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This web page features the full text of the
DISSENTING OPINION OF MR. JUSTICE ARTEMIO PANGANIBAN ON
RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES.


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.
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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

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 robles virtual 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

(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 robles virtual law library

(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

Root Cause Must Be Alleged chan 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

With due respect, I firmly believe that those allegations should be stated in the Petition on the grounds discussed below.cralaw

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 robles virtual law library

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

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 robles virtual law library

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

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

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 robles virtual law library

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

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

(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

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

The Family Code [13] echoes this constitutional edict on marriage and the family, it also emphasizes their permanence, inviolability and solidarity.cralaw

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

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

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 robles virtual law library

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 robles virtual law library

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 robles virtual law library

[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 robles 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 robles virtual law library

[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 robles virtual law library

         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 robles virtual law library

[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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