A Comparative Study between Article 36

of the Philippines Family Code and

Grounds for Absolute Divorce Law under
Article 3210-3212 of California Family
Code

Submitted by:
Torne, Jomil Kevin M.
1A- Legal Research (tue 7:30- 9:30)
SN:2017120688

Submitted to:
Atty. Gleo Guerra

27 November 2018
Statement of the objectives

The objectives of the study are the following: 1.) To determine if the Article 36 of
the Family code have similarities and differences with Article 3210-3212 of California
Family Code 2.) To prove if the hidden divorce law in our family code is similar to
divorce law expressly shown in California Family Code.

Review of Related Literature

According to the Philippine Family Code, Marriage is a special contract of

permanent union between a man and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of the family and an
inviolable social institution whose nature, consequences, and incidents are governed by
law and not subject to stipulation, except that marriage settlements may be fix the
property relations during the marriage within the limits provided by this Code.1

As supported by former Judge, Alicia Sempio-Diy, : , a marriage has two aspects:

1. As a Contract and 2. As a status. The special contract of marriage is different from any
other contract because: only a man and a woman may enter; it is a permanent contract
which is only dissolved by death or declaration of nullity; or annulment proceedings; it is
the only contract which is directly and expressly governed by law; its violation as a
contract incurs civil and criminal liability while breach of ordinary contract only risen to
an action of damages. On the other hand, the status of being married presupposes the
interest of the state in it, for it becomes an inviolable social institution of public order and
policy as we discussed. 2

Article 36 of the family code states that: A marriage contracted by any party who,
at the time of the celebration, was psychologically incapacitated to comply with the

1
Marriage definition Family Code Art.1.
2
Reggie B. Llanto, “Marriage-Citizenship change divorce ad infinitum? The inevitable complications of
Orbecido” UST Law review volume LX no.1 [p 51] May 2016.
essential marital obligation of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization. 3

Psychological incapacity, which a ground for annulment of marriage (which is

different from divorce), contemplates downright incapacity or inability to take
cognizance of and to assume the basic marital obligations; not a mere refusal, neglect or
difficulty, much less, ill will, on the part of the errant spouse. Irreconcilable differences,
conflicting personalities, emotional immaturity and irresponsibility, physical abuse,
habitual alcoholism, sexual infidelity or perversion, and abandonment, by themselves,
also do not warrant a finding of psychological incapacity.

As times pass, Jurisprudence have development from a conservative views

to a more sophisticated guidelines to determine psychological incapacity.

The Guidelines incorporate the basic requirements established in Santos v. Court

of Appeals that psychological incapacity must be characterized by: (a) gravity; (b)
juridical antecedence; and (c) incurability. These requisites must be strictly complied
with, as the grant of a petition for nullity of marriage based on psychological incapacity
must be confined only to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and significance to the
marriage.4

According to Molina Doctrine, Guidelines for psychological Incapacity are as

follows 1. The plaintiff (the spouse who filed the petition in court) has burden of showing
the nullity of the marriage. Our laws cherish the validity of marriage and unity of the
family, so any doubt is resolved in favor of the existence/continuation of the marriage. 2.
The root cause of the psychological incapacity must be (a) medically or clinically

3
Psychological Incapacity, Family Code Art 36.
4
Santos vs CA, GR no. 112019 58 SCRA 17 January 4, 1995.
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. Expert evidence may be given by qualified psychiatrists 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 5permanent 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.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.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.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 be handed down
unless the Solicitor General issues a certification, which will be quoted in the decision,
briefly stating therein his reasons for his agreement or opposition, as the case may be, to
the petition.6

Now, what we need to know is the definition of the comparison which is absolute
divorce of California, USA. According to US legal dictionary.com, an absolute divorce is
a declaration by a court that a marriage has been dissolved. Hence, absolute divorce is a
judicial dissolution or termination of the bonds of matrimony. It occurs because of
marital misconduct or other statutory cause arising after a marriage ceremony, with the
result that the status of the parties is changed from coverture to that of single persons. An
absolute divorce can only be obtained by a judgment of the court finding that all of the
legal requirements have been met. Remarriage is legally impossible until an absolute
divorce judgment has been entered. 7

In California, United States, the legal termination of a marriage is referred to by

different names, Divorce and Dissolution of Marriage being the two most well-known.
Couples seeking a divorce must obtain one via a court judgment, after which they will be
awarded a judicial decree which declares that the marriage is dissolved. After a divorce
has been legally finalized, both parties are free to remarry, pending time restrictions in
some jurisdictions, which vary.

