March 6, 2013 MRS.

MALOU GANDA 123 Rizal Street, Laoag City

Dear Mrs. Ganda: This answers your query about the possibility of seeking to declare your marriage to Rogel Ganda in absolute nullity on the ground that he is psychologically incapacitated to fulfill his marital obligations and manifest sexual perversion. In the interview that I conducted with you last February 28, the antecedent facts gathered from you, are as follows: You and your husband, Rogel, were married on February 14, 2006 at Quezon City following your unexpected pregnancy with your future husband after having premarital sex. During the time that you and Rogel were dating, the latter never displayed any traits or behavior that may suggest that he was having a personaliy disorder. Although at first, Rogel you recalled that he was very furious and mad upon knowing of that you are pregnant with his child. Such that he suggested that you should undergo abortion since both of you are not ready to have a child. But your decision to continue with the pregnancy prevailed after you convinced Rogel you are not going to tell anybody. That it is he, who shall take the responsibility of telling their parents. Time had passed that your mother knew your situation through her own senses and finally confronted Rogel, it was learned that he denied having you impregnated. That he denied being the father of the child.

Consequently, when your family came to know of your fate, they were humiliated, frustrated and mad. You added that when you got married on February 14, 2006, you and your husband only live for 7 days because he was scheduled to travel abroad after he was accepted as a worker there. As a consequence, you and your husband only live as husband and wife for the same number of days. When respondent was living abroad, he finally showed his true character. Whenever you and your husband are having conversation through internet via chat, many times, he insisted that you undress infront of the webcam so he could see you naked. And whenever, you refused, your husband would start quarreling you without any reason. Similarly when he was in the country for vacation, he would bring home with him sex toys which he would insist on using it with you. Also, whenever he is with you, he would force you to watch pornographic movies and would later on require you to perform the same acts with each other. These and all other acts, manifest his true personality as a sexually inclined and pervert person. Likewise, you narrated that when he was still in the country, while you and your husband are having intercourse, he thought of using and inserting an eggplant in your vagina. Despite your refusal, he insisted and would threaten you that if you refused, he would not send any financial assistance and support to you and his child. Everytime that he would require such acts, you always find it degrading as a woman and as a wife. Furthermore, your husband never showed any care and concern over your child.

After such much humiliation absorbed from his acts, through the years that you and your husband and despite your effort to keep alive the conjugal relationship and your family to be intact, he showed no similar effort. In fact, you later found out that he has another woman. Such resulted to his neglect to his duties and responsibilities as a husband and a father.

From the foregoing facts, it is apparent and, I myself strongly believed, that based on the facts you alleged, it can sufficiently established that your husbands acts suffer a severe psychological incapacity which debilitate him to perform his essential marital obligations to you.

ISSUE:
WHETHER OR NOT RESPONDENT SUFFERS FROM PSYCHOLOGICAL INCAPACITY WHICH CAN BE A GROUND FOR NULLITY OF MARRIAGE?
In my opinion, the petition is impressed with merit. Your husband failed in his personal obligations to you and your child whom he owes love, respect and fidelity. You should not be bound to continue a marriage that has not worked and will not work because of the psychological incapacity of your husband brought by his wicked sexual orientation, his lack of manhood by

abandoning your family for unreasonable basis or explanation and his being an infidel as a result of your refusal to so the dreadful acts via internet and to perform sexual acts with the aid of sexual toys. It is also in my opinion that the question can be answered on the basis of the following provisions of law. Article 36 was taken from paragraph 3 of Canon 1095 of the new Code of Canon Law which provides, to wit: The following are incapable of contracting marriage:
1. Xxx 2. Xxx 3. 3. Those who, because of causes of psychological nature, are unable to assume the

essential obligations of marriage. The essential obligations which Article 36 of the Family Code of the Philippines is referring to is in relation with the third paragraph of Canon 1095 and are defined or explicitly expressed in Articles 68 of the Family Code with respect to husband and wife.

Article 36 of the Family Code provides:

ART. 36. A marriage contracted by any party who, at the time of the celebration, as 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.

