Psychological incapacity and the unsound mind, are both terms used in

the Family Code. This paper will aim to differentiate them, not strictly by

their definition because they are similar in that regard, but on the context

in which they are used. Why one is considered void ab initio and the other

one merely voidable.

First we will discuss psychological incapacity and the unsound mind in

relation to their respective articles in the Family Code, then we shall

differentiate between void and voidable marriages, and then we will

distinguish psychological incapacity and unsound mind with respect to the

context in which they are used.

The effects of declaration of nullity or annulment will not be

thoroughly discussed, though it may be mentioned, in this paper as it is

more of a difference between void and voidable marriage and not psychological

incapacity and unsound mind.

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The term psychological incapacity is used in Article 36 of the Family

code stating,

“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)”

Marital obligations between spouses under the Family Code are the

following:

1. The husband and wife are obliged to live together (and procreate);

2. The husband and wife are obliged to observe mutual love, respect, and

fidelity;

3. The husband and wife are obliged to render mutual help and support;

4. The husband and wife shall fix the family domicile. In case of

disagreement, the court shall decide. The court MAY EXEMPT one spouse

from living with the other if the latter should live abroad or there

are other valid and compelling reasons for the exemption. However, such

exemption shall not apply if the same is NOT compatible with the

solidarity of the family;

5. The spouses are jointly responsible for the support of the family;

6. The management of the household shall be the right and duty of both

spouses.

The incapacity need not have been manifested before or during

celebration of marriage, though it should have existed prior to the

celebration. Such incapacity manifesting only after celebration of marriage

can still be a ground that will render a marriage void.

 As stated in the case of Peres-Ferraris v. Ferraris,1

“The term "psychological incapacity" to be a ground for the nullity of

marriage under Article 36 of the Family Code, refers to a serious

psychological illness afflicting a party even before the celebration of the

marriage.”

With respect to psychological incapacity, the Supreme Court stated this

in Salita vs. Matolis, et al,2

“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.”

In the book of Persons and Family Relations Law by Sta. Maria3 it was

stated the psychological incapacity should not be equated with insanity or

a total mental inability to function in all aspects of human life rather it

must be taken in consideration of its context. More specifically it is

1 G.R. No. 162368 (2006)

2 G.R. No. 106429 (1994)
3 Sta. Maria, M. (2015) Persons and Family Relations Law, p.220. Manila, Philippines: REX

Book Store
restricted on psychological incapacity “to comply with essential marital

obligations.”

Furthermore in Santos v. Court of Appeals,4

“Psychological incapacity 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 emerge only

after the marriage; and it must be incurable or, even if it were otherwise,

the cure would be beyond the means of the party involved.”

“Psychological incapacity" should refer to no less than a mental (not

physical) incapacity that causes a party to be truly incognitive of the basic

marital covenants”

In Yambao v. Republic5 the Supreme Court stated:

“Article 36 contemplates incapacity or inability to take cognizance of

and to assume basic marital obligations and not merely difficulty, refusal,

or neglect in the performance of marital obligations or ill will. his

incapacity consists of the following: (a) a true inability to commit oneself

to the essentials of marriage; (b) this inability to commit oneself must

4 G.R. No. 112019 (1995)

5 G.R. No. 184063 (2011)
refer to the essential obligations of marriage: the conjugal act, the

community of life and love, the rendering of mutual help, the procreation

and education of offspring; and (c) the inability must be tantamount to a

psychological abnormality. It is not enough to prove that a spouse failed to

meet his responsibility and duty as a married person; it is essential that

he must be shown to be incapable of doing so due to some psychological

illness.”

A more definitive guideline for psychological incapacity under Article

36 of the Family Code was laid down in Republic vs Court of Appeals and

Molina,6

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.

This is rooted in the fact that both our Constitution and our laws

cherish the validity of marriage and unity of the family. Thus, our

Constitution devotes an entire Article on the Family, recognizing it

“as the foundation of the nation.” It decrees marriage as legally

“inviolable,” thereby protecting it from dissolution at the whim of

the parties. Both the family and marriage are to be “protected” by the

state.

6 G.R. No. 108763 (1997)

 The Family Code echoes this constitutional edict on marriage and the

family and emphasizes their permanence, inviolability and solidarity.

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 psychically 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.

3. The incapacity must be proven to be existing at “the time of the

celebration” of the marriage. The evidence must show that the illness

was existing when the parties exchanged their “I do’s.” The

manifestation of the illness need not be perceivable at such time, but

the illness itself must have attached at such moment, or prior thereto.
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 every one 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.

