G.R. No. 196359 - Separate Opinion

G.R. No. 196359, May 11, 2021,
♦ Decision, Leonen, [J]
♦ Separate Concurring Opinion, Perlas-Bernabe, [J]
♦ Separate Opinion, Caguioa, [J]
♦ Separate Concurring Opinion, Hernando, [J]
♦ Concurring Opinion, Lazaro-Javier, [J]
♦ Separate Concurring Opinion, Inting, [J]
♦ Concurring Opinion, Lopez, [J]
♦ Separate Concurring Opinion, Gaerlan, [J]
♦ Separate Opinion, Delos Santos, [J]
♦ Concurring Opinion, Lopez, [J]

Taking together the totality of the evidence presented by petitioner Rosanna L. Tan-Andal (Rosanna), I join the ponencia in his determination that she was able to prove that respondent Mario Victor M. Andal (Mario) was psychologically incapacitated to perform the essential obligations of marriage. Likewise, I concur with the ponencia's disquisitions on their property regime being governed by Article 147 of the Family Code and the matter of custody of their daughter, Ma. Samantha being moot considering that she has already attained majority.

It can be gleaned from the Court of Appeals Decision that its reversal of the trial court's ruling to nullify the parties' marriage hinged on the psychiatric evaluation by the expert witness being based on collateral information. In this case, Dr. Valentina Del Fonso Garcia (Dr. Garcia), a physician-psychiatrist, evaluated Mario based on information obtained from Rosanna, Ma. Samantha, and Rosanna's sister.1 It is unfortunate that the appellate court makes much of the fact that Dr. Garcia did not obtain information from Mario himself which purportedly makes her conclusions lacking in credibility and "unscientific and unreliable" because she had no "personal knowledge of the facts."2 While the appellate court conceded that there is no requirement that a party, to be declared to be psychologically incapacitated, must be personally examined, it nonetheless ruled that there was a lack of independent evidence to prove Mario's psychological incapacity.3 Further, it appears that the appellate court reversed the trial court's judgment because Rosanna emphasized Mario's addiction to narcotics in support of her claim of psychological incapacity which it held was only a ground for legal separation.4

To be fair to the Court of Appeals, a psychological report based on information sourced solely from the side of the petitioning spouse may be biased. This raises questions on reliability, accuracy, impartiality and fairness.5 However, We must nonetheless be mindful that the totality of the behavior of one spouse during cohabitation and marriage is generally and genuinely witnessed by the other.6 Consequently, the spouse who witnessed the other spouse's behavior may validly relay the pattern of behavior to the psychologist or psychiatrist. Thus, the appellate court erred in discounting Dr. Garcia's expert opinion because Mario himself did not appear for psychiatric evaluation as it is enough that the totality of evidence is strong enough to sustain the finding of psychological incapacity. Likewise, it must be emphasized that there was independent evidence which Dr. Garcia considered in her analysis, that is, a personal history handwritten by Mario himself during his drug rehabilitation at Seagull's Flight Foundation. It is my view that this provided Dr. Garcia with a unique insight into Mario's psyche, considering that it was penned before the initiation of the legal proceedings for custody and nullification of marriage.

I will no longer belabor the reasons why Rosanna was able to establish by clear and convincing evidence that Mario's personality structure rendered him psychologically incapacitated, which has been exhaustively discussed by the ponencia. However with your indulgence, allow me to share some of my thoughts on the case.

Marriage, while from its very nature is a sacred obligation, is nevertheless a civil contract and is regulated by law. Inasmuch as there are formal and essential requisites that must be complied with before parties can enter into a valid marriage, necessarily, its dissolution may only be accomplished in the manner prescribed and based on the causes specified by law. Hence, in a real sense, there are three (3) parties to a marriage; two (2) willing spouses and the approving State.7 While I agree with the ponencia that "[t]he right to choose our intimate partners is paii of our right to autonomy and liberty,"8 nonetheless, it must be emphasized that once an individual enters into a marriage, the law steps in and imposes certain duties and responsibilities. Hence, it is no longer a matter of personal choice when a spouse or both spouses decide to dissociate from what has been at the outset, envisioned by the State to be a permanent union. Unlike ordinary civil contracts which may be modified or entirely rescinded upon the consent of the parties, it is not the case with marriage which is a "special contract" vested with public interest.

