REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT SAN JUAN

Marithez A. Sybil
Complainant-Affiant,

-versus-

Marco P. Sybil
Respondent.

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MEMORANDUM
Respondent, Marco P. Sybil, by counsel, respectfully states:

PREFATORY STATEMENT In a civil case of legal separation, only one party should be at fault in order for the case to proceed. Only one of the parties could give a ground for legal separation for it to prosper. If both parties have valid grounds for a legal separation, they are both in pari-delicto. The reason for the rule is that, he who comes into equity must come with clean hands. Therefore, if both are guilty of any ground for legal separation, the denial for the application for legal separation should be granted. In the case at bar, the plaintiff filed a case of legal separation to the respondent on the ground of contracting a subsequent marriage with a woman named Sheena Angkaw at USA. Plaintiff stated that while respondent was working abroad, he divorced her and married Sheena Angkaw. Respondent admitted these confessions made by the plaintiff. He said that he really contracted an illegal marriage with Sheena Angkaw for the reason of gaining American citizenship. On the other hand, the respondent disclaimed to be the father of Marco Sybil. The plaintiff said that she gave birth to a child named Marco Sybil and said that it was the child of the respondent. It was impossible for the respondent to father the child because she was living away from the plaintiff from the moment the child was born. This gives a conclusion that the plaintiff

had a sexual affair with another man while the respondent was away from her. She committed adultery which is also a ground for legal separation. Both parties had committed grounds of legal separation. They are in pari-delicto. No one is clean to fight for equity. Therefore, the action for legal separation should not prosper because both of the parties are guilty. Moreover, the plaintiff could not ask for support for the child.

STATEMENTS OF THE FACTS AND CASE

The facts of the case are simple and undisputed. The present civil case for legal separation arose from the complaint filed with the Regional Trial Court of San Juan against Marco Sybil, when he conducted a subsequent marriage at USA on January 7, 2010 without having a valid divorce to the plaintiff. The Regional Trial Court of San Juan gave due course of the complaint. The order directing the respondent to submit his answer to the complaint was served. He was given a chance to accept/refute the allegations against him and/or present controverting evidence and statements. In a Resolution dated January 23, 2012, which was approved by RTC Judge Angelo Polo on April 23, 2012, the RTC of San Juan found out that the case for legal separation should be dismissed for the parties being in pari-delicto. The plaintiff was found out to have committed adultery as the case was in trial, that made the judge dismissed the case of legal separation.

On February 10, 2011, the plaintiff presented her complaint to the RTC of San Juan. She stated that her husband, Marco Sybil, went to the United States on November 2, 2002 to work at FedEx Company Headquarters at California. While working abroad, Marco Sybil met Sheena J. Angkaw. He contracted a marriage with her, while on the other hand he divorced the plaintiff. This was all agreed upon by the respondent, stating that the confessions made by the plaintiff were true. Moreover, the paternity of Julius Sybil was also discussed on this case. The plaintiff did not mention that she was pregnant before the respondent left going to United States. She did not even mention that he returned back home before the alleged child was born. The plaintiff gave birth on November 20, 2003. It was more than 1 year when the respondent left after the plaintiff gave birth. Here arose the impossibility for the respondent to father the child. Upon making this conclusion, someone else should have fathered the child. Therefore, the plaintiff committed a sexual affair other than the respondent. Upon discussing the merits of the paternity of the child, the judge comes into conclusion that both parties have committed grounds for legal separation, putting them in the same ground, pari-delicto. When both parties are in pari-delicto, they are on the same ground. When both the complainant and the respondent acted in bad faith, they should be considered as having acted in good faith. Therefore the case of legal separation should be dismissed because of being on the same ground of the parties.

The Honorable Court then gave the parties a period of thirty (30) days within which to submit their respective memoranda. Hence, the Memorandum for the respondent.

ISSUES I WHEATHER OR NOT THE ACTION FOR LEGAL SEPARATION ON THE GROUNDS OF SUBSEQUENT MARRIAGE IS TENABLE

II WHEATHER OR NOT THE PLAINTIFF COMITTED ADULTERY

ARGUMENTS AND DISCUSSIONS

THE ACTION FOR LEGAL SEPARATION ON THE GROUND OF SUBSEQUENT MARRIAGE IS NOT TENABLE.

Based on the merits of the case, the action for legal separation on the ground of subsequent marriage is not tenable. It was because the respondent had also given his own ground of legal separation which was concurred by the judge. Article 56 of the Family code provides: The petition for legal separation shall be denied on any of the following grounds: ... [4] Where both parties have given ground for legal separation The complainants cause of action was based from the subsequent marriage entered into by the respondent when he was at the United States while they were still legally married here in the Philippines. The subsequent marriage contracted by the respondent was a valid ground for a complaint of legal separation. On the other hand, the respondent also gave a valid ground of legal separation which was the adultery of the plaintiff. This was known when the child that was born by the plaintiff was not of the respondents. Therefore, both have given a valid ground for legal separation. When both have given a valid ground, based from Article 56 paragraph 4 of the Civil Code, the case should be dismissed because both parties are in pari-delicto. When both the complainant and the respondent acted in bad faith, they should be considered as having acted in good faith. They are in pari delicto. The reason for this rule lies in the equitable maxim that he who comes into equity must come with clean hands (Ann. Cas. 1917

178 note). Consequently, their actions constituted grounds to the denial for the application for legal separation. THE PLAINTIFF COMMITTED ADULTERY The plaintiff had a sexual affair with someone other than the respondent when the respondent was working abroad. The respondent left the Philippines on November 7, 2002 and the plaintiff gave birth on the alleged child of the respondent on November 20, 2003, thus there was 378 days when the complainant and the respondent were away from each other. Art. 166. Legitimacy of a child may be impugned only the following grounds: (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of 300 days which immediately preceeded the birth of the child because of: b. the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible. Therefore, there was a physical impossibility to have sexual intercourse between the complainant and respondent. This means the respondent could never be the father of the alleged child. Based from this argument, it has been established that the child could never be the son of the respondent. A child could not be conceived by a woman without a man impregnating her. Therefore, the child could be the best evidence that the plaintiff had a sexual affair with someone else while the respondent was away from her.

PRAYER

WHEREFORE, it is respectfully prayed of this Honorable Court that this case of legal separation be DISMISSED based on pari-delicto. Other reliefs just and equitable are likewise prayed for. San Juan City; 23 January 2012

LOPEZ and ASSOCIATES LAW OFFICES Counsel for respondent Marco Sybil 141 Ayala Blvd. Makati City.

Submitted by: Victor Rico P. Lopez, 1-C