Triennial Cohabitation Rule (Philippines)
Is the triennial cohabitation rule applicable in the Philippines? The triennial cohabitation rule is a doctrine in common law, especially in
England. It is a rule of presumption whereby a husband is deemed to be impotent
should the marriage remain unconsummated after a cohabitation of at least three
(3) years. Otherwise put, should the wife remain a virgin after at least three
(3) years of living together with her husband, the latter is deemed to be
impotent. This rule may also be referred to as the "rule on non-coitus." ADVERTISEMENT Work from home! Be an online English tutor. Earn at least
PHP100/hour.
It must be remembered that, generally, the Philippines does not adhere to
principles of common law. The Philippines is a society of laws and not of
men. Statutes enacted by Congress are the bases of rights, obligations,
privileges and offices. Although our laws and legal system recognize
customs, the Civil Code (Act 386) nevertheless provides, "Article 11.
Customs which are contrary to law, public order or public policy shall not
be countenanced."
In short, the Philippines does not have any law providing a clear adoption
of the triennial cohabitation rule. However, the Family Code of the
Philippines (EO 209) provides that "physically incapablity of consummating
the marriage with the other" is one of the grounds to annul marriage.
Article 45 of the Family Code provides, "A marriage may be annulled for any
of the following causes, existing at the time of the marriage: xxx That
either party was physically incapable of consummating the marriage with the
other, and such incapacity continues and appears to be incurable xxx."
Remember that Article 45 of the Family Code does not use the term
"impotency," considering that the term may be interpreted to refer only to
men. The term used is "physically incapable of consummating the marriage
with the other." Hence, if the wife's primary sexual organ is so tight that
the husband cannot penetrate without causing great injury or suffering to
the former or to himself, the case may fall within the purview of Article
45.
As already mentioned, no law or rule in the Philippines expressly provides
for the adoption of the triennial cohabitation rule. Nevertheless, it can be
used as a good argument to establish the presumption of impotence in cases
of annulment. It must be emphasized, however, that the triennial
cohabitation rule is in contrast with the general presumption under
Philippine law in favor of potency.
In other words, courts will presume that the husband is potent unless and
until proven to be otherwise. On the other hand, the wife may utilize the
triennial cohabitation rule to establish a presumption against this general
presumption.
Admissibility v. Applicability
As to the question of applicability, there are two (2) schools of thought.
First is the traditional view which holds that the triennial cohabitation
rule does not apply to the Philippine legal system because the rule is in
the real of common law. The Philippines is a society of laws and not of men.
The second view, the modern view, holds that the rule is applicable as a
rule of evidence to establish a presumption. However, as to the nature of
the presumption, no jurisprudential pronouncement has yet been made;
nevertheless, it is submitted that the presumption should be merely
rebuttable. Otherwise, great injustice would fall upon those who are truly
capable of consummation, resulting in the violation of the constitutional
mandate that marriage is an inviolable social institution. ADVERTISEMENT Work from home! Be an online English tutor. Earn at least
PHP100/hour.
As to admissibility under remedial law, at first glance, proof that the
marriage has not yet been consummated despite cohabitation of at least three
(3) years does not seem to be irrelevant or incompetent. Of course, that
depends on the subject matter of the case and the issue or question for or
against which the proof is offered as evidence.
Related Case: Tsoi v. CA (G.R. No. 119190; January 16, 1997)
Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has the burden of proving the allegations in her complaint; that since there was no independent evidence to prove the alleged non-coitus between the parties, there remains no other basis for the court's conclusion except the admission of petitioner; that public policy should aid acts intended to validate marriage and should retard acts intended to invalidate them; that the conclusion drawn by the trial court on the admissions and confessions of the parties in their pleadings and in the course of the trial is misplaced since it could have been a product of collusion; and that in actions for annulment of marriage, the material facts alleged in the complaint shall always be proved.
Section 1, Rule 19 of the Rules of Court reads:
"Section 1. Judgment on the pleadings. - Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. But in actions for annulment of marriage or for legal separation the material facts alleged in the complaint shall always be proved."
