Article 36 of The Family Code

Article 36 of The Family Code

Chi Ming Tsoi vs. CA

G.R. No. 119190 January 16, 1997

Facts

Chi Ming Choices

Article 36: A Coasean Analogue

Issue

May 22, 1988, the plaintiff married the defendant at the Manila Cathedral

I. The Psychology of the Incapacitated

Plaintiff: contrary to expectations - newlyweds to make love i.e. sex; defendant merely went to bed to sleep disregarding her needs and expectations.

Existing jurisprudence and rules as per SC

CHI MING TSOI, petitioner

vs

COURT OF APPEALS and

GINA LAO-TSOI, respondents

A. Signifier without signified

Art. 36 defined:

Art. 36, FC - as proposed by Civil Code Revision Committee (CCRC) of the UP Law Center

Caguioa: differs from insanity (impaired consent) as the incapacity resides in the impaired understanding of marital obligations; former is curable/treatable and with lucid intervals

Vitug: mental (not physical) incapacity existing at time of ceremony causing a party to be incognitive of marital obligations

Proposes no-fault divorce

The MOLINA DOCTRINE

Antagonizes absolute divorce

1. Burden of proof

a. lies with plaintiff

b. doubt resolved in favor of

the existence and

continuation of marriage

4. Incapacity must be:

Formulates Art. 36 as an alternative

a. proven to be permanent/incurable

b. present to one spouse (not necessarily absolute to every one of same sex)

c. relevant to assumption of marital obligations

8. Office of Solicitor General

2 Root cause must be:

5. Gravity of incapacity enough to

bring disability to perform obligation

a. to appear as counsel for state

b. to issue certification prior to decision

7. National Appellate Matrimonial Tribunal

a. identified

b. alleged

c. proven

d. explained in decision*

Not divorce, merely judicial declaration of nullity of marriage

a. interpretations given weight

b. not legally controlling

3. Incapacity proven to be:

:

a. existing at time of celebration of marriage

b. manifestation may not be perceivable

6. Marital obligations must be:

a. Under Arts. 68 - 71 of FC (spousal)

b. and Arts. 220, 221, & 225 of FC (parental)

B. The Crisis of Jurisprudence

There is no such thing as "psychological incapacity"

The Frankenstein-ized description did not define and fails to provide empirical standard

The term "Psychological Incapacity"

Has no concrete definition

This is a created phrase

An invention of necessity

No examples either

BUT WHY?

Ejusdem generis

Statutory Construction maxim: "of the same kind" when the law enumerates specifics and then refers to them in general, the later statements would carry the definition of the prior enumeration. [E.g. if law refers to trees like; mango, coconut, orange, durian and other fruit-plants, "fruit-plants" if used later] would not include grapes, as the list is composed of trees with wooden trunks.

CCRC - no to "ejusdem generis"

We have "THE CATHOLIC CHURCH"

We needed "THE RELIEF"

Art. 36 brought questions to:

Legal Findings

Another challenge

Absence of sufficient standard

Malleable descriptions befitting singular purpose

No empirical bases or court rulings

There is a perceived need for

"an exit mechanism"

without compromising our image

Chi Ming Tsoi is

psychologically incapacitated to comply with the marital obligations

Medical Findings

Art. 36 has no medical definition

It is a medical case of its own

Manipulation of the Rules

C. Procedural Glitches

Art. 36 before a court yields no predicable ruling

Judges has liberty to dispose interpretation

Litigants have the implied leeway to MANIPULATE

AM 02-11-10

Promulgating a virtual indirect

of Molina / Santos

Specified allegation

Complete facts

Physical manifestations

No expert opinion needed

The difference

INDIRECT

Molina:

• facts + statement of root cause
• OSG needs active participation
• Explanation on ratio decidendi

New AM:

• allegation of complete facts
• OSG may be indifferent (obfuscating truth)
• No need to explain finding

Neither of them were muted or actually overturned

Significance

This rule is the anchor of the trial courts

SC is unable to see

II. The Coase Theorem

The same thing happened on the second, third and fourth nights.

In an effort to have their honeymoon

They slept together on the same bed from 1988 to 1989. But, there was no attempt of sexual intercourse.

Fathered by RONALD COASE

First published in 1960

THE PROBLEM OF SOCIAL COST

The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show his penis.

Most cited article in the combination of

Actions of one

translate to

Harmful effects on another

FIRST

0 transaction costs

Efficient outcome to occur regardless of choice of legal rule

SECOND

Because of this, they submitted themselves for medical examinations to Dr. Eufemio Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989.

