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.
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 firstname.lastname@example.org