DISSENTING OPINION
LEONEN, J.:
I dissent.
In my view, petitioner Nicolas S. Matudan (Nicolas) sufficiently proved that respondent Marilyn B. Matudan (Marilyn) is psychologically incapacitated to comply with her essential marital obligations to him. To deny his Petition is a cruel interpretation of the provisions of existing law.
I disagree that the testimony of the parties' daughter Maricel was not "of help"2 in this case. Marilyn left the conjugal home in 1985 when her children were still minors. She never kept in touch with her family. When her children needed her most, Marilyn failed to keep them in her company, to love and support them, all of which are essential obligations under the law. The Petition for Review on Certiorari must be granted.
I
Nicolas' evidence consisted mainly of his testimony and that of their daughter, Marice!. This the ponencia found insufficient because Marilyn did not participate in the proceedings. Further, the ponencia found Dr. Nedy L. Tayag's (Dr. Tayag) psychological evaluation deficient because she diagnosed Marilyn with having a narcissistic personality based on the sole account of Nicolas.3
A psychological evaluation should not be discounted if based on sources other than the patient. In psychiatry, it is accepted practice to base a person's psychiatric history on collateral information. Ideally, the psychiatric history should "be based [on] the patient's own words from his or her point on view,"4 the psychiatric history being a "record of [a] patient's life[.]"5 However, if the patient is not available, as in this case, information from other sources may be utilized.
Dr. Tayag found that Marilyn was suffering from Narcissistic Personality Disorder with Antisocial Traits. The illness is marked by "negativistic attitude, passive resistance, [lack of] ability to assert [one's] opinions, and ... difficulty expressing [one's] feelings."6 In its January 31, 2012 Decision, the Court of Appeals stated:
When asked to explain the personality disorder of Marilyn, Dr. Tayag simply replied:
Q: On her case you assessed her as, likewise, suffering from a personality disorder characterized by Narcissistic Personality Disorder with Anti-Social Trait. Will you please tell to the Court what do you mean by that personality disorder?
A: In layman's term, once you are being labeled as a narcissistic [sic], this is a person whose preoccupation are all toward his own self satisfaction both materially or emotionally at the expense of somebody. They have what you called [sic] strong sense of entitlement thinking that she can get away whatever [sic] she wants to [sic] in pursuit of her own satisfaction at the expense of somebody. And this is what happened to the respondent. She gave more consideration to her own satisfaction material wise at the expense of social embarrassment of the children because of what happened to her.
On the other hand, in her Sworn Affidavit, Dr. Tayag stated:
7. Without a doubt, Marilyn is suffering from a form of personality disorder that rooted [sic] the downfall of their marriage. As based on the DSM-IV, respondent's behavorial disposition fits with individuals with NARCISSISTIC PERSONALITY DISORDER with Anti-social traits, as characterized by her disregard for and violation of the rights of others as well as her failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are clearly immoral and socially despised. Such is also depicted through his [sic] deceitfulness, as indicated by repeated lying and conning methods she used upon others in order to achieve personal profit or pleasure. In addition, her consistent irresponsibility, as indicated by her repeated failure to sustain consistent work behavior or honor financial obligations and her lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another. . . . And such condition is considered to [sic] grave, severe, long lasting and incurable by any treatment available. 7
Dr. Tayag's expert testimony is consistent with the undisputed fact that Marilyn left the conjugal home and has not contacted her family since 1985. Thirty-one years of no contact with loved ones, to my mind, shows a grave and incurable illness, a psychological incapacity warranting the dissolution of Marilyn's marriage with Nicolas.
Apart from failing to cohabit with her husband, Marilyn left while her children were still minors. Marilyn failed to comply with her essential obligations under the Family Code:
Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.
. . . .
Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties:
(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel, companionship and understanding;
(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;
(4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;
(5) To represent them in all matters affecting their interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the circumstances; and
(8) To perform such other duties as are imposed by law upon parents and guardians.
The totality of evidence presented here is more than sufficient to prove Marilyn's psychological incapacity. Nicolas and Marilyn's marriage is void under Article 368 of the Family Code.
II
Santos v. Court of Appeals9and Republic v. Court of Appeals and Molina10outline the history of Article 36 of the Family Code. Santos recounts how the Family Code Revision Committee deliberately refused to define the term "psychological incapacity" "to allow some resiliency in [the] application" 11 of the provision. No examples of psychological incapacity were given in the law so as not to "limit the applicability of the provision under the principle of ejusdem generis."12
Article 36 of the Family Code was taken from Canon 109513 of the New Code of Canon Law of the Catholic Church.14 Citing the work of a former judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila, this Court in Santos stated that psychological incapacity "must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability." 15
Molina is known for the eight (8) guidelines in interpreting and applying Article 36 of the Family Code:
(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire. Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state.
The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage.1âwphi1 The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent or incurable.1âwphi1 Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides:
"The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature."
Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally - subject to our law on evidence - what is decreed as canonically invalid should also be decreed civilly void.