Divorce orders may address various issues depending upon the specific
circumstances of the parties to the divorce, such as whether there is property to be
divided and/or children for whom provisions must be made. Therefore, when applicable,
these orders may deal with matters such as property and bill division, alimony or spousal
support, child custody, visitation, and child support, as well as any other pertinent matters
that the court judges to be relevant and necessary.8

6
Republic vs CA 268 Phil. 198 (1997).
7
Absolute Divorce definition and process, US Legal Dictionary.com.

8
Absolute Divorce definition and process available at https://www.hg.org/divorce-law-basics.html#1.
 When a divorce action is initiated, it may be brought by either or both parties and
may be contested or uncontested. When both spouses desire the divorce and are able to
come to an agreement on the relevant issues, they may obtain an uncontested divorce,
which allows them to proceed through the court process far more easily and quickly
than when there are unresolved issues. These uncontested divorces are the most common.
Quite often these types of divorces are obtained without legal counsel.

Each state creates its own laws, codes, statutes and rules for handling the
termination of a marriage as well as the other associated factors. Common law in each
state also plays a role. Because of this, there is no uniformity, and instead divorce laws,
policies and procedure often vary greatly from one state jurisdiction to the next.

Under California law, there are only two grounds for divorce: Irreconcilable
differences, which have caused the irremediable breakdown of the marriage; and
Incurable insanity, only with proof, which includes competent medical or psychiatric
testimony that the spouse was incurably insane when the petition was filed, and remains
so.9

Hypothesis

Divorce do exist in our law. It is indirectly created under the article 36 of the
family code. Grounds for divorce under Philippines family code is similar to grounds
stated on article 3210-3213 of California Family Code.

Setting for the study

The study will be held on one of the last countries wherein absolute divorce was
not yet legal. The Philippines according to statistics was populated mostly by Roman

9
California divorce law grounds available at https://www.hg.org/divorce-law-center.html#states.
Catholics. Its’ Constitution and Family laws were based from pass constitutions and
canon laws.

Research instrument

The research instrument which the researcher have decided to use aare both
primary and secondary sources such as The family code of the Philippines and the 1987
constitution as basis for laws governing the family, Supreme Court Reports annotated for
judicial reviews and interpretations, Legal journals for comments and opinions especially
on the framers and authors of the family code and 1987 constitution, The canon law
which serves a basis for the current guidelines for psychological incapacity, and
California Family code since one of the states which migrant Filipino workers usually
resides is California.

Study’s Problems and limitation

One of the limitation of the study is Filipinos nowadays value marriage different
from the past thus opinions may vary from conservative to a liberated type which
depends on the generation and culture of the individuals. It was not foreign to us that
Filipinos were composed of varieties of culture which may cause confusion and
difference between opinions regarding the matters.

Absolute divorce was still new with Filipinos most if not all, thus limitation of
detailed information regarding divorce may be expected from individual interviews and
opinions in different journals. Another was that Divorce Law in USA for comparison in
the study was large and complicated since each state have their own Divorce Law.

Collection of data

Filipinos are allergic to the term divorce. Every time it is being brought up,
opinions burst out. These opinions are more or less sentiments based on person’s
morality, belief and experience. Well, everybody do have something to say about it.
 Admit it or not, Filipinos have limited knowledge about divorce and is against
public moral since most Filipinos are Catholics. As a proof, our laws doesn’t allow it
directly. Directly in a sense that we do have divorce law hidden in the Family Code under
section 36.

In order to have a better grasp of divorce, let us first review the divorce law of
California, United States of America and then compare it with the hidden divorce law in
our Family code, the Article 36 which talks about the dissolution of marriage due to
psychological incapacity on the essential marital obligations and responsibility.

The Philippines was once under the leadership and guidance of the United States
of America, for whom we based the structures of our Constitution. Each State have their
own laws since the United States follows a Parliament type of government. On the other
hand, California, United States of America, is a state where a large numbers of Filipinos
resides. Either due to work or probably because they considered it as their new home.
Due to this facts, it is quite proper to choose it for comparison on our laws.

Divorce can be classified in two major type namely, a Divorce a Vinculo

Matrimonii or absolute divorce and Divorce a Mensa et Thoro or legal separation.

A Divorce a Vinculo Matrimonii in Latin means divorce from the chains of

marriage. Divorce a vinculo matrimonii refers to a total divorce of husband and wife,
dissolving the marriage tie and releasing the parties wholly from their matrimonial
obligations. At common law, this kind of divorce declared any children out of such
marriage as bastards and divorce was granted on grounds that existed before the
marriage.10

Divorce a Mensa et Thoro came from latin literal transation of divorce from bed
and board. This type of divorce is a separation wherein the marriage is not totally

10
Absolute divorce and legal separation available at https://www.hg.org/divorce-law-
center.html#states.
dissolved. Husband and wife are not legally obligated to live together but are not allowed
to remarry.

