LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

Louel Santos vs. CA

The failure of Julia to return home or to communicate with her husband Leouel for more than five years does not constitute psychological incapacity. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. Psychological incapacity! should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so e"pressed by #rticle $% of the &amily 'ode, include their mutual obligations to live together, observe love, respect and fidelity and render help and support.

The intendment of the law has been to confine the meaning of !psychological incapacity! to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must e"ist at the time the marriage is celebrated.

G.R. No. 112019 January 4, 1995 LEOUEL SANTOS, petitioner, vs. THE HONORABLE COURT OF APPEALS AN JUL!A ROSAR!O BE !A"SANTOS, respondents. #!TUG, J.: Concededly a highly, if not indeed the most likely, controversial provision introduced by the Family Code is Article 36 (as amended by .!. "o. ##$ dated %$ &uly %'($), *hich declares+ Art. 36. A marriage contracted by any party *ho, at the time of the celebration, *as psychologically incapacitated to comply *ith the essential marital obligations of marriage, shall like*ise be void even if such incapacity becomes manifest only after its solemni,ation. -he present petition for revie* on certiorari, at the instance of .eouel /antos (0.eouel0), brings into fore the above provision *hich is no* invoked by him. 1ndaunted by the decisions of the court a quo 1 and the Court of Appeal, 2 .eouel persists in beseeching its application in his attempt to have his marriage *ith herein private respondent, &ulia 2osario 3edia-/antos (0&ulia0), declared a nullity. 4t *as in 4loilo City *here .eouel, *ho then held the rank of First .ieutenant in the 5hilippine Army, first met &ulia. -he meeting later proved to be an eventful day for .eouel and &ulia. !n #6 /eptember %'(6, the t*o e7changed vo*s before 8unicipal -rial Court &udge Cornelio 9. .a,aro of 4loilo City, follo*ed, shortly thereafter, by a church *edding. .eouel and &ulia lived *ith the latter:s parents at the &. 3edia Compound, .a 5a,, 4loilo City. !n %( &uly %'($, &ulia gave birth to a baby boy, and he *as christened .eouel /antos, &r. -he ecstasy, ho*ever, did not last long. 4t *as bound to happen, .eouel averred, because of the fre;uent interference by &ulia:s parents into the young spouses family affairs. !ccasionally, the couple *ould also start a 0;uarrel0 over a number of other things, like *hen and *here the couple should start living independently from &ulia:s parents or *henever &ulia *ould e7press resentment on .eouel:s spending a fe* days *ith his o*n parents. !n %( 8ay %'((, &ulia finally left for the 1nited /ates of America to *ork as a nurse despite .eouel:s pleas to so dissuade her. /even months after her departure, or on 6% &anuary %'(', &ulia called up .eouel for the first time by long distance telephone. /he promised to return home upon the e7piration of her contract in &uly %'('. /he never did. <hen .eouel got a chance to visit the 1nited /tates, *here he under*ent a training program under the auspices of the Armed Forces of the 5hilippines from 6% April up to #= August %''6, he desperately tried to locate, or to someho* get in touch *ith, &ulia but all his efforts *ere of no avail. >aving failed to get &ulia to someho* come home, .eouel filed *ith the regional trial Court of "egros !riental, 3ranch 36, a complaint for 0?oiding of marriage 1nder Article 36 of the Family Code0 (docketed, Civil Case "o. '(%@). /ummons *as served by publication in a ne*spaper of general circulation in "egros !riental. !n 3% 8ay %''%, respondent &ulia, in her ans*er (through counsel), opposed the complaint and denied its allegations, claiming, in main, that it *as the petitioner *ho had, in fact, been irresponsible and incompetent. A possible collusion bet*een the parties to obtain a decree of nullity of their marriage *as ruled out by the !ffice of the 5rovincial 5rosecutor (in its report to the court).

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LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

!n #= !ctober %''%, after pre-trial conferences had repeatedly been set, albeit unsuccessfully, by the court, &ulia ultimately filed a manifestation, stating that she *ould neither appear nor submit evidence. !n 66 "ovember %''%, the court a quo finally dismissed the complaint for lack of merit. $ .eouel appealed to the Court of Appeal. -he latter affirmed the decision of the trial court. 4 -he petition should be denied not only because of its non-compliance *ith Circular #(-'%, *hich re;uires a certification of non-shopping, but also for its lack of merit. .eouel argues that the failure of &ulia to return home, or at the very least to communicate *ith him, for more than five years are circumstances that clearly sho* her being psychologically incapacitated to enter into married life. 4n his o*n *ords, .eouel asserts+ . . . (-)here is no leave, there is no affection for (him) because respondent &ulia 2osario 3edia-/antos failed all these years to communicate *ith the petitioner. A *ife *ho does not care to inform her husband about her *hereabouts for a period of five years, more or less, is psychologically incapacitated. -he family Code did not define the term 0psychological incapacity.0 -he deliberations during the sessions of the Family Code 2evision Committee, *hich has drafted the Code, can, ho*ever, provide an insight on the import of the provision. Art. 35. -he follo*ing marriages shall be void from the beginning+ 777 777 777 Art. 36. . . . ($) -hose marriages contracted by any party *ho, at the time of the celebration, *as *anting in the sufficient use of reason or Audgment to understand the essential nature of marriage or *as psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration. !n subparagraph ($), *hich as lifted from the Canon .a*, &ustice (&ose 3...) 2eyes suggested that they say 0*anting in sufficient use,0 but &ustice ( duardo) Caguioa preferred to say 0*anting in the sufficient use.0 !n the other hand, &ustice 2eyes proposed that they say 0*anting in sufficient reason.0 &ustice Caguioa, ho*ever, pointed out that the idea is that one is not lacking in Audgment but that he is lacking in the e7ercise of Audgment. >e added that lack of Audgment *ould make the marriage voidable. &udge (Alicia /empio-) Biy remarked that lack of Audgment is more serious than insufficient use of Audgment and yet the latter *ould make the marriage null and void and the former only voidable. &ustice Caguioa suggested that subparagraph ($) be modified to read+ 0-hat contracted by any party *ho, at the time of the celebration, *as psychologically incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration.0 &ustice Caguioa e7plained that the phrase 0*as *anting in sufficient use of reason of Audgment to understand the essential nature of marriage0 refers to defects in the mental faculties vitiating consent, *hich is not the idea in subparagraph ($), but lack of appreciation of one:s marital obligations. &udge Biy raised the ;uestion+ /ince 0insanity0 is also a psychological or mental incapacity, *hy is 0insanity0 only a ground for annulment and not for declaration or nullityC 4n reply, &ustice Caguioa e7plained that in insanity, there is the appearance of consent, *hich is the reason *hy it is a ground for voidable marriages, *hile subparagraph ($) does not refer to consent but to the very essence of marital obligations. 5rof. (Araceli) 3aviera suggested that, in subparagraph ($), the *ord 0mentally0 be deleted, *ith *hich &ustice Caguioa concurred. &udge Biy, ho*ever, prefers to retain the *ord 0mentally.0 &ustice Caguioa remarked that subparagraph ($) refers to psychological impotence. &ustice (2icardo) 5uno stated that sometimes a person may be psychologically impotent *ith one but not *ith another. &ustice (.eonor 4nes-) .uciano said that it is called selective impotency. Bean (Fortunato) 9upit stated that the confusion lies in the fact that in inserting the Canon .a* annulment in the Family Code, the Committee used a language *hich describes a ground for voidable marriages under the Civil Code. &ustice Caguioa added that in Canon .a*, there are voidable marriages under the Canon .a*, there are no voidable marriages Bean 9upit said that this is precisely the reason *hy they should make a distinction. &ustice 5uno remarked that in Canon .a*, the defects in marriage cannot be cured.

