Republic
of
the Philippines
Supreme
Court
Manila
A.
M. NO. 02-11-10-SC
MARCH
4, 2003
RULE ON
DECLARATION
OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE
MARRIAGES.
DISSENTING
OPINION
PANGANIBAN, J.
chan
robles virtual law library:chanroblesvirtuallawlibrary
During the previous
discussions in the Court on the “Rule
on the Declaration of the Absolute Nullity of Marriages,”
especially
those portions involving psychological incapacity, I suggested that
solicitation
of the comment or advice of both Archbishop Oscar V. Cruz[1]
and former Court of Appeals Justice Ricardo C. Puno[2]
as amici curiae. While my request was turned down, I was
nevertheless
expressly allowed to have personal consultations with them.
The principal proponent
of the new Rule, Mr. Justice Reynato S. Puno, said that his Committee
had
already sought the counsel of former Justice Ricardo C. Puno.
Hence,
I consulted only with the Most Reverend Cruz, whom the Court had
invited
as amicus curiae during the oral argument in Republic v. Molina[3]
on December 3, 1996. It will be recalled that in the unanimous
Decision
of the Court in that case, some of his opinions were used in
formulating
the guidelines laid down regarding the interpretation and the
application
of Article 36 of the Family
Code. Those guidelines have heretofore been used in hearing
and
disposing of petitions for the declaration of the nullity of marriages
on the ground of psychological incapacity.cralaw:red
I considered the
consultation important, because Article 36 had undoubtedly been adopted
by the Family Code Revision Committee from Canon 1095 of the New Code
of
Canon Law, which became effective in 1983. As head of the
National
Appellate Matrimonial Tribunal, which reviews all decisions of the
marriage
tribunals in all archdioceses and dioceses in the country, Archbishop
Cruz
is an authority on Canon 1095. since Article 36 was sourced
almost
verbatim therefrom, I thought that a contemporaneous interpretation of
the latter provision would have great persuasive effect on construing
the
former.chan
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law
library
After a careful study
of the opinions of Archbishop Cruz, particularly his letter to me dated
February 6, 2003, I recommended some amendments to the Rule
on the Declaration of the Absolute Nullity of Marriages based on
psychological
incapacity. While I am grateful that some of my suggestions were
incorporated in the final provisions, I believe that some major items
that
were rejected are essential and should be taken into account.cralaw:red
(1) WHAT THE
PETITION SHOULD STATE. I believe that in addition to those
provided
in the new Rule, the following should also be alleged in a petition for
nullity filed by a plaintiff:chan
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(a) Per our
ruling in Republic v. Molina, petitions for declaration of marital
nullity
should state the facts showing the root cause/s of either or both
parties’
psychological incapacity, causes that might be medically or clinically
identified.[4]
(b) The incapacity
must not only be alleged to be existing at the time of or prior to the
celebration of marriage,[5]
but also be medically or clinically permanent or incurable[6]
and grave enough to bring about the disability of the party to assume
the
essential obligations of marriage.[7]
(c) The petition
should likewise allege the specific marital obligation/s not complied
with.
These obligations must be those provided by Articles 68 to 71 of the Family
Code as regards the husband and the wife; and Articles 220, 221,
and
225 of the
same Code as regards parents and their children.[8]
These proposals,
I stress, are expressly provided in this Court’s rulings in Republic v.
Molina and Santos v. C.A.[9]
which hold that the psychological incapacity must be characterized by
(a)
gravity, (b) juridical antecedence and (c) incurability.cralaw:red
Root Cause Must
Be Allegedchan
robles
virtual
law library
The Committee on
Rules and eventually the whole Court agreed to require the parties to
“specifically
allege the complete facts showing that either or both parties were
psychologically
incapacitated from complying with the essential marital obligations x x
x a the time of the celebration of the marriage even if such incapacity
becomes manifest only after its celebration.”[10]
Yet, there was steadfast refusal to include the recommendations I
enumerated
above.cralaw:red
With due respect,
I firmly believe that those allegations should be stated in the
Petition
on the grounds discussed below.cralaw:red
First, how can the
fats be termed complete, if the plaintiff is not required to state the
root cause of the claimed psychological incapacity? Be it
remembered
that psychological incapacity is a mental, not a physical,
ailment.
Though psychological in nature, it is as much an illness as medical
conditions
like cancer, tuberculosis, or the common cold. I believe that a
plain
allegation of the psychological incapacity of one party or both parties
to the marriage is insufficient, because it is a mere inference, not a
statement of fact. As such, it must be supported by the plaintiff
with “complete facts.”