California is a no-fault divorce state, which means that either party in a marriage
has the right to file for divorce for no other reason than those stated in the code. Under
California Family Code 2320, in order for a judge to grant a divorce in California, one of
the spouses must have been a resident of the state for six months, and in most cases, the
individual seeking divorce must file in his or her county of residence, where he or she
must have lived for at least three months. Once the divorce papers have been filed,
California law dictates that the filing party must wait at least six months from the date the
other spouse received the paperwork before the divorce can be finalized.11

Under California Family Code 2310 there are two major grounds for divorce.
These are irreconcilable differences, which have caused the irremediable breakdown of
the marriage; and incurable insanity, only with proof, which includes competent medical
or psychiatric testimony that the spouse was incurably insane when the petition was filed,
and remains so.12

Under California Family code 2311, Irreconcilable differences are those grounds
which are determined by the court to be substantial reasons for not continuing the
marriage and which make it appear that the marriage should be dissolved. 13

Irreconcilable differences as a ground for dissolution of marriage can be

considered only in cases where husband and wife manifested such indifferences which
are irremediable to such extent of breakdown of marriage such as beliefs, priorities and
attitudes. Indifferences such as such will lead to habitual quarrels and unpleasant
arguments.

11
California Divorce definition available at https://www.hg.org/divorce-law-center.html#states.
12
California Family Code available at https://law.justia.com/codes/california/2005/fam/2310-2313.html.
13
Supra 12.
 Under California Family Code 2312, a marriage may be dissolved on the grounds
of incurable insanity only upon proof, including competent medical or psychiatric
testimony, that the insane spouse was at the time the petition was filed, and remains,
incurably insane.14

Incurable insanity is a medical or clinical condition where one or both spouses

possess a mental disorder which endangers the sanctity of the home and the family.
These requires professional diagnosis and treatment.

Under California Family Code 2313, No dissolution of marriage granted on the

ground of incurable insanity relieves a spouse from any obligation imposed by law as a
result of the marriage for the support of the spouse who is incurable insane, and the court
may make such order for support, or require a bond therefor, as the circumstances
require.

The article was made for humanitarian reason for both spouses but not to remove
responsibility and obligation for both. This indicates that even after dissolution, spouse
still have the obligations to support of the spouse with incurable insanity.

After understanding the foreign family code, let us now synthesize our family
Code. Article 36 of the family code states that : A marriage contracted by any party who,
at the time of the celebration, was psychologically incapacitated to comply with the
essential marital obligation of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.15

The article at first look is ambiguous and will produce a lot of question. Questions
like, what is psychological incapacity? And what is the essential marital obligation of
spouses?

14
Supra12.
15
Supra 1.
 The essential of marital obligations, under the canon law, the Canon 1135- 1138
stated that, A. Each spouse has an equal duty and right to those things which belong to
the partnership of conjugal life. B. Parents have the most grave duty and the primary right
to take care as best they can for the physical, social, cultural, moral, and religious
education of their offspring. C. The children conceived or born of a valid or putative
marriage are legitimate. D. The father is he whom a lawful marriage indicates unless
clear evidence proves the contrary.16

To have better grasp, let us review some jurisprudence which have evolve in time.
The first case to define psychological incapacity is Santo vs. CA. Psychological
Incapacity according to Santos vs CA and Julia Rosario Bedia-Santos, GR no. 112019 58
SCRA 17 January 4, 1995, must be characterized by gravity, judicial antecedent and
incurability. 17

The Gravity must be so intense not to allow the party to carry out duties in
marriage. It must be rooted in the start of the marriage but may manifest after. It must be
incurable and irremediable.

This eventually evolve in a clearer guideline on Republic vs CA and Molina, GR

no. 108763, February 13, 1997. The guideline becomes more specific and stricter in a
sense.

Guidelines for psychological Incapacity are as follows:1. The burden of proof to

show the nullity of marriage belongs to the plaintiff. Any doubts will resolve in favor to
continuation of marriage and against dissolution and nullity 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. Expert evidence

16
Canon law canon 1135-1138 available at http://www.vatican.va/archive/ENG1104/__P44.HTM.
17
Supra 4.
may be given by qualified psychiatrists 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 every one 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.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.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.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 be handed down unless the Solicitor General
issues a certification, which will be quoted in the decision, briefly stating therein his
reasons for his agreement or opposition, as the case may be, to the petition.18

The family code echoes this constitutional edict on marriage and family and
emphasizes their permanence, inviolability and solidarity.

18
Supra 6.
 After a quick review on the guidelines, we must remember that no rule is absolute
and still may be a case by case basis based on circumstance and stand of judges which
have been seen as the jurisprudence evolved and been a bit lax.

