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SEPARATE OPINION

ROMERO, J.:

The majority opinion, overturning that of the Court of appeals which affirmed the Regional Trial Court ruling, upheld petitioner Solicitor Generals position that opposing and conflicting personalities is not equivalent to psychological incapacity, for the latter is not simply the neglect by the parties to the marriage of their responsibilities and duties, but a defect in their psychological nature which renders them incapable of performing such marital responsibilities and duties.

In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so much psychological incapacity as a difficulty, if not outright refusal or neglect in the performance of some marital obligations. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (not physical) illness.

I would add that neither should the incapacity be the result of mental illness. For if it were due to insanity or defects in the mental faculties short of insanity, there is a resultant defect or vice of consent, thus rendering the marriage annullable under Art. 45 of the Family Code.

That the intent of the members of the U.P Law Centers Civil Code Revision Committee was to exclude mental inability to understand the essential nature of marriage and focus strictly on psychological incapacity is demonstrated in the way the provision in question underwent revisions.

At the Committee meeting of July 26, 1986, the draft provision read:

(7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of reason or judgement to understand the essential nature of marriage or was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration.

The twist and turns which the ensuing discussion took finally produced the following revised provision even before the session was over:

(7) That contracted by any party who, at the time of the celebration, was psychologically incapacitated to discharge the essential marital obligations, even if such lack or incapacity becomes manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any reference to wanting in the sufficient use of reason or judgment to understand the essential nature or marriage and to mentally incapacitated. It was explained that these phrases refer to defects in the mental faculties vitiating consent, which is not the idea but lack of appreciation of ones mental obligation. There being a defect in consent, it is clear that it should be a ground for voidable marriage because there is the appearance of consent and it is capable of convalidation for the simple reason that there are lucid intervals and there are cases when the insanity is curable. Psychological incapacity does not refer to mental faculties and has nothing to do with consent; it refers to obligations attendant to marriage.¹chanroblesvirtuallawlibrary

My own position as a member of the Committee then was that psychological incapacity is, in a sense, insanity of a lessor degree.

As to the proposal of Justice Caguio to use the term psychological or mental impotence, Archbishop Oscar Cruz opined in the earlier February 9, 1984 session that this term is an invention of some churchmen who are moralist but not canonist, that is why it is considered a weak phrase. He said that the Code of Canon Law would rather express it as psychological or mental incapacity to discharge. Justice Ricardo C. Puno opined that sometimes a person may be psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of Art. 36 is: Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex.

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase and is incurable but Prof. Esteban B. Bautista commented that this would give rise to the question of how they will determine curability and Justice Caguioa agreed that it would be more problematic. Yet the possibility that one may be cured after the psychological incapacity becomes manifest after the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:

1. lack of one or more of the essential requisites of marriage as contract;

2. reasons of public policy;

3. special cases and special situations.

The ground of psychological incapacity was subsumed under special cases and special situations, hence its special treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling marriages that even comes close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage which stands valid until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters, now open to fresh winds of change in keeping with the more permissive mores and practices of the time, took a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting marriage: 3. (those who, because of causes of psychological nature, are unable to assume the essential obligations of marriage provided the model for what is now Art. 36 of the Family Code: 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.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the voidable or annullable marriages. When the Ecclesiastical Tribunal annuls a marriage, it actually declares the marriage null and void, i.e., it never really existed in the first place, for a valid sacramental marriage can never be dissolved. Hence, a properly performed and consummated marriage between two living Roman Catholics can only be nullified by the formal annulment process which entails a full tribunal procedure with a Court selection and a formal hearing.

Such so-called church annulments are not recognized by the Civil Law as severing the marriage ties as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil marriage, not being congruent with those laid down by Canon Law, the former being more strict, quite a number of married couples have found themselves in limbo freed from the marriage bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under state laws. Heedless of the civil law sanctions, some persons contract new marriages or enter into live-in relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law Revision Committee decided to engraft the Canon Law concept of psychological incapacity into the Family Code and classified the same as a ground for declaring marriages void ab initio or totally inexistent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide directly for psychological incapacity, in effect recognized the same indirectly from a combination of three old canons: Canon #1081 required persons to be capable according to law in order to give valid consent; Canon #1082 required that persons be at least not ignorant of the major elements required in marriage; and Canon 1087 (the force and fear category) required that internal and external freedom be present in order for consent to be valid. This line of interpretation produced two distinct but related grounds for annulment, called lack of due discretion and lack of due competence. Lack of due discretion means that the person did not have the ability to give valid consent at the time of the wedding and therefore the union is invalid. Lack of due competence means that the person was incapable of carrying out the obligations of the promise he or she made during the wedding ceremony.