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LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

&ustice 2eyes pointed out that the problem is+ <hy is 0insanity0 a ground for void ab initio marriagesC 4n reply, &ustice Caguioa e7plained that insanity is curable and there are lucid intervals, *hile psychological incapacity is not. !n another point, &ustice 5uno suggested that the phrase 0even if such lack or incapacity is made manifest0 be modified to read 0even if such lack or incapacity becomes manifest.0 &ustice 2eyes remarked that in insanity, at the time of the marriage, it is not apparent. &ustice Caguioa stated that there are t*o interpretations of the phrase 0psychological or mentally incapacitated0 D in the first one, there is vitiation of consent because one does not kno* all the conse;uences of the marriages, and if he had kno*n these completely, he might not have consented to the marriage. 777 777 777 5rof. 3autista stated that he is in favor of making psychological incapacity a ground for voidable marriages since other*ise it *ill encourage one *ho really understood the conse;uences of marriage to claim that he did not and to make e7cuses for invalidating the marriage by acting as if he did not understand the obligations of marriage. Bean 9upit added that it is a loose *ay of providing for divorce. 777 777 777 &ustice Caguioa e7plained that his point is that in the case of incapacity by reason of defects in the mental faculties, *hich is less than insanity, there is a defect in consent and, therefore, it is clear that it should be a ground for voidable marriage because there is the appearance of consent and it is capable of convalidation for the simple reason that there are lucid intervals and there are cases *hen the insanity is curable. >e emphasi,ed that psychological incapacity does not refer to mental faculties and has nothing to do *ith consentE it refers to obligations attendant to marriage. 777 777 777 !n psychological incapacity, 5rof. (Flerida 2uth 5.) 2omero in;uired if they do not consider it as going to the very essence of consent. /he asked if they are really removing it from consent. 4n reply, &ustice Caguioa e7plained that, ultimately, consent in general is effected but he stressed that his point is that it is not principally a vitiation of consent since there is a valid consent. >e obAected to the lumping together of the validity of the marriage celebration and the obligations attendant to marriage, *hich are completely different from each other, because they re;uire a different capacity, *hich is eighteen years of age, for marriage but in contract, it is different. &ustice 5uno, ho*ever, felt that psychological incapacity is still a kind of vice of consent and that it should not be classified as a voidable marriage *hich is incapable of convalidationE it should be convalidated but there should be no prescription. 4n other *ords, as long as the defect has not been cured, there is al*ays a right to annul the marriage and if the defect has been really cured, it should be a defense in the action for annulment so that *hen the action for annulment is instituted, the issue can be raised that actually, although one might have been psychologically incapacitated, at the time the action is brought, it is no longer true that he has no concept of the conse;uence of marriage. 5rof. ( steban) 3autista raised the ;uestion+ <ill not cohabitation be a defenseC 4n response, &ustice 5uno stated that even the bearing of children and cohabitation should not be a sign that psychological incapacity has been cured. 5rof. 2omero opined that psychological incapacity is still insanity of a lesser degree. &ustice .uciano suggested that they invite a psychiatrist, *ho is the e7pert on this matter. &ustice Caguioa, ho*ever, reiterated that psychological incapacity is not a defect in the mind but in the understanding of the conse;uences of marriage, and therefore, a psychiatrist *ill not be a help. 5rof. 3autista stated that, in the same manner that there is a lucid interval in insanity, there are also momentary periods *hen there is an understanding of the conse;uences of marriage. &ustice 2eyes and Bean 9upit remarked that the ground of psychological incapacity *ill not apply if the marriage *as contracted at the time *hen there is understanding of the conse;uences of marriage. 5 777 777 777 &udge Biy proposed that they include physical incapacity to copulate among the grounds for void marriages. &ustice 2eyes commented that in some instances the impotence that in some instances the impotence is only temporary and only *ith respect to a particular person. &udge Biy stated that they can specify that it is incurable. &ustice Caguioa remarked that the term 0incurable0 has a different meaning in la* and in medicine. &udge Biy stated that 0psychological incapacity0 can also be cured. &ustice Caguioa, ho*ever, pointed out that 0psychological incapacity0 is incurable. &ustice 5uno observed that under the present draft provision, it is enough to sho* that at the time of the celebration of the marriage, one *as psychologically incapacitated so that later on if already he can comply *ith the essential marital obligations, the marriage is still void ab initio. &ustice Caguioa e7plained that since in divorce, the psychological incapacity may occur after the marriage, in void marriages, it has to be at the time of the celebration

