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 Church-annulled
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. husband’s 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 can’t 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 Bedia-
Santos
o High court in said case held:
 Jurisprudence under
Canon Law on subject
prevailing at the time of
FC’s enactment CANNOT
be dismissed as
impertinent for its value
as an aid to the
interpretation/constructi
on of the codal provision
 Term “psychological
incapacity” in Art. 36
 Not meant to
comprehend all
cases of psychoses
 Can’t be taken and  Chi Ming Tsoi vs. C.A and Gina La-Tsoi
construed
independently of,
but rather must
stand in
conjunction with,
existing marriage
laws
 Law’s intent:
confine meaning of
“psychological
incapacity” to the
most serious cases  Republica v. Molina
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 Court’s 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
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
o Specific guidelines were laid  Catholic Church’s
down in interpretation and interpretations, while not
application of Art. 36 binding, should be given
 Burden of proof to show great respect by courts
nullity of marriage  Trial court must order
belongs to plaintiff; any fiscal and Solicitor-
doubt must be resolved in General to appear as
favor of existence of counsel for the State
marriage and against its  Solicitor-General
nullity must issue a
 Root cause of certification
psychological incapacity stating reasons for
must be his
 Medically/clinicall agreemtn/oppositi
y defined on to the petition.
 Alleged in Otherwise, no
complaint decision shall be
 Sufficiently proven handed down.
by experts Petition shall be
 Clearly explained submitted 15 days
in decision from date of
 Incapacity must be submission of
medically/clinically resolution
incurable and relevant to  Court’s ruling:
assumption of marriage  psychological
obligations incapacity and
 Ex. of incapacity mere
NOT relevant to difficulty/refusal/n
marriage eglect in
obligations performance of
o Exercise of marital duties is
profession DIFFERENT
or o in the case,
employmen the latter
t in a job was
 Illness must be grave apparent.
enough so as to render Evidence
party unable to assume only
essential marriage showed
obligations couple
 Essential marriage couldn’t get
obligations must be those along with
embraced by Arts. 68-71 each other,
(on husband and wife) so SC
and Arts. 220-225 of FC denied
(on parents and their petition for
children) declaration
 Non-compliance of nullity.
must be stated in
petition, proved by
evidence, and
included in
decision’s text