It is my view that precisely because of the State's interest in marriage that it is only fitting that the higher quantum of proof of clear and convincing evidence should be applied in actions for nullity on the ground of psychological incapacity. Clear and convincing evidence is the standard of proof derived from American common law, which is less than proof beyond reasonable doubt (for criminal cases) but greater than preponderance of evidence (for civil cases).9 Thus, the degree of believability is higher than that of an ordinary civil case. To recall, no less than the Constitution states that marriage is an inviolable social institution and shall be protected by the State.10 Guided by this mandate, courts are directed to always presume marriage and that every intendment of law or fact leans toward the validity of marriage.11 As pointed out by the ponencia, this change in the quantum of proof would harmonize what jurisprudence already states, that is, presumptions can only be rebutted with clear and convincing evidence.12 There appears no cogent reason why We should retain the lower quantum of proof of preponderant evidence in order to dissolve a marriage on the ground of psychological incapacity, yet a higher standard for all other presumptions.

In my opinion, the guidelines laid down by Republic v. Molina13 continue to be good law but has just been hampered by misapplication. I join Justice Alfredo Benjamin S. Caguioa in his determination that the Molina guidelines should serve only as evidentiary guideposts14 rather than stringent checklist of requisites, that a petitioning spouse must establish in order to successfully nullify his or her marriage on the ground of psychological incapacity.

Thus, aside from the application of clear and convincing evidence as the standard of proof in nullifying marriages on the ground of psychological incapacity, I agree with the ponencia that clarifications need to be made with respect to the second and fourth Molina guidelines. For immediate reference, these guidelines are as follows:

(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological — not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists.

(4) 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. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (Underscoring supplied)

A finding of psychological incapacity need not be grounded on a particular personality disorder alone.

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.

A plain reading of Article 36 of the Family Code provides two (2) distinct requirements, that: (1) the spouse is incapacitated to comply with the essential marital obligations and (2) such psychological incapacity must exist at the time of the celebration of the marriage, i.e., juridical antecedence. Thus, such incapacity must therefore be rooted in the history of the party antedating the marriage although the overt manifestations may emerge only after its celebration. It must be emphasized however, that juridical antecedence need not be grounded on a particular personality disorder.

The case of Santos v. Court of Appeals,15 first introduced the concept that psychological incapacity should refer to the "most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage." Citing Santos, such characterization was later on reiterated in Molina. However, reference to the deliberations by the Family Code Revision Committee (Code Committee) and canon law articles cited in Santos do not reveal the intention to limit psychological incapacity to personality disorders alone, to wit:

Justice [Eduardo] Caguioa explained that his point is that in the case of incapacity by reason of defects in the mental faculties, which is less than insanity, there is a defect in consent and, therefore, 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. He emphasized that psychological incapacity does not refer to mental faculties and has nothing to do with consent; it refers to obligations attendant to marriage.

Judge Diy suggested that they also include mental and physical incapacities, which are lesser in degree than psychological incapacity. Justice (Eduardo) Caguioa explained that mental and physical incapacities are vices of consent while psychological incapacity is not a species of vice or consent.

Dean Gupit read what Bishop Cruz said on the matter in the minutes of their February 9, 1984 meeting:

On the third ground, Bishop Cruz indicated that the phrase "psychological or mental impotence" is an invention of some churchmen who are moralists but not canonists, 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 [Eduardo] Caguioa remarked that they deleted the word "mental" precisely to distinguish it from vice of consent. He explained that "psychological incapacity" refers to lack of understanding of the essential obligations of marriage. (Emphases supplied)

Psychological incapacity is not a vice of consent but the inability to give meaning to such consent. Focus was made on the inability or incapacity of a spouse to fulfill essential marital obligations due to psychological causes intrinsic to him or her, which he or she assumes as a result of the valid consent given at the time of marriage. It could then be said that the Code Committee emphasized the presence of a natal or supervening disabling factor in the spouse, an adverse integral element in the personality structure that effectively incapacitates him or her from really accepting and thereby complying with the obligations essential to marriage.16

