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Art.

36: Sempio-Dy Notes


Provision is taken from Canon Law
Taken from par. 3 of Can. 1095 of the New Code of Canon Law (Nov. 27, 1983)

Matrimonial Consent
o The ff. are incapable of contracting a marriage: Those who
1. Lack sufficient use of reason
2. Suffer from grave lack of discretionary judgment concerning
essential matrimonial rights and obligations to be mutually given
and accepted
3. Because of causes of a psychological nature, are unable to assume
the essential obligations of marriage
Reasons:
o Substitute for divorce
Divorce is very controversial and would surely be opposed by the
Catholic Church. In drawing from the Canon Law, grounds for
declaring nullity of marriage without violating traditional civil law
concept of voidable marriages was found
o Solution to problem of Church-annulled marriages
Many marriages annulled by Church but still valid under civil law
This provision provides cause of action for parties of Churchannulled marriages to have their marriages declared void
o Additional remedy
Give remedy to parties imprisoned by a marriage that exists in
name only due to long period of separation because of inability to
perform essential obligations of marriage

Psychological incapacity distinguished from vice of consent

Psychological incapacity has NOTHING to do with consent to marriage


Person may give free/voluntary consent (understands concept of marriage and
its obligations) BUT his will may not be capable of fulfilling said obligations
Psychological capacity is a question of fulfillment of valid consent, not of
defective consent

Psychological incapacity distinguished from insanity


Mental incapacity/insanity
o Vice of consent, similar to physical incapacity
o May be of varying degrees
o Curable; hence, marriage can be ratified or convalidated
o Has lucid intervals
o Ground only for annulment in many countries
Psychological incapacity
o Not a vice of consent
o One can give valid consent, but a defect in his psychological make-up may
render him unable to assume marriage obligations
Why were no examples of psychological incapacity given in this article?
To avoid limiting applicability of provision under principle of ejusdem generis
What is sought: case-to-case interpretation of provision by judge guided by
o Experience

o Findings of experts and researchers in psychological disciplines


o Decisions of Church tribunals
Though not binding, may be given persuasive effect since provision
was taken from Canon Law
Psychological incapacity must be present at the time of the marriage
To be a ground for nullity of marriage
o Psychological incapacity must be present at time of marriage, although it
might manifest only after marriage
Is the psychologically incapacitated person disqualified from marrying again?
Church does not impose an absolute prohibition
o Person may find a partner who understands his/her situation
No need for disqualification
o His condition will be revealed anyway when he applies for any subsequent
marriage
Potential partner will be warned of the condition
Guides to interpretation of term psychological incapacity
Aside from classical neuroses/ psychoses and other known personality
disorders, the following grounds may be more familiar to laymen
o Homosexuality/lesbianism
o Satyriasis/nymphomania
o Extremely low intelligence
o Immaturity, lack of rational judgment and responsibility
Ex. husbands refusal to support family, excessive dependence
on parents/ peer group approval
o Epilepsy
o Habitual alcoholism
o Criminality
Psychological incapacity may be manifest in
o Refusal of wife to live, have sex and have children with husband
without fault of the latter
o Affliction between husband and wife that makes common life
unbearable
Ex. compulsive gambling, unbearable jealousy
o Sociopathic anomalies in husbands
Ex. Sadism, constitutional laziness, drug addiction, psychosexual
anomaly
Psychological incapacity must exhibit:
o Gravity
Subject cant carry out normal duties of marriage in normal
circumstances of life and work
o Antecedence
Roots of trouble can be traced to history of subject before
marriage although overt manifestations appear only after
wedding
o Incurability
Treatments required exceed ordinary means
Involve time and expense beyond reach
Who can file the action to declare marriage void?
Either party

Does the action to declare the marriage void under this article prescribe?
No.
However, under amendment by E.O. 277 (July 17, 1987)
o Marriages before effectivity of FC: action or defense for declaration of
nullity prescribes in ten years after FC becomes effective (Aug. 3, 1988)

Action for annulment of marriage may also be filed in proper cases:

Action for annulment instead of action for declaration of nullity can be filed
o If case falls under any action for annulment of marriage and has not
prescribed
Advantageous to aggrieved spouse
o Marriage will have all effects of a valid marriage because it is valid until
annulled

What is the status of the children under this article?


Children born/conceived before decree of nullity are legitimate
One of the exceptions to Art. 165 (defining illegitimate children), along with Art.
53
How should the properties acquired by parties be disposed of after the marriage is
nullified
Common property: divided between them in EQUAL SHARES
o Liquidation/partition of properties follows provisions on co-ownership
Available jurisprudence under Art. 36

Art. 36 was first interpreted in Leouel Santos vs. C.A. and Julia Rosario BediaSantos
o High court in said case held:
Jurisprudence under Canon Law on subject prevailing at the time of
FCs enactment CANNOT be dismissed as impertinent for its value
as an aid to the interpretation/construction of the codal provision
Term psychological incapacity in Art. 36
Not meant to comprehend all cases of psychoses
Cant be taken and construed independently of, but rather
must stand in conjunction with, existing marriage laws
Laws intent: confine meaning of psychological incapacity to
the most serious cases of personality disorders demonstrating
inability to give meaning and significance to marriage
Careful examination of degree, extent, and other conditions of
incapacity must be applied so no precipitate and
indiscriminate nullity is peremptorily decreed
o Courts ruling
The fact that respondent wife left her husband and baby for two
years after marriage to work as a nurse in the US and never
returned, and that husband desperately tried to locate her but all his
efforts to find her failed, were considered by High Court insufficient

for wife to be considered psychologically incapacitated under Art. 36


of FC
Though petitioner-husband had been aggrieved, factual setting of
the case does not come close to standards required to declare
nullity of marriage
Chi Ming Tsoi vs. C.A and Gina La-Tsoi
o Senseless protracted refusal of one of the parties of sexual cooperation for
procreation of children is equivalent to psychological incapacity
No sexual contact between parties since marriage for almost a year
o Either spouse may file action for declaration of nullity, even the
psychologically incapacitated
Republica v. Molina
o Specific guidelines were laid down in interpretation and application of Art.
36
Burden of proof to show nullity of marriage belongs to plaintiff; any
doubt must be resolved in favor of existence of marriage and
against its nullity
Root cause of psychological incapacity must be
Medically/clinically defined
Alleged in complaint
Sufficiently proven by experts
Clearly explained in decision
Incapacity must be medically/clinically incurable and relevant to
assumption of marriage obligations
Ex. of incapacity NOT relevant to marriage obligations
o Exercise of profession or employment in a job
Illness must be grave enough so as to render party unable to
assume essential marriage obligations
Essential marriage obligations must be those embraced by Arts. 6871 (on husband and wife) and Arts. 220-225 of FC (on parents and
their children)
Non-compliance must be stated in petition, proved by
evidence, and included in decisions text
Catholic Churchs interpretations, while not binding, should be given
great respect by courts
Trial court must order fiscal and Solicitor-General to appear as
counsel for the State
Solicitor-General must issue a certification stating reasons for
his agreemtn/opposition to the petition. Otherwise, no
decision shall be handed down. Petition shall be submitted 15
days from date of submission of resolution
Courts ruling:
psychological incapacity and mere difficulty/refusal/neglect in
performance of marital duties is DIFFERENT
o in the case, the latter was apparent. Evidence only
showed couple couldnt get along with each other, so SC
denied petition for declaration of nullity.