The term "psychological incapacity," to be a ground for the nullity of marriage under Article 36 of the Family Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature; second, the psychological incapacity must relate to the inability, not mere refusal, to understand, assume end discharge the basic marital obligations of living together, observing love, respect and fidelity and rendering mutual help and support; third, the psychologic condition must exist at the time the marriage is contracted although its overt manifestations and the marriage may occur only thereafter; and fourth, the mental disorder must be grave or serious and incurable. In Santos v. Court of Appeals, the Court declared that "psychological incapacity" under Article 36 of the Family Code is not meant to comprehend all possible cases of psychoses. It should refer, rather, to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. Dr. Gerardo Ty Veloso enumerates the following general characteristics of psychological incapacity which is stated in the Philippine Family Law(Handbook on the Family Code of the Philippines, Alicia V. Sempio-Diy, 1988, 45-46): 1. Gravity. There exists a difficulty in carrying out the normal and ordinary duties of marriage as well as family life compared to the average couple under ordinary circumstances. 2. Antecedence. The incapacity takes its roots prior to the marriage although its overt manifestations appear only subsequent thereto. 3. Incurability. The party is without sufficient means, material or otherwise, to remedy such incapacity.

There are neither exact descriptions nor examples of psychological incapacity. The drafters of the Family Code of the Philippines desire to provide the courts much leeway in its interpretation. They intend said interpretations to be on a case-to-case basis and guided by the following factors: a) experience; b) the findings of experts and researchers in psychological disciplines; and c) by decisions of Church tribunals, which although not binding, are nevertheless persuasive Despite the relative interpretation accorded to psychological incapacity, Dr. Veloso lays down a few instances indicative of said disorder, namely:
1. homosexuality in men or lesbianism in women (attachment to the same sex for

sexual fulfillment);
2. satyriasis in men or nymphomania in women ( excessive and promiscuous sex

hunger);
3. extremely low intelligence; 4. immaturity, i.e. lack of an effective sense of rational judgment and

responsibility, otherwise peculiar to infants ( like refusal of the husband to support the family or excessive dependence on parents or peer group approval);
5. epilepsy, with permanently recurring mal-adaptive manifestations; 6. habitual alcoholism, or the condition by which a person lives for the next

drink and the next drink and the next drink; and
7. criminality, or the condition by which a person consistently gets in trouble

with the law or with socially established norms of conduct.

8. In addition, retired Court of Appeals Associate Justice Alicia V. Sempio-Diy

reveals in her book, Handbook on the Family Code of the Philippines that Father Healy and another expert on church annulments, Archbishop Oscar Cruz, elucidate the following manifestations as additional indicators:

the refusal of the wife to dwell with the husband after the marriage without fault on the part of the latter; or to have sex with the husband; or to have children;

when either party or both of them labor under an affliction that makes common life as husband and wife impossible or unbearable such as compulsive gambling; or unbearable jealousy on the part of one party or other psychic or psychological causes of like import and gravity; and

manifestations of sociopathic anomalies in husbands like sadism or infliction of physical violence on the wife; constitutional laziness or indolence; drug dependence or addiction; or some kind of psychosexual anomaly

Indeed, psychological incapacity is a disorder difficult to prove. Its general characteristics must first be clearly manifest before it can be used as a ground in severing marital relations. In the celebrated doctrinal case of Republic versus Court of Appeals and Rorifel Molina in which the mandated rules of Santos vs. Court of Appeals was adopted, the Supreme Court set the following guidelines in the interpretation and application of Art. 36 of the Family Code are hereby handed down for the guidance of the bench and the bar:

(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, 11 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. The Family Code 12 echoes this constitutional edict on marriage and the family and emphasizes the 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 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, 13 nevertheless such root cause must be identified as a

psychological illness and its incapacitating nature explained. Expert evidence may be given qualified psychiatrist 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 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. (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, nor 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. Xxx xxx (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 he handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly staring 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. As shown in the foregoing, it is clear that you have all the legal basis to file a suit seeking the nullity of your marriage with Rogel Ganda. I should however, emphasize at this juncture that

while existing laws and jurisprudence may support your action, there is no reason why, Rogel, on his part, may interpose defense which are provided by law. As a lawyer, therefore, I recommend the filing of a suit in the earliest possible time. But before filing, I would recommend that you and your husband would reach out to each other and talk for the last time and decide of seeking the nullity of your marriage is best for both of you. If you have further query, please do not hesitate to call me.

Very truly yours,

Counsel