Philippine e-Legal Forum

“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, it’s 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? Let’s 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 it’s 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. It’s not the FREQUENCY of the mahjong sessions; it’s 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 Court’s 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 there’s anything in Kalaw that can be construed as a “relaxation” or departure from the Molina Doctrine, it’s 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 examination…was 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 disorder…did 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 client’s 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.”

Here’s 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

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 other’s 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 doesn’t 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 doesn’t really matter who between the spouses is psychologically incapacitated — there is absolutely no prohibition for the psychologically incapacitated spouse to marry again.

Let’s 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 incapacity…The trial court’s 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 party’s 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, it’s 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 don’t 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.”