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SEPARATE CONCURRING OPINION

GAERLAN, J.:

Psychological incapacity is neither a mental incapacity nor a personality disorder that must be proven through expert opinion. There must be proof, however, of the durable or enduring aspects of a person's personality, called "personality structure," which manifests itself through clear acts of dysfunctionality that undermines the family. The spouse's personality structure must make it impossible for him or her to understand and, more important, to comply with his or her essential marital obligations.

Proof of these aspects of personality need not be given by an expert. Ordinary witnesses who have been present in the life of the spouses before the latter contracted marriage may testify on behaviors that they have consistently observed from the supposedly incapacitated spouse. From there, the judge will decide if these behaviors are indicative of a true and serious incapacity to assume the essential marital obligations.

In this way, the Code Committee's intent to limit the incapacity to "psychic causes" is fulfilled. Furthermore, there will be no need to label a person as having a mental disorder just to obtain a decree of nullity. A psychologically incapacitated person need not be shamed and pathologized for what could have been a simple mistake in one's choice of intimate partner, a mistake too easy to make as when one sees through rose-colored glasses. A person's psychological incapacity to fulfill his or her marital obligations should not be at the expense of one's dignity, because it could very well be that he or she did not know that the incapacity existed in the first place.

Reading together the deliberations of the Code Committee and our rulings in Santos and Molina, we hold that the psychological incapacity contemplated in Article 36 of the Family Code is incurable, not in the medical, but in the legal sense; hence, the third Molina guideline is amended accordingly. This means that the incapacity is so enduring and persistent with respect to a specific partner, and contemplates a situation where the couple's respective personality structures are so incompatible and antagonistic that the only result of the union would be the inevitable and irreparable breakdown of the marriage. "[A]n undeniable pattern of such persisting failure [to be a present, loving, faithful, respectful, and supportive spouse] must be established so as to demonstrate that there is indeed a psychological anomaly or incongruity in the spouse relative to the other."

With respect to gravity, the requirement is retained, not in the sense that the psychological incapacity must be shown to be a serious or dangerous illness, but that "mild characterological peculiarities, mood changes, occasional emotional outbursts" are excluded. The psychological incapacity cannot be mere "refusal, neglect[,] or difficulty, much less ill will." In other words, it must be shown that the incapacity is caused by a genuinely serious psychic cause.

Essential marital obligations 

Molina provides that the essential marital obligations are "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." These provisions are reproduced below for reference:

ARTICLE 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.

ARTICLE 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.

The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.

ARTICLE 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties.

ARTICLE 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70.

....

ARTICLE 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children or wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;

(2) To give them love and affection, advice and counsel, companionship and understanding;

(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;

(4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;

(5) To represent them in all matters affecting their interests;

(6) To demand from them respect and obedience;

(7) To impose discipline on them as may be required under the circumstances; and

(8) To perform such other duties as are imposed by law upon parents and guardians.

ARTICLE 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law.

....

ARTICLE 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply.

Justice Estela M. Perlas-Bernabe (Justice Perlas-Bernabe) makes an enlightening point in her opinion that the essential marital obligations are limited to those between the spouses, as these are the only provisions "relevant to the finding of a spouse's psychological incapacity [with respect to] to his or her specific partner." She cites the legal definition of marriage, which is primarily a contract between a man and a woman. Therefore, according to her, if a marriage is to be declared void "due to psychological incapacity, it must be so primarily due to the failure to assume the essential marital obligations as a spouse, and only incidentally, as a father or mother."

It is true that marriage is a contract primarily between the spouses; but its cause remains to be the establishment of not just conjugal but also family life. The Constitution treats marriage as the foundation of the family. Furthermore, Article 70 of the Family Code provides that the spouses are jointly responsible for the support of the family. As such, once the parties decide and do have children, their obligations to their children become part of their obligations to each other as spouses.

This interpretation is more consistent with the canonical concept of marriage and psychological incapacity from which Article 36 of the Family Code was drawn. For Article 36 to be a true accommodation, as Justice Perlas-Bernabe submits, the State, through this Court, might as well consider "the theoretical and operational system which ... is inextricably and inherently ... part of [the concept of psychological incapacity] – the Canon Law on Marriage."

Under Christian doctrine, specifically the teachings of St. Augustine, marriages embody three traditional values or bonum matrimonii: (1) bonum fidei, or "the faithful exclusiveness of the marital commitmment"; (2) bonum savramenti, which refers to the permanence of marriage; and (3) bonum prolis, that is, that marriage is primarily for procreation or, at the very least, openness to having children. The Family Code definition of marriage reflects all of these Christian values, specifically, the exclusivity of a marital relation between "a man and a woman," the characterization of marriage as a "permanent union," and its purpose being "for the establishment of conjugal and family life."

Both under canon and secular law, bonum prolis is as essential as bonum fidei. This only shows that the spouses' obligations to their children, once children are conceived, is as much a part of the spouses' obligations to each other. Failure to perform these obligations to their children may be a ground to nullify a spouse's marriage.

