Psychological Incapacity, A36 Family Code

1. Concept

Psychological incapacity – refers to a “personality structure [that makes] it impossible for [a spouse] to understand and, more important, to comply with his or her essential marital obligations. (Tan-Andal v. Andal, En Banc, G.R. No. 196359, 11 May 2021, Per Leonen, J.)

2. Psychological Incapacity

a. Nature

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. (As amended by Executive Order 227)

1) Art. 36 of the Family Code, as amended, contemplates an inability to assume basic marital obligations. It does not simply relate to a mere difficulty, refusal, or neglect in performing marital obligations or ill will. (Clavecilla v. Clavecilla, G.R. No. 228127, 06 March 2023, Per Gesmundo, C.J.)

2) [I]nasmuch as the Constitution regards marriage as an inviolable social institution and the foundation of the family, courts must not hesitate to void marriages that are patently ill-equipped due to psychic causes inherent in the person of the spouses. In the past, marriages had been upheld solely for the sake of their permanence when, paradoxically, doing so destroyed the sanctity afforded to the institution. (Tan-Andal v. Andal [2021], supra.)

3) In dissolving marital bonds on account of either party’s psychological incapacity, the Court is not demolishing the foundation of families, but it is actually protecting the sanctity of marriage, because it refuses to allow a person afflicted with a psychological disorder, who cannot comply with or assume the essential marital obligations, from remaining in that sacred bond. It may be stressed that the infliction of physical violence, constitutional indolence or laziness, drug dependence or addiction, and psychosexual anomaly are manifestations of a sociopathic personality anomaly. Let it be noted that in Article 36, there is no marriage to speak of in the first place, as the same is void from the very beginning. To indulge in imagery, the declaration of nullity under Article will simply provide a decent burial to a stillborn marriage. (Ngo Te v. Yu-Te, G.R. No. 161793, 13 February 2009, Per Nachura, J.)

3) Unjustified absence from the marital home for decades may be considered as part of the totality of evidence that a person is psychologically incapacitated to comply with the essential obligations of marriage. (Dela Cruz-Lanuza v. Lanuza, G.R. No. 242362, 17 April 2024, Per Leonen, SAJ.)

Dela Cruz-Lanuza v. Lanuza, G.R. No. 242362, 17 April 2024, Per Leonen, SAJ.:

• We find that the pieces of evidence presented by petitioner sufficiently establish the psychological incapacity of respondent.

• Based on the facts, respondent left his family in 1994 and appears to have contracted marriage several times, with different women. He never gave financial support to his children and only visited them once, for less than an hour. These indicate that respondent did not understand his obligations as a husband and father.

• Ison, whom petitioner presented as expert witness, examined petitioner, petitioner’s sister, and petitioner’s daughter in lieu of respondent.

• The Office of the Solicitor General questions the findings of Ison, arguing that he was unable to personally examine private respondent.

• On this matter, Georfo v. Republic reiterated Tan-Andal where this Court pronounced that “it is an accepted practice in psychiatry to base a person’s psychiatric history on collateral information, or information from sources aside from the person evaluated.”

• Georfo also discussed that “[i]n cases where a psychiatric report is offered as an expert’s opinion, the psychiatric evaluation of the alleged incapacitated spouse is not indispensable. The psychiatric evaluation may be based on collateral information or other sources.

• To restate, the gravity of respondent’s personality disorder is shown by his lack of recognition that he has responsibilities to his wife and children.

• His personality disorder appears to have been fostered by how he was raised by his family as “he was deprived of appropriate parental supervision and guidance” and “his parents’ lenient and tolerable attitude encouraged him to become extremely assertive.” This shows that there is juridical antecedence. His psychological incapacity developed during his formative years and existed prior to his marriage to petitioner.

• The incurability of respondent’s personality disorder was also explained by Ison when he stated in his Judicial Affidavit that those who are diagnosed with narcissistic personality disorder “strongly deny that they are mentally ill, reject the idea of seeking professional help and therefore refuse any form of psychiatric treatment.”