The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to prevent is annulment of marriage without trial. The assailed decision was not based on such a judgment on the pleadings. When private respondent testified under oath before the trial court and was cross-examined by oath before the trial court and was cross-examined by the adverse party, she thereby presented evidence in the form of a testimony. After such evidence was presented, it became incumbent upon petitioner to present his side. He admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual intercourse between them.
To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil Code provides that no judgment annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the Rules of Court prohibit such annulment without trial (Sec. 1, Rule 19).
The case has reached this Court because petitioner does not want their marriage to be annulled. This only shows that there is no collusion between the parties. When petitioner admitted that he and his wife (private respondent) have never had sexual contact with each other, he must have been only telling the truth. We are reproducing the relevant portion of the challenged resolution denying petitioner's Motion for Reconsideration, penned with magisterial lucidity by Associate Justice Minerva Gonzaga-Reyes, viz:
"The judgment of the trial court which was affirmed by this Court is not based on a stipulation of facts. The issue of whether or not the appellant is psychologically incapacitated to discharge a basic marital obligation was resolved upon a review of both the documentary and testimonial evidence on record. Appellant admitted that he did not have sexual relations with his wife after almost ten months of cohabitation, and it appears that he is not suffering from any physical disability. Such abnormal reluctance or unwillingness to consummate his marriage is strongly indicative of a serious personality disorder which to the mind of this Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance to the marriage' within the meaning of Article 36 of the Family Code (See Santos vs. Court of Appeals, G.R. No. 112019, January 4, 1995)."
Petitioner further contends that respondent court erred in holding that the alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both. He points out as error the failure of the trial court to make "a categorical finding about the alleged psychological incapacity and an in-depth analysis of the reasons for such refusal which may not be necessarily due to psychological disorders" because there might have been other reasons, - i.e., physical disorders, such as aches, pains or other discomforts, - why private respondent would not want to have sexual intercourse from May 22, 1988 to March 15, 1989, in a short span of 10 months.
First, it must be stated that neither the trial court nor the respondent court made a finding on who between petitioner and private respondent refuses to have sexual contact with the other. The fact remains, however, that there has never been coitus between them. At any rate, since the action to declare the marriage void may be filed by either party, i.e., even the psychologically incapacitated, the question of who refuses to have sex with the other becomes immaterial.
Petitioner claims that there is no independent evidence on record to show that any of the parties is suffering from psychological incapacity. Petitioner also claims that he wanted to have sex with private respondent; that the reason for private respondent's refusal may not be psychological but physical disorder as stated above.
We do not agree. Assuming it to be so, petitioner could have discussed with private respondent or asked her what is ailing her, and why she balks and avoids him everytime he wanted to have sexual intercourse with her. He never did. At least, there is nothing in the record to show that he had tried to find out or discover what the problem with his wife could be. What he presented in evidence is his doctor's Medical Report that there is no evidence of his impotency and he is capable of erection. Since it is petitioner's claim that the reason is not psychological but perhaps physical disorder on the part of private respondent, it became incumbent upon him to prove such a claim.
"If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity."
Evidently, one of the essential marital obligations under the Family Code is "To procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage." Constant non-fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity.
As aptly stated by the respondent court, "An examination of the evidence convinces Us that the husband's plea that the wife did not want carnal intercourse with him does not inspire belief. Since he was not physically impotent, but he refrained from sexual intercourse during the entire time (from May 22, 1988 to March 15, 1989) that he occupied the same bed with his wife, purely out of sympathy for her feelings, he deserves to be doubted for not having asserted his rights even though she balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it were true that it is the wife who was suffering from incapacity, the fact that defendant did not go to court and seek the declaration of nullity weakens his claim. This case was instituted by the wife whose normal expectations of her marriage were frustrated by her husband's inadequacy. Considering the innate modesty of the Filipino woman, it is hard to believe that she would expose her private life to public scrutiny and fabricate testimony against her husband if it were not necessary to put her life in order and put to rest her marital status.
