GR. No. 196359 (Rosanna L. Tan-Andal v. Mario Victor M. Andal).

Promulgated:May 11, 2021

CONCURRING OPINION

LOPEZ, J., J.:1

I concur in the result as astutely reached by the ponencia.

I also join the rest of my esteemed colleagues in their finding that the totality of evidence
presented clearly points to the psychological incapacity of Mario to comply with his essential marital
obligations. The marriage of the parties must necessarily be rendered null and void.

The State's efforts in zealously protecting marriage as an inviolable social institution and the
foundation of the family is a constitutional mandate that must be underscored. Marriage in this
jurisdiction is not only a civil contract, but it is a new relation, an institution the maintenance of which,
the public is deeply interested. It is from this mandate that serves as the spring from which flows several
provisions reflective of the State's desire to uphold and promote the sanctity of marriage. This pervasive
view on marriage is an indelible part of culture and the human mindset. It has the peculiar capability to
transcend borders and jurisdictions. As keenly observed by the United States Supreme Court in
Obergefell v. Hodges:

From their beginning to their most recent age, the annals of human history reveal the
transcendent importance of marriage. The lifelong union of a man and a woman always has
promised nobility and dignity of all persons, without regard to their station in life. Marriage is
sacred to those who life by their religions and offers unique fulfillment to those who find
meaning in the secular realm. Its dynamic allows two people to find a life that could not be
found alone, for a marriage becomes greater than just the two persons. Rising from the most
basic human needs, marriage is essential to our most profound hopes and aspirations.

11987 CONSTITUTION, Article XV, Section 2.

The centrality of marriage to the human condition makes it unsurprising that the institution has
existed for Millenia and across civilizations. x x x

This Court, in its interpretation of the laws, recognizes that the State has surrounded marriage
with the necessary safeguards to maintain its purity, continuity, and permanence for the reason that the
security and stability of the State are largely dependent on it. Therefore, the institution of marriage,
regardless of its religious and secular foundations, has never stood in isolation to the dynamic
developments of the law. Its legal evolution is marked by the tension between continuity and change; it
has managed to adapt to the generations' understanding of marriage while staying steadfast to the
intent of the framers that it remains "legally inviolable," and must be protected from dissolution at the
whim of the parties.

At the fore, among such safeguards is the controversial Article 365 of the Family Code, which
declares a marriage void by reason of psychological incapacity. While this concept owes its
underpinnings in Canon Law, it has irrefragably evolved and is practically of legal creation. Justice
Eduardo Caguioa, a member of the Civil Code Revision and Family Law Committee(Joint Committee) and
one of the proponents for the incorporation of this concept in the Family Code, points out that the term
psychological incapacity escapes specific definition and its determination is left solely tothe courts:

A code should not have so many definitions, because a definition straight-jackets the concept
and, therefore, many cases that should go under it are excluded by the definition, That's why we leave it
up to the court to determine the meaning of psychological incapacity."

Justice Alicia Sempio-Diy, also a member of the Joint Committee, emphasized on the rationale
behind the members' desire to adopt the provision with less specificity, in order to "allow some
resiliency in its application,” thus:
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The Committee did not give any examples of psychological in capacity for fear that the giving of
examples would limit the applicability of the provision under the principle of ejusdem generis. Rather,
the Committee would like the judge to interpret the provision on a case-to-case basis, guided by
experience, the findings of experts and researchers in psychological disciplines, and by decisions of
church tribunals which, although not binding on the civil courts, may be given persuasive effect since the
provision was taken from Canon Law.

At its inception, the provision held much promise; woefully, jurisprudential developments reveal
that it has achieved an almost rigid and mechanical application, thus, allowing this Court to unwittingly
allow loveless marriages to remain, to the detriment of all parties involved. In their intention to protect
the institution of marriage, the members of the Committee did not contemplate this to mean that
parties must be forced to remain in a relationship that diminishes one's dignity and personhood. In the
words of the ponencia in his dissent in Matudan v. Republic,9 “to force partners to stay in a loveless
marriage, or a spouseless marriage... only erodes the foundation of the family.”