Meanwhile, Canon 1095 which states, inter alia, that the following persons are incapable of contracting marriage: "3. (those) who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage" provided the model for what is now Article 36 of the Family Code.17 In his treaties, Fr. Ladislas Orsy, S.J., accounted how the third paragraph of Canon 1095 has been framed, thus:

The history of the drafting of this canon does not leave any doubt that the legislator intended, indeed, to broaden the rule. A strict and narrow norm was proposed first:

Those who cannot assume the essential obligations of marriage because of a grave psycho-sexual anomaly (ob gravem anomaliam psychosexualem) are unable to contract marriage (cf. SCH/1975, canon 297, a new canon, novus);

... because of a grave psychological anomaly (ob gravem anomaliam psychicam) ... (cf. SCH/1980, canon 1049);

then the same wording was retained in the text submitted to the pope (cf. SCH/1982, canon 1095, 3);

So the progress was from psycho-sexual to psychological anomaly, then the term anomaly was altogether eliminated. It would be, however, incorrect to draw the conclusion that the cause of the incapacity need not be some kind of psychological disorder; after all, normal and healthy person should be able to assume the ordinary obligations of marriage.

Fr. Orsy concedes that the term "psychological incapacity" defies any precise definition since psychological causes can be of an infinite variety.18 (Emphases supplied)

In fine, while psychological incapacity should contemplate grave psychological causes that render a spouse truly incapable of complying with the essential obligations of marriage, such category is broad enough to include personality disorders but at the same time, not solely limited to it. Further, from a practical point of view, I would venture to state that members of the Code Committee could have easily referred to psychological incapacity to pertain to a diagnosed personality disorder had that been their intention. First, the Diagnostic and Statistical Manual of Mental Disorders (DSM), which is used by clinicians and researchers to diagnose and classify personality disorders, was already in existence during the Code Committee deliberations in 1986. Specifically its 3rd edition (DSM-III), was published in 1980.19 An innovation of the DSM-III from its predecessor was the inclusion of explicit diagnostic criteria and development of psychiatric interviews for research and clinical uses, among others.20 Thus, the members could have referred to personality disorders or referenced the application of diagnostic criteria with ease, considering the availability of a widely-accepted scientific standard. Second, the suggestion that a psychiatrist be invited to their deliberations would not have been readily struck down had the Code Committee truly intended that psychological incapacity to pertain to a spouse suffering from a personality disorder, a condition which would be better explained by an expert in the field, thus:

Prof. Romero opined that psychological incapacity is still insanity of a lesser degree. Justice Luciano suggested that they invite a psychiatrist, who is the expert on this matter. Justice Caguioa, however, reiterated that psychological incapacity is not a defect in the mind but in the understanding of the consequences of marriage, and therefore, a psychiatrist will not be a help.21 (Underscoring supplied)

Again, focus was made on the inability of the spouse to comply with the essential marital obligations at the time of the celebration of the marriage rather than a scientific approach in understanding a psychological condition, if any. Lastly, I likewise consider significant the Code Committee's refusal to enumerate examples of psychological incapacity to avoid restricting the applicability of Article 36, thus:

It could well be that, in sum, the Family Code Revision Committee in ultimately deciding to adopt the provision with less specificity than expected, has, in fact, so designed the law as to allow some resiliency in its application. Mme. Justice Alicia V. Sempio-Diy, a member of the Code Committee, has been quoted by Mr. Justice Josue N. Bellosillo in Salita vs. Hon. Magtolis (G.R. No. 106429, 13 June 1994); thus:

The Committee did not give any examples of psychological incapacity for fear that the giving of examples would limit the applicability of the provision under the principle of ejusdem generis. Rather, the Committee would like the judge to 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 which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law.22 (Underscoring supplied)

The "less specificity than expected" refers to the Code Committee's omission to give any examples of psychological incapacity that would have limited the applicability of the provision. It was held that the Code Committee desired that courts should interpret the provision on a case-tocase 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.23

Taking together the aforementioned circumstances further convince me of the validity of the ponencia's clarification that psychological incapacity should not in fact, be limited to diagnosed personality disorders.24 Thus, I find that the ponencia's proposal that proof of a spouse's "personality structure" which makes it impossible for him or her to understand and comply with his or her essential marital obligations is likewise admissible as proof of psychological incapacity as it still falls within the Code Committee's intent to confine the term to psychological causes. Nevertheless, it must still be shown that such personality structure and consequently, the resulting behaviour, manifest clear acts of dysfunction showing downright incapacity or inability, and not a mere refusal, neglect or difficulty, much less ill will.