"We are not impressed by defendant's claim that what the evidence proved is the unwillingness or lack of intention to perform the sexual act, which is not psychological incapacity, and which can be achieved "through proper motivation." After almost ten months of cohabitation, the admission that the husband is reluctant or unwilling to perform the sexual act with his wife whom he professes to love very dearly, and who has not posed any insurmountable resistance to his alleged approaches, is indicative of a hopeless situation, and of a serious personality disorder that constitutes psychological incapacity to discharge the basic marital covenants within the contemplation of the Family Code.
While the law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity (Art. 68, Family Code), the sanction therefor is actually the "spontaneous, mutual affection between husband and wife and not any legal mandate or court order" (Cuaderno vs. Cuaderno, 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures the continuation of family relations.
It appears that there is absence of empathy between petitioner and private respondent. That is - a shared feeling which between husband and wife must be experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. An expressive interest in each other's feelings at a time it is needed by the other can go a long way in deepening the marital relationship. Marriage is definitely not for children but for two consenting adults who view the relationship with love amor gignit amorem, respect, sacrifice and a continuing commitment to compromise, conscious of its value as a sublime social institution.
This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the studied judgment of respondent appellate court.
Related Case: Alcazar v. Alcazar (G.R. No. 174451; October 13, 2009)
At the outset, it must be noted that the Complaint originally filed by petitioner before the RTC was for annulment of marriage based on Article 45, paragraph 5 of the Family Code, which reads:
ART. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: ADVERTISEMENT Work from home! Be an online English tutor. Earn at least PHP100/hour.
x x x x
(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; x x x.
Article 45(5) of the Family Code refers to lack of power to copulate. Incapacity to consummate denotes the permanent inability on the part of the spouses to perform the complete act of sexual intercourse. Non-consummation of a marriage may be on the part of the husband or of the wife and may be caused by a physical or structural defect in the anatomy of one of the parties or it may be due to chronic illness and inhibitions or fears arising in whole or in part from psychophysical conditions. It may be caused by psychogenic causes, where such mental block or disturbance has the result of making the spouse physically incapable of performing the marriage act.
No evidence was presented in the case at bar to establish that respondent was in any way physically incapable to consummate his marriage with petitioner. Petitioner even admitted during her cross-examination that she and respondent had sexual intercourse after their wedding and before respondent left for abroad. There obviously being no physical incapacity on respondent’s part, then, there is no ground for annulling petitioner’s marriage to respondent. Petitioner’s Complaint was, therefore, rightfully dismissed.
One curious thing, though, caught this Court’s attention. As can be gleaned from the evidence presented by petitioner and the observations of the RTC and the Court of Appeals, it appears that petitioner was actually seeking the declaration of nullity of her marriage to respondent based on the latter’s psychological incapacity to comply with his marital obligations of marriage under Article 36 of the Family Code.
Petitioner attributes the filing of the erroneous Complaint before the RTC to her former counsel’s mistake or gross ignorance. But even said reason cannot save petitioner’s Complaint from dismissal. It is settled in this jurisdiction that the client is bound by the acts, even mistakes, of the counsel in the realm of procedural technique. Although this rule is not a hard and fast one and admits of exceptions, such as where the mistake of counsel is so gross, palpable and inexcusable as to result in the violation of his client’s substantive rights, petitioner failed to convince us that such exceptional circumstances exist herein.
Assuming for the sake of argument that we can treat the Complaint as one for declaration of nullity based on Article 36 of the Family Code, we will still dismiss the Complaint for lack of merit, consistent with the evidence presented by petitioner during the trial.
Article 36 of the Family Code 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.
In Santos v. Court of Appeals, the Court declared that "psychological incapacity" under Article 36 of the Family Code is not meant to comprehend all possible cases of psychoses. It should refer, rather, 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. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.
The Court laid down the guidelines in resolving petitions for declaration of nullity of marriage, based on Article 36 of the Family Code, in Republic v. Court of Appeals, to wit:
(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. 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. 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. x x x.
Being accordingly guided by the aforequoted pronouncements in Republic v. Court of Appeals, we scrutinized the totality of evidence presented by petitioner and found that the same was not enough to sustain a finding that respondent was psychologically incapacitated.