Analysis of Data

Now, let us proceed on the comparison. The ground under article 3210 of
California Family Code are irreconcilable difference and incurable insanity while the
ground under article 36 of Philippine Family code is Psychological incapacity on the
essentials of marital obligations.

Irreconcilable difference as stated a while ago must irremediable which is different

to Philippine jurisprudence guidelines nor article 36. California law allows such but the
Philippine law doesn’t allow dissolution of marriage on such ground and will pursue
permanence, inviolability and solidarity of marriage in the country. According to
jurisprudence, a mere disappointment on expectation and difference in attitude of each
spouse will not be a ground for dissolution of marriage.19

As defined by the Philippine family code, Marriage is both contract and status. It
is a special contract of permanent union between a man and a woman entered into in
accordance with law for the establishment of conjugal and family life. And a status, it is
the foundation of the family and an inviolable social institution whose nature,
consequences, and incidents are governed by law. A mere irreconcilable different will not
be allowed to violate the foundation of the family which is the building blocks of society.

Ground for incurable insanity states that the insanity must be clinically and
medically proven. Insanity by legal definition means unsoundness of mind or lack of the
ability to understand that prevents one from having the mental capacity required by
law to enter into a particular relationship, status, or transaction or that releases one

19
Definition of irreconcilable difference available at https://www.hg.org/legal-articles/moving-forward-
after-divorce-in-california-49185.
from criminal or civil responsibility. Insanity in medical definition means a severely
disordered state of the mind usually occurring as a specific disorder.

In article 3212, the insanity mentioned was such defined by law which is similar
with the requirement on psychological incapacity on marital obligation. Both required
a professioal and expert opinion in determining insanity or psychological incapacity.
The degree of insanity or psychological incapacity must be taken in consideration for
such gravity must be first identified and proven. It must be incurable which indicates
more or less the permanence of the condition which may affect the family life in
general. The insanity or mental disorder prevent spouses to perform their marital
responsibility and may violate the sanctity and sacredness of family.

Another similarities were both law values the family in a way that as a
presumption when doubt arises, the law will be liberally construed in favor of
permanence and continuance of marriage.

The major differences were psychological incapacity was the juridical

antecedence wherein the Philippine law requires the presence of incapacity on the
actual marriage ceremony. California law doesn’t requires such antecedence but
requires that insanity be present on the trial of the case. Another difference was that
Philippine family code was based on the Roman Catholic teachings on the Canon law
while California Family law were more liberally created thus making it more lax than
the other.

Lastly, California law provides that if insanity was proven incurable and has
been a ground for dissolution of marriage, the healthy spouse will be required to give
support to the sick spouse unlike in our country, responsibility on spouse ends totally
once dissolution happened except on cases of the children.

Conclusion

Divorce do exist in the Philippines. It been hiding under the curtains of Article
36 of the family code. After thorough review of divorce law of California and the
unexpressed divorce law of the Philippines, I have concluded that the law of a state
mirrors the will and culture of the citizens of the state.

The Philippine Family code was created in line with the canon law which shows
that the Philippines follows the doctrines of the Church while California Family code
was liberally constructed. The Philippine Family code is much stricter in a sense
compared to California law which is more liberal. The major differences were
California Law allows divorce on grounds of irreconcilable difference while Philippine
law doesn’t, and California law doesn’t requires the presence of insanity on the
celebration of marriage but only during trial of the case while Philippine law requires
psychological incapacity to be present on the celebration of marriage ceremony.

Like it or not, this is the reality. Divorce does exist even a deep Catholic State
such as ours. Bills are currently in process on expressly allowing divorce in the
country. And these will sure have a great impact in our way of life and thinking. The
question is to what extent it will allow such dissolution. That’s all and God guide our
legislator in creating and repealing laws which will be for the benefit of the greater
good.

Bibliography:
Primary sources
 Marriage definition, Family Code Art.1
 Psychological Incapacity, Family Code Art 36
 Republic vs CA 268 Phil. 198 (1997)
 Santos Vs CA 240 Phil 20 (1995)
 California Family code https://law.justia.com/codes/california/2005/fam/2310-2313.html
 Canon law http://www.vatican.va/archive/ENG1104/__P44.HTM

Secondary sources
 Absolute Divorce definition and process, US Legal Dictionary.com
 Reggie B. Llanto, “Marriage-Citizenship change divorce ad infinitum? The inevitable
complications of Orbecido” UST Law review volume LX no.1 [p 51] May 2016
 https://www.hg.org/legal-articles/moving-forward-after-divorce-in-california-49185
 Absolute Divorce definition and process, https://www.hg.org/divorce-law-basics.html#1
https://www.hg.org/divorce-law-center.html#states