In Kusk v. Kusk (G.R. No. 228564, August 13, 2025), the husband walked out in 1995 and was never seen in the case again. He was served by publication, never appeared, and ignored even a Resolution of the Supreme Court sent through the Philippine Honorary Consulate General in Copenhagen. The clinical psychologist therefore interviewed only the wife. Both the trial court and the Court of Appeals refused the petition for that reason. The Supreme Court reversed, held that the psychologist's assessment "must be given probative value as an expert's opinion," and declared the marriage void ab initio.
There is a version of this problem that comes up in almost every consultation with a Filipino living overseas, and it is rarely about doctrine. The spouse is gone. Not merely uncooperative — gone. No address, no number, no one who admits to knowing where he is. The reader has usually been told, by a relative or by a fixer or by an earlier lawyer, that nothing can be done until the spouse is found, because the psychologist has to interview him.
Kusk v. Kusk, decided by the Second Division on August 13, 2025, is the answer to that. It is the freshest Supreme Court authority on the point, and it goes further than anything before it: the expert never spoke to the respondent, nobody did, and the marriage was still voided.
A wedding in Denmark, and a husband who disappeared
Mas komportable ka ba sa Tagalog? Basahin ang aming gabay: Paano Mag-Petisyon ng Presumptive Death?.
Milagrosa met Torben, a Dane, in 1992 through a friend who was visiting the Philippines from Denmark. He flew to Manila, promised her a good life — she was then 31, with a child from another man — and she left for Denmark on a visa granted on August 10, 1992. They married there in November 1992. The day after the wedding, he boxed her in the face.
They migrated back to the Philippines in July 1993. He began frequenting bars and returning home between three and five in the morning. On April 2, 1995 he slapped her; she had herself examined at the East Avenue Medical Center and reported him to the PNP Women's Desk at Camp Caringal. In September 1995 he left, and never came back.
She looked for him at the Danish Embassy. In 2007 she learned only that he was still somewhere in the Philippines, living with different women. She filed her petition in 2009. Her clinical psychologist, Dr. Nedy Tayag of the National Center for Mental Health, interviewed her and no one else, and diagnosed Torben with passive aggressive personality disorder with underlying antisocial personality disorder — and Milagrosa herself with narcissistic personality disorder.
Torben was served by publication. He never appeared. He ignored a Resolution of the Supreme Court served through the Philippine Honorary Consulate General in Copenhagen, and he ignored a Show Cause Order. In sixteen years of litigation, he did not participate once.
Both lower courts said the report was worthless
The Regional Trial Court denied the petition, expressly "disclaim[ing] the findings of Dr. Tayag, as she never interviewed Torben and merely acquired information about him through Milagros[a]." The Court of Appeals affirmed on December 1, 2016 in CA-G.R. CV No. 106277.
That reasoning is worth naming plainly, because it is the same reasoning the reader has probably heard from a non-lawyer: no interview, no report; no report, no case. It has been wrong for a quarter of a century. The Supreme Court said so in Marcos v. Marcos, G.R. No. 136490, October 19, 2000, in the opening sentence of the decision:
Psychological incapacity, as a ground for declaring the nullity of a marriage, may be established by the totality of evidence presented. There is no requirement, however, that the respondent should be examined by a physician or a psychologist as a conditio sine qua non for such declaration.
What the Supreme Court held in Kusk
The Court in Kusk v. Kusk, G.R. No. 228564, August 13, 2025, opened with the current and complete statement of the rule:
When psychological incapacity under Article 36 of the Family Code is invoked as basis for declaring a marriage void ab initio, it must be substantiated with clear and convincing evidence. No psychiatric report is necessary, nor is the psychiatric evaluation of the allegedly incapacitated spouse indispensable. Instead, parties are required to demonstrate that an enduring part of their or their spouse's personality renders them incapable of performing their essential marital obligations through the totality of evidence.
It then framed the precise question — and this is the sentence that makes the case matter for anyone whose spouse has vanished:
The primary issue for this Court's resolution is whether the marriage between petitioner Milagrosa and respondent Torben is void ab initio due to psychological incapacity. Subsumed in this issue is whether the expert opinion on a party's psychological incapacity is competent evidence if it is solely based on collateral information from the petitioning spouse.
The answer was yes, and the Court was careful not to say merely that the report was admissible. It said the report had to be weighed:
At this juncture, it is significant to note that the psychological or medical examination of a respondent spouse is not required as a condition for the declaration of nullity of marriage, as psychological incapacity is to be determined through all the evidence presented. Nonetheless, the psychological examination of Dr. Tayag must be given probative value as an expert's opinion.
Dr. Tayag, a clinical psychologist at the National Center for Mental Health, is qualified to conduct a psychological evaluation of private respondent. In Tan-Andal, while a psychological evaluation would be more comprehensive if all parties were personally assessed, the absence of a party's participation does not render the psychological report useless. The Court held that a psychologist's assessment is obtained through their skill and expertise rather than their personal familiarity of the parties involved
And on the absent spouse, the conclusion is a single sentence:
Thus, notwithstanding Torben's total lack of participation, Dr. Tayag's expertise and experience provide substantial weight to the determination of psychological incapacity.