Elementary is the
rule that the complaint or petition must state its cause of action with
supporting facts, not with conclusions or speculations. Parties
must
explicitly allege the factual circumstances showing why they are
entitled
to the relief they demand.chan
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Second, it is claimed
that tracing the root cause is too scientific and burdensome a quest
for
petitioners; hence, they need only to state the physical manifestations
of the psychological malady. While I agree that such
manifestations
are part of the “complete facts,” I respectfully submit that the root
cause
– or at the very least the reasons or circumstances that impelled the
plaintiff
to infer the presence of the psychological incapacity – should be
stated
with even more cogency. Requiring the allegation of “physical
manifestations”
but not of root cause is to mistake the effect for the cause of the
ailment.cralaw:red
Many times, petitions
to void marriages are field simply because the spouses have gotten
tired
of each other. Sometimes, battered wives or abandoned husbands
rush
to court blaming psychological incapacity for their unfortunate
situations
without adequate counsel on whether their claims are medically or
clinically
viable. Indeed, without looking into the root cause of their
conflict,
one or the other spouse often goes to court for the purpose of seeking
an end to the marital horrors through a petition for nullity based on
psychological
incapacity. They view this ground as the “cure-all” to their
marital
predicament, a panacea similar to divorce. In the process, they
clog
the court system with improvident petitions.chan
robles virtual law library
While indeed a problematic
marriage must be mended or threshed out in some civil manner, declaring
its nullity on the ground of psychological incapacity is not always the
remedy. And what better pre-court alternative is there than for
the
spouses to find out medically or clinically whether alleging
psychological
incapacity is a viable option?
Third, it is argued
that requiring a statement of the root cause in medical or clinical
terms
is prejudicial to the poor who cannot afford the fees of psychiatrists
or psychologists. Well I believe that the proper remedy to the
problem
of high cost is the provision by the government of free medical or
clinical
services. If the State now provides free health services and even
medicines to cure physical ailments, should it not also give such
service
for mental ailments like psychological incapacity?
To say that the solution
is to go out to court without adequate medical or clinical prognosis is
to propose that a patient drink medicine without adequate information
to
the illness. Such course of action is not only scientifically
ill-advised;
it is also expensive and prone to further complications. In the
case
of problematic marriage, such a rash recourse not only drains the
parties’
time and resources, but also unduly clogs court dockets.chan
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Fourth, the parties
owe it to themselves, their marriage and their children to be sure that
indeed one or the other spouse is afflicted with psychological
incapacity
antecedent to the marriage, and permanently and gravely so.
Indeed,
it is not easy to nullify a marriage through this route, which is
available
only in a very limited number of cases. According to Archbishop
Cruz,
the Catholic Church developed the ground, its theological justification
and its availability as a remedy only after 150 years of study.
It
grants annulment on this ground only after a long and thorough
examination
of all circumstances, a rigid and convincing medical/clinical
examination
of the party concerned.cralaw:red
Since Article 36
of the Family
Code was copied from Canon 1095, I believe that the same strictness
should be observed in the grant of civil nullities. After all,
under
our Constitution
and our laws, validity is the rule in marriage and nullity is only the
exception.cralaw:red
Before the parties
go to court, they should be adequately convinced of their cause of
action
by knowing beforehand the root cause of their marital problems.
And
the initial way to show entitlement to nullity is a statement of the
“complete”
facts including the root cause.chan
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Permanence and
Gravity of Incapacity
Aside from the root
cause, I believe that, to be “complete,” the facts should also show
that
the incapacity is (a) medically or clinically permanent or incurable
and
(b) grave enough to bring about the inability of the party to assume
the
essential obligations of marriage. My initial proposal that the
petition
contain an allegation of the existence of the incapacity at the time or
prior to the celebration of the marriage is now carried in Section 2(d)
of the Rule[11]
That the Court has
decided in the new Rule not to require the parties to include the above
allegation in their petition shows that it has veered from these
essential
requirements culled from our existing jurisprudence, requirements that
were in turn taken from the Catholic Church’s uniform interpretation of
Canon 1095. For this reason, a decision granting nullity of
marriage
without a finding of the incurability and the gravity of the ailment
would
be a departure from current jurisprudence as well as from the uniform
meaning
given by Canon law to this provision.cralaw:red
Specific Marital
Obligation Breached
I cannot understand,
either, why there is a refusal to require the specification of the
marital
obligations in the Family
Code that cannot be complied with by reason of the alleged
incapacity.