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LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

of marriage. >e, ho*ever, stressed that the idea in the provision is that at the time of the celebration of the marriage, one is psychologically incapacitated to comply *ith the essential marital obligations, *hich incapacity continues and later becomes manifest. &ustice 5uno and &udge Biy, ho*ever, pointed out that it is possible that after the marriage, one:s psychological incapacity become manifest but later on he is cured. &ustice 2eyes and &ustice Caguioa opined that the remedy in this case is to allo* him to remarry. % 777 777 777 &ustice 5uno formulated the ne7t Article as follo*s+ Art. 3$. A marriage contracted by any party *ho, at the time of the celebration, *as psychologically incapacitated, to comply *ith the essential obligations of marriage shall like*ise be void from the beginning even if such incapacity becomes manifest after its solemni,ation. &ustice Caguioa suggested that 0even if0 be substituted *ith 0although.0 !n the other hand, 5rof. 3autista proposed that the clause 0although such incapacity becomes manifest after its solemni,ation0 be deleted since it may encourage one to create the manifestation of psychological incapacity. &ustice Caguioa pointed out that, as in other provisions, they cannot argue on the basis of abuse. &udge Biy suggested that they also include mental and physical incapacities, *hich are lesser in degree than psychological incapacity. &ustice Caguioa e7plained that mental and physical incapacities are vices of consent *hile psychological incapacity is not a species of vice or consent. Bean 9upit read *hat 3ishop Cru, said on the matter in the minutes of their February ', %'(@ meeting+ 0!n the third ground, 3ishop Cru, indicated that the phrase 0psychological or mental impotence0 is an invention of some churchmen *ho are moralists but not canonists, that is *hy it is considered a *eak phrase. >e said that the Code of Canon .a* *ould rather e7press it as 0psychological or mental incapacity to discharge . . .0 &ustice Caguioa remarked that they deleted the *ord 0mental0 precisely to distinguish it from vice of consent. >e e7plained that 0psychological incapacity0 refers to lack of understanding of the essential obligations of marriage. &ustice 5uno reminded the members that, at the last meeting, they have decided not to go into the classification of 0psychological incapacity0 because there *as a lot of debate on it and that this is precisely the reason *hy they classified it as a special case. At this point, &ustice 5uno, remarked that, since there having been annulments of marriages arising from psychological incapacity, Civil .a* should not reconcile *ith Canon .a* because it is a ne* ground even under Canon .a*. 5rof. 2omero raised the ;uestion+ <ith this common provision in Civil .a* and in Canon .a*, are they going to have a provision in the Family Code to the effect that marriages annulled or declared void by the church on the ground of psychological incapacity is automatically annulled in Civil .a*C -he other members replied negatively. &ustice 5uno and 5rof. 2omero in;uired if Article 3$ should be retroactive or prospective in application. &ustice Biy opined that she *as for its retroactivity because it is their ans*er to the problem of church annulments of marriages, *hich are still valid under the Civil .a*. !n the other hand, &ustice 2eyes and &ustice 5uno *ere concerned about the avalanche of cases. Bean 9upit suggested that they put the issue to a vote, *hich the Committee approved. -he members voted as follo*s+ %) &ustice 2eyes, &ustice 5uno and 5rof. 2omero *ere for prospectivity. #) &ustice Caguioa, &udge Biy, Bean 9upit, 5rof. 3autista and Birector ufemio *ere for retroactivity. 3) 5rof. 3aviera abstained. &ustice Caguioa suggested that they put in the prescriptive period of ten years *ithin *hich the action for declaration of nullity of the marriage should be filed in court. -he Committee approved the suggestion. & 4t could *ell be that, in sum, the Family Code 2evision Committee in ultimately deciding to adopt the provision *ith less specificity than e7pected, has in fact, so designed the la* as to allo* some resiliency in its application.

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LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

8me. &ustice Alicia ?. /empio-Biy, a member of the Code Committee, has been ;uoted by 8r. &ustice &osue ". 3ellosillo in Salita vs. Hon. Magtolis (9.2. "o. %66@#', %3 &une %''@)E thus+ ' -he Committee did not give any e7amples of psychological incapacity for fear that the giving of e7amples *ould limit the applicability of the provision under the principle of ejusdem generis. 2ather, the Committee *ould like the Audge to interpret the provision on a case-to-case basis, guided by e7perience, the findings of e7perts and researchers in psychological disciplines, and by decisions of church tribunals *hich, although not binding on the civil courts, may be given persuasive effect since the provision *as taken from Canon .a*. A part of the provision is similar to Canon %6'= of the "e* Code of Canon .a*, 9 *hich reads+ Canon %6'=. -hey are incapable of contracting marriage+ %. #. 3. *ho lack sufficient use of reasonE *ho suffer from a grave defect of discretion of Audgment concerning essentila matrimonial rights and duties, to be given and accepted mutuallyE Who for causes of psychological nature are unable to assume the essential obligations of marriage . ( mphasis supplied.)

Accordingly, although neither decisive nor even perhaps all that persuasive for having no Auridical or secular effect, the Aurisprudence under Canon .a* prevailing at the time of the code:s enactment, nevertheless, cannot be dismissed as impertinent for its value as an aid, at least, to the interpretation or construction of the codal provision. !ne author, .adislas !rsy, /.&., in his treaties, been framed, states+
10

