REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH ___, PASIG CITY

UNCIANO, ABIGAIL GUISADIO,

Petitioner,
S.P. No. ______________________
FOR: DECLARATION OF NULLITY OF
-versus- MARRIAGE WITH PRAYER FOR
PROTECTION ORDER
UNCIANO, MARK ERIC LUARTES
Respondent.
x------------------------------------------x

DEMURRER TO THE EVIDENCE

RESPONDENT, by counsel, submits this Demurrer to the Evidence

because Petitioner has failed to prove entitled to his claims by

preponderance of evidence.

BASIS FOR THE DEMURRER

1. The burden of proof to show the nullity of marriage rests upon the

petitioner. It is the policy in the 1987 Constitution to protect and

strengthen the family as the basic autonomous social institution and

marriage as the foundation as the foundation of the family. Thus, any

doubt should be resolved in favor of the validity of marriage

(Hernandez vs. Court of Appeals, G.R. No. 126010, 1999)

2. The charges against the respondent must be dismissed if after the

petitioner has completed the presentation of his evidence, the

defendant may move for dismissal on the ground that the facts and

the law the plaintiff has shown no right to relief pursuant to Rule 33

of the Rules of Court.

 DISCUSSION AND ARGUMENTS

3. Under Article 36 of Executive Order 209, otherwise known as the

Family Code of the Philippines, “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”

4. While there is no precise definition of “psychological incapacity”

(Salita vs. Magtolis, G.R. No. 106429, 1994), the Supreme Court

enumerated three (3) basic requirements of “psychological

incapacity” as a ground for declaration of nullity of marriage: (a)

gravity; (b) juridical antecedence and (c) incurability (Santos vs.

Court of Appeals, G.R. No. 112019, 1995).

5. In the Republic of the Philippines vs. Court of Appeals and Santos

(1997), the Supreme Court had the occasion to discuss the guidelines

in the interpretation and application of Art. 36 of the Family Code for

the guidance of the bench and the bar, 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, 11 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 12 echoes this constitutional edict on marriage

and the family and emphasizes the 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 physically 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, 13
nevertheless such root cause must be identified as a psychological
illness and its incapacitating nature explained. Expert evidence may
be given qualified psychiatrist 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, nor a refusal, neglect or difficulty, much less ill will. In
other words, there is a natal or supervening disabling factor in the
person, an adverse integral element in the personality structure
that effectively incapacitates the person from really accepting and
thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by

Articles 68 up to 71 of the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of the same Code in
regard to parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial

Tribunal of the Catholic Church in the Philippines, while not
controlling or decisive, should be given great respect by our courts.
It is clear that Article 36 was taken by the Family Code Revision
Committee from Canon 1095 of the New Code of Canon Law, which
became effective in 1983 and which provides:
 The following are incapable of contracting marriage: Those who are
unable to assume the essential obligations of marriage due to
causes of psychological nature.

6. In this case, the petitioner failed to prove that respondent was

suffering from psychological incapacity because of non-

observance of the above-stated guidelines.

7. It was not shown that the psychological incapacity of

the respondent was grave. That is the incapacity must be

grave or serious that the party would be incapable of carrying

out ordinary duties required in marriage (Santos vs. Court of

Appeals, G.R. No. 112019, 1995)

8. While the petitioner and her expert witness Dr. Wendelyn Zonio

testified on the incapacity of the accused, neither one of them

proved that the incapacity of the respondent was grave. There

was no showing that the irresponsibility or instability of the

respondent enough to warrant to constitute psychological

incapacity

9. In Republic vs. Court of Appeals and Angelina Castro (1994), it

was held that “mild characteriological peculiarities, mood

changes, occasional emotional outbursts” cannot be accepted

as root causes. The illness must be shown as downright

incapacity nor inability, not a refusal, neglect or difficulty, much

less ill will.

10. The petitioner was unable to show proof that the behavior of

the respondent constitutes grave psychological defect

affecting his capacity to comply with the responsibilities of

married life.
11. The petitioner failed to comply with the requirement

of juridical antecedent. That is, the incapacity must be

rooted in the history of the party attending the marriage,

although the overt manifestations may emerge only after the

marriage (Santos vs. Court of Appeals, G.R. No. 112019,

1995). Mere general claims of juridical antecedence are

insufficient, absent any concrete evidence, details or

explanations of such circumstances as would demonstrate the

inability of respondent to perform his essential marital

obligations (Villalon v. Villalon, 2006).

12. Dr. Zonia testified that she conducted interviews with herein

petitioner not of the respondent. Thus, he has no personal

knowledge of the personal circumstances of the respondent or

his family.

13. Under the hearsay rule, enshrined in Rule 130, Sec. 36 of the

Rules of Court, “A witness can testify only to those facts which

he knows of his personal knowledge; that is, which are

derived from his own perception, except as otherwise

provided in these Rules”

14. The presentation of Dr. Zonia’s expert testimony against the

respondent is not binding against the respondent because she

was not able to personally conducted a psychological

evaluation of the latter. She merely based her findings on the

evaluation she made on the petitioner. These actuations is to

be deemed self-serving.
 15. As held in Toring vs. Toring, G.R. No. 165321 (2010), where

the Supreme Court stated that “This Court has long been

negatively critical in considering psychological evaluations,

presented in evidence, derived solely from one-sided sources,

particularly from the spouse seeking the nullity of the

marriage.”

16. Lastly, petitioner was not able to prove that the

psychological incapacity of the accused was incurable.

That is, such incapacity must also be sown to be medically or

clinically permanent (Republic vs. Court of Appeals and

Angelina Castro, 1994).

17. The manifestations of respondent’s alleged psychological

incapacity, namely emotional instability and irresponsibility,

are not proven to be rooted from a psychological illness.

18. Based on the following evidence presented and the reasons

above-stated, the petitioner failed to establish the proof

required of her to declare the nullity of her marriage with the

petitioner. Having failed to prove the psychological incapacity

of the respondent, the petition should fail.

WHEREFORE, premises considered, it is respectfully prayed to this

Honorable Court that the Petition for Declaration of Nullity of Marriage filed

against him be DISMISSED

Pasig City, March 2, 2016

 ATTY. ANGELO M. VANGUARDIA
Counsel for Respondent
Lex Citadel Bldg., #7 La Salle St.
Brgy. Silangan, Cubao, Quezon City
IBP No. 783201/Quezon City/Oct. 14, 2014
PTR No. 203281/Quezon City/Jan. 2, 2016
Roll No. 76301
MCLE Compliance No. X-000261/Jan. 13, 2015
Tel No. (02) 901-14-83

REQUEST FOR & NOTICE OF HEARING

THE BRANCH CLERK OF COURT

Regional Trial Court
Branch _______, Pasig City

Please submit the foregoing Motion to the Court for its consideration
and approval immediately upon receipt hereof and kindly include the same
in the court’s calendar for hearing on Friday, March 9, 2016 at 2:00 in the
afternoon

ABIGAIL GUISADIO UNCIANO

75 East Capitol Drive, Pasig City

Please take notice that counsel has requested to be heard on March

9, 2016 at 2:00 in the afternoon

ATTY. ANGELO M. VANGUARDIA

Counsel for Respondent
Lex Citadel Bldg., #7 La Salle St.
Brgy. Silangan, Cubao, Quezon City
IBP No. 783201/Quezon City/Oct. 14, 2014
PTR No. 203281/Quezon City/Jan. 2, 2016
Roll No. 76301
MCLE Compliance No. X-000261/Jan. 13, 2015

Copy furnished through personal service:

ATTY. ROBERT MICHAEL A. SIA

Counsel for the Petitioner
15 V. Hilario St., San Antonio, Pasig City
PTR No. 2701047
Issued in Pasig City on Oct.31,2014
IBP No. 975749
Issued in Pasig City on Oct.17,2014
Attorney’s Roll No. 43761
MCLE Compliance Certificate No.
V-003829
Issued on Oct.1,2014
Tel No. 5701116

Republic of the Philippines )

Quezon City, Metro Manila )S.S.

AFFIDAVIT

I, ROGELIO BERNARDO, a messenger of ATTY. ANGELO

VANGUARDIA, with office address at Lex Citadel Bldg. #7 La Salle St.,
Brgy. Silangan, Cubao, Quezon City, after being duly sworn, deposes and
states:

Than on March 2, 2016, I served a copy of the Demurrer to Evidence

personally to ABIGAIL GUISADIO UNCIANO and his counsel ATTY.
ROBERT MICHAEL A. SIA which was received by them:

TO THE TRUTH OF THE FOREGOING, I have signed this Affidavit on

March 2, 2016, in Quezon City, Philippines.

ROGELIO BERNARDO
Affiant

SUBSCRIBED AND SWORN TO before me in Quezon City, Philippines,

on this 2nd day of March 2016, affiant exhibiting to me his Driver’s License
No. issued on October 20, 2015 at Quezon City

ATTY. RAYMOND MARASIGAN

Notary Public
Lex Citadel Bldg., #7 La Salle St.
Brgy. Silangan, Cubao, Quezon City
IBP No. 783201/Quezon City/Oct. 14, 2014
PTR No. 203281/Quezon City/Jan. 2, 2016
Roll No. 76301
MCLE Compliance No. X-000261/Jan. 13, 2015

Doc No.______
Page No.________
Book No.________
Series of 2016