I believe that the omission thereof would lead to guesswork in the
proceedings.chan
robles virtual law library
Together with the
other omissions (root cause, permanence and gravity), this failure to
require
an allegation of the obligations breached will enable a plaintiff to
come
to court even without a firm statement of the cause of action.cralaw:red
(2) THE SOLICITOR
GENERAL SHOULD DEFEND MARRIAGE AND FAMILY. In cases involving
Article
36, the participation of the Office of the Solicitor General as counsel
for the State cannot be overestimated.cralaw:red
Our Constitution
devotes an entire Article on the Family,[12][
which it recognizes “as the foundation of the nation.” It decrees that
marriage as a legally “inviolable” institution that must be protected
from
dissolution at the whim of the parties. Both the family and
marriages
are to be “protected” by the State.cralaw:red
The Family
Code[13]
echoes this constitutional edict on marriage and the family, it also
emphasizes
their permanence, inviolability and solidarity.cralaw:red
With this mandate,
the State, through the Office of the Solicitor General (OSG), cannot be
allowed to turn its back on its constitutional duty to protect marriage
and the family.chan
robles
virtual
law library
True, Section 18
of the Rule – now finalized by the Puno Committee and the entire Court
– grants the trial court the discretion to “require x x x the public
prosecutor,
in consultation with the Office of the Solicitor General, to file their
respective memoranda in support of their claims within fifteen days
from
the date the trial is terminated.” True also, the OSG, even if
not
an original party or oppositor, “may appeal the decision.”[14]
These are, however,
post facto remedies in which the OSG may not be fully effective.
The hornbook doctrine is that only questions raised below may be the
subject
of appeals. Even more important, a case can be decided only on
the
basis of facts, theories and causes of action shown by the pleadings
and
by the facts proven during the trial. If the OSG does not oppose
the petition at the fist opportunity, participate during the trial, or
present contradictory evidence – Or at the very least, does not
cross-examine
the witnesses – “the truth, the whole truth and nothing but the truth”
may not be ferreted out.cralaw:red
I believe that it
is important, even essential, that the OSG should be given the mandate,
at the earliest states of the proceedings, to defend marriage and the
family
on behalf of the State. After all, the guidelines in Republic v.
Molina were carefully crafted by a unanimous Court because of the OSG’s
insistent indictment of Article 36 of the Family Code as the “most
liberal
divorce procedure in the world.” By excluding the OSG from the origins
of the cases involving psychological incapacity, the new Rule may be
resurrecting
this indictment of Article 36 as nothing less than a de facto divorce
law.chan
robles virtual law library
According to Archbishop
Cruz, “the State is dut[y-]bound to spare no effort precisely in
promoting
the stability of marriage and in defending [the] solidarity of the
family.
It would be then incongruous for the State to renounce its
constitutional
mandate, to reject its codal commitment in safeguarding marriage from
questionable
actions destructive thereof, protecting the family from personalistic
options
divisive thereof.”[15]
Added the good prelate:chanrobles virtual law library
“Thus, the proposed
Rule that “the Court may require the Office of the Solicitor General to
file its own memorandum in cases of significant interest to the State’
appears unacceptable for the following reasons: One, without
demeaning
the Office of the public prosecutor standing for the State in defending
the institution for marriage, it is not a secret that there is a good
amount
of laxity in the compliance of the said Office especially in big urban
places in the country. Two, simply making the submission of a
memorandum
from the Office of the Solicitor General as something merely
facultative
as in effect doing away with the second line of defense of marriage and
family life. Three, it can be rightfully asked if marriage and
family
after all constitute but an insignificant interest of the State
notwithstanding
all constitutional and codal provisions to the contrary.”[16]
That the OSG is saddled
with work is no reason for it to abandon its responsibility: to
defend,
when called upon and at the earliest opportunity, the constitutional
protection
of marriage and the family. Neither is it reason to delay
compliance
with that duty. The OSG takes the role of the defensor vinculi
who
defends marriage, when appropriate, in nullity cases under Canon
1095.