This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church - while remaining independent, separate and apart from each other - shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation.
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down .unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.16 (Citations omitted)
Contrary to the purported fluidity of the meaning of "psychological incapacity," Santos and Molina provided guidelines comparable to a "strait-jacket" 17 into which the facts of psychological incapacity cases are forced to fit. This Court observed in Ngo-Te v. Yu-Te: 18
In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. Understandably, the Court was then alarmed by the deluge of petitions for the dissolution of marital bonds, and was sensitive to the [Office of the Solicitor General's] exaggeration of Article 36 as the "most liberal divorce procedure in the world". The unintended consequences of Molina, however, has taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites, consume little by little the very foundation of their families, our basic social institutions. Far from what was intended by the Court, Molina has become a strait-jacket, forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage. 19 (Citations omitted)
The latest case where this Court voided the marriage due to psychological incapacity is Kalaw v. Fernandez,20which was decided on reconsideration in 2015. In Kalaw:
The [Molina] guidelines have turned out to be rigid, such that their application to every instance practically condemned the petitions for declaration of nullity to the fate of certain rejection. But Article 36 of the Family Code must not be so strictly and too literally read and applied given the clear intendment of the drafters to adopt its enacted version of "less specificity" obviously to enable "some resiliency in its application." Instead, every court should approach the issue of nullity "not on the basis of a priori assumptions, predilections or generalizations, but according to its own facts" in recognition of the verity that no case would be on "all fours" with the next one in the field of psychological incapacity as a ground for the nullity of marriage; hence, every "trial judge must take pains in examining the factual milieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court."21 (Citations omitted)
Ka/aw is only the fifth22 case since Ngo-Te's promulgation in 2009 where the Court voided the parties' marriage due to psychological incapacity. Again, this reflects the State's interpretation of its constitutional mandate to protect marriages, the foundation of the family,23 by contesting all Article 36 petitions until they reach this Court.24
The effect of applying the rigid Article 36 guidelines does not negate the compassion that some of the Members of this Court may have for the parties. Still, it is time that this Court operate within the sphere of reality. The law is an instrument to provide succor. It is not a burden that unreasonably interferes with individual choices of intimate arrangements.
The choice to stay in or leave a marriage is not for this Court, or the State, to make. The choice is given to the partners, with the Constitution providing that "[t]he right of spouses to found a family in accordance with their religious convictions and demands of responsible parenthood[.]"25 Counterintuitively, the State protects marriages if it allows those found to have psychological illnesses that render them incapable of complying with their marital obligations to leave the marriage.26 To force partners to stay in a loveless marriage, or a spouseless marriage as in this case, only erodes the foundation of the family.
III
The Family Code Revision Committee originally intended a provision on absolute or no-fault divorce.27 Instead, the Committee drafted Article 36 of the Family Code, which it derived from Canon Law so as not to offend the Catholic religion to which the majority of Filipinos belong. 28
It is strange that in drafting Article 36, the Family Code Revision Committee had to consider the sensibilities of a particular religion. None of our laws should be based on any religious law, doctrine, or teaching; otherwise, the separation of church and State will be violated. 29
We had absolute divorce laws in the past. Act No. 2710, 30 enacted in 1917, allowed the filing of a petition for divorce on the ground of adultery on the part of the wife, or concubinage on the part of the husband.31
During the Japanese occupation, Executive Order No. 141 32 provided for 11 grounds for divorce, including "intentional or unjustified desertion continuously for at least one year prior to the filing of a [petition] for divorce" and "slander by deed or gross insult by one spouse against the other to such an extent as to make further living impracticable."33
After the Japanese left, the laws enacted during the Japanese occupation were declared void.34 Act No. 2710 again took effect until the Civil Code's enactment in 1950. Since then, absolute divorce has been prohibited in our jurisdiction.
Laws on absolute divorce allegedly violate the Constitution, specifically, on the Filipino family being the foundation of the nation35 and the inviolability of marriage.36 I do not agree.
The Constitution describes the family as "the basic autonomous social institution."37 To my mind, the Constitution protects the solidarity of the family regardless of its structure. Parties should not be forced to stay in unhappy or otherwise broken marriages in the guise of protecting the family. This avoids the reality that people fall out of love. There is always the possibility that human love is not forever.
The Philippines remains to be the only country in the world with no absolute divorce law available to its citizens regardless of religion. 38 Our country needs a law that recognizes the validity of marriage at the time of its celebration but nonetheless allows parties to dissociate without destroying the human dignity39 of their former partners by pathologizing them with a psychological disorder.
For thirty-one (31) years, Nicolas has been alone without a spouse.
There is no marriage to protect in this case. Whatever possibility to fix the marriage is obviously absent or, at best, improbable. To deny the Petition of Nicolas is to require him to be condemned to a world that is not his. It is to ensure that he will live a life without the joy that marriage truly brings. It is to treat him as a ward.
To deny the Petition of Nicolas is, thus, pure and simple cruelty. ACCORDINGLY, I vote to GRANT the Petition.
