October 5, 2011

Sarah Martinez
114 Vincent Street, Makati City

Dear Mrs. Martinez,

This is in reference to your letter asking for a legal opinion on your legal problem and
these are the facts gathered from your letter which follows:

You and your husband Eric, who is a Filipino- American got married in Makati City,
Philippines which is already a year now. Everything was fine for the first six months of
your marriage. But on your 7th month, things started to changed wherein, your husband
was cold in your relationship and often did not want to sleep with you. And you think it
was just normal for newlyweds and that things will go back to normal again.

But you caught in surprise, one day you saw a pile of sexy mens magazine inside the
drawer of your husbands bedside table. And you immediately supposed and have the
feeling that your husband might be a gay. So you secretly checked his Facebook
account and discovered that he was exchanging erotic messages with one of your gay
friends in New York.

I understand that you want to get divorce and seek advice on the following matters:

1. If divorce is possible?
2. Can you sue your husband for the reason of fooling you of concealing the fact
that he is a gay during the celebration of your marriage? If not, what is the legal
remedy?

For your first query, No, since your marriage was celebrated here in the Philippines,
where absolute divorce is not allowed unless your marriage was solemnized in
accordance with Muslim Law where if you and your husband are both Muslims or if only
the male party is Muslim, the said law shall be applied where perpetual divorce is
allowed in accordance with the provision on the law of divorce of the Muslim Code.

Second, you have no legal basis to sue your husband to be criminally or civilly liable for
the reason of fooling you in concealing the fact that he is a gay during the celebration of
your marriage but it could be a ground for you to file a petition for the annulment of your
marriage as a means of fraud which we need to establish strong evidence on this
matter.

Under Article 45 of the Family Code enumerated several grounds for annulment existing
at the time of the marriage in which paragraph 3 of said Article stated:
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.

Paragraph 4, Article 46 of the Family Code also enumerated circumstances constituting

fraud mentioned in paragraph 3 of preceding article which states that:

Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism at

the time of the marriage.

Filing the petition must be done within the period of five years after the discovery of the
fraud.

Likewise, Article 36 of the Family Code can also be the ground for the nullity of your
marriage as stated:

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.

The essential marital obligation is stated in Article 68 of the Family Code:

The husband and wife are obliged to live together, observe mutual love, respect and
fidelity, and render mutual help and support.

In this provision, spouses are obliged to observe matrimonial bond and uphold the
principle of procreation of children through sexual cooperation which is the basic
purpose of marriage.

In addition, legal separation could be also your alternative legal remedy, as provided
under paragraph 6 of Article 55 of the Family Code wherein, a petition for legal
separation may be filed on this ground:

Lesbianism or homosexuality of the respondent

But to inform you that the effect of legal separation is that your marriage bond is not
severed. You will be just separated from bed and board, unlike in annulment that
dissolves the marriage bond and parties are free to marry again.

I hope this clarifies your inquiry and enlightened you on this matter.