REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

SECOND JUDICIAL REGION
BRANCH 4
FAMILY COURT
TUGUEGARAO CITY, CAGAYAN

JANE DOE, CIVIL CASE NO. 0008

Petitioner,

- Versus - for:

JUAN DELA CRUZ,

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

Respondent.
x - - - - - - - - - - - - - - - - - - - - x\\

MEMORANDUM

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:

PREFATORY

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.

THE PARTIES

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
Gi 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.

PROCEDURAL BACKGROUND

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.

MATERIAL FACTS

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 Jane’s 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 Jane’s 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 Juan’s 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 Juan’s 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

ISSUES

WHETHER OR NOT ARTICLE 46 BE THE GROUND OF THE

PETITION OF ANNULMENT OR MARRIAGE

WHETHER OR NOT THE EVIDENCES AND TESTIMONIES

PRESENTED ENOUGH TO PROVE JUAN’S HOMOSEXUALITY PRIOR
THE MARRIAGE

DISCUSSION

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 Juan’s 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 Juan’s 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.

Jane’s 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 allegations of conflicting personalities, 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 Juan’s homosexual

tendencies by citing overt acts generally predominant among homosexual
individuals? She wanted to prove that the perceived
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 prove.

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
board.

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.

PRAYER
 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 18th day of September

2013 in Tuguegarao City, Cagayan.

Erika R. Maggay
GayTezGay and Associates Law Office
Counsel for the Respondent
2/F Madrigal Bldg. 183, Tuguegarao City, Cagayan

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