MARVIC M.V.F. LEONEN
Associate Justice
Footnotes
1 Respondent is likewise referred to as "Marlyn" in some parts of the records.
2 Ponencia, p. 14.
3 Id. at 15.
4 B.J. Sadock, M.D. and V.A. Sadock, M.D., KAPLAN & SADOCK'S SYNOPSIS OF PSYCHIATRY BEHA VIORIAL SCIENCE/CLINICAL PSYCHIATRY 229 (9th ed., 2003).
5 B.J. Sadock, M.D. and V.A. Sadock, M.D., KAPLAN & SADOCK'S SYNOPSIS OF PSYCHIATRY BEHA VIORIAL SCIENCE/CLINICAL PSYCHIATRY 229 (9th ed., 2003)
6 Ponencia, p. 4.
7 Id. at 10-11.
8 FAMILY CODE, art. 36 provides:
Art. 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.
9 310 Phil. 21 (1995) [Per J. Vitug, En Banc].
10 335 Phil. 664 (1997) [Per J. Panganiban, En Banc].
11 Santos v. Court of Appeals, 310 Phil. 21, 36 (1995) [Per J. Vitug, En Banc].
12 Id., citing Salita v. Magtolis, 303 Phil. 106 (1994) [Per J. Bellosillo, First Division]. See also Republicv. Court of Appeals and Molina, 335 Phil. 664, 677 (1997) [Per J. Panganiban, En Banc].
13 New Code of Canon Law, Canon 1095 provides:
Canon 1095. They are incapable of contracting marriage:
1. who is lack of sufficient use of reason.
2. who suffer from a grave defect of discretion of judgment concerning essential matrimonial rights and duties, to be given and accepted mutually;
3. who for causes of psychological nature are unable to assume the essential obligations of marriage.
14 Santos v. Court of Appeals, 310 Phil. 21, 37 (1995) [Per J. Vitug, En Banc].
15Id. at 39.
16 Republic v. Court of Appeals and Molina, 335 Phil. 664, 676-680 (1997) [Per J. Panganiban, En Banc].
17 Ngo-Te v. Yu-Te, 598 Phil. 666, 696 (2009) [Per J. Nachura, Third Division].
18 598 Phil. 666 (2009) [Per J. Nachura, Third Division].
19 Id. at 695-696.
20 G.R. No. 166357, January 14, 2015
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/166357.pdf> [Per J. Bersamin, Special First Division].
21 Id. at 6-7.
22 The other four are Azcueta v. Republic, 606 Phil. 177 (2009) [Per J. Leonardo-De Castro, First Division]; Halili v. Santos-Halili, 607 Phil. 1 (2009) [Per J. Corona, Special First Division); Camacho-Reyes v. Reyes, 642 Phil. 602 (2010) [Per J. Nachura, Second Division]; and Aurelio v. Aurelio, 665Phil. 693 (2011) [Per J. Peralta, Second Division].
23 CONST., art. XV, sec. 2 provides:
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
24 See J. Leonen, Dissenting Opinion in Mallilin v. Jamesolamin, G.R. No. 192718, February 18, 2015
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/february2015/192718 leonen.pdf> 13 [Per J. Mendoza, Second Division].
25 CONST., art. XV, sec. 3(1).
26 See Ngo-Te v. Yu-Te, 598 Phil. 666, 698 (2009) [Per J. Nachura, Third Division].
27 J. Romero, Concurring Opinion in Santos v. Court of Appeals, 310 Phil. 21, 43 (1995) [Per J. Vitug, En Banc].
28 Id.
29 CONST., art. II, sec. 6 provides:
Section 6. The separation of Church and State shall be inviolable.
30 An Act to Establish Divorce (1917).
31 Act No. 2710, sec. 1 provides:
SECTION 1. A petition for divorce can only be filed for adultery on the part of the wife or concubinage on the part of the husband, committed in any of the forms described in article four hundred and thirty-seven of the Penal Code.
See Valdez v. Tuason, 40 Phil. 943, 948 (1920) [Per J. Street, En Banc].
32 Otherwise known as "The New Divorce Law."
33 Baptista v. Castañeda, 76 Phil. 461, 462 (1946) [Per J. Ozaeta, En Banc].
34 Id. at 462-463.
35 CONST., art. XV, sec. 1 provides:
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.
36 CONST., art. XV, sec. 2 provides:
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
37 CONST., art. II, sec. 12 provides:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.
38 Carlos H. Conde, Philippines Stands All but Alone in Banning Divorce, THE NEW YORK TIMES, June 17, 2011 <http://www.nytimes.com/2011/06/18/world/asia/18iht-philippines18.html> (visited November 14, 2016).
Pres. Decree No. 1083, otherwise known as the Code of Muslim Personal Laws, allows divorce but only for Filipino Muslims.
39 CONST., art. II, sec. 11 provides that "[t]he State values the dignity of every human person and guarantees full respect for human rights."
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