• Respondent’s infidelity, failure to give support to his wife and children, and unjustified absence from, his family are all indicative that he is not cognizant of the duties and responsibilities of a husband and father.

a. Not a personality disorder

1) Psychological incapacity is also not a personality disorder, as explained by amicus curiae Dean Sylvia Estrada-Claudio (Dean Estrada-Claudio). Psychological incapacity cannot be found in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V), the authoritative listing of various mental, including personality, disorders recognized by the scientific community. (Tan-Andal v. Andal [2021], supra.)

1) A personality structure

1) Psychological incapacity is neither a mental incapacity nor a personality disorder that must be proven through expert opinion. There must be proof, however, of the durable or enduring aspects of a person’s personality, called “personality structure,” which manifests itself through clear acts of dysfunctionality that undermines the family. The spouse’s personality structure must make it impossible for him or her to understand and, more important, to comply with his or her essential marital obligations. (Tan-Andal v. Andal [2021], supra.)

b. Standards

1) [In Tan-Andal v. Andal], [t]he Court ruled that since psychological incapacity is neither a mental incapacity nor a personality disorder, the proof required should be that which will establish the durable or enduring aspects of the spouse’s personality structure. Such personality structure manifests as clear acts of dysfunctionality that undermines the family by disabling the affected spouse to understand and comply with the essential marital obligations. (Clavecilla v. Clavecilla [2003], supra.)

2) Since psychological incapacity relates to the personality structure of spouses, Tan-Andal declared that the element of incurability required by Art. 36 of the Family Code be determined from a legal, not medical, point of view. It must be enduring and persistent with respect to a specific partner, which will inevitably result in the irreparable breakdown of the marriage. This personality aspect need not be proven by an expert, but may be established by ordinary witnesses who have consistently observed the behavior of the incapacitated spouse. (Clavecilla v. Clavecilla [2003], supra.)

3) To stress, psychological incapacity consists of clear acts of dysfunctionality that show lack of understanding and concomitant compliance with one’s essential marital obligations.50 But every case involving the alleged psychological incapacity of a spouse should be resolved based on its particular set of facts and Article 36 of the Family Code, applied on a case-to-case basis. Tan-Andal was not meant to strait-jacket lower courts, forcing them to apply the guidelines in nullity cases of all shapes and sizes. (Espiritu v. Boac-Espiritu, G.R. No. 247583, 06 October 2021, Per Lazaro-Javier, J.)

Related: Clavecilla v. Clavecilla (2023

3. Requisites

1) Requisites for psychological incapacity:

(a) Juridical antecedence;

(b) Icurability; and

2) Evidently, the prevailing standards in determining psychological incapacity were those laid down in Tan-Andal. Hence, the Court, in Cayabyab-Navarrosa v. Navarrosa, accordingly refined the requisites of juridical antecedence, incurability, and gravity in determining psychological incapacity as follows…

Cayabyab-Navarrosa v. Navarrosa, G.R. No. 216655, 20 April 2022, Per Perlas-Bernabe, J.:

• In light of the Court’s fundamental paradigm shift in viewing psychological incapacity as a purely legal, rather than a medical concept, the understanding of the requisites in determining psychological incapacity, namely, juridical antecedence, incurability, and gravity, must be refined accordingly.

• With regard to the requisite of incurability, it must now be recognized that psychological incapacity is incurable only in the legal (not medical) sense in that the incapacity is “so enduring and persistent with respect to a specific partner, and contemplates a situation where the couple’s respective personality structures are so incompatible and antagonistic that the only result of the union would be the inevitable and irreparable breakdown of the marriage.” In order for the said requisite to obtain, there must be “[a]n undeniable pattern of a persisting failure to be a present, loving, faithful, respectful, and supportive spouse that must be established so as to demonstrate that there is indeed a psychological anomaly or incongruity in the spouse relative to the other.”