But not all kinds of failure to meet their obligations to their children will nullify the vinculum between the spouses. In each case, it must be clearly shown that it is of such grievous nature that it reflects on the capacity of one of the spouses for marriage. The easy cases are when one of the spouses sexually abuses one of their children; or, when unknown to the other spouse, a child is subjected to domestic violence; or when due to the spouse's refusal to go through counseling or rehabilitation, his or her substance abuse puts a child through a situation of neglect or outright danger. As in all cases, the context of the whole case, shown by clear and convincing evidence, should be taken into consideration.

Opinion of expert witness 

Unlike ordinary witnesses who must have personal knowledge of the matters they testify on, expert witnesses do not testify in court because they have personal knowledge of the facts of the case. The credibility of expert witnesses does not inhere in their person; rather, their testimony is sought because of their special knowledge, skill, experience, or training that ordinary persons and judges do not have. Rule 130, Section 49 of the Rules of Court on the opinion of expert witness provides:

SECTION 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.

The Supreme Court find that Dr. Garcia was sufficiently qualified as an expert in psychiatry. She possesses the special knowledge to practice her profession, holding degrees in medicine and special education. She has been practicing her profession as a physician­psychiatrist since 1990, including working at the Philippine Mental Health Association as a psychiatrist for 11 years.

On the principles and methodology Dr. Garcia applied in evaluating Rosanna and Mario, she conducted a psychiatric clinical interview and mental status examination of Rosanna. She likewise interviewed Ma. Samantha and Jocelyn Genevieve, Rosanna's sister. The psychiatric clinical interview and mental status examination remain to be the principal techniques in diagnosing psychiatric disorders. While ideally, the person to be. diagnosed should be personally interviewed, it is accepted practice in psychiatry to base a person's psychiatric history on collateral information, or information from sources aside from the person evaluated. This is usually done if the patient is not available, incapable, or otherwise refuses to cooperate, as in this case.

In any case, it cannot be said that the psychiatric evaluation of Mario was exclusively based on collateral information. Dr. Garcia likewise based her diagnosis on a personal history handwritten by Mario himself while staying at Seagulls, an "independent evidence."

At any rate, this Court said in Marcos that personal examination of the allegedly psychologically incapacitated spouse is "not [required] for a declaration of [nullity of marriage due to] psychological incapacity." So long as the totality of evidence, as in this case, sufficiently proves the psychological incapacity of one or both of the spouses, a decree of nullity of marriage may be issued.

Therefore, the Court of Appeals erred in not giving credence to Dr. Garcia's expert opinion just because Mario did not appear for psychiatric evaluation.

That drug addiction is a ground for legal separation will not prevent this Court from voiding the marriage in this case. A decree of legal separation entitles spouses to live separately from each other without severing their marriage bond, but no legal conclusion is made as to whether the marriage is valid. Therefore, it is possible that the marriage is attended by psychological incapacity of one or both spouses, with the incapacity manifested in ways that can be considered as grounds for legal separation. At any rate, so long as a party can demonstrate that the drug abuse is a manifestation of psychological incapacity existing at the time of the marriage, this should be enough to render the marriage void under Article 36 of the Family Code.

Here, the totality of evidence presented by Rosanna clearly and convincingly proved that Mario's drug abuse was of sufficient durability that antedates the marriage. Admittedly, part of marriage is accepting a person for who they are, including their addictions. However, in Mario's case, his persistent failure to have himself rehabilitated, even bringing his child into a room where he did drugs, indicates a level of dysfunctionality that shows utter disregard of his obligations not only to his wife, but to his child.

We agree with the trial court that Mario failed to render mutual help and support to his wife, failing to find gainful employment and even driving to bankruptcy the construction firm founded by Rosanna by siphoning its funds for his drug use. He failed to exercise his rights and duties as a parent to Ma. Samantha.

Even assuming that Mario has since lived a drug-free life, he only did so after separating from Rosanna. This confirms Dr. Garcia's finding that his psychological incapacity was enduring relative to his long-estranged wife and can manifest again if he is forced to stay with her.

All told, we find that Rosanna proved with clear and convincing evidence that Mario was psychologically incapacitated to comply with his essential marital obligations. Their marriage, therefore, is void under Article 36 of the Family Code.

Property Relations:

Void marriages are no marriages. Thus, the provisions of the Family Code on property relations between husband and wife—the systems of absolute community, conjugal partnership of gains, and separation of property—do not apply in disposing of properties that may have been acquired during the parties' cohabitation. Instead, the property regime of parties to a void marriage is governed either by Article 147 or Article 148 of the Family Code, depending on whether the parties have no legal impediment to marry. Article 147 provides:

ARTICLE 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendant, each vacant share shall belong to their respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

On the other hand, Article 148 provides:

ARTICLE 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

On what "capacitated" in Article 147 means, this Court in Valdes v. Regional Trial Court, Branch 102, Quezon City said:

The term "capacitated" in [Article 147 (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38" of the Code. (Emphasis in the original, citation omitted)

Article 37 refers to incestuous marriages, while Article 38 refers to void marriages due to public policy.

