Dalupang Law Office

123 Langka st., Cauayan City, Isabela

August 8, 2015

Mr. Arnold P. Clavicle

456 Dalandan st.,
Cagayan De Oro, City

Re:

Possible declaration of absolute nullity of marriage under

Art.36 of Family Code of the Philippines.

Dear Mr. Clavicle:

I received your request for legal opinion regarding a
possible declaration of absolute nullity of your marriage with your
wife. You asked if you can file a petition to declare your marriage
void ab initio or void from the beginning under Art. 36 of the
Family Code or the psychological incapacity.

My answer is psychological incapacity must be proven with

three (3) requirements according to our Jurisprudence. First,
gravity, it must be of a grave and serious character that will
incapacitate the spouse to comply with essential marital obligation
and not a mere refusal; Second, judicial antecedent, it must be
existing at the time of your marriage although the manifestation
comes after its celebration, and; Third, incurability, it must be
diagnosed as incurable. The plaintiff in this case, you has the
burden of proof to prove that his or her spouse is psychological
incapacitated.

In your letter, you stated that three (3) years ago you found
out that your wife is having an illicit affair with a woman and
caught them in the act of carnal knowledge; you presumed that this
is the reason why she decided not to have sexual intercourse with
you, and resulted to an argument every time you will insist.

Moreover, you said that your mother-in-law revealed that she

knows of her daughter being a lesbian even before your marriage.

With the requirements I mentioned above, the second

requisite, judicial antecedent is seemed present, in which your
mother-in-law said to you that it was existing even before your
marriage. With regard to the third requisite, incurability, I am not
of the opinion to say if lesbianism is incurable. The first and most
essential requisite, gravity is untenable, although she failed to
perform essential obligation of marriage which is to live together
which includes copulation is only your wifes refusal not
incapacity because of her possible lesbianism, more so, that you
caught them in the act. Unfortunately, it will not fall under the
ground of psychological incapacity.

To sum it up, psychological incapacity does not cover

lesbianism. I recommend that you file your petition for annulment
of your marriage under Art.45 (3) of the Family Code which is
fraud, in conjunction with Art.46 (4) of the same Code, because it
appears that lesbianism of your wife was concealed to you for
whatever reason. I also recommend that you must file your petition
as early as possible before it prescribes within five (5) years from
the discovery of fraud. In your case, you only have two (2) years
left.

Sincerely yours,
JOZELE MARIZ P. DALUPANG
Legal counsel