Homosexuality ground for legal separation

Persida Acosta

Persida Acosta

Dear PAO,
My wife left sometime in February of last year. I found out that she has a relationship, not with a man but with another woman. Suffice it to say, she left because she chose her girlfriend over me. I am just wondering if I can have our marriage nullified. While I do not have any plans of getting married again, I just do not want to be associated with her as her husband anymore. I hope you can advise me. Thank you and more power.

Dear SamXX,
In order to declare a marriage void from the very beginning or void ab initio, the petitioner must be able to establish the absence of any of the essential or formal requisites to a valid marriage. On the other hand, a marriage may be annulled if there is a defect in any of the essential requisites (Article 4, Family Code of the Philippines).

In the situation that you have presented before us, we cannot conclude with certainty that there is a valid ground for you to seek for the nullity of your marriage. In your letter, you mentioned that your wife has a relationship with another woman and she left you for her. These circumstances are legal grounds for filing a petition for legal separation, not for the declaration of nullity of marriage or annulment of marriage. According to Article 55 of the Family Code: “A petition for legal separation may be filed on any of the following grounds: x x x (6) Lesbianism or homosexuality of the respondent; x x x (10) Abandonment of petitioner by respondent without justifiable cause for more than one year.”

Nevertheless, if you can establish these circumstances as elements of the psychological incapacity of your wife to comply with her marital obligations, you may be able to file a petition for declaration of nullity of marriage under Article 36 of the said law, which provides: “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 solemnization.”

It bears stressing, though, that it is essential for you to concretely establish these three (3) determining factors, to wit: (1) gravity, (2) juridical antecedence, and (3) incurability. As ruled by the Supreme Court in the case of Santos vs. Court of Appeals (G.R. No. 112019, January 4, 1995, 240 SCRA 20), “x x x The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved. x x x”

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


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