• Meanwhile, the requisite of gravity in psychological incapacity must be such that it is caused by a genuinely psychic cause, and not just “mild characterological peculiarities, mood changes [or] occasional emotional outbursts” nor mere “refusal, neglect[,] difficulty, much less ill will.” As such, “a deeper and fuller assessment of the alleged incapacity must be done such that it is clearly and convincingly shown that the fulfillment of the essential marital obligations is not merely feigned or cumbersome but rather, practically impossible, because of the distinct psychological makeup of the person relative to his or her spouse.”

• Lastly, the requisite of juridical antecedence (which – to note – is explicitly necessitated by the phrase “at the time of the celebration of the marriage” in Article 36) means that the incapacity is determined to exist during the time of celebration. While it may indeed be difficult – if not scientifically impossible – to determine the existence of psychological incapacity at the exact point in time that the couple exchanged their ‘I dos,’ it is sufficient, however, that the petitioner demonstrates, by clear and convincing evidence, that the incapacity, in all reasonable likelihood, already exists at the time of the marriage’s celebration. To determine the reasonable likelihood of its existence at the time of the celebration of the marriage, the Court, in Tan-Andal , held that “proof of juridically antecedent psychological incapacity may consist of testimonies describing the environment where the supposedly incapacitated spouse lived that may have led to a particular behavior.”

• Moreover, the concept of juridical antecedence must be understood to include the ordinary experiences of the spouses not only prior to the marriage itself, but more importantly, during their “lived conjugal life” together since, as the law itself states, a marriage can be declared null and void under Article 36 “even if such incapacity becomes manifest only after its solemnization.” As the parties have yet to assume any of the essential marital obligations prior to being married, the Court discerns that the experience of marriage itself is the litmus test of self-realization, reflecting one’s true psychological makeup as to whether or not he or she was indeed capable of assuming the essential marital obligations to his or her spouse at the time the marriage was entered into.

• Therefore, in order to determine juridical antecedence, “judges must reconstruct the marital decision-making process of an individual, just like inquisitive investigators. The judge must trace back and examine all the manifestations before and during marriage to find out if such non-fulfillment relates to the intrinsic psychological makeup of the person relative to his or her specific partner, and not just some mere difficulty that ordinary spouses, at some point in time, are bound to go through.

• Overall, the focus should be on the manifestations during the marriage itself since, as intended by Canon Law from which psychological incapacity was patterned after, the lived conjugal life is that which provides a confirmation of the original consent or its absence at the time of the marriage’s celebration. Since there is no way to determine the existence of psychological incapacity at the exact point that vows were exchanged, it is enough that it exists at such time in all reasonable likelihood. This is determined, in turn, by the manifestations and circumstances attending before, and most significantly, during the marriage.

a. Juridical Antecedence

1) Existing at time of marriage celebration; Proof

1) Difficult to prove as it may be, a party to a nullity case is still required to prove juridical antecedence because it is an explicit requirement of the law. Article 36 is clear that the psychological incapacity must be existing “at the time of the celebration” of the marriage, “even if such incapacity becomes manifest only after its solemnization.” This distinguishes psychological incapacity from divorce. Divorce severs a marital tie for causes, psychological or otherwise, that may have developed after the marriage celebration. (Tan-Andal v. Andal [2021], supra.)

2) According to Dean Estrada-Claudio, “it is an accepted principle of all major and recognized theoretical schools within psychology that a person’s behavior is determined by the interaction of certain genetic predispositions and by his or her environment, working in iterative loops of influence.” From this, proof of juridically antecedent psychological incapacity may consist of testimonies describing the environment where the supposedly incapacitated spouse lived that may have led to a particular behavior. For instance, violence against one’s spouse and children can be a manifestation of juridically antecedent psychological incapacity when it is shown that the violent spouse grew up with domestic violence or had a history of abusive romantic relationships before the marriage. (Tan-Andal v. Andal [2021], supra.)