As regards the fourth Molina guideline on incurability, it bears pointing out that while it was not textually adopted in the final version of Article 36, it was clear from the Code Committee deliberations that it was characteristic contemplated by its members in defining psychological incapacity, thus:

Judge Diy proposed that they include physical incapacity to copulate among the grounds for void marriages. Justice Reyes commented that in some instances the impotence is only temporary and only with respect to a particular person. Judge Diy stated that they can specify that it is incurable. Justice Caguioa remarked that the term "incurable" has a different meaning in law and in medicine. Judge Diy stated that "psychological incapacity" can also be cured. Justice Caguioa, however, pointed out that "psychological incapacity" is incurable.

Justice Puno and Judge Diy, however, pointed out that it is possible that after the marriage, one's psychological incapacity becomes manifest but later on he is cured. Justice Reyes and Justice Caguioa opined that the remedy in this case is to allow him to remarry.25 (Underscoring supplied)

Moreover, in the Separate Opinion of Justice Flerida Ruth P. Romero in Molina, who was likewise a member of the Code Committee, she discloses:

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. (Underscoring supplied)

"As a general rule of statutory construction, the spirit or intention of a statute prevails over the letter thereof, and whatever is within the spirit of statute is within the statute although it is not within the letter."26 Thus, it being clear from the foregoing that the characterization that psychological incapacity should be incurable was intended by the Code Committee cannot be cursorily disregarded even if it is not a textual requirement under the law.

It bears pointing out the requirement that psychological incapacity must be shown to be "medically or clinically permanent or incurable" is one that necessarily, cannot be determined without expert opinion.27 It has been held that 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.28 However, considering the Court's own rules29 and case law30 categorically stating that there is no requirement that the defendant/respondent spouse should be personally examined by a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based on psychological incapacity, it would be inconsistent to retain the fourth Molina guideline as presently worded. Incurability should therefore be assessed from a legal standpoint. A better approach in construing incurability is to state that a spouse's condition is permanent or incurable when its cure is beyond his or her means. To a certain extent, I find that this legal interpretation has been intimated by the fourth Molina guideline insofar as it states that "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 personality structure of both spouses should be considered in determining psychological incapacity.

Prescinding from the premise that a spouse's personality structure would be acceptable proof of psychological incapacity and only one of the spouses is alleged to be psychologically incapacitated; I propose that in such a case, the other spouse's personality structure should also be evaluated by courts. Amicus curiae Dean Sylvia Estrada-Claudio is of the considered opinion that psychological incapacity may be caused by the interpersonal dynamics of the couple rather than a specific partner's personality disorder. She explains:

[P]sychological incapacity is not merely a personal predisposition or failing but one that is brought to the fore by a confluence of an individual's psychology as acted upon by environmental (sic) such as his or her partners individual traits, experiences in the life of his or her family while growing up and the social and cultural context in which the couple are living their lives, the absence or presence of children and the choices both the person and their partner make in life as a couple. In short, interlinked relationship variables such as compatibility, conviviality, companionship and mutual cooperation which are necessary to the capacity to fulfill spousal and familial obligations can be enhanced or completely abrogated by the subsequent actions and events of married life.31(Emphasis supplied)

To clarify, this is not to state that the personality structure of the spouse alleged to be incapacitated only arose or developed in the course of the couple's marriage. Otherwise, this would be violative of the textual requirement of A1iicle 36 which clearly provides that the spouse should be psychologically incapacitated "at the time of the celebration." However, I agree with Dean Estrada-Claudio's proposition considering that the marital capacity of one spouse is not considered in isolation but in reference to the fundamental relationship to the other spouse.32 In this manner, the cou1is may better evaluate whether there is truly a natal or supervening disabling factor in the alleged incapacitated spouse, which is not simply a reaction to the "mild characterological peculiarities, mood changes, and occasional emotional outbursts"33 of the other. To qualify as a basis to nullify a marriage, the incompatibility and incongruity of a couple's personality structures must be established such that the breakdown of their union 1s inevitable and irreparable.34