giving an account on ho* the third paragraph of Canon %6'= has

-he history of the drafting of this canon does not leave any doubt that the legislator intended, indeed, to broaden the rule. A strict and narro* norm *as proposed first+ -hose *ho cannot assume the essential obligations of marriage because of a grave psycho-se7ual anomaly (ob gravem anomaliam psychose7ualem) are unable to contract marriage ( cf /C>F%'$=, canon #'$, a ne* canon, novus)E then a broader one follo*ed+ . . . because of a grave psychological anomaly (ob gravem anomaliam psychicam) . . . (cf /C>F%'(6, canon %6@')E then the same *ording *as retained in the te7t submitted to the pope ( cf /C>F%'(#, canon %6'=, 3)Efinally, a ne* version *as promulgated+ because of causes of a psychological nature (ob causas naturae psychiae). /o the progress *as from psycho-se7ual to psychological anomaly, then the term anomaly *as altogether eliminated. it *ould be, ho*ever, incorrect to dra* the conclusion that the cause of the incapacity need not be some kind of psychological disorderE after all, normal and healthy person should be able to assume the ordinary obligations of marriage. Fr. !rsy concedes that the term 0psychological incapacity0 defies any precise definition since psychological causes can be of an infinite variety. 4n a book, entitled 0Canons and Commentaries on 8arriage,0 *ritten by 4gnatius 9ramunt, &avier >ervada and .e2oy <auck, the follo*ing e7planation appears+ -his incapacity consists of the follo*ing+ (a) a true inability to commit oneself to the essentials of marriage. /ome psychose7ual disorders and other disorders of personality can be the psychic cause of this defect, *hich is here described in legal terms. -his particular type of incapacity consists of a real inability to render !hat is due by the contract. -his could be compared to the incapacity of a farmer to enter a binding contract to deliver the crops *hich he cannot possibly reapE (b) this inability to commit oneself must refer to the essential obligations of marriage+ the conAugal act, the community of life and love, the rendering of mutual help, the procreation and education of offspringE (c) the inability must be tantamount to a psychological abnormality. "he mere difficulty of assuming these obligations# !hich could be overcome by normal effort# obviously does not constitute incapacity "he canon contemplates a true psychological disorder !hich incapacitates a person from giving !hat is due (cf &ohn 5aul 44, Address to 2. 2ota, Feb. =, %'($). >o*ever, if the marriage is to be declared invalid under this incapacity, it must be proved not only that the person is afflicted by a psychological defect, but that the defect did in fact deprive the person, at the moment of giving consent, of the ability to assume the essential duties of marriage and conse;uently of the possibility of being bound by these duties.

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LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

&ustice /empio-Biy 11 cites *ith approval the *ork of Br. 9erardo ?eloso, a former 5residing &udge of the 8etropolitan 8arriage -ribunal of the Catholic Archdiocese of 8anila (3ranch %), *ho opines that psychological incapacity must be characteri,ed by (a) gravity, (b) Auridical antecedence, and (c) incurability. -he incapacity must be grave or serious such that the party *ould be incapable of carrying out the ordinary duties re;uired in marriageE it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriageE and it must be incurable or, even if it *ere other*ise, the cure *ould be beyond the means of the party involved. 4t should be obvious, looking at all the foregoing dis;uisitions, including, and most importantly, the deliberations of the Family Code 2evision Committee itself, that the use of the phrase 0psychological incapacity0 under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, like*ise mentioned by some ecclesiastical authorities, e7tremely lo* intelligence, immaturity, and like circumstances (cited in Fr. Artemio 3aluma:s 0?oid and ?oidable 8arriages in the Family Code and their 5arallels in Canon .a*,0 ;uoting from the Biagnostic /tatistical 8anual of 8ental Bisorder by the American 5sychiatric AssociationE d*ard >udson:s 0>andbook 44 for 8arriage "ullity Cases0). Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conAunction *ith, e7isting precepts in our la* on marriage. -hus correlated, 0psychological incapacity0 should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage *hich, as so e7pressed by Article 6( of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. -here is hardly any doubt that the intendment of the la* has been to confine the meaning of 0psychological incapacity0 to the most serious cases of personality disorders clearly demonstrative of an utter intensitivity or inability to give meaning and significance to the marriage. -his pschologic condition must e7ist at the time the marriage is celebrated. -he la* does not evidently envision, upon the other hand, an inability of the spouse to have se7ual relations *ith the other. -his conclusion is implicit under Article =@ of the Family Code *hich considers children conceived prior to the Audicial declaration of nullity of the void marriage to be 0legitimate.0 -he other forms of psychoses, if e7isting at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homose7uality or lesbianism, merely renders the marriage contract voidable pursuant to Article @6, Family Code. 4f drug addiction, habitual alcholism, lesbianism or homose7uality should occur only during the marriage, they become mere grounds for legal separation under Article == of the Family Code. -hese provisions of the Code, ho*ever, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity. 1ntil further statutory and Aurisprudential parameters are established, every circumstance that may have some bearing on the degree, e7tent, and other conditions of that incapacity must, in every case, be carefully e7amined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. -he *ell-considered opinions of psychiatrists, psychologists, and persons *ith e7pertise in psychological disciplines might be helpful or even desirable. 8arriage is not an adventure but a lifetime commitment. <e should continue to be reminded that innate in our society, then enshrined in our Civil Code, and even no* still indelible in Article % of the Family Code, is that D Art. %. 8arriage is a special contract of permanent union bet*een a man a *oman entered into in accordance *ith la* for the establishment of conAugal and family life. 4t is the foundation of the family and an inviolable social institution *hose nature, conse;uences, and incidents are governed by la* and not subAect to stipulation, e7cept that marriage settlements may fi7 the property relations during the marriage *ithin the limits provided by this Code. ( mphasis supplied.) Our Con()*)u)*on *( no +,(( ,-./a)*01 /ec. %. -he /tate recogni,es the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. /ec. #. 8arriage, as an inviolable social institution, is the foundation of the family and shall be protected by the /tate. (Article G?, %'($ Constitution). -he above provisions e7press so *ell and so distinctly the basic nucleus of our la*s on marriage and the family, and they are doubt the tenets *e still hold on to. -he factual settings in the case at bench, in no measure at all, can come close to the standards re;uired to decree a nullity of marriage. 1ndeniably and understandably, .eouel stands aggrieved, even desperate, in his present situation. 2egrettably, neither la* nor society itself can al*ays provide all the specific ans*ers to every individual problem. <> 2 F!2 , the petition is B "4 B.

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LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

/! !2B 2 B. $arvasa# % & # 'idin# (egalado# )avide# &r # (omero# 'ellosillo# Melo# *uiason# +uno ,apunan and Mendo-a# && # concur .eliciano# & # is on leave S,.ara), O.*n*on( PA !LLA, J., dissenting+ 4t is difficult to dissent from a *ell-*ritten and studied opinion as 8r. &ustice ?itug:s ponencia. 3ut, after an e7tended reflection on the facts of this case, 4 cannot see my *ay clear into holding, as the maAority do, that there is no ground for the declaration of nullity of the marriage bet*een petitioner and private respondent. -o my mind, it is clear that private respondent has been sho*n to be psychologically incapacitated to comply *ith at least one essential marital obligation, i.e. that of living and cohabiting *ith her husband, herein petitioner. !n the other hand, it has not been sho*n that petitioner does not deserve to live and cohabit *ith his *ife, herein private respondent. -here appears to be no disagreement that the term 0psychological incapacity0 defies precision in definition. 3ut, as used in Article 36 of the Family Code as a ground for the declaration of nullity of a marriage, the intent of the framers of the Code is evidently to e7pand and liberali,e the grounds for nullifying a marriage, as *ell pointed out by 8adam &ustice Flerida 2uth 5. 2omero in her separate opinion in this case. <hile it is true that the board term 0psychological incapacity0 can open the doors to abuse by couples *ho may *ish to have an easy *ay out of their marriage, there are, ho*ever, enough safeguards against this contingency, among *hich, is the intervention by the /tate, through the public prosecutor, to guard against collusion bet*een the parties andFor fabrication of evidence. 4n their case at bench, it has been abundantly established that private respondent &ulia 2osario 3edia-/antos e7hibits specific behavior *hich, to my mind, sho*s that she is psychologically incapacitated to fulfill her essential marital obligations, to *rit+ a. b. c. 4t took her seven ($) months after she left for the 1nited /tates to call up her husband. &ulia promised to return home after her Aob contract e7pired in &uly %'(', but she never did and neither is there any sho*ing that she informed her husband (herein petitioner) of her *hereabouts in the 1./.A. <hen petitioner *ent to the 1nited /tates on a mission for the 5hilippine Army, he e7erted efforts to 0touch base0 *ith &uliaE there *ere no similar efforts on the part of &uliaE there *ere no similar efforts on the part of &ulia to do the same. <hen petitioner filed this suit, more than five (=) years had elapsed, *ithout &ulia indicating her plans to reAoin the petitioner or her *hereabouts. <hen petitioner filed this case in the trial court, &ulia, in her ans*er, claimed that it is the former *ho has been irresponsible and incompetent. Buring the trial, &ulia *aived her right to appear and submit evidence.

d. e. f.

A spouse:s obligation to live and cohabit *ith hisFher partner in marriage is a basic ground rule in marriage, unless there are overpo*ering compelling reasons such as, for instance, an incurable contagious disease on the part of a spouse or cruelty of one partner, bordering on insanity. -here may also be instances *hen, for economic and practical reasons, husband and *ife have to live separately, but the marital bond bet*een the spouses al*ays remains. 8utual love and respect for each other *ould, in such cases, compel the absent spouse to at least have regular contracts *ith the other to inform the latter of hisFher condition and *hereabouts. 4n the present case, it is apparent that private respondent &ulia 2osario 3edia-/antos has no intention of cohabiting *ith petitioner, her husband, or maintaining contact *ith him. 4n fact, her acts elo;uently sho* that she does not *ant her husband to kno* of her *hereabouts and neither has she any intention of living and cohabiting *ith him. -o me there appears to be, on the part of private respondent, an unmistakeable indication of psychological incapacity to comply *ith her essential marital obligations, although these indications *ere made manifest after the celebration of the marriage. 4t *ould be a great inAustice, 4 believe, to petitioner for this Court to give a much too restrictive interpretation of the la* and compel the petitioner to continue to be married to a *ife *ho for purposes of fulfilling her marital duties has, for all practical purposes, ceased to e7ist.

BSU LA

PERSONS AND FA!IL" RELATIONS

P#$e , o& %'

LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

3esides, there are public policy considerations involved in the ruling the Court makes today. 4s it not, in effect directly or indirectly, facilitating the transformation of petitioner into a 0habitual tryster0 or one forced to maintain illicit relations *ith another *oman or *omen *ith emerging problems of illegitimate children, simply because he is denied by private respondent, his *ife, the companionship and conAugal love *hich he has sought from her and to *hich he is legally entitledC 4 do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute divorce but 4 submit that *e should not constrict it to non-recognition of its evident purpose and thus deny to one like petitioner, an opportunity to turn a ne* leaf in his life by declaring his marriage a nullity by reason of his *ife:s psychological incapacity to perform an essential marital obligation. 4 therefore vote to 92A"- the petition and to B C.A2 the marriage bet*een petitioner .eouel /antos and private respondent &ulia 2osario 3edia-/antos ?!4B on the basis of Article 36 of the Family Code. RO2ERO, J., concurring+ 4 agree under the circumstances of the case, petitioner is not entitled to have his marriage declared a nullity on the ground of psychological incapacity of private respondent. >o*ever, as a member of both the Family .a* 2evision Committee of the 4ntegrated 3ar of the 5hilippines and the Civil Code 2evision Committee of the 15 .a* Center, 4 *ish to add some observations. -he letter 1 dated April %=, %'(= of then &udge Alicia ?. /empio-Biy *ritten in behalf of the Family .a* and Civil Code 2evision Committee to then Assembly*oman 8ercedes CoAuangco--eodoro traced the background of the inclusion of the present Article 36 in the Family Code. Buring its early meetings, the Family .a* Committee had thought of including a chapter on absolute divorce in the draft of a ne* Family Code (3ook 4 of the Civil Code) that it had been tasked by the 435 and the 15 .a* Center to prepare. 4n fact, some members of the Committee *ere in favor of a no-fault divorce bet*een the spouses after a number of years of separation, legal or de/facto. &ustice &.3... 2eyes *as then re;uested to prepare a proposal for an action for dissolution of marriage and the effects thereof based on t*o grounds+ (a) five continuous years of separation bet*een the spouses, *ith or *ithout a Audicial decree of legal separation, and (b) *henever a married person *ould have obtained a decree of absolute divorce in another country. Actually, such a proposal is one for absolute divorce but called by another name. .ater, even the Civil Code 2evision Committee took time to discuss the proposal of &ustice 2eyes on this matter. /ubse;uently, ho*ever, *hen the Civil Code 2evision Committee and Family .a* Committee started holding Aoint meetings on the preparation of the draft of the "e* Family Code, they agreed and formulated the definition of marriage as D 0a special contract of permanent partnership bet*een a man and a *oman entered into in accordance *ith la* for the establishment of conAugal and family life. 4t is an inviolable social institution *hose nature, conse;uences, and incidents are governed by la* and not subAect to stipulation, e7cept that marriage settlements may fi7 the property relations during the marriage *ithin the limits provided by la*.0 <ith the above definition, and considering the Christian traditional concept of marriage of the Filipino people as a permanent, inviolable, indissoluble social institution upon *hich the family and society are founded, and also reali,ing the strong opposition that any provision on absolute divorce *ould encounter from the Catholic Church and the Catholic sector of our citi,enry to *hom the great maAority of our people belong, the t!o %ommittees in their joint meetings did not pursue the idea of absolute divorce and instead opted for an action for judicial declaration of invalidity of marriage based on grounds available in the %anon 0a! 1t !as thought that such an action !ould not only be an acceptable alternative to divorce but !ould also solve the nagging problem of church annulments of marriages on grounds not recogni-ed by the civil la! of the State . &ustice 2eyes *as thus re;uested to again prepare a draft of provisions on such action for celebration of invalidity of marriage. /till later, to avoid the overlapping of provisions on void marriages as found in the present Civil Code and those proposed by &ustice 2eyes on Audicial declaration of invalidity of marriage on grounds similar to the Canon .a*, the t*o Committees no* *orking as a &oint Committee in the preparation of a "e* Family Code decided to consolidate the present provisions on void marriages *ith the proposals of &ustice 2eyes. -he result *as the inclusion of an additional kind of void marriage in the enumeration of void marriages in the present Civil Code, to !it+ 0($) -hose marriages contracted by any party *ho, at the time of the celebration, *as *anting in the sufficient use of reason or Audgment to understand the essential nature of marriage or *as psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration.0 as *ell as the follo*ing implementing provisions+ 0Art. 3#. -he absolute nullity of a marriage may be invoked or pleaded only on the basis of a final Audgment declaring the marriage void, *ithout preAudice to the provision of Article 3@.0

BSU LA

PERSONS AND FA!IL" RELATIONS

P#$e - o& %'

LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

0Art. 33. -he action or defense for the declaration of the absolute nullity of a marriage shall not prescribe.0 777 777 777 4t is believed that many hopelessly broken marriages in our country today may already dissolved or annulled on the grounds proposed by the &oint Committee on declaration of nullity as *ell as annulment of marriages, thus rendering an absolute divorce la* unnecessary. 4n fact, during a conference *ith Father 9erald >ealy of the Ateneo 1niversity as *ell as another meeting *ith Archbishop !scar Cru, of the Archdiocese of 5ampanga, the &oint Committee *as informed that since ?atican 44, the Catholic Church has been declaring marriages null and void on the ground of 0lack of due discretion0 for causes that, in other Aurisdictions, *ould be clear grounds for divorce, like teen-age or premature marriagesE marriage to a man *ho, because of some personality disorder or disturbance, cannot support a familyE the foolish or ridiculous choice of a spouse by an other*ise perfectly normal personE marriage to a *oman *ho refuses to cohabit *ith her husband or *ho refuses to have children. 3ishop Cru, also informed the Committee that they have found out in tribunal *ork that a lot of machismo among husbands are manifestations of their sociopathic personality anomaly, like inflicting physical violence upon their *ives, constitutional indolence or la,iness, drug dependence or addiction, and psychological anomaly. . . . ( mphasis supplied) Clearly, by incorporating *hat is no* Article 36 into the Family Code, the 2evision Committee referred to above intended to add another ground to those already listed in the Civil Code as grounds for nullifying a marriage, thus e7panding or liberali,ing the same. 4nherent in the inclusion of the provision on psychological incapacity *as the understanding that every petition for declaration of nullity based on it should be treated on a case-to-case basisE hence, the absence of a definition and an enumeration of *hat constitutes psychological incapacity. 8oreover, the Committee feared that the giving of e7amples *ould limit the applicability of the provision under the principle ofejusdem generis. 3ut the la* re;uires that the same be e7isting at the time of marriage although it be manifested later. Admittedly, the provision on psychological incapacity, Aust like any other provision of la*, is open to abuse. -o prevent this, 0the court shall take order the prosecuting attorney or fiscal assigned to it to appear on behalf of the /tate to take steps to prevent collusion bet*een the parties and to take care that evidence is not fabricated or suppressed.0 2 8oreover, the Audge, in interpreting the provision on a case-to-case basis, must be guided by 0e7perience, the findings of e7perts and researchers in psychological disciplines, and by decisions of church tribunals *hich, although not binding on the civil courts, may be given persuasive effect since the provisions *as taken from Canon .a*.0 $ -he constitutional and statutory provisions on the family 4 *ill remain the lodestar *hich our society *ill hope to achieve ultimately. -herefore, the inclusion of Article 36 is not to be taken as an abandonment of the ideal *hich *e all cherish. 4f at all, it is a recognition of the reality that some marriages, by reason of the incapacity of one of the contracting parties, fall short of this idealE thus, the parties are constrained to find a *ay of putting an end to their union through some legally-accepted means. Any criticism directed at the *ay that Audges have interpreted the provision since its enactment as to render it easier for unhappily-married couples to separate is addressed, not to the *isdom of the la*makers but to the manner by *hich some members of the 3ench have implemented the provision. -hese are not interchangeable, each being separate and distinct from the other. S,.ara), O.*n*on( PA !LLA, J., dissenting+ 4t is difficult to dissent from a *ell-*ritten and studied opinion as 8r. &ustice ?itug:s ponencia. 3ut, after an e7tended reflection on the facts of this case, 4 cannot see my *ay clear into holding, as the maAority do, that there is no ground for the declaration of nullity of the marriage bet*een petitioner and private respondent. -o my mind, it is clear that private respondent has been sho*n to be psychologically incapacitated to comply *ith at least one essential marital obligation, i.e. that of living and cohabiting *ith her husband, herein petitioner. !n the other hand, it has not been sho*n that petitioner does not deserve to live and cohabit *ith his *ife, herein private respondent. -here appears to be no disagreement that the term 0psychological incapacity0 defies precision in definition. 3ut, as used in Article 36 of the Family Code as a ground for the declaration of nullity of a marriage, the intent of the framers of the Code is evidently to e7pand and liberali,e the grounds for nullifying a marriage, as *ell pointed out by 8adam &ustice Flerida 2uth 5. 2omero in her separate opinion in this case. <hile it is true that the board term 0psychological incapacity0 can open the doors to abuse by couples *ho may *ish to have an easy *ay out of their marriage, there are, ho*ever, enough safeguards against this contingency, among *hich, is the intervention by the /tate, through the public prosecutor, to guard against collusion bet*een the parties andFor fabrication of evidence.

