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without a marriage license and whether the marriage migtht have been a marriage expected from the
requirements of a maariage license.
(DETAILED DOCTRINE: The general rule that a child under seven years of age shall not be
separated from his mother finds its raison dtre in the basic need of a child for his mothers loving
care.
Only the most compelling of reasons shall justify the courts awarding the custody of such a child to
someone other than his mother, such as her unfitness to exercise sole parental authority. In the past,
the following grounds have been considered ample justification to deprive a mother of custody and
parental authority: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity and being sick with a communicable disease.
The status of the child should be legitimate for this rule to apply.
The alien spouse can claim no right undert Art. 26(2) of the Family Code as the substantive
right it establishes is in favor of the Filipino spouse.
The legislative intent behind Art 26(2) is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the
Filipino spouse. The legislative intent is for the benefit of the Filipino spouse by clarifying his or her
marital status, settling the doubts created by the divorce decree
Art. 17 of the New Civil Code provides that the policy against absolute divorces cannot be
subverted by judgments promulgated in a foreign country. The inclusion of Art. 26(2) of the Family
Code provides the direct exception to the rule and serves as basis for recognizing the dissolution of
the marriage between the Filipino spouse and his or her alien spouse
An action based on Art. 26(2) is not limited to the recognition of the foreign divorce decree. If
the court finds that the decree capacitated the aliens spouse to remarry, the courts can declare the
Filipino spouse is likewise capacitated to contract another marriage. No court in this jurisdiction,
however, can make a similar declaration for the alien spouse (other than that already established by
the decree) whose status and legal capacity are generally governed by his national law
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227)
PONENTE: Bersamin, J.
TOPIC: Psychological incapacity, Declaration of Nullity of Marriage
FACTS:
In the case at bar, Kalaw presented the testimonies of two supposed expert witnesses who
concluded that respondent is psychologically incapacitated. Petitioners experts heavily relied on
petitioners allegations of respondents constant mahjong sessions, visits to the beauty parlor, going
out with friends, adultery, and neglect of their children. Petitioners experts opined that respondents
alleged habits, when performed constantly to the detriment of quality and quantity of time devoted to
her duties as mother and wife, constitute a psychological incapacity in the form of NPD.
However, the Supreme Court in its September 19, 2011 decision dismissed the complaint
for declaration of nullity of the marriage on the ground that there was no factual basis for the
conclusion of psychological incapacity.
ISSUE:
Whether or not the marriage was void on the ground of psychological incapacity.
HELD:
YES. The Court in granting the Motion for Reconsideration held that Fernandez
was indeed psychologically incapacitated as they relaxed the previously set forth guidelines with
regard to this case.
Note: Molina guidelines were not abandoned, expert opinions were just given much respect in this
case.
Guidelines too rigid, thus relaxed IN THIS CASE
The Court held that the guidelines set in the case of Republic v. CA have turned out to be
rigid, such that their application to every instance practically condemned the petitions for declaration
of nullity to the fate of certain rejection. But Article 36 of the Family Code must not be so strictly and
too literally read and applied given the clear intendment of the drafters to adopt its enacted version of
less specificity obviously to enable some resiliency in its application. Instead, every court should
approach the issue of nullity not on the basis of a priori assumptions, predilections or generalizations,
but according to its own facts in recognition of the verity that no case would be on all fours with the
next one in the field of psychological incapacity as a ground for the nullity of marriage; hence, every
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.
In the task of ascertaining the presence of psychological incapacity as a ground for the
nullity of marriage, the courts, which are concededly not endowed with expertise in the field of
psychology,
must
of
necessity
rely
on
the
opinions
of
experts
in
order
to
inform themselves on the matter, and thus enablethemselves to arrive at an intelligent and
judicious judgment. Indeed, the conditions for the malady of being grave, antecedent and incurable
demand the in-depth diagnosis by experts.
Personal examination by party not required; totality of evidence must be considered
We have to stress that the fulfillment of the constitutional mandate for the State to protect
marriage as an inviolable social institution only relates to a valid marriage. No protection can be
accorded to a marriage that is null and void
ab initio, because such a marriage has no legal existence.
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 partys psychological incapacity. Hence, if the totality of evidence
presented is enough to sustain a finding of psychological incapacity, then actual medical examination
of the person concerned need not be resorted to.
Verily, 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.
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 experts findings under such circumstances would not constitute hearsay that would
justify their exclusion as evidence.
The respondent revealed her wanton disregard for her childrens moral and mental
development. This disregard violated her duty as a parent to safeguard and protect her children.
FALLO:
WHEREFORE, the Court GRANTS the Motion for Reconsideration; REVERSES and SETS ASIDE
the decision promulgated on September 19, 2011; and REINSTATES the decision rendered by the
Regional Trial Court declaring the marriage between the petitioner and the respondent on November
4, 1976 as NULL AND VOID AB JN/TIO due to the psychological incapacity of the parties pursuant to
Article 36 of the Family Code.