5. Such illness must be grave enough to bring about the disability of the

party to assume the essential obligations of marriage. Thus, “mild

characteriological peculiarities, mood changes, occasional emotional

outbursts” cannot be accepted as root causes. The illness must be shown

as downright incapacity or inability, not a refusal, neglect or

difficulty, much less ill will. In other words, there is a natal or

supervening disabling factor in the person, an adverse integral element

in the personality structure that effectively incapacitates the person

from really accepting and thereby complying with the obligations

essential to 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. Such non-complied marital obligation(s) must also be

 stated in the petition, proven by evidence and included in the text of

the decision.

7. Interpretations given by the National Appellate Matrimonial Tribunal

of the Catholic Church in the Philippines, while not controlling or

decisive, should be given great respect by our courts. It is clear that

Article 36 was taken by the Family Code Revision Committee from Canon

1095 of the New Code of Canon Law, which became effective in 1983 and

which provides:

(a) “The following are incapable of contracting marriage: Those

who are unable to assume the essential obligations of marriage

due to causes of psychological nature.”

(b) 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.

(c) This is one instance where, in view of the evident source and

purpose of the Family Code provision, contemporaneous religious

interpretation is to be given persuasive effect. Here, the State

and the Church—while remaining independent, separate and apart

from each other—shall walk together in synodal cadence towards

 the same goal of protecting and cherishing marriage and the

family as the inviolable base of the nation.

8. The trial court must order the prosecuting attorney or fiscal and the

Solicitor General to appear as counsel for the state. No decision shall

be handed down unless the Solicitor General issues a certification,

which will be quoted in the decision, briefly stating therein his

reasons for his agreement or opposition, as the case may be, to the

petition. The Solicitor General, along with the prosecuting attorney,

shall submit to the court such certification within fifteen (15) days

from the date the case is deemed submitted for resolution of the court.

The Solicitor General shall discharge the equivalent function of the

defensor vinculi contemplated under Canon 1095.

In Marcos v. Marcos7 the court stated 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.

In Republic v. Dagdag8 it was stated,

“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. Each case must be judged, not on the basis

7 G.R. No. 136490 (2000)

8 G.R. No. 109975 (2001)
of a priori assumptions, predilections or generalizations but according to

its own facts. In regard to psychological incapacity as a ground for

annulment of marriage, it is trite to say that no case is on "all fours"

with another case. The trial judge must take pains in examining the factual

milieu and the appellate court must, as much as possible, avoid substituting

its own judgment for that of the trial court.”

A petition under Article 36 of Family Code shall specially allege the

complete facts showing the either or both parties were psychologically

incapacitated from complying with the essential marital obligations of

marriages at the time of the celebration of marriage even if such incapacity

becomes manifest only after its celebration. The complete facts should allege

the physical manifestations, if any, as are indicative of psychological

incapacity at the time of the celebration of the marriage but expert opinion

need not be alleged.9

In Navales v. Navales10 the Supreme Court stated,

“Article 36 contemplates downright incapacity or inability to take

cognizance of and to assume basic marital obligations.48 Mere "difficulty,"

"refusal" or "neglect" in the performance of marital obligations or "ill

will" on the part of the spouse is different from "incapacity" rooted on

some debilitating psychological condition or illness. Indeed, irreconcilable

9 A.M. No. 02-11-10-SC (2003)

10 G.R. No. 167523 (2008)
differences, sexual infidelity or perversion, emotional immaturity and

irresponsibility, and the like, do not by themselves warrant a finding of

psychological incapacity under Article 36, as the same may only be due to a

person's refusal or unwillingness to assume the essential obligations of

marriage and not due to some psychological illness that is contemplated by

said rule.”

In Te v. Te11 the Court’s ruled in favor of nullity even though the

guidelines form the Molina case were not strictly followed, the Court cited

Marcos v. Marcos stating that there is no requirement that the person to be

declared psychologically incapacitated be personally examined by a physician,

if the “totality of evidence” presented is enough to sustain a finding of

psychological incapacity. Furthermore in the case of Te they stated,

“Lest it be misunderstood, we are not suggesting the abandonment of

Molina in this case. We simply declare that, as aptly stated by Justice Dante

O. Tinga in Antonio v. Reyes, there is need to emphasize other perspectives

as well which should govern the disposition of petitions for declaration of

nullity under Article 36. At the risk of being redundant, 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. And, to repeat for emphasis, courts should interpret the provision

on a case-to-case basis; guided by experience, the findings of experts and

11 G.R. No. 161793 (2009)

researchers in psychological disciplines, and by decisions of church

tribunals.”