Petitioner’s evidence, particularly her and her mother’s testimonies, merely established that respondent left petitioner soon after their wedding to work in Saudi Arabia; that when respondent returned to the Philippines a year and a half later, he directly went to live with his parents in San Jose, Occidental Mindoro, and not with petitioner in Tondo, Manila; and that respondent also did not contact petitioner at all since leaving for abroad. These testimonies though do not give us much insight into respondent’s psychological state.
Tayag’s psychological report leaves much to be desired and hardly helps petitioner’s cause. It must be noted that Tayag was not able to personally examine respondent. Respondent did not appear for examination despite Tayag’s invitation. Tayag, in evaluating respondent’s psychological state, had to rely on information provided by petitioner. Hence, we expect Tayag to have been more prudent and thorough in her evaluation of respondent’s psychological condition, since her source of information, namely, petitioner, was hardly impartial.
Tayag concluded in her report that respondent was suffering from Narcissistic Personality Disorder, traceable to the latter’s experiences during his childhood. Yet, the report is totally bereft of the basis for the said conclusion. Tayag did not particularly describe the "pattern of behavior" that showed that respondent indeed had a Narcissistic Personality Disorder. Tayag likewise failed to explain how such a personality disorder made respondent psychologically incapacitated to perform his obligations as a husband. We emphasize that the burden falls upon petitioner, not just to prove that respondent suffers from a psychological disorder, but also that such psychological disorder renders him "truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage." Psychological incapacity must be more than just a "difficulty," a "refusal," or a "neglect" in the performance of some marital obligations.
In this instance, we have been allowed, through the evidence adduced, to peek into petitioner’s marital life and, as a result, we perceive a simple case of a married couple being apart too long, becoming strangers to each other, with the husband falling out of love and distancing or detaching himself as much as possible from his wife.
To be tired and give up on one’s situation and on one’s spouse are not necessarily signs of psychological illness; neither can falling out of love be so labeled. When these happen, the remedy for some is to cut the marital knot to allow the parties to go their separate ways. This simple remedy, however, is not available to us under our laws. Ours is a limited remedy that addresses only a very specific situation – a relationship where no marriage could have validly been concluded because the parties; or where one of them, by reason of a grave and incurable psychological illness existing when the marriage was celebrated, did not appreciate the obligations of marital life and, thus, could not have validly entered into a marriage.
An unsatisfactory marriage is not a null and void marriage. As we stated in Marcos v. Marcos:
Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the marital bond at the time the causes therefor manifest themselves. It refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. x x x.
Resultantly, we have held in the past that mere "irreconcilable differences" and "conflicting personalities" in no wise constitute psychological incapacity.
As a last-ditch effort to have her marriage to respondent declared null, petitioner pleads abandonment by and sexual infidelity of respondent. In a Manifestation and Motion dated 21 August 2007 filed before us, petitioner claims that she was informed by one Jacinto Fordonez, who is residing in the same barangay as respondent in Occidental Mindoro, that respondent is living-in with another woman named "Sally."
Sexual infidelity, per se, however, does not constitute psychological incapacity within the contemplation of the Family Code. Again, petitioner must be able to establish that respondent’s unfaithfulness is a manifestation of a disordered personality, which makes him completely unable to discharge the essential obligations of the marital state.
It remains settled that the State has a high stake in the preservation of marriage rooted in its recognition of the sanctity of married life and its mission to protect and strengthen the family as a basic autonomous social institution. Hence, any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. Presumption is always in favor of the validity of marriage. Semper praesumitur pro matrimonio. In the case at bar, petitioner failed to persuade us that respondent’s failure to communicate with petitioner since leaving for Saudi Arabia to work, and to live with petitioner after returning to the country, are grave psychological maladies that are keeping him from knowing and/or complying with the essential obligations of marriage.
We are not downplaying petitioner’s frustration and misery in finding herself shackled, so to speak, to a marriage that is no longer working. Regrettably, there are situations like this one, where neither law nor society can provide the specific answers to every individual problem. ADVERTISEMENT Work from home! Be an online English tutor. Earn at least PHP100/hour.
