Psychological Incapacity (Article 36)

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.

 Psychological incapacity is not a substitute for divorce. The theory behind psychological incapacity is that one or both of the spouses cannot discharge one or more of the essential marital obligations (Article 68). There must be an absolute incapability to do so.

 During the 1^st years of the effectivity of the Family Code, many couples resorted to Article 36 as a convenient way to end their marriage. As a

result of these abuses, the Supreme Court became very strict in applying Article 36.

 Psychological incapacity must exist at the time the marriage is celebrated (like impotence). However, psychological incapacity need not be manifested at the time of the celebration of the marriage. This is the tricky part.

 In Santos vs. CA, the Supreme Court enumerated the following characteristics of psychological incapacity:

1. Gravity

2. Juridical antecedence 3. Incurability

 In Republic vs. CA (Molina), the Supreme Court reiterated Santos vs.

CA. Furthermore, the Supreme Court laid down several guidelines:

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

2. The root cause of the psychological incapacity must be:

a. Psychological and not physical (although psychological incapacity can be manifested physically)

b. Medically or clinically identified c. Alleged in the complaint

d. Proved sufficiently by experts (i.e. psychiatrists, psychologists) e. 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 60 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 obligations must also be stated in the petition, proven by evidence and included in the test 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.

8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State. The Solicitor General’s role is to issue a certification stating why he does or does not agree.

 In Chi Ming Tsoi vs. CA, the convergence of all the factors stated in the complaint amounted to psychological incapacity.

7. Disease (Articles 45 (6), 47 (5))

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein:

(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage.

 Requisites for Annulment due to disease

1. Either party is afflicted with a sexually transmissible disease (STD) 2. The STD must exist at the time the marriage is celebrated

3. The STD must be serious

4. The STD must be apparently incurable.

5. The STD party not afflicted by STD must be ignorant of the other’s affliction (Professor Balane’s opinion)

6. The injured party must be free from STD (Professor Balane’s opinion)

 According to Professor Balane, AIDS would fall under Article 45 (6).

Article 45(6) does not say that the only way to transmit the disease is through sex.

 Professor Balane is not sure if it is required that the afflicted person should know that he has STD.

 The injured party must be ignorant of the other party’s affliction. If the injured party knew and the marriage took place, then the injured party has no right to complain.

 The action to annul the marriage must take place within 5 years from the marriage.

 The Family Code does not state if such a marriage can be ratified.

Professor Balane doesn’t see why such a marriage cannot be ratified.

D. Consent

1. Insanity (Articles 45(2), 47(2))

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein:

(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of

either party, or by the insane spouse during a lucid interval or after regaining sanity;

 Insanity is a legal and not a medical question.

 One of the spouses must be insane at the time the marriage was celebrated. However, Professor Balane cannot imagine anyone marrying an insane person and not knowing it.

 The following are the prescriptive periods for filing: