Can a gender be judicially changed?

Can a petition for a change of sex (gender) be judicially granted on the basis of sex reassignment surgery (sex alteration)? In the case Silverio vs. Republic (G.R. No. 174689, 22 October 2007), the Supreme Court rejected the ruling of the Trial Court and pronounced to the effect that there is no law allowing the change of entry in the birth certificate as to sex on the ground of sex reassignment.

If an individual is an intersexual (hermaphrodite) or having both male and female reproductive organs, can a petition for a change of gender be judicially allowed on basis of his or her intersexuality? There is also no law allowing the change of entry in the birth certificate as to sex on the ground of intersexuality.

However, the Supreme Court, in the case of Republic vs. Cagandahan (GR No. 166676, 12 September 2008), affirmed the decision of RTC Laguna granting the Petition for Correction of Entries in Birth Certificate of Jennifer B. Cagandahan to change her name to Jeff Cagandahan and her gender to male. Jennifer was diagnosed of having a Congenital Adrenal Hyperplasia, a rare medical condition where afflicted persons possess both male and female characteristics.

To quote the article in the Supreme Court, the High Court considered “the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial.” It noted that Cagandahan “thinks of himself as a male and considering that his body produces high levels of male hormones (androgen), there is preponderant biological support for considering him as being male.” It stressed that Cagandahan has let nature take its course in her develoment to reveal more fully his male characteristics.

Judicial petition for change of sex on the ground of sex reassignment

When is a man a man and when is a woman a woman? Does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex?

In particular, may a person successfully petition for a change of sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?

These questions were answered by the Supreme Court in the case of Silverio vs. RP, G.R. No. 174689, 22 October 2007.


On 26 November 2002, Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8.

He alleged that he is s a male transsexual, that is, “anatomically male but feels, thinks and acts as a female” and that he had always identified himself with girls since childhood. Feeling trapped in a man’s body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a “woman” culminated on January 27, 2001 when he underwent sex reassignment surgery in Bangkok, Thailand.

From then on, he lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from “Rommel Jacinto” to “Mely,” and his sex from “male” to “female.”

On June 4, 2003, the trial court rendered a decision in favor of petitioner. Its dispositive portion reads:

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioner’s first name from “Rommel Jacinto” to MELY and petitioner’s gender from “Male” to FEMALE.

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals. It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals rendered a decision] in favor of the Republic. It ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Rommel moved for reconsideration but it was denied. Hence, he elevated the case to the Supreme Court.

Supreme Court Ruling

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the statutes. In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes and corrections in entries in the civil register.

Section 2(c) of RA 9048 defines what a “clerical or typographical error” is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

(3) “Clerical or typographical error” refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth. However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment.

To correct simply means “to make or set aright; to remove the faults or error from” while to change means “to replace something with something else of the same kind or with something that serves as a substitute.” The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

“Status” refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership.

The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status… include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued.

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth. Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable.

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words “sex,” “male” and “female” as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary.

In this connection, sex is defined as “the sum of peculiarities of structure and function that distinguish a male from a female” or “the distinction between male and female.” Female is “the sex that produces ova or bears young” and male is “the sex that has organs to produce spermatozoa for fertilizing ova.” Thus, the words “male” and “female” in everyday understanding do not include persons who have undergone sex reassignment.

Furthermore, “words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary.” Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term “sex” as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category “female.”

For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

Equitable Mortgage

An equitable mortgage is one that - although lacking in some formality, forms and words, or other requisites demanded by a statute - nevertheless reveals the intention of the parties to charge a real property as security for a debt and contains nothing impossible or contrary to law. Here's an actual case :

Spouses Raymundo et. al. vs. Spouses Bandong (G.R. No. 171250, July 4, 2007) - Digest

Facts : Eulalia Raymundo (Eulalia) was engaged in the business of buying and selling large cattle for which she employed “biyaheros” whose task involved the procuring of large cattle with the financial capital provided by petitioner and delivering the procured cattle to her for further disposal.

In order to secure the financial capital she advanced for the “biyaheros,” Eulalia required them to surrender the Transfer Certificates of Title (TCT) of their properties and to execute the corresponding Deeds of Sale in her favor.

Dominador Bandong (Domeng), who had been working for petitioner three decades, was not required by Eulalia to post any security in the performance of his work. However, she discovered that Domeng incurred shortage in his cattle procurement operation in the amount of P70,000.00. Domeng and his wife Rosalia then executed a deed of sale in favor of Eulalia a registered parcel of land. On the strength of the aforesaid deed, the subject property was registered in the names of Eulalia and her husband Carlos.

The subject property was thereafter sold by Spouses Raymundo to their grandniece Jocelyn Buenaobra. After the TCT of the subject property was transferred to the name of Jocelyn and husband Angelito, they instituted an action for ejectment against the Spouses Bandong before the MeTC. The lower court ruled in favor of the Spouses Buenaobra which, on appeal, was affirmed in toto by the RTC and subsequently, by the Court of Appeals

To assert their right to the subject property, the Spouses Bandong instituted an action for annulment of sale before the RTC against Eulalia and Jocelyn alleging that there was no sale intended but only equitable mortgage for the purpose of securing the shortage incurred by Domeng in the amount of P70,000 while employed as “biyahero” by Eulalia.

The RTC rendered a decision in favor of Eulalia and Jocelyn by declaring that the deed of sale valid and, consequently, the subsequent sale between Eulalia and Jocelyn was also lawful. On appeal, the CA reversed the RTC Decision and found that the transaction entered into by Domeng and Eulalia was not one of sale but an equitable mortgage. The Court of Appeals denied the Motion for Reconsideration filed by Spouses Raymundo and Buenaobra. Hence, this petition.

Issue : 1) Whether the deed of sale between Domeng and Eulalia is a contract of sale or an equitable mortgage.

Ruling : An equitable mortgage is one that - although lacking in some formality, forms and words, or other requisites demanded by a statute - nevertheless reveals the intention of the parties to charge a real property as security for a debt and contains nothing impossible or contrary to law. The instances when a contract - regardless of its nomenclature - may be presumed to be an equitable mortgage are enumerated under Art. 1602 of the New Civil Code.

In executing the said deed of sale, Domeng and Eulalia never intended the transfer of ownership of the subject property but to burden the same with an encumbrance to secure the indebtedness incurred by Domeng on the occasion of his employment with Eulalia. The agreement between Dominador and Eulalia was not avoided in its entirety so as to prevent it from producing any legal effect at all.

Instead, the said transaction is an equitable mortgage, thereby merely altering the relationship of the parties from seller and buyer, to mortgagor and mortgagee, while the subject property is not transferred but subjected to a lien in favor of the latter.

To reiterate, the existence of any one of the conditions under Article 1602 of the New Civil Code, not a concurrence, or an overwhelming number of such circumstances, suffices to give rise to the presumption that the contract is an equitable mortgage.

Annulment of Marriage

The rule on annulment of marriage is set forth below.

Before you read the rule, it is important that you understand the meaning of petition for annulment of marriage and void and voidable marriages, which are also enumerated below.

Petition for “annulment” refers to marriages that are merely voidable (they are valid until annulled by the court). On the other hand, a petition for “declaration of nullity of marriage” refers to marriages that are void or not existing from the beginning. For ease and convenience, we will refer to both petitions as “annulment” in its general context.


A) Void Marriages

- Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

- Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so.

- Those solemnized without license, except those marriage under exceptional circumstances.

- Those bigamous or polygamous marriages not failing under Article 41 of FC (subsequent marriage by reason of presumptive death)

- Those contracted through mistake of one contracting party as to the identity of the other.

- Those subsequent marriages that are void under Article 53 (failure to record in civil registry)

- 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.

- Marriages between ascendants and descendants of any degree and between brothers and sisters, whether of the full or half blood

- Marriages between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; between step-parents and step-children; between parents-in-law and children-in-law; between the adopting parent and the adopted child; between the surviving spouse of the adopting parent and the adopted child; between the surviving spouse of the adopted child and the adopter; between an adopted child and a legitimate child of the adopter; between adopted children of the same adopter; and between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. (82)

B) Voidable Marriages

- That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife.

- That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife.

- That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife.

- That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife.

- That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable.

