Key Points To Know About Psychological Incapacity as a Ground to Declare a Marriage Void

 The Basic Law

The applicable provision can be found in Article 36 of the Family Code, providing as follows:

            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.

Key Phrases on Psychological Incapacity

1.             A party contracted a marriage

2.             At the time of the celebration of the marriage

3.             Was Psychologically Incapacitated

4.             To comply with the essential marital obligations of marriage

5.             Such incapacity becomes manifest only after its solemnization.

What does it include?

As interpreted by Jurisprudence

The phrase “psychological incapacity” is not meant to comprehend all possible cases of psychoses. It refers to no less than a mental (not physical) incapacity that causes a party to be truly noncognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity; and render help and support.  The intendment of the law has been to confine it to the most serious of cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. (Santos versus Court of Appeals          G.R. No. 112019, January 4, 1995, 240 SCRA 20)

Accepted Types of Personality Disorders

 In Te versus Te, G.R. No. 161793, February 13,2009, the Honorable Supreme Court  recognized              

 the following types:

Types of Disorders   According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (3d ed., rev., 1987), or DSM-III-R, personality disorders are categorized into three major clusters:

Cluster A:  Paranoid, schizoid and schizotypal personality disorders. Individuals who have these disorders often appear to have odd or eccentric habits and traits.

Cluster B:  Antisocial, borderline, histrionic and narcissistic personality disorders.  Individuals who have these disorders often appear overly emotional, erratic and dramatic.

Cluster C:  Avoidant, dependent, obsessive-compulsive and passive-aggressive personality disorders.  Individuals who have these disorders often appear anxious or fearful.

The DSM-III-R also lists another category, “personality disorder not otherwise specified,” that can be used for other specific personality disorders or for mixed conditions that do not qualify as any of the specific personality disorders.

Individuals with diagnosable personality disorders usually have long-term concerns, and thus therapy may be long-term.

What are the characteristics to be proved in psychological incapacity?

Root Cause

Root cause must be identified as a psychological illness

Existing at “the time of the celebration” of the marriage (known as juridical antecedence).

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.

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.

Gravity

Such illness must be grave enough to bring about the disability of the party to assume the essential

obligations of marriage. Thus, “mild characterological 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.

Those that do not constitute psychological incapacity.

In Ricardo B. Toring v. Teresita M. Toring, G.R. No. 165321, August 3, 2010, 626 SCRA 389, 408,  the Honorable Supreme Court emphasized that irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility, and the like do not by themselves warrant a finding of psychological incapacity, as these may only be due to a person's difficulty, refusal or neglect to undertake the obligations of marriage that is not rooted in some psychological illness that Article 36 of the Family Code addresses.

Furthermore, habitual alcoholism, sexual infidelity or perversion, and abandonment do not by themselves constitute grounds for declaring a marriage void based on psychological incapacity (Hernandez versus Hernandez, G.R. No. 126010. December 8,199)

According to the Supreme Court, “Mixed personality disorder, the "leaving-the-house" attitude whenever he and Amy quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family, are not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage” (G.R. No. 162368. July 17, 2006).

While habitual alcoholism, sexual infidelity or perversion, and abandonment irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility do not by themselves warrant a finding of psychological incapacity. However, if they are manifestations of a disordered personality which make the party completely unable to discharge the essential obligations of the marital state then it may constitute psychological incapacity.

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PHILIPPINE ADOPTION

Philippines Adoption: Q & A

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Philippines Adoption Attorneys, Lawyers

Q. What laws governs domestic and inter-country adoption in the Philippines?

1. There are two laws on adoption [1] Republic Act 8552 Domestic Adoption Act of 1998; and [2] Republic Act 8043 Inter-Country Adoption Act of 1995. RA 8552 amended Articles 183 up to 193 of the Family Code and the law governing for Filipino citizens adopting other Filipinos (whether relatives or strangers) with certain exceptions. While RA 8043, governs the adoption of Filipinos by foreigners and is being implemented by the Inter-Country Adoption Board (ICAB).
   Republic Act 8552, also known as the Domestic Adoption Act of 1998 encourages domestic adoption to preserve the child’s identity and culture and only when this is not available shall inter-country adoption be considered as a last resort.

Q. Who may be adopted?

1. The following may be adopted:

1. Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;
2. The legitimate son or daughter of one spouse by the other spouse;
3. An illegitimate son or daughter by a qualified adopter to improve his / her status to that of legitimacy;
4. A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adoptor(s) as his / her own child since minority;
5. A child whose adoption has been previously rescinded;
6. A child whose biological or adoptive parent (s) has / have died, provided that no proceedings shall be initiated within six (6) months from the time of death of said parent (s);

Q. Can an alien adopt in the Philippines?

1. Yes, Section 7 (b) of RA 8552 allows an alien to adopt under the domestic adoption law provided that he /she meets the following requirements:

• Of legal age and at least 16 years older than the adoptee (except when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent).
• Possesses full civil capacity and legal rights.
• Of good moral character and has not been convicted of any crime involving moral turpitude.
• Emotionally and psychologically capable of caring for children.
• In a position to support and care for his / her children in keeping with the means of the family.
• His / her country has diplomatic relations with the Philippines.
• Has been certified by the diplomatic or consular office or any appropriate government agency that he / she has the legal capacity to adopt in his / her country and that his / her government allows the adoptee to enter his / her country as an adopted child.
• Has been living continuously in the Philippines for at least three (3) years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered.

Section 7 (c) also provides that the guardian, with respect to the ward after the termination of the guardianship and clearance of his / her financial accountability, is also qualified to adopt under the law.
Q. Are there any exceptions on residency requirement of the alien?

1. Yes. The requirements on residency and certification of the alien’s qualification to adopt in his / her country may be waived for the following cases:

1. The applicant is a former Filipino citizen seeking to adopt a relative within the fourth (4th) degree of consanguinity or affinity;
2. The applicant is seeking to adopt the legitimate son or daughter of his / her Filipino spouse;
3. The applicant is married to a Filipino citizen, and seeks to adopt jointly with his / her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

Q. Are there any exceptions to the rule that the husband and wife shall jointly adopt?

1. Yes, in the following cases:

• If one spouse seeks to adopt the legitimate son / daughter of the other
• If one spouse seeks to adopt his / her own illegitimate son or daughter, provided, however, that the other spouse has signified his/her consent.
• If the spouses are legally separated from each other.

In case the husband and wife jointly adopt, or one spouse adopts the illegitimate son or daughter of the other, joint parental authority shall be exercised by the spouses.
Q. What does the law says about supervised trial custody? Are there any exceptions to this?

1. The law provides that no petition for adoption shall be finally granted until the adopter has been given by the court a supervised trial custody period for at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. During the said period, temporary parental authority shall be vested on the adopter. An alien adopter must complete the six (6) month trial custody except in the following cases:

• Former Filipino citizens adopting a relative within the fourth (4th) degree of consanguinity or affinity
• One who is adopting the legitimate son or daughter of his / her Filipino spouse
• One who is married to a Filipino citizen and seeks to adopt jointly with his / her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

Q. I have a child out of wedlock and I am married to another man. My husband would like to adopt my illegitimate child. Should I ask for the consent of the biological father and what should I do if he refused?

1. Under the Domestic Adoption Act of 1998 the written consent of the natural parent is required. However, if the father has abandoned the child and you cannot locate him despite earnest efforts then there is no need for the said consent. The best interest and welfare of the child is still the consideration.

Q. What are the specific provisions involving qualifications for US immigration of a child (within the 4th civil degree of consanguinity or affinity) adopted under the Domestic Adoption Law of the Philippines by an American citizen married to a Filipino or former Filipino citizen?

1. You have to comply with the following before the adopted child can be eligible for an immigrant visa:

1. The adoption of the child must take place before the age of 16 (or be the sibling of a child who was adopted by the same parents while under the age of 18). The adoption must be legal and final. The adoption must be legal. This means that the Philippine (family) court has approved the petition filed in this regard. The decree becomes final and executory.
2. Once the legal custody has been awarded by the family court in the Philippines then the adoptive parents must have had the legal custody of the child for at least two (2) years. The legal custody commenced from the date that the adoptive parents were granted legal custody of the child, or the date the adoption becomes final and executory, whichever comes first. This means that the adoptive parents must have physically resided with the adopted child for at least two (2) years prior to immigration. During this period, the adoptive parents must exercise parental control. In case they (adopted parents and the child) resided separately for a certain period, an evidence must be presented to establish the fact that the child and the adoptive parents had a bona fide parent-child relationship. Lastly, the child must satisfy all primary documentary needed for immigrant visa.

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ANNULMENT IN THE PHILIPPINES: (Q & A) 

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Q. What is a petition for declaration of nullity of marriage?

1. It is a judicial process wherein the relief being sought is the declaration of a marriage as void ab initio. This is presupposes that the marriage is void from the very beginning or inexistent from the time of its performance.

Q. If my marriage is void from the beginning is it necessary for me to go to court to have it declared null and void?

1. Yes, the law requires that for purposes of remarriage your void marriage should be judicially declared void, otherwise, any marriage contracted in violation thereof is likewise void. It is not for the parties to determine whether or not their marriage is void.

