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- Versus -



Declaration of Nullity OF
MARRIAGE under Article 46 of the
Family Code

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COME NOW Respondent, through the undersigned counsel, unto

this Honorable Court most respectfully submit and present this
Memorandum in the above-titled case and aver that:

Man has not invented a reliable compass by which to steer a marriage

in its journey over troubled waters. Laws are seemingly inadequate. Over time,
much reliance has been placed in works of the unseen hand of Him who
created all things. Who is to blame when a marriage fails? This case was
commenced by a distraught wife against her husband who decreed the
annulment of the marriage on the ground of concealment of homosexuality.

1.P e t i t i o n e r J a n e D o e i s o f l e g a l a g e , a n d r e s i d i n g o n 1 0 1 0
G i n o o Boulevard, Pasay City, where she may be served with legal processes
and notices issued by this Honorable Court;
2. Respondent Juan Dela Cruz is of legal age and residing on 123
Binibini Street,Quezon City, and may be served with legal processes and other
judicial notices thereto.
3. On February 04, 2001, herein Petitioner filed a petition for Annulment
of Marriage against the Respondent. Summons was issued and was served to
the Respondent.
4. On March 20, 2001, the Respondent filed his answer.
5. Jane testified that she first met Juan in 1981 at the San Lazaro
Hospital where they worked as medical student clerks. At that time, she
regarded Juan as a very thoughtful person who got along well with other
people. They soon became sweethearts. Three years after, they got married.
6. Jane averred that Juan kind and gentle demeanor did not last
long. In the public eye, Juan was the picture of a perfect husband and
father. This was not the case in his private life. At home, Jane described Juan
as a harsh disciplinarian, unreasonably meticulous, easily angered. Juan
unreasonable way of imposing discipline on their children was the cause of
their frequent fights as a couple. Jane complained that this was in stark contrast
to the alleged lavish affection Juan has for his mother. Juan deep
attachment to his mother and his dependence on her decision-making were
incomprehensible to Jane.
7. Further adding to her woes was his concealment to her of his
homosexuality. Her suspicions were first aroused when she noticed Juan
peculiar closeness to his male companions. For instance, she caught him in an

indiscreet telephone conversation manifesting his affection for a male caller.

She also found several pornographic homosexual materials in his
possession. Her worse fears were confirmed when she saw Juan kissed another
man on the lips. The man was a certain Dr. Molina. When she confronted Juan,
he denied everything. At this point, Jane took her children and left their
conjugal abode. Since then, Juan stopped giving support to their children.
8. Dr. Valentina Santibanez, a clinical psychologist, was presented to
prove Janes claim. Dr. Santibanez testified that she conducted evaluative
interviews and a battery of psychiatric tests on Jane. She also had a one-time
interview with Juan and face-to-face interviews with Yaya Dub (the eldest
child). She concluded that Juan is psychologically incapacitated. Such
incapacity is marked by antecedence; it existed even before the marriage and
appeared to be incurable.
9. Juan, for his part, admitted that he and Jane had some petty arguments
here and there. He, however, maintained that their marital relationship was
generally harmonious. The petition for annulment filed by Jane came as a
surprise to him.
10. Juan countered that the true cause of Janes hostility against him was
their professional rivalry. It began when he refused to heed the
memorandum released by Christ the King Hospital. The memorandum ordered
him to desist from converting his own lying-in clinic to a primary or secondary
hospital. Dela Cruz family owns Holy Income Hospital which is situated in the
same subdivision as Juans clinic and residence. In other words, he and her
family have competing or rival hospitals in the same vicinity.
11. Juan belied her allegation that he was a cruel father
to their children. He denied maltreating them. At most, he only imposed the
necessary discipline on the children.
12. He also defended his show of affection for his mother. He said there
was nothing wrong for him to return the love and affection of the person who
reared and looked after him and his siblings. This is especially apt now that his
mother is in her twilight years. Juan pointed out that Jane found fault in this
otherwise healthy relationship because of her very jealous and
possessive nature.
13. This same overly jealous behavior of Jane drove Juan to avoid
the company of female friends. He wanted to avoid any further
misunderstanding with his wife. But, Jane instead conjured up stories about his
sexual preference. She also fabricated tales about pornographic materials found
in his possession to cast doubt on his masculinity.

14. To corroborate his version, he presented his brother, Alden Dela

Cruz. He narrated that he usually stayed at Juans house during his weekly trips
to Manila from Iriga City. He was a witness to the generally harmonious
relationship between his brother Juan and sister-in-law, Jane. True, they
had some quarrels typical of a husband and wife relationship. But there
was nothing similar to what Jane described in her testimony

15. Alden further testified that he was with his brother on the day Jane
allegedly saw Juan kissed another man. He denied that such an incident
occurred. On that particular date, he and Juan went straight home from a trip to
Bicol. There was no other person with them at that time, except their driver
16. Juan expressed his intention to refute Dr. Santibanez findings by
presenting his own expert witness. However, no psychiatrist was presented




Marriage is the cornerstone of Philippine society and an inviolable social
institution. Separation, annulment or declaration of nullity of marriage can only
be based on grounds stated by law. The Family Code liberalized to a certain
extent these grounds by providing for Concealment of Homosexuality as a
ground for the declaration of nullity of a marriage. Basing on the evidences and
testimonies of the witnesses, Article 36 must be the ground for nullity of Jane
and Juans marriage. The author submits that this is a problem since the
concealment of homosexuality must be prior the marriage and the suspicions of
Jane to Juans sexuality was after their marriage and this may be broadened to
encompass any and all circumstances of incompatibility of the spouses and
allow the judges too much discretion to determine when declaration of nullity

by virtue of psychological incapacity is applicable. In view of the lack of

definition of the concept of psychological incapacity in the Family Code,
problems arose with regards to its application and interpretation, leading to
many misapplications.

