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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
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 Courts 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 Churchs 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 OSGs
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
partys 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
Codeas regards the husband and his wife; as well as Articles 220, 221 and
225 ofthe 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.

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