Not one to abdicate from its role to stifle manifest injustice, the present case has timely
answered the clarion call to re-examine and once again define the application of Article 36 via the
pronouncements in Republic v Court of Appeals and Molina. While not wholly abandoning the guidelines
laid down therein, having served as precedents in ensuring that marriages on the brink of breakdown,
are not declared void by reason of a priori assumptions, predilections, or generalizations, this
“comprehensive and nuanced” interpretation serves to enlighten and re-introduce the Benchand the
Bar the original intention of Art. 36, in the hope of preventing undue harm to the parties that they have
fully sworn to protect.

In the resolution of this case, two pivotal developments emerge that deserve much emphasis
and elaboration-first, the quantum of proof in challenging the validity of marriages due to psychological
incapacity is now" clear and convincing evidence," and second, the implications of psychological
incapacity as a legal and not a medical concept.

The quantum of proof inmarriages challenged by reason of psychological incapacity is now

Given the directive to protect the institution of marriage, the quantum of proof required in
nullity cases must be established. As mentioned by the ponencia, the same is noticeably absent in the
guidelines laid down in Molina.

In establishing the quantum of proof, one must begin with the principle of the presumption of
the validity of marriage which carries with it certain evidentiary implications.

This presumption lends its foundation on the first Molina guideline which provides that "any
doubt should be resolved in favor of the existence and continuation of the marriage and against its
dissolution and nullity." "The principle may have been derived from the old provisions of the Civil Code
prior to its repeal by Executive Order No. 209, otherwise known as the "Family Code of the Philippines,”
viz.:
ART. 220. In case of doubt, all presumptions favor the solidarity of the family. Thus, every
intendment of law or fact leans toward the validity of marriage, the indissolubility of the marriage
bonds, the legitimacy of children, the community of property during marriage, the authority of parents
over their children, and the validity of defense for any member of the family in case of unlawful
aggression. (Emphasis ours)

In Republic v. Duyot, 12 as echoed in the 1922 case of Adong v. Cheong Seng Gee,' this Court has
clarified that when it speaks of a presumption of marriage, it is with reference to the prima facie
presumption that a man and a woman deporting themselves as husband and wife have entered into a
lawful contract of marriage. Simply, persons dwelling together in apparent matrimony are presumed, in
the absence of any counter-presumption or evidence special to the case, to be in fact married. Aside
from state policy to protect marriage, the rationale for the presumption is that if the parties were not
what they thus hold themselves out as being, they would be living in the constant violation of decency
and of law.

In overturning a prima facie presumption, jurisprudence holds that the quantum of proof must
be clear and convincing, and more than merely preponderant.' Evidence is clear and convincing if it
produces in the mind of the trier of fact a firm belief or conviction as to allegations sought to be
established. It is intermediate, being more than preponderance, but not to
 Concurring Opinion - 5- GR No. 196359

the extent of such certainty as is required beyond reasonable doubt as in criminal cases. Similar
to the presumption of marriage, the ponencia lists several presumptions that require clear and
convincing evidence: presumption of regularity in the issuance of public documents, regularity in the
performance of duty, of good faith, or of sufficient consideration."

Despite the existing rule on the presumption for the validity of marriage, it is disconcerting why
the Courts have, in the past, used preponderance of evidence as the quantum of proof in nullity cases,
for the myopic reason that such cases are undisputedly civil in nature.18 In contrast to clear and
convincing evidence, a preponderance of evidence means that the evidence as a whole adduced by one
side is superior to that of the other. It refers to the weight, credit, and value of the aggregate evidence
on either side and is usually considered to be synonymous with the term "greater weight of evidence" or
"greater weight of the credible evidence." It is evidence which is more convincing to the court as worthy
of belief than that which is offered in opposition thereto. 19

While it may be true that nullity cases are civil in nature, to provide a higher standard of
evidence in other cases that are not otherwise constitutionally protected, is to disregard the sui generis
nature of marriages vis-a-vis other civil cases. Aside from the well-founded reasons fleshed out in the
Decision, I would add that setting a higher threshold for evidence in nullity cases appears to be more in
consonance with existing state policy to preserve the sanctity of marriage.

Such formulation is certainly consistent with American jurisprudence from where such standard
is derived. In Colorado v. Mexico, 20 the United States Supreme Court established that the standard
requires "an abiding conviction that the truth of the factual contentions” at issue are "highly probable.”
While the standard applies to civil cases, is particularly reserved for special cases involving important
interests that are "more substantial than mere loss of money" and those that affect human relations,
such as involuntary civil commitment and petitions to terminate parentalrights,21 and where “moral
wrongdoing is implied”, such as in libel, fraud, and undue influence.