Regarding the sanctity of marriage the case of Te provides:

“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 36 will simply provide a decent burial

to a stillborn marriage.”

Similarly to the case of Te, the Supreme Court in the case of Kalaw v.

Fernandez12 reiterated Marcos v. Marcos on that there is no requirement for

one to be declared psychologically incapacitated to be personally examined

by a physician, because what is important is the presence of evidence that

adequately establishes the party’s psychological incapacity. Hence, if the

totality of evidence presented is enough to sustain a finding of

12 G.R. No. 166357 (2015)

psychological incapacity, then actual medical examination of the person

concerned need not be resorted to. Furthermore it stated,

“The totality of the evidence must show a link, medical or the like,

between the acts that manifest psychological incapacity and the psychological

disorder itself. If other evidence showing that a certain condition could

possibly result from an assumed state of facts existed in the record, the

expert opinion should be admissible and be weighed as an aid for the court

in interpreting such other evidence on the causation.21 Indeed, an expert

opinion on psychological incapacity should be considered as conjectural or

speculative and without any probative value only in the absence of other

evidence to establish causation. The expert’s findings under such

circumstances would not constitute hearsay that would justify their exclusion

as evidence”

To summarize, the grant of nullity of marriage on the basis of

psychological incapacity can only be given when such incapacity is grave

enough to render a person to be incapable of performing marital obligations,

such incapacity must be mental and not merely physical, must have existed

prior to or during celebration of marriage, even if it only manifested after

such celebration, and that such psychological incapacity appears to be

incurable.

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 The term unsound mind can be seen in paragraph (2) of Article 45 which

states,

“A marriage may be annulled for any of the following causes, existing

at the time of the marriage:

(2) That either party was of unsound mind, unless such party after

coming to reason, freely cohabited with the other as husband and wife;”

Regarding the prescriptive period for the filing of an annulment based

on paragraph (2) of Article 45, Article 47 of the family code provides:

“For causes mentioned in Number 2 of Article 45, by the sane spouse who

had no knowledgeof the other’s insanity; by any relative, guardian or person

having legal charge of the insane, at any time before the death of either

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

sanity”

In Antonio v. Reyes13 it was discussed that similar to psychological

incapacity of Article 36 that among the marriages classified as voidable

under Article 45 (2) of the Family Code is one contracted by a party of

unsound mind. Further stating that cause for the annulment of marriage is

recognized as a vice of consent, just like insanity impinges on consent

freely given which is one of the essential requisites of a contract.14

13 G.R. No. 155800 (2006)

14 Civil Code, Art. 1327 (2)
 In the book of Sta. Maria,15 citing 52 ALR 3d 880, it states that the

mental incapacity must relate specifically to the contract of marriage in

order to affect it and therefore any form of mental disease that does not

render the afflicted party incapable of understanding or assenting to the

marriage contract cannot be used as a basis for attacking the validity of

the marriage.

Unsoundness of Mind according to the book of Paras provides:16

“(a) The parties must possess the mental capacity the law requires for

the making of a will. (Menciano v. San Jose, L-1967, May 28, 1951). The

true test is whether the party concerned could intelligently consent;

that is, that he knew what contract he was entering into. (Hoadley v.

Hoadley, 244 N.Y. 424).

(b) Intoxication which results in lack of mental capacity to give

consent is equivalent to unsoundness of mind. (McKnee v. McKnee, 49 Nev.

90). So is somnambulism at the time of the wedding. (15 Sanchez Roman

528). Akin is unsoundness of mind due to drug addiction.”

15 Sta. Maria, M. (2015) Persons and Family Relations Law, p.308. Manila, Philippines: REX
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16 Paras, E. (2008) CIVIL CODE of the PHILIPPINES ANNOTATED, p.451. Manila, Philippines:

REX Book Store

 Regarding ratification of annullable marriages the book of Sta. Maria17

provide,

“In case of insanity, if the contracting party with unsound mind, after

coming to reason, freely cohabited with the other as husband and wife, ratifi

cation has set in. Only the insane spouse can ratify by free cohabitation.

It must be noted that the sane spouse who knew of the insanity of the other

at the time of the marriage ceremony cannot ratify. Also, the subsequent

free cohabitation of a sane spouse, who had no knowledge of the insanity of

the other at the time of the marriage ceremony but who later found out such

insanity after.”

A person of unsound mind is incapable of giving intelligent consent 18

and marriage being a special contract requires consent, this is supported by

Article 2 of the Family Code enumerating the essential requisites of marriage.