Here, Mario and Rosanna are parties to a void marriage due to psychological incapacity. When they were married in 1995, Mario was 33 years old while Rosanna was 31. There is no showing that the marriage was incestuous or void due to public policy. They likewise lived exclusively with each other as husband and wife until they separated in 2000. Being capacitated to marry each other and having lived exclusively with each other albeit under a void marriage, Article 147 of the Family Code governs their property relations.

Under Article 147, wages and salaries earned by the parties during their cohabitation shall be equally divided between them. This is regardless of who worked to earn the wage or salary.

With respect to properties acquired during their cohabitation, the rules on co-ownership under the Civil Code govern. Therefore, a property acquired during the parties' cohabitation shall be presumed to have been acquired through the parties' joint efforts. For purposes of Article 147, "joint efforts" includes a party's care and maintenance of the family and of the household. With this presumption, the parties are deemed to own the property in equal shares.

However, if a piece of property was obtained through only one party's effort, work, or industry, and there is proof that the other did not contribute through the care and maintenance of the family and of the household, the property acquired during the cohabitation shall be solely owned by the party who actually worked to acquire the property.

In this case, there is proof that the Parañaque lot was not obtained by Mario and Rosanna's joint efforts, work, or industry. Rita M. Tan, Rosanna's aunt, donated the 315-square meter lot to Rosanna and her father, Rodolfo M. Tan. The Deed of Donation dated August 25, 1998 provides that Rita M. Tan donated 157.50 square meters to "Rodolfo M. Tan, married to Josefina G. Leaño" and to "Rosanna L. Tan-Andal, married to Mario Andal" each. Transfer Certificate of Title No. 139811 covering 157.50 square meters of the Parañaque lot is under the name of "Rosanna L. Tan­Andal, of legal age, Filipino, married to Mario Andal." In Salas, Jr. v. Aguila, this Court held that "married to" only refers to the civil status of the property's registered owner.

Thus, Rosanna exclusively owns half of the 315-square meter Parañaque lot. Mario has no share in this property because he did not care for and maintain the family and the household.

As for the half of the duplex house that served as the parties' family home, there is evidence that the funds used to construct the house were obtained solely through Rosanna and her father's efforts. In a promissory note dated July 13, 1998, Rosanna and her father jointly loaned P2,400,000.00 from the Elena P. Tan Foundation for the construction of a house on the Parañaque lot. Although Mario signed the promissory note to give "marital consent" to Rosanna, he has no proof that he participated in acquiring the funds. He cannot be deemed to have contributed jointly in acquiring the funds since he did not care for and maintain the family and the household.

As the funds to construct the house were obtained solely through Rosanna and her father's efforts, and Mario did not care for and maintain the household, he has no share in the duplex.

Custody of Minors:

In resolving issues of custody of minors whose parents have separated, Article 213 of the Family Code governs. It states:

ARTICLE 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.

In Pablo-Gualberto v. Gualberto, this Court held that the "separation of parents" contemplated in Article 213 may either be legal separation or separation in fact. In deciding cases involving custody of a minor, the courts must consider, among others, "the previous care and devotion shown by each of the parents; their religious background, moral uprightness, home environment and time availability; [and] the [child's] emotional and educational needs."

Here, Mario and Rosanna have been separated in fact since 2000. Between them, Rosanna showed greater care and devotion to Ma. Samantha. Even when they still lived together, Rosanna had been more available to her child. She raised Ma. Samantha on her own since she and Mario separated. Mario has not supported both mother and child since he separated from Rosanna, even after he had claimed that he has been living "drug-free."

With these considerations, the trial court did not err in awarding Ma. Samantha's custody to Rosanna, without prejudice to Mario's right to visit his daughter.

Nonetheless, Rosanna's parental authority over Ma. Samantha was already terminated in 2014 when the child reached the age of majority. Ma. Samantha is now qualified and responsible for all acts of civil life and, therefore, is at liberty to choose how to relate with her father.

FINAL NOTE:

Love is founded on a promise: to seek beyond ourselves in order to enable and ennoble the other to continue to become the best version of themselves.

Being in love can be carried on the wings of poetry, announced publicly through each other's gazes. It is made real and felt with every act of unconditional care and comfort that the lover provides. Love can be beyond labels.

Marriage is not compulsory when in love; neither does it create love. Nonetheless, it remains an institution designed to provide legal and public recognition that may be well deserved not only for the couple, but also for their families existing or yet to come.

To be clear, our collective hope is that one who chooses marriage realizes that the other deserves more caring, more compassion, more kindness in the daily and banal grind of their relationship. It is in these same values of sacrifice and empathy that we will have the chance to evolve into a society that is more humane and, eventually, more just.

Yet, we are not blind to the reality that a person may be truly psychologically incapable for the other from the beginning. Should there be grave need to part for the reasons we have stated, courts can lead the way to make parting less bitter, minimize animosity, and make lives more forward-looking for those most affected. Parting is already a sorrow. It need not be more than what it already is.