BSU LA

PERSONS AND FA!IL" RELATIONS

P#$e . o& %'

LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

4n their case at bench, it has been abundantly established that private respondent &ulia 2osario 3edia-/antos e7hibits specific behavior *hich, to my mind, sho*s that she is psychologically incapacitated to fulfill her essential marital obligations, to *rit+ a. b. c. 4t took her seven ($) months after she left for the 1nited /tates to call up her husband. &ulia promised to return home after her Aob contract e7pired in &uly %'(', but she never did and neither is there any sho*ing that she informed her husband (herein petitioner) of her *hereabouts in the 1./.A. <hen petitioner *ent to the 1nited /tates on a mission for the 5hilippine Army, he e7erted efforts to 0touch base0 *ith &uliaE there *ere no similar efforts on the part of &uliaE there *ere no similar efforts on the part of &ulia to do the same. <hen petitioner filed this suit, more than five (=) years had elapsed, *ithout &ulia indicating her plans to reAoin the petitioner or her *hereabouts. <hen petitioner filed this case in the trial court, &ulia, in her ans*er, claimed that it is the former *ho has been irresponsible and incompetent. Buring the trial, &ulia *aived her right to appear and submit evidence.

d. e. f.

A spouse:s obligation to live and cohabit *ith hisFher partner in marriage is a basic ground rule in marriage, unless there are overpo*ering compelling reasons such as, for instance, an incurable contagious disease on the part of a spouse or cruelty of one partner, bordering on insanity. -here may also be instances *hen, for economic and practical reasons, husband and *ife have to live separately, but the marital bond bet*een the spouses al*ays remains. 8utual love and respect for each other *ould, in such cases, compel the absent spouse to at least have regular contracts *ith the other to inform the latter of hisFher condition and *hereabouts. 4n the present case, it is apparent that private respondent &ulia 2osario 3edia-/antos has no intention of cohabiting *ith petitioner, her husband, or maintaining contact *ith him. 4n fact, her acts elo;uently sho* that she does not *ant her husband to kno* of her *hereabouts and neither has she any intention of living and cohabiting *ith him. -o me there appears to be, on the part of private respondent, an unmistakeable indication of psychological incapacity to comply *ith her essential marital obligations, although these indications *ere made manifest after the celebration of the marriage. 4t *ould be a great inAustice, 4 believe, to petitioner for this Court to give a much too restrictive interpretation of the la* and compel the petitioner to continue to be married to a *ife *ho for purposes of fulfilling her marital duties has, for all practical purposes, ceased to e7ist. 3esides, there are public policy considerations involved in the ruling the Court makes today. 4s it not, in effect directly or indirectly, facilitating the transformation of petitioner into a 0habitual tryster0 or one forced to maintain illicit relations *ith another *oman or *omen *ith emerging problems of illegitimate children, simply because he is denied by private respondent, his *ife, the companionship and conAugal love *hich he has sought from her and to *hich he is legally entitledC 4 do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute divorce but 4 submit that *e should not constrict it to non-recognition of its evident purpose and thus deny to one like petitioner, an opportunity to turn a ne* leaf in his life by declaring his marriage a nullity by reason of his *ife:s psychological incapacity to perform an essential marital obligation. 4 therefore vote to 92A"- the petition and to B C.A2 the marriage bet*een petitioner .eouel /antos and private respondent &ulia 2osario 3edia-/antos ?!4B on the basis of Article 36 of the Family Code. RO2ERO, J., concurring+ 4 agree under the circumstances of the case, petitioner is not entitled to have his marriage declared a nullity on the ground of psychological incapacity of private respondent. >o*ever, as a member of both the Family .a* 2evision Committee of the 4ntegrated 3ar of the 5hilippines and the Civil Code 2evision Committee of the 15 .a* Center, 4 *ish to add some observations. -he letter 1 dated April %=, %'(= of then &udge Alicia ?. /empio-Biy *ritten in behalf of the Family .a* and Civil Code 2evision Committee to then Assembly*oman 8ercedes CoAuangco--eodoro traced the background of the inclusion of the present Article 36 in the Family Code. Buring its early meetings, the Family .a* Committee had thought of including a chapter on absolute divorce in the draft of a ne* Family Code (3ook 4 of the Civil Code) that it had been tasked by the 435 and the 15 .a* Center to

BSU LA

PERSONS AND FA!IL" RELATIONS

P#$e %/ o& %'

LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

prepare. 4n fact, some members of the Committee *ere in favor of a no-fault divorce bet*een the spouses after a number of years of separation, legal or de/facto. &ustice &.3... 2eyes *as then re;uested to prepare a proposal for an action for dissolution of marriage and the effects thereof based on t*o grounds+ (a) five continuous years of separation bet*een the spouses, *ith or *ithout a Audicial decree of legal separation, and (b) *henever a married person *ould have obtained a decree of absolute divorce in another country. Actually, such a proposal is one for absolute divorce but called by another name. .ater, even the Civil Code 2evision Committee took time to discuss the proposal of &ustice 2eyes on this matter. /ubse;uently, ho*ever, *hen the Civil Code 2evision Committee and Family .a* Committee started holding Aoint meetings on the preparation of the draft of the "e* Family Code, they agreed and formulated the definition of marriage as D 0a special contract of permanent partnership bet*een a man and a *oman entered into in accordance *ith la* for the establishment of conAugal and family life. 4t is an inviolable social institution *hose nature, conse;uences, and incidents are governed by la* and not subAect to stipulation, e7cept that marriage settlements may fi7 the property relations during the marriage *ithin the limits provided by la*.0 <ith the above definition, and considering the Christian traditional concept of marriage of the Filipino people as a permanent, inviolable, indissoluble social institution upon *hich the family and society are founded, and also reali,ing the strong opposition that any provision on absolute divorce *ould encounter from the Catholic Church and the Catholic sector of our citi,enry to *hom the great maAority of our people belong, the t!o %ommittees in their joint meetings did not pursue the idea of absolute divorce and instead opted for an action for judicial declaration of invalidity of marriage based on grounds available in the %anon 0a! 1t !as thought that such an action !ould not only be an acceptable alternative to divorce but !ould also solve the nagging problem of church annulments of marriages on grounds not recogni-ed by the civil la! of the State . &ustice 2eyes *as thus re;uested to again prepare a draft of provisions on such action for celebration of invalidity of marriage. /till later, to avoid the overlapping of provisions on void marriages as found in the present Civil Code and those proposed by &ustice 2eyes on Audicial declaration of invalidity of marriage on grounds similar to the Canon .a*, the t*o Committees no* *orking as a &oint Committee in the preparation of a "e* Family Code decided to consolidate the present provisions on void marriages *ith the proposals of &ustice 2eyes. -he result *as the inclusion of an additional kind of void marriage in the enumeration of void marriages in the present Civil Code, to !it+ 0($) -hose marriages contracted by any party *ho, at the time of the celebration, *as *anting in the sufficient use of reason or Audgment to understand the essential nature of marriage or *as psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration.0 as *ell as the follo*ing implementing provisions+ 0Art. 3#. -he absolute nullity of a marriage may be invoked or pleaded only on the basis of a final Audgment declaring the marriage void, *ithout preAudice to the provision of Article 3@.0 0Art. 33. -he action or defense for the declaration of the absolute nullity of a marriage shall not prescribe.0 777 777 777 4t is believed that many hopelessly broken marriages in our country today may already dissolved or annulled on the grounds proposed by the &oint Committee on declaration of nullity as *ell as annulment of marriages, thus rendering an absolute divorce la* unnecessary. 4n fact, during a conference *ith Father 9erald >ealy of the Ateneo 1niversity as *ell as another meeting *ith Archbishop !scar Cru, of the Archdiocese of 5ampanga, the &oint Committee *as informed that since ?atican 44, the Catholic Church has been declaring marriages null and void on the ground of 0lack of due discretion0 for causes that, in other Aurisdictions, *ould be clear grounds for divorce, like teen-age or premature marriagesE marriage to a man *ho, because of some personality disorder or disturbance, cannot support a familyE the foolish or ridiculous choice of a spouse by an other*ise perfectly normal personE marriage to a *oman *ho refuses to cohabit *ith her husband or *ho refuses to have children. 3ishop Cru, also informed the Committee that they have found out in tribunal *ork that a lot of machismo among husbands are manifestations of their sociopathic personality anomaly, like inflicting physical violence upon their *ives, constitutional indolence or la,iness, drug dependence or addiction, and psychological anomaly. . . . ( mphasis supplied) Clearly, by incorporating *hat is no* Article 36 into the Family Code, the 2evision Committee referred to above intended to add another ground to those already listed in the Civil Code as grounds for nullifying a marriage, thus e7panding or liberali,ing the same. 4nherent in the inclusion of the provision on psychological incapacity *as the understanding that every petition for declaration of nullity based on it should be treated on a case-to-case basisE hence, the absence of a definition and an enumeration of *hat constitutes psychological incapacity. 8oreover, the Committee feared that the giving of e7amples *ould limit the applicability of the provision under the principle of ejusdem generis. 3ut the la* re;uires that the same be e7isting at the time of marriage although it be manifested later. Admittedly, the provision on psychological incapacity, Aust like any other provision of la*, is open to abuse. -o prevent this, 0the court shall take order the prosecuting attorney or fiscal assigned to it to appear on behalf of the

BSU LA

PERSONS AND FA!IL" RELATIONS

P#$e %% o& %'

LEOUEL SANTOS, petitioner, vs.THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

/tate to take steps to prevent collusion bet*een the parties and to take care that evidence is not fabricated or suppressed.0 2 8oreover, the Audge, in interpreting the provision on a case-to-case basis, must be guided by 0e7perience, the findings of e7perts and researchers in psychological disciplines, and by decisions of church tribunals *hich, although not binding on the civil courts, may be given persuasive effect since the provisions *as taken from Canon .a*.0 $ -he constitutional and statutory provisions on the family 4 *ill remain the lodestar *hich our society *ill hope to achieve ultimately. -herefore, the inclusion of Article 36 is not to be taken as an abandonment of the ideal *hich *e all cherish. 4f at all, it is a recognition of the reality that some marriages, by reason of the incapacity of one of the contracting parties, fall short of this idealE thus, the parties are constrained to find a *ay of putting an end to their union through some legally-accepted means. Any criticism directed at the *ay that Audges have interpreted the provision since its enactment as to render it easier for unhappily-married couples to separate is addressed, not to the *isdom of the la*makers but to the manner by *hich some members of the 3ench have implemented the provision. -hese are not interchangeable, each being separate and distinct from the other.

BSU LA

PERSONS AND FA!IL" RELATIONS

P#$e %' o& %'