Q. May I know what are the grounds to declare a marriage void?

1. The following are the grounds to declare a marriage void:

1. Those contracted by any party below eighteen years of age even with the consent of their parents or guardians;
2. Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
3. Those solemnized without license unless falling under the exceptions where no marriage license is required;
4. Those bigamous or polygamous marriages;
5. Those contracted through mistake of one contracting party as to the identity of the other;
6. Psychological Incapacity of the husband or wife, existing at the time of marriage, which prevents him or her from complying with the essential marital obligations of marriage, even if such incapacity becomes manifest only after the solemnization of the marriage;
7. Incestuous Marriages (between ascendants and descendants; between brothers and sisters whether full or half blood);
8. Marriages between relatives:

1. between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;
2. between step-parents and step-children;
3. between parents-in-law and children-in-law;
4. between the adopting parent and the adopted child;
5. between the surviving spouse of the adopting parent and the adopted child;
6. between the surviving spouse of the adopted child and the adopter;
7. between an adopted child and a legitimate child of the adopter;
8. between adopted children of the same adopter;
9. between parties where one, with the intention to marry the other, killed the other person’s spouse, or his or her own spouse.

Q. Is there a time limit for me to file a petition to declare my marriage void?

1. No. The action to declare the marriage void does not prescribe. Hence, this can be filed at any time.

Q. What is annulment of marriage?

1. It is a judicial process wherein the relief being sought is the annulment of a marriage bond. This means that a marriage is valid until annulled by a competent court.

Q. What are the grounds for annulment?

1. The grounds are as follows:

1. Lack of parental consent. This applies to parties who, being above 18 years and above but below 21 years old, get married without the parental consent;
2. Insanity of one parties;
3. The consent of either party was obtained by fraud;
4. The consent of either party was obtained by force, intimidation or undue influence;
5. Either party was a sexual impotent or physically incapable of engaging in sexual intercourse and such incapacity continues and appears to be incurable;
6. Either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

Q. What are the kinds of fraud which constitute the ground for annulment as stated in #3 above?

1. They are:

1. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;
2. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;
3. Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
4. Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

Q. What procedure governing petitions for declaration of absolute nullity of void marriages and voidable marriages?

1. The procedure is provided under Supreme Court A.M. No. 02-11-10, the New Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, which took effect last March 15, 2003. The simple steps are as follows:

1. It is important to engage a counsel of your own choice in order to assess the existence of applicable grounds to annul your marriage or have it declared void ab initio;
2. If the ground is psychological incapacity under Article 36 of the Family Code, then the professional services of a clinical psychologist is important to determine the existence of certain types of personality disorders (like narcissistic, histrionic, anti-social disorders, etc.) by either or both spouse with all its physical manifestations determinative of psychological incapacity to contract marriage;
3. Then once an evaluation report yields the existence of psychological incapacity characterized with juridical antecedence (meaning it existed prior to the marriage and only manifested during the marriage), gravity and incurability (absolute and relative) then a petition can be initiated in court by your counsel;
4. With its filing in court, the whole process begins such as the service of summons to the respondent spouse (and if abroad, the service will have to be made by publication with leave of court);
5. After the period to file an answer by the respondent husband/wife, a motion can be filed to have the case referred to the public prosecutor for purposes of collusion investigation, a report will have to be prepared by the prosecutor within thirty (30) days from the court’s order for him to conduct a collusion investigation;
6. Thereafter, a preliminary conference before the branch clerk of court will be set for purposes of marking of exhibits, determining issues, stipulations of facts, dates of hearings and witnesses to be presented;
7. Then the pre-trial and trial proper. Once all the pieces of evidence, testimonial and documentary, has been presented in court by the petitioner the same will have to be formally offered, once admitted by the court, the date for the presentation of respondent’s evidence will have to be set. If it is contested, the respondent will likewise present his/her evidence. If not contested, it is for the petitioner to move that despite notice respondent have failed to appear therefore he/she is deemed to have waived his/her right to present evidence and the case be submitted for decision;
8. After evaluating the evidence on record, the court will issue a decision.

Q. Who may file the petition for absolute nullity of void marriage?

1. It may be filed solely by the husband or the wife.

Q. Where can I file the petition for declaration of nullity or annulment of my marriage?

1. You can file the petition before the Family Court located at the place of your residence or that of your husband/wife, where either of you have been residing for at least six months prior to the filing of the petition or in case a non-resident respondent spouse, where he/she may be found in the Philippines, at the election of the petitioner spouse.

Q. How can I check the existence of my marriage?

1. You can secure the copy of your marriage contract before the Local Civil Registrar of the place where your marriage was solemnized. Or you may secure a copy of which before the National Statistics Office (NSO), the Civil Registrar General. If you are not certain whether a particular person got married or not you can secure the certificate of no marriage (CENOMAR) of that person and from that document you can see all the marriages contracted by that person.