- That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

C) Rule on Declaration of Absolute Nullity of Void Marriage and Annulment of Voidable Marriage.

Section 1. Scope.– This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines.

Sec. 2. Petition for declaration of absolute nullity of void marriages.–

(a) Who may file.–A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n)

(b) Where to file.–The petition shall be filed in the Family Court.

(c) Imprescriptibility of action or defense.–An action or defense for the declaration of absolute nullity of void marriage shall not prescribe.

(d) What to allege.–A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.

The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.

Sec. 3. Petition for annulment of voidable marriages.–

(a) Who may file.–The following persons may file a petition for annulment of voidable marriage based on any of the grounds under Article 45 of the Family Code and within the period herein indicated:

(1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one, such party freely cohabitated with the other as husband or wife; or the parent, guardian or person having legal charge of the contracting party, at any time before such party has reached the age of twenty-one;

(2) The sane spouse who had no knowledge of the other’s insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity, provided that the petitioner, after coming to reason, has not freely cohabited with the other as husband or wife;

(3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife;

(4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force, intimidation, or undue influence disappeared or ceased, provided that the force, intimidation, or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife;

(5) The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapacity continues and appears to be incurable, within five years after the celebration of marriage; and

(6) The injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage.

(b) Where to file.–The petition shall be filed in the Family Court.

Sec. 4. Venue.–The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing, or in the case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.

Sec. 5. Contents and form of petition.–(1) The petition shall allege the complete facts constituting the cause of action.

(2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved.

If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action.

(3) It must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact.
If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country.

(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period.
Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition.

Sec. 6. Summons.–The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules:

(1) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the court may order. In addition, a copy of the summons shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient.

(2) The summons to be published shall be contained in an order of the court with the following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of publication.

Sec. 7. Motion to dismiss.–No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer.

Sec. 8. Answer.–

(1) The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by the respondent himself and not by counsel or attorney-in-fact.

(2) If the respondent fails to file an answer, the court shall not declare him or her in default.

(3) Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties.

Sec. 9. Investigation report of public prosecutor.–

(1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any.

(2) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of a copy of the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition.

(3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

Sec. 10. Social worker.–The court may require a social worker to conduct a case study and submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary.

Sec. 11. Pre-trial.–

(1) Pre-trial mandatory.–A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties.

(2) Notice of pre-trial.–

a) The notice of pre-trial shall contain:

1) the date of pre-trial conference; and

2) an order directing the parties to file and serve their respective pre-trial
briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of pre-trial.

b) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial.

(c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address.

Sec. 12. Contents of pre-trial brief.–The pre-trial brief shall contain the following:

(a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof;

(b) A concise statement of their respective claims together with the applicable laws and authorities;

(c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;

(d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof;

(e) The number and names of the witnesses and their respective affidavits; and

(f) Such other matters as the court may require.

Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial under the succeeding paragraphs.

Sec. 13. Effect of failure to appear at the pre-trial.–

(a) If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner.

(b) If the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days thereafter a report to the court stating whether his non-appearance is due to any collusion between the parties. If there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence.

Sec. 14. Pre-trial conference.–At the pre-trial conference, the court:

(a) May refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law.
The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month.

(b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition.

Sec. 15. Pre-trial order.–

(a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed on the pleadings, and, except as to the ground of declaration of nullity or annulment, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties.

(b) Should the action proceed to trial, the order shall contain a recital of the following:

(1) Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule;

(2) Factual and legal issues to be litigated;

(3) Evidence, including objects and documents, that have been marked and will be presented;

(4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and

(5) Schedule of the presentation of evidence.

(c) The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits.

(d) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case, unless modified by the court to prevent manifest injustice.

(e) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications.

Sec. 16. Prohibited compromise.–The court shall not allow compromise on prohibited matters, such as the following:

(a) The civil status of persons;

(b) The validity of a marriage or of a legal separation;

(c) Any ground for legal separation;

(d) Future support;

(e) The jurisdiction of courts; and

(f) Future legitime.

Sec. 17. Trial.–

(1) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses.

(2) The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed.

(3) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals.

(4) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court.

Sec. 18. Memoranda.–The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.

