Concealment of homosexuality ground for annulment

Dear PAO,
My husband and I have been separated for three years now. We got married in 2012. It all began when I discovered that he was having an affair, not with another woman, but a man. I did not know that he was gay as I never noticed this when he was still my boyfriend and he never told me about this even before we got married. I knew it only when I learned about his same-sex affair from a common friend. When I confronted my husband, he admitted that indeed he is gay. I just want to know if I can have our marriage annulled. Had I known about his being gay then, I would not have married him. We have no kids, by the way.
Girlie

Dear Girlie,
Homosexuality per se is not a ground for annulment of marriage. It can only be considered as such, if there is concealment of this condition prior to the marriage, as it constitutes fraud, which makes the marriage voidable. According to the Family Code of the Philippines, a marriage may be annulled if the consent of either party was obtained by fraud. (Article 45 (3), Ibid.)

The same Code likewise enumerates instances which establish fraud, to wit:

Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

(4) 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.

Based on the foregoing, you may file a case to petition the court to have your marriage annulled on the ground of fraud. You have five years within which to do so, to be reckoned from the day you discovered the fraud. (Article 47 (3), Id.)

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Dissolve first marriage first before contracting second one

Dear PAO,
My mother relayed to me that she married my father when he was still below 18 years of age. This happened with the help of fixers in one of the cities here at the National Capital Region. My mother discovered after she obtained a certificate of no- marriage that my father contracted another marriage during the time of their marriage. She intends to file a case for bigamy against my father; however, our relative who is working in a law firm advised her that there is no need to file such case, because her marriage with my father is void from the very beginning. He even explained to her that the absence of essential requisites of marriage would render her marriage void. What shall we do?
Keir

Dear Keir,
Your relative is correct as to his statement that the absence of essential requisites of marriage would render the marriage void. If, however, the void marriage, for any reason, was already registered, you need to go to court for that marriage to be declared void. It is not for the parties to decide whether the marriage is void or not.

Article 40 of the Family Code of the Philippines provides that “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.”

The Supreme Court said in Montaṅez vs Cipriano (G.R. No. 181089, October 22, 2012), that:

“And in Jarillo v. People (G.R. No. 164435, September 29, 2009, 601 SCRA 236), applying the foregoing jurisprudence, we affirmed the accused’s conviction for bigamy, ruling that the moment the accused contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, the accused’s first marriage which had not yet been declared null and void by a court of competent jurisdiction was deemed valid and subsisting.

Here, at the time respondent contracted the second marriage, the first marriage was still subsisting as it had not yet been legally dissolved. As ruled in the above-mentioned jurisprudence, the subsequent judicial declaration of nullity of the first marriage would not change the fact that she contracted the second marriage during the subsistence of the first marriage. Thus, respondent was properly charged of the crime of bigamy, since the essential elements of the offense charged were sufficiently alleged.

Respondent claims that Tenebro v. CA (G.R. No. 150758, February 18, 2004, 423 SCRA 272) is not applicable, since the declaration of nullity of the previous marriage came after the filing of the Information, unlike in this case where the declaration was rendered before the Information was filed. We do not agree. What makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid marriage.”

Bigamy is committed by any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment in the proper proceedings (Article 349, Revised Penal Code of the Philippines).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Marriages solemnized abroad valid in PH

Dear PAO,
If a marriage between two Filipinos was validly celebrated abroad and later on one of them divorced the other, is this divorce valid in the Philippines?
Philip

Dear Philip,
According to the Family Code of the Philippines, a marriage celebrated abroad is valid in the Philippines provided that the same is also valid in the place where it was celebrated. This is in accordance with Article 26 of the law, which states:

“Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.

xxx”

Assuming that the marriage, which was validly solemnized abroad does not fall within the exceptions mentioned in the above-quoted law, the same is also valid in the Philippines. As such, considering that the parties to the marriage are both Filipinos, a divorce decree obtained abroad by any of them will not make them eligible to remarry. According to the Family Code of the Philippines, a divorce may be recognized in the Philippines, only if the marriage is between a Filipino and foreigner and the latter was the one who obtained the divorce. This is specifically provided in the second paragraph of Article 26 thereof, which provides:

“Art. 26. xxx

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.”

On the other hand, the same is still applicable to the marriage between two Filipino citizens, where one of them becomes a citizen of another country and obtained a divorce decree thereafter. This was elucidated by the Supreme Court of the Philippines in the case of Republic of the Philippines versus Cipriano Orbecido III (G.R. No. 154380, October 5, 2005, 472 SCRA 114), as follows:

“Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. xxx”

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to guide you with our opinion on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net