REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

SECOND JUDICIAL REGION
BRANCH 58
FAMILY COURT
CEBU CITY, CEBU

ROSITO TORIBIO, CIVIL CASE NO. 0008

Petitioner,

- Versus - for:

VICTORIA NUEGA,
“Declaration of Annulment
of Contract of Sale with damages
under Article 166 of the Civil
Code”

Respondent.
x - - - - - - - - - - - - - - - - - - - - x\\

MEMORANDUM

COME NOW Respondent, through the undersigned counsel,

untothis Honorable Court most respectfully submit and present
this Memorandum in theabove-titled case and aver that:

PREFATORY

Man has not invented a reliable compass by which to steer a

marriage in its journey over troubled waters. Laws are seemingly
inadequate. Over time, much reliance has been placed in works of the
unseen hand of Him who created all things. Who is to blame when a
marriage fails? This case was commenced by a distraught wife against
her husband who decreed the annulment of the marriage on the ground
of concealment of homosexuality.

THE PARTIES

1. P e t i t i o n e r R o s i t o T o r i b i o i s
of legal age, and residing in 987 Malakas Street,
T a l i s a y C i t y C e b u , where he may be served with legal
processes and notices issued by this Honorable Court;
 2. Respondent Victoria Nuega is of legal age and residing on 123
Binibini Street, Talisay City Cebu, and may be served with legal
processes and other judicial notices thereto.

PROCEDURAL BACKGROUND

3. On February 04, 2003, herein Petitioner filed a petition for

Annulment of Marriage against the Respondent. Summons was issued
and was served to the Respondent.

4. On March 20, 2001, the Respondent filed his answer.

MATERIAL FACTS

5. Jane testified that she first met Juan in 1981 at the San Lazaro
Hospital where they worked as medical student clerks. At that time, she
regarded Juan as a very thoughtful person who got along well with other
people. They soon became sweethearts. Three years after, they got
married.

6. Jane averred that Juan kind and gentle demeanor did not last

long. In the public eye, Juan was the picture of a perfect husband and
father. This was not the case in his private life. At home, Jane described
Juan as a harsh disciplinarian, unreasonably meticulous, easily
angered. Juan unreasonable way of imposing discipline on their children
was the cause of their frequent fights as a couple. Jane complained that
this was in stark contrast to the alleged lavish affection Juan has for his
mother. Juan deep attachment to his mother and his dependence on her
decision-making were incomprehensible to Jane.

7. Further adding to her woes was his concealment to her of his

homosexuality. Her suspicions were first aroused when she noticed Juan
peculiar closeness to his male companions. For instance, she caught
him in an indiscreet telephone conversation manifesting his affection for
a male caller. She also found several pornographic homosexual materials
in his possession. Her worse fears were confirmed when she saw Juan
kissed another man on the lips. The man was a certain Dr. Molina.When
she confronted Juan, he denied everything. At this point, Jane took her
children and left their conjugal abode. Since then, Juan stopped giving
support to their children.

8. Dr. ValentinaSantibanez, a clinical psychologist, was presented

to prove Jane’s claim. Dr. Santibanez testified that she conducted
evaluative interviews and a battery of psychiatric tests on Jane. She also
had a one-time interview with Juan and face-to-face interviews with Yaya
Dub (the eldest child). She concluded that Juan is psychologically
incapacitated. Such incapacity is marked by antecedence; it existed
even before the marriage and appeared to be incurable.

9. Juan, for his part, admitted that he and Jane had some petty
arguments here and there. He, however, maintained that their marital
relationship was generally harmonious. The petition for annulment filed
by Jane came as a surprise to him.
 10. Juan countered that the true cause of Jane’s hostility against
him was their professional rivalry. It began when he refused to heed the
memorandum released by Christ the King Hospital. The memorandum
ordered him to desist from converting his own lying-in clinic to a primary
or secondary hospital.Nuega family owns Holy Income Hospital which is
situated in the same subdivision as Juan’s clinic and residence. In other
words, he and her family have competing or rival hospitals in the same
vicinity.

11. Juan belied her allegation that he was a cruel father

to their children. He denied maltreating them. At most, he only
imposed the necessary discipline on the children.

12. He also defended his show of affection for his mother. He

said there was nothing wrong for him to return the love and affection
of the person who reared and looked after him and his siblings. This is
especially apt now that his mother is in her twilight years. Juan pointed
out that Jane found fault in this otherwise healthy relationship because of
her very jealous andpossessive nature.

13. This same overly jealous behavior of Jane drove Juan to avoid

the company of female friends. He wanted to avoid anyfurther
misunderstanding with his wife. But, Jane instead conjured up stories
about his sexual preference. She also fabricatedtales about pornographic
materials found in his possession to cast doubt on his masculinity.

14. To corroborate his version, he presented his brother, Alden

Nuega. He narrated that he usually stayed at Juan’s house during his
weekly trips to Manila from Iriga City. He was a witness to the generally
harmonious relationship between his brother Juan and sister-in-
law, Jane. True, they had some quarrels typical of a husband and wife
relationship. But there was nothing similar to what Jane described in her
testimony

15. Alden further testified that he was with his brother on the day

Jane allegedly saw Juan kissed another man. He denied that such an
incident occurred. On that particular date, he and Juan went straight
home from a trip to Bicol. There was no other person with them at that
time, except their driver

 
16. Juan expressed his intention to refute Dr. Santibanez findings
by presenting his own expert witness. However, no psychiatrist was
presented
 ISSUES

WHETHER OR NOT ARTICLE 46 BE THE GROUND OF THE PETITION

OF ANNULMENT OR MARRIAGE

WHETHER OR NOT THE EVIDENCES AND TESTIMONIES PRESENTED

ENOUGH TO PROVE JUAN’S HOMOSEXUALITY PRIOR THE MARRIAGE

DISCUSSION

Marriage is the cornerstone of Philippine society and an inviolable

social institution. Separation, annulment or declaration of nullity of
marriage can only be based on grounds stated by law. The Family Code
liberalized to a certain extent these grounds by providing for
Concealment of Homosexuality as a ground for the declaration of nullity
of a marriage. Basing on the evidences and testimonies of the witnesses,
Article 36 must be the ground for nullity of Jane and Juan’s marriage. The
author submits that this is a problem since the concealment of
homosexuality must be prior the marriage and the suspicions of Jane to
Juan’s sexuality was after their marriage and this may be broadened to
encompass any and all circumstances of incompatibility of the spouses
and allow the judges too much discretion to determine when declaration
of nullity by virtue of psychological incapacity is applicable. In view of the
lack of definition of the concept of psychological incapacity in the Family
Code, problems arose with regards to its application and interpretation,
leading to many misapplications.

"Psychological incapacity," as a ground to nullify a marriage under

Article 36 of the Family Code, should refer to no less than a mental – not
merely physical – incapacity that causes a party to be truly in cognitive of
the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed in
Article 68 of the Family Code, among others,34 include their mutual
obligations to live together, observe love, respect and fidelity and render
help and support. There is hardly any doubt that the intendment of the
law has been to confine the meaning of "psychological incapacity" to the
most serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to the
marriage.

While in Art 46 (4) states a marriage may be considered null and

void if: 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
 Since the allegations of Jane are after the celebration of their
marriage, we have to distinguish. If the husband has been in a same sex
relationship even before marriage and he concealed such fact in order to
obtain by fraud the consent of the other party, then marriage may be
annulled by the injured party (not by the wife) within 5 years from
discovery of fraud.

Based on the evidence presented, there exists insufficient factual

or legal basis to conclude that Juan is not homosexual prior getting
married to Jane, and the actions of homosexuality of Juan happened
when they got married.

Juan is a desperate man determined to salvage what remains of his

marriage. Persistent in his quest, he fought back all the heavy
accusations of incapacity, cruelty, and doubted masculinity thrown at
him.

Jane’s petition for nullity had no basis at all because the supporting
grounds relied upon cannot legally make a case under Article 46 of
the Family Code. In the same light, Republic v. Molina:[54]
 
 
Indeed, mere allegations of conflicting personalities,
irreconcilable differences, incessant quarrels and/or beatings,
unpredictable mood swings, infidelities, vices, abandonment,
and difficulty, neglect, or failure in the performance of some
marital obligations do not suffice to establish psychological
incapacity

What Jane attempted to demonstrate were

Juan’s homosexualtendencies by citing overt acts generally predominant
among homosexualindividuals?She wanted to prove that the perceived
homosexuality rendered Juan incapable of fulfilling the essential marital
obligations.Evidently, no sufficient proof was presented to substantiate
the allegations that Juan is a homosexual and that he concealed this to
Jane at the time of their marriage.

Even assuming, ex gratia argumenti, that Juan is a homosexual, it

cannot be appreciated as a ground to annul his marriage with Jane. The
law is clear a marriage may be annulled when the consent of either party
was obtained by fraud, such as concealment of homosexuality. None of
the allegations was proven and by preponderance of evidence that Juan
was a homosexual at the onset of his marriage and that he deliberately
hid such fact to his wife. It is the concealment of homosexuality, and not
homosexuality per se, that vitiates the consent of the innocent
party. Such concealment presupposes bad faith and intent to defraud the
other party in giving consent to the marriage.
To reiterate, homosexuality per se is only a ground for legal
separation. It is its concealment that serves as a valid ground to annul a
marriage. Concealment in this case is not simply a blanket denial, but
one that is constitutive of fraud. It is this fundamental element that
respondent failed to prove.
 
In the United States, homosexuality has been considered as a basis
for divorce. It indicates that questions of sexual identity strike so deeply
at one of the basic elements of marriage, which is the exclusive sexual
bond between the spouses. In Crutcher v. Crutcher,the Court held:
 
Unnatural practices of the kind charged here are an
infamous indignity to the wife, and which would make the
marriage relation so revolting to her that it would become
impossible for her to discharge the duties of a wife, and would
defeat the whole purpose of the relation.In the natural course
of things, they would cause mental suffering to the extent of
affecting her health.
 
However, although there may be similar sentiments here in
the Philippines, the legal overtones are significantly different.Divorce is
not recognized in the country. Homosexuality and its alleged
incompatibility to a healthy heterosexual life are not sanctioned as
grounds to sever the marriage bond in our jurisdiction. At most, it is only
a ground to separate from bed and board.
 
What was proven in the hearings a quo was a relatively blissful
marital union for more than eleven (11) years, which produced
three (3) children. The burden of proof to show the nullity of the marriage
rests on Jane. Sadly, she failed to discharge this onus.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that

after trial, judgment be rendered by this Honorable Court declaring the
Petition for Annulment of Contract of Sale with damages between the
Petitioner and the Respondent be dismissed by lack of evidence.

Other reliefs just and equitable are prayed for.

May 1, 2018.
Cebu City, Philippines.

SUBSCRIBED AND SWORN to before me this 1st day of May 2018 in Cebu
City, Cebu.

April B. Sumalinog
Sumalinog and Associates Law Office
Counsel for the Respondent
2/F Cardinal Rosales Avenue, Cebu Business Park, Cebu City

Doc.No.; 1234
Page No.; 456
Book No.; 789
Series of 2018.