Sec. 19. Decision.–

(1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties.

(2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation.

(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General.

(4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties.
If the parties have properties, the court shall observe the procedure prescribed in Section 21 of this Rule.

The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the petition for declaration of absolute nullity or annulment of marriage is located.

Sec. 20. Appeal.–

(1) Pre-condition.–No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

(2) Notice of appeal.–An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties.

Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes.–Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.

Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage.–(a) The court shall issue the Decree after:

(1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located;

(2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and

(3) The delivery of the children’s presumptive legitimes in cash, property, or sound securities.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.
Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected.

Sec. 23. Registration and publication of the decree; decree as best evidence.–

(a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree.

(b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation.

(c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children.

Sec. 24. Effect of death of a party; duty of the Family Court or Appellate Court.–

(a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts.

(b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts.

Psychological Incapacity

Among the grounds for declaration of nullity of marriage, psychological incapacity is the most commonly used by petitioners, making it the most controversial provision of the Family Code (Article 36).

For better understanding of psychological incapacity, the Supreme Court laid down the guidelines governing the application and the interpretation of psychological incapacity referred to in Article 36 of the Family Code in the case of Republic v. CA and Molina, 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.

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 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.

8)The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.

The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos v. Court of Appeals: "psychological incapacity must be characterized by (a) gravity (b) juridical antecedence, and (c) incurability." The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the party's psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to.

Effects of Foreign Divorce on Filipino Spouse

On 17 July 1987, shortly after the signing of Executive Order No. 209 (Family Code), Executive Order No. 227 was also signed into law, amending, inter alia, Article 26 of the Family Code. As so amended, it now states:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Italics supplied)

Article 26, par. 2, is an important innovation belatedly introduced by the Aquino Government, which is intended to extricate the Filipino spouse from an absurd and unjust situation in which he or she is married to someone who is not married to him or her. This provision applies only to cases where at the time of celebration of marriage, the parties are a Filipino citizen and a foreigner. In effect, this provision introduces divorce in our country, much less extends some degree of recognition to foreign divorce, although in exceptional cases.

Significantly, Article 26, par.2 now includes cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree capacitating him or her to remarry. The Filipino spouse should likewise be permitted to remarry as if the other party were an alien at the time of solemnization of the marriage (Republic vs. Orbecido, GR 154380, 5 October 2005).

Article 26, par.2 may have raised some problems than it solves. A number of questions can be raised with respect to the operation of this provision, to wit:

1. Is there a need for a judicial decree in Philippine courts to declare the Filipino spouse qualified to remarry? The Family Code has no explicit provision to that effect, unlike in cases of void marriages and of a remarriage in case of absence of one of the spouses amounting to presumptive death (Art. 40 and 41, Family Code) where a court decree is required.

2. Is Art. 26, par. 2 applicable to foreign divorces obtained before the effectivity of the Family Code in view of Art. 256?

3. What if the Filipino spouse does not intend to remarry, what is the status of any children they may have after the divorce decree? Does the Filipino spouse have a right to demand support from his/her former alien spouse? What is his/her status with respect to his/her former foreign spouse? Can he/she claim share of property or income acquired by the former foreign spouse.

Moreover, I am of the moral view that the Orbecido doctrine is open to constitutional questions, viz:

1. Is the Orbecido ruling violative of the equal protection of the law clause of the Constitution as it favors only the rich, who may use or abuse the remedy of naturalization as foreign citizen and obtaining a valid foreign divorce and having it recognized in the Philippines in order to terminate his or her marriage with the Filipino spouse given the great difficulty in having a declaration of nullity and annulment of marriage granted at the appellate level of the court?

2. Is the Orbecido ruling tantamount to judicial legislation considering the fact that the Supreme Court has in effect amended Art 26, par. 2 of the Family Code, a substantive law? The OSG had posited that the issue was a matter of legislation and not of judicial legislation, a contention which was not addressed by the Supreme Court in its ruling. Would it not be much more orderly and customary if the Orbecido doctrine be cast in statutory form like the conflicting SC rulings namely People vs. Aragon, Wiegel vs. Sempio-Diy, and Yap vs. Paras, which were set in stone by Art. 40 of the Family Code?