05 April 2019

Mrs. Christina dela Cruz

10 drive, Escario St.
Cebu City

Dear Mrs. Dela Cruz,

This legal opinion seeks to answer your question as to whether you can still receive regular
support from your husband, Mr. Christian dela Cruz or that if you were to undergo DNA test would be a
conditional requisite for you to continuously receive support.

The facts

You got married sometime March 5, 2016. Around one week after the marriage, being an
Overseas Filipino worker, Christian left for abroad. The communication was regular between both of
you either via email, chat or telephone. Sometime in December 2016, Christian came home for a one-
month vacation and left in the middle of January 2017.

Around one month after, Christian found out that you were pregnant. When Christian was informed
about it, he made plans to go home when you were scheduled to give birth. Thus, he came home
sometime in the middle of September 2017 and you gave birth to your daughter Joanna on October 3,
2017. When he left again for abroad, the communication and the support from Christian was regularly
sent, however was put to a stop for a month. There were multiple attempts to contact him from you but
to no avail. There was no communication after that.

Sometime March 10, 2019, you received a summon for a petition of declaration of nullity of marriage
filed by Christian on the ground of psychological incapacity. One of the bases for psychological
incapacity was that you are unfaithful wife, that you were impregnated by another man and that the
child was not his. That allegedly, the child was born less than nine months from the time you both had
sexual intercourse with each other. In his allegation, you had sexual intercourse on January 9, 2017 but
you gave birth on October 3, 2017 less than nine months had lapsed. Another allegation of the husband
was that you were only after his money as you were always asking him for money. He prayed for the
court to declare their marriage null and void and for the court to direct Christina to undergo DNA test.
According to you, none of his allegations are true and you would want to know if you could ask for
regular support and if you had to undergo DNA test so that you husband will give support.

The issues here are clear: (1.) Can Christian file for a petition for declaration of nullity of marriage based
on psychological incapacity arising from the sexual infidelity, (2.) Can the husband impugn the legitimacy
of a child based on his wife’s infidelity, (3) can the wife ask for regular support while the petition for the
declaration of nullity of marriage filed by her husband is still pending
Answer/Conclusion

The court will probably not grant the petition without concrete evidence presented. The applicable laws
that we can apply into this matter are the following:

In Issue 1: As provided under Article 36 of the Family Code because Based on jurisprudence, sexual
infidelity does not constitute psychological incapacity and is not a valid ground for nullity of marriage.
The article reads that “A marriage contracted by any party who, at the time of the celebration, is
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.” And although no clear
definition of psychological incapacity was provided by law to leave the determination of psychological
incapacity to the courts on a case-to-case bases, sexual infidelity does not constitute psychological
incapacity. In its decision, the Supreme Court said: “… sexual infidelity or perversion and abandonment
does not by themselves constitute psychological incapacity within the contemplation of the Family
Code.”

In issue 2: According to Article 166 of the Family Code: “Legitimacy of a child may be impugned only on
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 the 300 days which immediately preceded the birth of the child
because of:
(a) the physical incapacity of the husband to have sexual intercourse with his wife;
(b) the fact that the husband and wife were living separately in such a way that sexual
intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented sexual intercourse;
(2) That it is proved that for biological or other scientific reasons, the child could not have been
that of the husband, except in the instance provided in the second paragraph of Article 164; or
(3) That in case of children conceived through artificial insemination, the written authorization
or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or
undue influence.” A child born during a lawful marriage is always presumed to be legitimate in
the absence of proof to the contrary and until such time that such proof is presented. According
to the facts presented, none of the qualifications to impugn the legitimacy of the child are met.
Although there was sexual intercourse on January 9, 2017 and you gave birth on October 3,
2017, less than nine months had lapsed are 267 days apart, Article 166 could not be raised since
January 9, 2017 is within the first 120 days of the 300 days which immediately precede the birth
of the child.

In issue 3: As provided under Article 203 of the Family Code: “The obligation to give support shall be
demandable from the time the person who has a right to receive the same needs it for maintenance, but
it shall not be paid except from the date of judicial or extra-judicial demand. Support pendente lite may
be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of
each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he
has received in advance.” The mere allegation that Christina has been unfaithful does not bar her to
receive support. Hence, while the petition of is still pending, he is still obliged to provide support to his
wife, considering that the presumption of validity of marriage is still subsisting. Generally, the law will
always favor and presume the validity of marriage, in the absence of proof to the contrary and until such
proof has been presented.

Explanation:

Thus, taking into consideration the facts and evidence presented, there is no sufficient cause of
action presented by Christian that would compel the court to grant his petition for nullity of marriage
under the basis of psychological incapacity due to sexual infidelity because no concrete evidence were
presented to prove the said allegation. Moreover, it is immaterial to impugn the legitimacy of the child
based on the dates of sexual intercourse between the both of you. You can uphold article 166 of the
Family Code on the grounds and basis of impugning the legitimacy of a child since none of the facts
match the requirements provided on the family code. Lastly, his allegation that his wife has been
unfaithful does not give him sufficient cause to cease giving support to her, regardless if the case is still
pending. The law will always favor the validity of the marriage since it protects not only the best
interest of the family but also the child. He cannot stop providing support because the state provides
that the parents are primarily responsible for their children.

Conclusion:

In the case presented before us, both the act of Christian to impugn the legitimacy of his
daughter and his petition for declaration of nullity of marriage on grounds of psychological incapacity
due to sexual infidelity will not prosper. Furthermore, he is baseless in halting all forms of support to his
wife and his child and with the evident neglect of his obligation to his family by not providing support,
you may demand for such support, even while the case is pending, with or without a DNA test to prove
paternity. Christian can be compelled to provide support. In the event that he fails to do so, you may
bring the matter to court.

All of the above-stated opinions are based solely in the provisions of the law and jurisprudence. Should
you extend this legal case to the court of law, I am positive that the latter will be in favor of your case.

Very truly yours,

Ma. Belinda M. Gonzales