III. The Cost of Art. 36

>0 transaction costs

Efficient outcome may not occur under all legal rules

Choosing legal rule to minimize the transaction cost

Marriage : Economic Transaction

Parties : Agents

Max Happiness : Max Utility

A. Chi Ming Tsoi as a Nuisance

Felicity:

Ruling

an instance of being happy

happiness

Tsoi case : Felicity reduction

One of the essential marital obligations under the Family Code is “to procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage.”

Lao-Tsoi = rational maximizer

> release herself from PI husband to be better off

Tsoi = negative externality

> Not affected

Removal of Tsoi

Under free marriage

Results into optimum felicity for Lao-Tsoi

Kaldor - Hicks Efficiency

In pursuit of the Pareto Efficiency

B. Tsoi with Liability Rules and Costless Transaction

There is no

woman without beauty, for a 3%!$ that is angry!!!

Reciprocity of Problems

A inflicts harm on B; how should B restrain A?

That is not the case.

Reciprocal nature of problems:

To avoid harm, B inflicts reciprocal harm on A

"Whom should be allowed to harm the other (avoiding grater harm)?"

V. Easing the Bottleneck:

A Pragmatic Perspective

Harm = Tsoi's inability

Art 36 is a MESS

The reciprocity:

Given the size, there is possibility

Had she allowed not having sex

Then no legal issue

Should Tsoi be allowed to remain married (harming Gina) or should she be allowed to leave (harming Tsoi)

The Task

Policymaker to craft the rule

C. Tsoi with Liability Rules and Cost of Transaction

1. Assign liability

2. Effect of assignment on felicity

The Other side

Status Quo

Liability on Gina

> Marriage preserved

> Harm on Gina

> Tsoi better off?

Liability on Tsoi

> Marriage dissolved

> Harm on Tsoi

> Gina better off

Distribution of Felicity

Art 36 petitions alters net distribution of felicity

• lawyers and other fees
• skill of counsels
• availability of witnesses
• aggression of OSG
• temperament of the magister

Reluctance to consummate marriage is strongly indicative of a serious personality disorder

The

Decide Art. 36 based on facts - if there is no more marriage to save, don't

Art 36 + Molina costs

Reasons for marital

failure rooted on

Arts. 68 - 71 FC

Arts. 220, 221, & 225 FC

Regulation has a price

- the cost

Dishonesty of the system is driven by the bottleneck the SC created...

searching and retaining lawyers

hiring psychologist/psychiatrist

appearing in court, testifying, and petition

Art 36 is a regulation, thus it has a cost

THE AMBIGUITY

No divorce policy is akin to 20th Century (Prohibition Era)

created by

Art 36

fuels

COSTS

clear delimitation

of Art. 36

Systemic Collateral Cost > Benefits

As long as there is

PSYCHOLOGICAL INCAPACITY

Costs > Quasi-divorce

couples in failed marriages will but their way out of marriage REGARDLESS

AS per the

Art 36 feeds corruption

IV. Transaction Cost and Rent-seeking

when

<

=

more

social

cost

1. The Litigants

LAW WILL BE

IRRELEVANT

Clear demonstration of utter insensitivity to give significance to the marriage - clear example of Article 36

As rational maximizer for personal felicity

> Disregards the law

> How much / is it worth?

> Risks in breaking the law?

High = observe

Low = err

Molina gives incentive to bogus petition for Art 36, marriage fail:

Stay married

Continue living together

Separate informally

Unaffordable costs

Welfare of children

Myth of family

= inexpensive remedy

Petition for Annulment

Exit by defect

Either defect in consent or fraud, may affect property distribution

Prescription / statute of limitations

Likewise, incentive arise only:

1. Fault is to be established

2. Properties carry significant value

Petition for Legal Separation

Petition under Art 36

Remedy for Property Separation

Not marital separation

Obligation to live with spouse is purely personal

Fault finding endeavor

Only yields benefit if:

1. Fault reasonably established

2. Properties to be dissolved sufficient/significant value

3. The OSG + Public Prosecutor

No-fault exit

Held: nullification under Art 36 does arise from willful error or deliberate misconduct

No incentive as to value of properties

Incentive is freedom and full capacity

Bogus marriages, reasons outside of concrete standards of first two

Focuses on Molina Rules but open to case by case basis

Similar risk analysis with the Litigants

Virtually, due to Molina, the success rate of Art 36 petitions are due to OSG not being able to appeal.

Indifferent OSG almost guarantees favorable decision for Art 36 petition

OSG controls the right to appeal the cases

OSG affects not merely the appeal, but the but the litigant's chances as well

This authority may be susceptible to rent-seeking

2. The Judge

Aware of need to comply with Molina Doctrine, Judges may engage in cost-benefit analysis: whether compliance is worth

Judges control Art 36

Personal discretion

Increases counsel's incentive to corrupt Judges

Article 36

A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227)