Favorable annulment decisions by the Roman Rote in the 1950s and 1960s involving sexual disorders such as homosexuality and nymphomania laid the foundation for a broader approach to the kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for the first time in several cases that the capacity to give valid consent at the time of marriage was probably not present in persons who had displayed such problems shortly after the marriage. The nature of a cautious willingness to use this kind of hindsight, the way was paved for what came after 1970. Diocesan Tribunals began to accept proof of serious psychological problems that manifest themselves shortly after the ceremony as proof of an inability to give valid consent at the time of the ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert become increasingly important in such cases. Data about the persons entire life, both before and after the ceremony, were presented to these experts and they were asked to give professional opinions about a partys mental capacity at the time of the wedding. These opinions were rarely challenged and tended to be accepted as decisive evidence of lack of valid consent.

The church took no pains to point out that its new openness in this area did not amount to the addition of new grounds for annulment, but rather was an accommodation by the Church to the advances made in psychology during the past decades. There was now the expertise to provide the all-important connecting link between a marriage breakdown and premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to that of a covenant. The result of this was that it could no longer be assumed in annulment cases that a person who could intellectually understand the concept of marriage could necessarily give valid consent to marry. The ability to both grasp and assume the real obligations of a mature, lifelong commitment are now considered a necessary prerequisite to valid matrimonial consent.²chanroblesvirtuallawlibrary

Rotal decisions continued applying the concept of incipient psychological incapacity, not only to sexual anomalies but all kinds of personality disorders that incapacitate a spouse or both spouses from assuming or carrying out the essential obligations of marriage. For marriage is not merely cohabitation or the right of the spouses to each others body for heterosexual acts, but is, in its totality, the right to the community of the whole of life; i.e., the right to a developing, lifelong relationship. Rotal decision since 1973 have refined the meaning of psychological or psychic capacity for marriage as presupposing the development of an adult personality; as meaning the capacity of the spouses to give themselves to each other and to accept the other as a distinct person; that the spouses must be other oriented since the obligations of marriage are rooted in a self-giving love; and that the spouses must have the capacity for interpersonal relationship because marriage is more than just a physical reality but involves a true intertwining of personalities. The fulfillment of the obligations of marriage depends, according to church decisions, on the strength of this interpersonal relationship. A serious incapacity for interpersonal sharing and support is held to impair the relationship and consequently, the ability to fulfill the essential marital obligations. The marital capacity of one spouse is not considered in isolation but in reference to the fundamental relationship to the other spouse.³

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital relationship:

The courts consider the following elements crucial to the marital commitment: (1) a permanent and faithful commitment to the marriage partner; (2) openness to children and partner; (3) stability; (4) emotional maturity; (5) financial responsibility; (6) an ability to cope with the ordinary stresses and strains of marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions that might lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion even with the best intentions of the parties. Among the psychic factors possibly giving rise to his or her inability to fulfill marital obligations are the following: (1) antisocial personality with its fundamental lack of loyalty to persons or sense or moral values; (2) hyperesthesia, where the individual has no real freedom of sexual choice; (3) the inadequate personality where personal responses consistently fall short of reasonable expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts wether he or she has a case for an annulment on any other terms. A situation that does not fit into any of the more traditional categories often fits very easily into the psychological category.

As new as the psychological grounds are, experts are already detecting a shift in their use. Whereas originally the emphasis was on the parties inability to exercise proper judgment at the time of the marriage (lack of due discretion), recent cases seem to be concentrating on the parties incapacity to assume or carry out their responsibility and obligations as promised (lack of due competence). An advantage to using the ground of lack of due competence is that the at the time the marriage was entered into civil divorce and breakup of the family almost always is proof of someones failure to carry out marital responsibilities as promised at the time the marriage was entered into.⁴chanroblesvirtuallawlibrary

In the instant case, opposing and conflicting personalities of the spouses were not considered equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia, the court held that the failure of the wife to return home from the U.S. or to communicate with her husband for more than five years is not proof of her psychological incapacity as to render the marriage a nullity.⁵ Therefore, Art. 36 is inapplicable and the marriages remain valid and subsisting.

However in the recent case of chi Ming Tsoi v. Court of Appeals,⁶ this Court upheld both the Regional Trial Court and the Court of Appeals in declaring the presence of psychological incapacity on the part of the husband. Said petitioner husband, after ten (10) months sleeping with his wife never had coitus with her, a fact he did not deny but he alleged that it was due to the physical disorder of his wife which, however, he failed to prove. Goaded by the indifference and stubborn refusal of her husband to fulfill a basic marital obligation described as to procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage, the wife brought the action in the lower court to declare the marriage null.

The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch I) on psychological incapacity, concluded:

If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity.

We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsumated marital obligations, can do no less but sustain the studied judgment of respondent appellate court.

I concur with the majority opinion that the herein marriage remains valid and subsisting absent psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the spouses.