Psychological incapacity as required by Article 36 must be characterized by (a) gravity, (b) juridical antecedence and (c) incurability. The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in marriage. It must be rooted in the history of the party antedating the marriage, although the overt manifestations may only emerge after the marriage. It must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved.35

In spite of the clarifications made by the ponencia as to how the Code Committee intended to construe psychological incapacity, to interpret incurability and how the Molina guidelines should be utilized i.e., evidentiary guideposts; it must be emphasized that these changes should not be taken as a more liberal approach in the application of the said guidelines. Rather, this Court is merely implementing Article 36 of the Family Code as originally intended by the members of the Code Committee. While these clarifications may not altogether ease the burden of nullifying marriages on the ground of psychological incapacity, at the minimum, it can deter the instances where petitions are dismissed primarily due to the failure to identify the root cause of such incapacity and confirm its incurability based on medical or clinical standards.

Whether or not psychological incapacity exists in a given case calling for annulment of a marriage, depends crucially, more than in any field of the law, on the facts of the case.36 Each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts.37 As earlier discussed, the Code Committee aimed to "allow some resiliency in its application" and purposely did not give examples of psychological incapacity as to not limit its scope.38 For this reason, the judicial understanding of psychological incapacity may be informed by evolving standards, taking into account the particulars of each case, current trends in psychological and even canonical thought, and experience.39 For instance, in the field of psychology, "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."40 Consequently, there is no longer a nature versus nurture divide, a finding that is supported by evidence in neuropsychology.41 Further, it has been determined that to be diagnosed with a personality disorder, at least four (4) or five (5) symptoms or medical conditions must be present in one's behavioral manifestations.42 Perhaps, this is one of the reasons why despite the participation of psychologists or psychiatrists in nullification cases, they still fall short from a legal standpoint because they are compelled to ascribe a diagnosis in order to provide courts some satisfactory basis upon which psychological incapacity might be based on even if clinically speaking, a spouse has not met the requisite standard.43 These professionals are then left with no alternative but to evaluate behavior using medical or clinical terms in an attempt to justify the existence of psychological incapacity, which is essentially, a legal concept. Absent a compulsion to ascribe a personality disorder, it is my hope that courts will be able to discourage the common practice of simply enumerating characteristics of a personality disorder. Rather, focus can be shifted to detailing the history of the spouse to substantiate the alleged psychological incapacity and relate the same to his or her behavior during the marriage.

I share the ponente's observations that under Article 36 of the Family Code, spouses are forced to pathologize each other when what could instead, be a peaceful parting of ways.44 While I venture to state that this occurrence has been somewhat alleviated by the admission a spouse's personality structure as a basis for a claim of psychological incapacity; it cannot be controverted that ultimately, a petitioning spouse would still have to engage in some sort of "character assassination" to declare his or her marriage void ab intio on the ground of psychological incapacity. It would involve making known to the public one's private life: one's personal history, past indiscretions and possibly, revealing and even reliving past traumas that may have contributed to the development of particular behavior. Past and present conduct shall be linked, nit-picked and not to mention, evaluated in a negative light; and seemingly simple disagreements may, consciously or unconsciously, be exaggerated. Regrettably, this is the only means that the root cause of the purported psychological incapacity may be discovered and subsequent overt manifestations during marriage, linked and explained. While this is a cruel and unfortunate reality, it must be emphasized that the Court is merely applying present law as written and intended by its framers: I submit that the Code Committee may not have foreseen the prevalence of loveless, spouseless, and worse, abusive relationships we see today; which advancements in psychology has intimated, can be traced to psychological causes intrinsic in couples even before marriage. While it is ideal that a crafted law will continue to be relevant even years after its passage, it cannot be gainsaid that it is primarily a reflection of conditions existing at the time of its promulgation. Despite our personal sentiments on marriage and desire to ease the anguish and hardship which accompany the severance of a marital relationship, courts must act within the bounds of law. As it stands, we need to look to legislature and not the judiciary, to provide this remedy.