If indeed it lacks manpower to attend to this constitutional duty, the
logical solution is for it to secure that manpower, not to abandon its
responsibility.cralaw:red
THE DECISION SHOULD
EXPRESSLY EXPLAIN THE ROOT CAUSE AND THE OTHER FACTS REQUIRED TO BE
ALLEGED
IN THE PETITION. The decision of the lower court in Article 36
cases
should clearly explain the root cause/s of the psychological
incapacity,
causes which must be medically or clinically identified.[17]
The decision must
also show that the incapacity was existing at the time of or prior to
the
celebration of the marriage,[1]
is medically or clinically permanent[18]
or incurable,[19]
and is grave enough to bring about the party’s incapacity to assume the
essential obligations of marriage.[20]chan
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The incurability
of the incapacity must also be specific – whether it is absolute or
only
relative to the other spouse, not necessarily absolute in regard to
everyone
else of the opposite sex.[21]
The text of the decision
should likewise specify the marital obligation/s not complied with –
obligations
embraced in Articles 68 to 71 of the Family
Code as regards the husband and his wife; as well as Articles 220,
221 and 225 of the
same Code in regard to parents and their children.[22]
Observed Archbishop
Cruz: “It might be opportune to ask if the dispositive portion of
the Decree or the Declaration would have nothing to say abut the Pars
in
Causa proven radically unfit for marriage in conjunction with his/her
possible
subsequent option to get married again. While the issues on the
disposition
of properties, the assignment of the custodial right if indeed, the
matter
of support and other concerns, are important, the person of the subject
party proven incapacitated for valid marriage is of no lesser
significance.”[23]
Finally, also in
accordance with Republic v. Molina, no decision should be handed down
unless
the solicitor general issues a certification, to be quoted in the
decision,
briefly stating therein his or her reasons for agreeing with or
opposing
to the petition.[24]chan
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All in all, I respectfully
submit that by refusing to require (1) the parties to allege in the
petition
the essential facts showing the root cause, its incurability and
gravity;
(2) the solicitor general to defend the marriage at the earliest
opportunity;
and (3) the trial judge to state the said essential facts in the
decision
granting nullity, the Court may be encouraging the filing of groundless
petitions for nullity. Worse, it may be facilitating the grant of
such petitions on grounds other than those originally conceived under
Article
36 of the Family
Code. I hope that the OSG – and our own people – will not one
day soon come again to this Court complaining about the Article 36
being
“the most liberal divorce procedure in the world.”
FOR THE FOREGOING
REASONS, I regret that I cannot give my concurrence to and approval to
the Rule on the Declaration of the Nullity of Marriages based on
psychological
incapacity.
FOOTNOTES:chanroblesvirtuallawlibrary
------------------------------------------------------------------------------
[1]
Judicial vicar of the National Appellate Matrimonial Tribunal of the
Catholic
Church of the Philippines and former president of the Catholic Bishops
Conference of the Philippines.chan
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[2]
Jurist, author, noted civil law professor, law practitioner and a
member
of the Family Code Revision Committee.
[3]
G.R. No. 108763, February 13, 1997, per Panganiban, J.
[4]
Republic v. Molina, p. 14.
[5]
Ibid.
[6]
Id., p. 15.chan
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virtual law library
[7]
Ibid.
[8]
Id., p. 16.
[9]
G.R. No. 112019, January 4, 1995, per Vitug, J.
[10]
Sec. 2 (d).
[11]
“Sec. 2. Petition for declaration of absolute nullity of void
marriages.
–
xxx
xxx xxx
What
to allege. – A petition under Article 36 of the Family code shall
specifically
allege the complete facts showing that either or both parties were
psychologically
incapacitated from complying with the essential marital obligations or
marriage at the time of the celebration of marriage even if such
incapacity
becomes manifest only after its celebration.
“The
complete facts should allege the physical manifestations, if any, as
are
indicative of psychological incapacity at the time of the celebration
of
the marriage but expert opinion need not be alleged.”chan
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[12]
“Article XV
THE FAMILY
Section 1. The State recognizes the Filipino Family as the
foundation
of the nation. Accordingly, it shall strengthen its solidarity
and
actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the State.
Section 3. The State shall defend:chanroblesvirtuallawlibrary
(1) The right of spouses to found a family in accordance with
their
religious convictions and the demands of responsible parenthood;
(2) The right of the children to assistance, including proper
care
and nutrition, and special protection from all forms of neglect, abuse,
cruelty, exploitation and other conditions prejudicial to their
development.
(3) The right of the family to a family living wage and income;
(4) The right of families or family associations to participate
in
the planning and implementation of policies and programs that affect
them.chan
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Section 4. The family has the duty to care for its elderly
members
but the state may also do so through just programs of social security.”
[13]
“Art. 1. 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 fix the property relations during the marriage within
the
limits provided by this Code.”chan
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[14]
“Sec. 20. Appeal. –
xxx xxx xxx
“(2) Notice of Appeal. – An aggrieved party or the Solicitor
General
may appeal from the decision by filing a Notice of Appeal within
fifteen
days from notice of denial of the motion for reconsideration or new
trial.
The appellant shall serve a copy of the notice of appeal on the adverse
parties.”
[15]
Letter to Justice Artemio V. Panganiban dated February 6, 2003, p. 4.
[16]
Ibid.
[17]
Republic v. Molina, p. 14.
[18]
Ibid.
[19]
Id., p. 15.
[20]
Ibid.
[21]
Ibid.
[22]
Republic v. Molina, p. 16.
[23]
Letter to Justice Artemio V. Panganiban dated February 6, 2003, p. 4.
[24]
Id., p. 17.
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