Q. Can I file the petition for declaration of nullity of my marriage/annulment of marriage even if I am out of the country?

1. Yes. This is not prohibited by law and existing rules. But you have to appear when you are needed to testify in court.

Q. What if my spouse is outside the country or cannot be found in the Philippines. How can I proceed with the petition?

1. In that case, the summons will have to be served to him by publication. The summons will be published once a week for two (2) consecutive weeks in a newspaper of general circulation. In addition, a copy of the summons shall be served to your respondent spouse at his/her last known address by registered mail or by any other means which the court may deem sufficient.

Q. If I am out of the country do I have to come home to attend the trial?

1. Yes, because you have to testify and prove your petition. However, a motion for the early taking of your testimony or deposition can be filed in court so that you can testify and attend on the scheduled hearing. In that way, your attendance to testify in court can be pre-scheduled.

Q. What is psychological incapacity as a ground to declare the marriage void?

1. This is provided under Article 36 of the Family Code. The case of Santos versus Court of Appeals decided sometime in January 4,1995 specifically defined it as referring to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic martial covenants that concomitantly must be assumed and discharged by the parties to the marriage which, xxx, include their mutual obligations to live together, observe love, respect and fidelity, and render help and support. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.”

Q. But what are the manifestations of psychological incapacity?

1. Types of Disorders According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (3d ed., rev., 1987), or DSM-III-R, personality disorders are categorized into three major clusters:

1. Cluster A: Paranoid, schizoid and schizotypal personality disorders. Individuals who have these disorders often appear to have odd or eccentric habits and traits.
2. Cluster B: Antisocial, borderline, histrionic and narcissistic personality disorders. Individuals who have these disorders often appear overly emotional, erratic and dramatic.
3. Cluster C: Avoidant, dependent, obsessive-compulsive and passive-aggressive personality disorders. Individuals who have these disorders often appear anxious or fearful.

The DSM-III-R also lists another category, “personality disorder not otherwise specified,” that can be used for other specific personality disorders or for mixed conditions that do not qualify as any of the specific personality disorders.
Q. How can I prove psychological incapacity of my spouse?

1. While the rules does not require that a psychological evaluation be alleged in the petition at the time of its filing. However, it is important that you submit for a psychological evaluation to determine clinically the existence of psychological incapacity of either spouse. In simple terms, you can prove it by submitting yourself for psychological evaluation. However, you have to be truthful with the information you disclose. Thereafter, a report in this regard will be issued by the psychologist which could yield the psychological incapacity of either or both spouses.

For more info:
Visit the website:  http://duano.com.ph/meettheattorney.html
Duano Law Office  
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1103 Philippines
Tel: (02) 425-5221;  0919-2345-113; (02) 411-56-05

 

RECOGNITION OF FOREIGN DIVORCE IN THE PHILIPPINES

Divorce under Philippine law.
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          The kind of divorce existing under Philippine law is known as a relative divorce. This is specifically the legal separation provided under Article 55 of the Family Code. A marriage bond is not severed it is merely a separation of the spouses from bed to board.

Case of divorce:

Filipina married to a Japanese national, who divorced the Filipina spouse in Japan. What is the effect.
           Second paragraph of Article 26 of the Family Code states that divorce validly obtained by the alien spouse capacitating him/her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. However, a petition for recognition of that foreign divorce is still necessary. The local civil registrar will require the judgment involving recognition of that foreign divorce.
          According to the latest ruling of the Supreme Court in the case of Corpus vs. Sto. Tomas, decided in August 11,2010,  G.R. No. 186571,  the recognition of the foreign divorce decree may be made in Rule 108 of the Rules of Court (correction and cancellation of entry in the Certificate of Marriage) as the object of special proceedings is precisely to establish the status or right of a party or a particular fact. Moreover, Rule 108 of the Rules of Court can serve as the appropriate adversarial proceeding by which the applicability of the foreign judgment can be measured and tested in terms of jurisdictional infirmities, want of notice to the party, collusion, fraud, or clear mistake of law or fact. There is a  need for the said proceedings because the divorce decree cannot be automatically annotated on the Certificate of  Marriage. In the petition for recognition of foreign divorce, the documents needed are the foreign law used as basis of the divorce and the decree of divorce duly certified by the officer of that foreign government having custody of the said documents and thereafter to be authenticated by the Philippine consulate abroad. The foreign law is needed because the divorce decree has to be proved as valid. 


For more info:
Visit http://duano.com.ph/meettheattorney.html
Duano Law Office  
9th Flr. Suite 9N Future Point Plaza 3
No.111 Panay Ave., South Triangle Quezon City 
1103 Philippines
Tel: (02) 425-5221;  0919-2345-113; (02) 411-56-05