided based on a priori assumptions, predilections or generalizations and emphasized that courts
should interpret the provision on a case-to-case basis; guided by experience, the findings of experts
and researchers in psychological disciplines, and by decisions of church tribunals.

This, in my opinion, means that other perspectives can run parallel to the Molina guidelines. In other
words, the Molina Doctrine is not the be-all and end-all of Article 36 interpretation. The intention not to
define Article 36 simply means that the provision should not be static; it is intended to be a living
provision, with courts guided by experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals.

Cases that dont fall squarely under the Molina guidelines should not be dismissed outright. A rigid
interpretation of Molina means that petitions must be strictly construed in favor of the validity of
marriage and any deviation from the guidelines, no matter how reasonable, must lead to the dismissal
of the petition. But it should be remembered that a void marriage enjoys no protection and not entitled
to any presumption of regularity, which means that even if a particular case does not fall squarely
under the Molina principles, the court must still examine the totality of evidence and must apply other
perspectives. This way, diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the
like will not be allowed to continuously debase and pervert the sanctity of marriage.