3) The same can be said for child abuse. Trauma research shows that our past, if not properly healed, heavily affects our present. As such, evidence of the juridically antecedent psychological incapacity may consist of testimony on the spouse’s past experiences that may have led him or her to become a child abuser. (Tan-Andal v. Andal [2021], supra.)

2) May co-exist with ground/s for legal separation

1) The existence of grounds for legal separation does not foreclose the possibility of psychological incapacity. (Yokogawa-Tan v. Tan, G.R. No. 254646, 23 October 2023, Per Leonen, J.)

b. Incurability

1) Legal incurability; not medical incurability

1) Furthermore, not being an illness in a medical sense, psychological incapacity is not something to be cured. And even if it were a mental disorder, it cannot be described in terms of being curable or incurable. Dean Estrada-Claudio explained that true mental disorders follow a probable course or outcome, called “prognosis,” that can either be self-limited or remain “stable across time and consistent in situations.” If self-limited, the disorder is, in layperson’s terms, “curable.” If it has poor long-term prognosis, the disorder is said to be “incurable.” (Tan-Andal v. Andal [2021], supra.)

2) That psychological incapacity is “incurable,” but in a legal sense, is evident in the deliberations of the Code Committee. This was explained by Justice Eduardo P. Caguioa, when he said that “‘incurable’ has a different meaning in law and medicine.” (Tan-Andal v. Andal [2021], supra.)

3) Associate Justice Mario V. Lopez, in his concurring opinion, added that characterizing psychological incapacity as “incurable” is antithetical, because the law does not prohibit a person whose former marriage had been nullified under Article 36 to remarry. If psychological incapacity were truly incurable, then remarriage should not be allowed as it would only result in another void marriage. (Tan-Andal v. Andal [2021], supra.)

4) [P]sychological incapacity contemplated in Article 36 of the Family Code is incurable, not in the medical, but in the legal sense; hence, the third Molina guideline is amended accordingly. This means that the incapacity is so enduring and persistent with respect to a specific partner, and contemplates a situation where the couple’s respective personality structures are so incompatible and antagonistic that the only result of the union would be the inevitable and irreparable breakdown of the marriage. “[A]n undeniable pattern of such persisting failure [to be a present, loving, faithful, respectful, and supportive spouse] must be established so as to demonstrate that there is indeed a psychological anomaly or incongruity in the spouse relative to the other.” (Tan-Andal v. Andal [2021], supra.)

c. Gravity

With respect to gravity, the requirement is retained, not in the sense that the psychological incapacity must be shown to be a serious or dangerous illness, but that “mild characterological peculiarities, mood changes, occasional emotional outbursts”[241] are excluded. The psychological incapacity cannot be mere “refusal, neglect[,] or difficulty, much less ill will.”[242] In other words, it must be shown that the incapacity is caused by a genuinely serious psychic cause.

4. Procedural

a. Plaintiff

1) Either spouse, whether psychologically incapacitated or not, may initiate a petition to declare the nullity of their marriage. The law only requires that the petition contains specific allegations of the incapacity of either or both spouses from complying with the essential marital obligations. The doctrine of unclean hands will not bar a psychologically incapacitated spouse from filing such petition. (Clavecilla v. Clavecilla [2003], supra.)

b. Quantum of Proof

1) [Tan-Andal ] declared that what the plaintiff-spouse in nullity cases under Art. 36 of the Family Code needs, is clear and convincing evidence. Such quantum of proof requires more than preponderant evidence but less than proof beyond reasonable doubt. (Clavecilla v. Clavecilla [2003], supra.)

2) Notably, Tan-Andal correctly stated the threshold of evidence in psychological incapacity cases i.e., the spouse alleging psychological incapacity is required to prove his or her case with clear and convincing evidence. Clear and convincing evidence is the quantum of proof that requires more than preponderance of evidence but less than proof beyond reasonable doubt. (Espiritu v. Boac-Espiritu, G.R. No. 247583, 06 October 2021, Per Lazaro-Javier, J.)