Why an assessment resting on the petitioner alone was accepted
The Court's reasoning has two strands, and they are worth separating.
The first is about what an expert witness is. Reproducing a passage from Tan-Andal v. Andal (2021), the Court explained that the psychologist is not in the witness box because she saw anything:
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.
That is why Dr. Tayag's position at the National Center for Mental Health mattered and her acquaintance with Torben did not. Expertise is institutional and professional; it is not relational.
The second strand is about who actually witnesses a marriage. Quoting Santos-Gantan v. Gantan, 888 Phil. 141 (2020), the Court in Kusk put it this way:
Camacho-Reyes v. Reyes ordains that the non-examination of one of the parties will not automatically render as hearsay or invalidate the findings of the examining psychiatrist or psychologist, since marriage, by its very definition, necessarily involves only two (2) persons. As such, the totality of the behavior of one spouse during the cohabitation and marriage is generally and genuinely witnessed mainly by the other.
The absence of such personal examination is not fatal so long as the totality of evidence sufficiently supports a finding of psychological incapacity. Consequently, petitioner bears the burden of proving the gravity, juridical antecedence, and incurability of respondent spouse's psychological incapacity.
Note the sting in the last sentence. The rule removes an obstacle; it does not move the burden. The Court then disposed of the case outright:
ACCORDINGLY, the Petition is GRANTED. The December 1, 2016 Decision of the Court of Appeals in CA-G.R. CV No. 106277 is REVERSED and SET ASIDE. The marriage of petitioner Milagrosa Villarey Kusk and Torben Kusk is declared VOID ab initio on the ground of psychological incapacity.
What Kusk does not settle
A case this useful invites overreading, so here is the honest ledger.
The tension with Georfo is real, and unresolved. Two years before Kusk, in Georfo v. Republic (2023), the Supreme Court warned that "It is essential to have the psychological assessment derived from sources other than the petitioning spouse" — because of the obvious bias in favour of the petitioner's cause. Kusk then granted a petition where the expert interviewed the petitioning spouse and nobody else. Neither decision cites the other on this point. Both were written by the same ponente in the same Division. Two features may distinguish Kusk: Milagrosa was herself found psychologically incapacitated, so her account cut against her own interest; and the record carried independent documentary corroboration — the East Avenue Medical Center examination and the PNP Women's Desk report. Whether those features are what carried the case, or whether the two decisions simply pull in different directions, is not something the reports answer. Anyone who tells you the point is settled is telling you more than the Court has.
It does not say where the interview happened. The decision never states where Dr. Tayag interviewed Milagrosa, or whether any part of the evaluation was conducted remotely. It is silent, and silence is not permission. Nothing in Kusk approves an evaluation by video call, by a clinician based abroad, or of a petitioner who never returns to the Philippines.
It is a Division ruling, not a rewriting of the law. Kusk is a Second Division decision, not En Banc, and it does not purport to modify Tan-Andal. It applies the existing framework to a hard set of facts.
It is not a promise that these petitions succeed. In Pugoy-Solidum v. Republic, G.R. No. 213954, April 20, 2022, the psychologist likewise could not examine the husband, and the Supreme Court affirmed the denial of the petition — after Tan-Andal, applying Tan-Andal. The Court's own formulation of the trade-off is exact:
Although expert testimony is important in establishing the precise cause of a party's psychological incapacity, personal examination of the alleged incapacitated spouse is not always mandatory as long as the totality of evidence is sufficient to sustain a finding of psychological incapacity. However, the petitioner bears a greater burden in showing gravity, juridical antecedence, and incurability. Nevertheless, each petition for nullity of marriage must be dealt with on a case-to-case basis.
What this means if your spouse is uncontactable
Four practical points follow, and none of them is "relax."
- A missing spouse is not a dead case. Service by publication, followed by total non-participation, did not defeat the petition in Kusk. Neither did the failure of a Philippine consular post abroad to produce him.
- Get the report anyway, and get a good one. The Court did not treat the report as decoration. It gave it probative value and rested its conclusion on it. What fails is a report that names a disorder without setting out the specific acts, the spouse's background, and the link between the two — that is precisely why Pugoy-Solidum lost.
- Find a second informant if one exists at all. Because Georfo and Kusk sit uneasily together, the prudent course is not to test the boundary. A sibling, a childhood friend, a former neighbour, the spouse's own relative — anyone who saw the marriage from outside it strengthens the assessment and removes an argument the State can raise.
- Documents outlast people. The medical examination and the police blotter in Kusk existed because Milagrosa went and made them exist in 1995. Old hospital records, barangay entries, police reports, messages and remittance histories do not disappear when a spouse does.
If you are considering a petition from overseas, our guide on annulment from abroad sets out what can and cannot be done without flying home, the page on the psychological evaluation covers the assessment itself, and the page on a spouse abroad or missing deals with service and publication when the respondent cannot be located.
This commentary is general legal information, not legal advice on your case. Whether Kusk reaches your own facts — and what evidence would have to be assembled before it could — is a question for counsel who has seen them.