"Psychological incapacity," as a ground to nullify a marriage under

Article 36 of the Family Code, should refer to no less than a mental not
merely physical incapacity that causes a party to be truly in cognitive of the
basic marital covenants that concomitantly must be assumed and discharged by
the parties to the marriage which, as so expressed in Article 68 of the Family
Code, among others,34 include their mutual obligations to live together,
observe love, respect and fidelity and render help and support. There is hardly
any doubt that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage.
While in Art 46 (4) states a marriage may be considered null and void
if: Concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of the marriage. No other misrepresentation or
deceit as to character, health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of marriage
Since the allegations of Jane are after the celebration of their marriage,
we have to distinguish. If the husband has been in a same sex relationship even
before marriage and he concealed such fact in order to obtain by fraud the
consent of the other party, then marriage may be annulled by the injured party
(not by the wife) within 5 years from discovery of fraud.
Based on the evidence presented, there exists insufficient factual or legal
basis to conclude that Juan is not homosexual prior getting married to Jane, and
the actions of homosexuality of Juan happened when they got married.
Juan is a desperate man determined to salvage what remains of his
marriage. Persistent in his quest, he fought back all the heavy accusations of
incapacity, cruelty, and doubted masculinity thrown at him.

Janes petition for nullity had no basis at all because the supporting
grounds relied upon cannot legally make a case under Article 46 of the
Family Code. In the same light, Republic v. Molina:[54]

Indeed, mere
irreconcilable differences, incessant quarrels and/or beatings,
unpredictable mood swings, infidelities, vices, abandonment, and
difficulty, neglect, or failure in the performance of some marital
obligations do not suffice to establish psychological incapacity
What Jane attempted to demonstrate were Juans homosexual
tendencies by citing overt acts generally predominant among homosexual
She wanted
homosexuality rendered Juan incapable of fulfilling the essential marital
obligations. Evidently, no sufficient proof was presented to substantiate the
allegations that Juan is a homosexual and that he concealed this to Jane at the
time of their marriage.
Even assuming, ex gratia argumenti, that Juan is a homosexual, it cannot
be appreciated as a ground to annul his marriage with Jane. The law is
clear a marriage may be annulled when the consent of either party was
obtained by fraud, such as concealment of homosexuality. None of the
allegations was proven and by preponderance of evidence that Juan was a
homosexual at the onset of his marriage and that he deliberately hid such fact
to his wife. It is the concealment of homosexuality, and not homosexuality per
se, that vitiates the consent of the innocent party. Such concealment
presupposes bad faith and intent to defraud the other party in giving consent to
the marriage.
To reiterate, homosexuality per se is only a ground for legal
separation. It is its concealment that serves as a valid ground to annul a
marriage. Concealment in this case is not simply a blanket denial, but one that
is constitutive of fraud. It is this fundamental element that respondent failed to
In the United States, homosexuality has been considered as a basis for
divorce. It indicates that questions of sexual identity strike so deeply at one of
the basic elements of marriage, which is the exclusive sexual bond between the
spouses. In Crutcher v. Crutcher, the Court held:
Unnatural practices of the kind charged here are an infamous
indignity to the wife, and which would make the marriage relation
so revolting to her that it would become impossible for her to
discharge the duties of a wife, and would defeat the whole purpose
of the relation. In the natural course of things, they would cause
mental suffering to the extent of affecting her health.
However, although there may be similar sentiments here in
the Philippines, the legal overtones are significantly different. Divorce is not

recognized in the country. Homosexuality and its alleged incompatibility to a

healthy heterosexual life are not sanctioned as grounds to sever the marriage
bond in our jurisdiction. At most, it is only a ground to separate from bed and
What was proven in the hearings a quo was a relatively blissful marital
union for more than eleven (11) years, which produced three (3) children. The
burden of proof to show the nullity of the marriage rests on Jane. Sadly, she
failed to discharge this onus.

WHEREFORE, premises considered, it is respectfully prayed that after
trial, judgment be rendered by this Honorable Court declaring the Petition for
Annulment of Marriage between the Petitioner and the Respondent be
dismissed by lack of evidence.
Other reliefs just and equitable are prayed for.
September 18, 2013.
Quezon City, Philippines.


SUBSCRIBED AND SWORN to before me this 18 th day of


Erika R. Maggay
GayTezGay and Associates Law Office
Counsel for the Respondent
2/F Madrigal Bldg. 183, Tuguegarao City, Cagayan
Doc.No.; _____
Page No.; _____
Book No.; _____
Series of 2013.