3) In the case of marriage, the presumption strongly upholds its validity. Trial courts hearing psychological incapacity cases that are uncontested must invariably bear in mind this legal requirement – a petitioner bears the heavy burden of proving by clear and convincing evidence the legal requisites of psychological incapacity in order to rebut the presumptive validity of marriage and obtain the relief that they seek, even if neither the State nor the respondent presents any evidence in chief and depends only on the cross-examination of petitioner’s witnesses and objections to the latter’s other evidence. (Espiritu v. Boac-Espiritu [2021], supra.)

c. Totality of Proof

1) [In Marcos v. Marcos,] it was declared that “a medical examination of the person concerned need not be resorted to.” Instead, as this Court said, “the totality of evidence presented is enough to sustain a finding of psychological incapacity[.]” (Tan-Andal v. Andal [2021], supra.)

2) Proof of these aspects of personality [structure] need not be given by an expert. Ordinary witnesses who have been present in the life of the spouses before the latter contracted marriage may testify on behaviors that they have consistently observed from the supposedly incapacitated spouse. From there, the judge will decide if these behaviors are indicative of a true and serious incapacity to assume the essential marital obligations. (Tan-Andal v. Andal [2021], supra.)

3) To summarize, psychological incapacity consists of clear acts of dysfunctionality that show a lack of understanding and concomitant compliance with one’s essential marital obligations due to psychic causes. It is not a medical illness that has to be medically or clinically identified; hence, expert opinion is not required. (Tan-Andal v. Andal [2021], supra.)

4) Verily, Tan-Andal democratized the forms of evidence proving psychological incapacity. The Court allowed lay persons to prove psychological incapacity through evidence of a personality structure or psychic causes that manifest itself through clear acts of dysfunctionality that undermine the family. (Espiritu v. Boac-Espiritu [2021], supra.)

d. Types of Evidence

1) Indeed, lay persons can testify about dysfunctional acts that undermine the family. The types of evidence that a lay person may adduce for this purpose are: (i) the reputation of the incapacitated spouse being psychologically incapacitated – that is the viewpoint of reasonable members of the spouses’ relevant communities, (ii) the character of the incapacitated spouse relevant to or indicative of such incapacity, (iii) the everyday behavior, acts or conduct of the incapacitated spouse, and (iv) the offended spouse’s own experience of neglect, abandonment, unrequited love, and infliction of mental distress, among others. (Espiritu v. Boac-Espiritu [2021], supra.)

2) These types of evidence may establish circumstances probative of the dysfunctional acts inimical to the family. The relevant circumstances to be proven would include (i) instances of violence against women and their children as defined in Republic Act. 926254, (ii) zero probability of reconciliation between the spouses and (iii) failure of the spouse or the spouses to perform his, her, or marital duties and obligations in a manner clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. (Espiritu v. Boac-Espiritu [2021], supra.)

3) Notably, the third category circumstances refers to the characterization, i.e., clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage, that was once used to describe the personality disorder that gave rise to psychological incapacity. (Espiritu v. Boac-Espiritu [2021], supra.)

4) Since Tan-Andal has abandoned the focus on personality disorders and expert opinions, this characterization may now be appropriated to capture the essence of the problematic personality structure or psychic causes that spawn psychological incapacity. Embraced in this inclusive circumstance are such facts as: (i) forms of addiction demonstrative of such insensitivity or inability, (ii) abandonment by one spouse of the other, or (iii) instances of actual loss of trust, love, and respect for each other. This is notwithstanding the reality of meaningless marriages which force either or both spouses into chronically unproductive and detached lives, thus, physically and psychologically endangering themselves in the process. (Espiritu v. Boac-Espiritu [2021], supra.)

1) Effects of Article 36

a) Children as legitimate

Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. x x x

1) Children retain their legitimate status if they are conceived or born prior to judgment of annulment or absolute nullity of marriage under Article 36 becoming final and executory.