Furthermore Article 1327 of the Civil code states “The following cannot give

consent to a contract: (2) Insane or demented persons, and deaf-mutes who do

not know how to write.” The consent given by a person of unsound mind is a

defect in the essential requisite of marriage and is voidable as provided in

Article 45 of the Family Code. Such unsoundness of mind must be proven to be

existing during the celebration of the marriage.

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17 Sta. Maria, M. (2015) Persons and Family Relations Law, p.325. Manila, Philippines: REX
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18 Larson v. Larson, 42 Ill. App. 2d 467, 192 N.E. 2d 549
 It is important to distinguish between void and voidable marriages and

the difference between the two have been clearly explained by the Supreme

Court in Niñal vs. Bayadog,19

“Voidable and void marriages are not identical. A marriage that is

annulable is valid until otherwise declared by the court; whereas a marriage

that is void ab initio is considered as having never to have taken place and

cannot be the source of rights. The first can be generally ratified or

confirmed by free cohabitation or prescription while the other can never be

ratified. A voidable marriage cannot be assailed collaterally except in a

direct proceeding while a void marriage can be attacked collaterally.

Consequently, void marriages can be questioned even after the death of either

party but voidable marriages can be assailed only during the lifetime of the

parties and not after death of either, in which case the parties and their

offspring will be left as if the marriage had been perfectly valid. That is

why the action or defense for nullity is imprescriptible, unlike voidable

marriages where the action prescribes. Only the parties to a voidable

marriage can assail it but any proper interested party may attack a void

marriage. Void marriages have no legal effects except those declared by law

concerning the properties of the alleged spouses, regarding co-ownership or

ownership through actual joint contribution, and its effect on the children

born to such void marriages as provided in Article 50 in relation to Article

43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the

19 G.R. No. 133778 (2000)

contrary, the property regime governing voidable marriages is generally

conjugal partnership and the children conceived before its annulment are

legitimate.”

Those who can file for void and voidable marriages are stated in RE:

PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND

ANNULMENT OF VOIDABLE MARRIAGES,20

“Section 2. Petition for declaration of absolute nullity of void

marriages.

(a) Who may file. - A petition for declaration of absolute nullity

of void marriage may be filed solely by the husband or the wife.”

“Section 3. Petition for annulment of voidable marriages. -

(a) Who may file. - The following persons may file a petition for

annulment of voidable marriage based on any of the grounds under

article 45 of the Family Code and within the period herein

indicated:

(2) The sane spouse who had no knowledge of the other's

insanity; or by any relative, guardian, or person having legal

charge of the insane, at any time before the death of either

party; or by the insane spouse during the a lucid interval or

20 A.M. No. 02-11-10-SC (2003)

 after regaining sanity, provided that the petitioner, after

coming to reason, has not freely cohabited with the other as

husband or wife”

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Psychological incapacity under article 36 is a void marriage meaning

when petition declare nullity is granted the marriage will be cosidered void

from the beginning, in other words it would be as if the marriage never took

place, while unsound mind under article 45, being a voidable marriage, is

valid until otherwise declared by court.

In order for a declaration of nullity to be granted under psychological

incapacity it must be proven that said incapacity renders the spouse

incapable of performing marital obligations. If such incapability is not

proven, even if spouse is considered to have a mental illness, the

declaration of nullity will not be granted. This is also true if the

incapacity is not proven to be incurable. Void marriages are inexistent

from the beginning and thus produce no legal effects and cannot be ratified.

Unsound mind under article 45 is a voidable marriage. This means that

it is valid until otherwise declared by court.

Unlike in psychological incapacity, unsound mind under Article 45 not

need affect the capability of the person to comply with his or her marital

obligations nor does it need to be proven to be incurable. What needs to be

proven is that during the celebration of the marriage the insane spouse was

of unsound mind rendering him incapable of giving free and intelligent

consent. Voidable marriages may be ratified by cohabitation. Ratification of

a voidable marriage shall bar an action for annulment even if the

prescription period has not yet expired.

In conclusion the major difference of psychological incapacity in the

context of article 36 of the Family code and unsound mind in the context of

article 45 of the Family Code is that in article 36 you have to prove that

the psychological incapacity would render either of the spouses to be

incapable of complying with marital obligations and in article 45 you have

to prove that the either of the spouses was of unsound mind during the

celebration of marriage rendering the consent given to be invalid.

Furthermore article 36 is considered a void marriage and article 45 merely

voidable, also ratification is not possible in void marriages while possible

in voidable marriages.