I want to annul my marriage. My wife and I got married four years ago but until now we do not have a child yet. I think there is something wrong with my wife. We have active sexual relations, but I am really wondering why until now we still don’t have a child. My friend told me that she may be impotent, so I can use that as a ground for annulment of marriage. If so, until when can I bring the action?
Impotency of a spouse is a ground for annulment of marriage. To be more specific, Article 45 (5) of the Family Code of the Philippines provides that a marriage may be annuled if, at the time of the marriage, either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable. The action for annulment of marriage based on this ground must be filed by the injured party within five (5) years after the celebration of the marriage (Article 47, Ibid.).
Accordingly, you must be certain that your wife’s condition is indeed that of impotency, not mere sterility or the
incapacity to produce a child. Sterility is not equated to impotency, contrary to what your friend claims.
Further, it is essential for you to clearly establish your wife’s impotency and that you have sought professional medical help to address your wife’s condition, yet it still persists and there appears to be no cure for it. It bears stressing that a person’s impotency can never be presumed. Our courts will not dissolve a marriage by mere presumption of the party petitioning the same. The Supreme Court, through Justice Teodoro Padilla, explained:
“x x x Marriage in this country is an institution in which the community is deeply interested. The state has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely dependent upon it.
x x x
The law specifically enumerates the legal grounds that must be proved to exist by indubitable evidence, to annul a marriage.
x x x
Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency. The lone testimony of the husband that his wife is physically incapable of sexual intercourse is insufficient to tear asunder the ties that have bound them together as husband and wife. x x x” (Jimenez vs Cañizares,109 Phil. 273, August 31, 1960)
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 email@example.com