Republic of the Philippines

Regional Trial Court of Cebu City

Branch 24

Gerard De Los Reyes

Petitioner
-versus- Civil Case No: RTC-082495
For Support and Nullity of
Marriage
Geraldine De Los Reyes
Respondent.
x---------------------------------------------------x

MEMORANDUM FOR RESPONDENT

Plaintiff, by counsel, respectfully states that:

STATEMENT OF THE CASE

Plaintiff Gerard De Los Reyes filed the present action for the nullity of
marriage against Defendant Geraldine De Los Reyes. This is for the reason that
Defendant Geraldine De Los Reyes became pregnant with a child that could not
have been sired by Plaintiff. Further, Plaintiff alleges psychological incapacity
on the part of the Defendant.

STATEMENT OF THE FACTS

1. On January 5, 2011 Mr. and Mrs. De Los Reyes got
married in Cebu City.

2. A week after their Mr. De Los Reyes left overseas for

marriage employment opportunities.

3. July 2012 Mr. De Los Reyes arrived in the

Philippines.

4. Mid-August 2012 Mr. De Los Reyes left overseas for

the second time to resume his
employment.

5. Mid-April 2013 Mr. De Los Reyes arrived in the

Philippines for the last trimester of
his pregnant wife.

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 6. May 3, 2013 Birth of the child.
7. February 2014 Mr. De Los Reyes filed for the
absolute nullity of marriage on the
basis of psychological incapacity,
alleging that his wife was unfaithful
to him and that the child was not his.

ISSUES:

1. Whether or not the child is not the child of Mr. De Los Reyes

2.Whether or not Mr. De Los Reyes can validly annul his marriage on the basis of
psychological incapacity

3.Whether or not Mrs. De Los Reyes can claim support pendent lite on behalf of
her minor child

ARGUMENTS
1. Whether or not the child is not the child of Mr. De Los Reyes
Yes. The child is presumed to be the child of Mr. De Los Reyes.
Title IV Chapter 1 Art. 166 of the Family Code, states that:
Legitimacy of a child may be impugned only on the following grounds:
(1) That is was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child because of:
a. The physical incapacity of the husband to have sexual
intercourse with his wife
b. The fact that the husband and wife were living separately in
such a way that sexual intercourse was not possible.

It was not physically impossible for the husband to have sexual

intercourse with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child.
The presumption of legitimacy proceeds from the sexual union in
marriage, particularly during the period of conception. To overthrow this
presumption on the bases of Article 166 (1) (b) of the Family Code, it must be
shown beyond reasonable doubt that there was no access that could have
enabled the husband to father the child. Sexual intercourse is to be presumed
where personal access is not disproved, unless such presumption is rebutted by
evidence to the contrary. The presumption is quasi-conclusive and may be
refuted only by the evidence of physical impossibility of coitus between
husband and wife within the first 120 days of the 300 days which immediately
preceded the birth of the child. To rebut the presumption, the separation between
the spouses must be such as to make marital intimacy impossible. This may take

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place, for instance, when they reside in different countries or provinces and they
were never together during the period of conception. Or, the husband was in
prison during the period of conception, unless it appears that sexual union took
place through the violation of prison regulations.||| (Concepcion v. Court of
Appeals, G.R. No. 123450, [August 31, 2005], 505 PHIL 529-546)
The date of his arrival on July to the time he left in the middle of August
is very well within the first 120 days of the 300 days which immediately
preceded the birth of Joana. Therefore, absent overwhelming evidence that there
was indeed no physical contact between him and his wife within the specified
period in Art. 166 of the Family Code, the child is considered legitimate.

2. Whether or not Mr. De Los Reyes can validly annul his marriage on the basis
of psychological incapacity
No. Absent conclusive proof that Mrs. De Los Reyes suffers from
psychological incapacity, Mr. De Los Reyes cannot annul his marriage
based on this ground.
What governs psychological incapacity is Art. 36 of the Family
Code.
Article 36 of the Family Code states that "[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
its solemnization." 50 The concept of psychological incapacity as a
ground for nullity of marriage is novel in our body of laws, although
mental incapacity has long been recognized as a ground for the
dissolution of a marriage.||| (Antonio v. Reyes, G.R. No. 155800, [March
10, 2006], 519 PHIL 337-371)
Before we look into the validity of the claim of psychological incapacity, it is
necessary to define what psychological incapacity is.
It should be obvious, looking at all the foregoing disquisitions, including,
and most importantly, the deliberations of the Family Code Revision
Committee itself, that the use of the phrase "psychological incapacity"
under Article 36 of the Code has not been meant to comprehend all such
possible cases of psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like
circumstances (cited in Fr. Artemio Baluma's "Void and Voidable
Marriages in the Family Code and their Parallels in Canon Law," quoting
from the Diagnostic Statistical Manual of Mental Disorder by the
American Psychiatric Association; Edward Hudson's "Handbook II for
Marriage Nullity Cases"). Article 36 of the Family Code cannot be taken
and construed independently of, but must stand in conjunction with,
existing precepts in our law on marriage. Thus correlated,
"psychological incapacity" should refer to no less than a mental (not
physical) incapacity that causes a party to be truly incognitive of the basic

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 marital covenants that concomitantly must be assumed and discharged by
the parties to the marriage which, as so expressed by Article 68 of the
Family Code, 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 ofthe law has been to confine the
meaning of "psychological incapacity" to the most serious
cases of personality disorders clearly demonstrative of an utter
intensitivity or inability to give meaning and significance to the marriage.
This psychologic condition must exist at the time the marriage is
celebrated. The law does not evidently envision, upon the other hand, an
inability of the spouse to have sexual relations with the other. This
conclusion is implicit under Article 54 of the Family Code which
considers children conceived prior to the judicial
declaration of nullity of the void marriage to be "legitimate."||| (Santos v.
Court of Appeals, G.R. No. 112019, [January 4, 1995], 310 PHIL 21-49)
Furthermore, it is also necessary to look into the guidelines in the interpretation
and application of Art. 36.
The following guidelines in the interpretation and application of Art. 36 of
the Family Code are hereby handed down for the guidance of the bench
and the bar: (1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in favor of the
existence and continuation of the marriage and against its dissolution and
nullity. (2) The root cause of the psychological incapacity must be (a)
medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the decision.
(3) The incapacity must be proven to be existing at "the time of the
celebration" of the marriage. (4) Such incapacity must also be shown to be
medically or clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex. (5) Such illness
must be grave enough to bring about the disability of the party to assume
the essential obligations of marriage (6) The essential marital obligations
must be those embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221 and 225 of the
same Code in regard to parents and their children. (Republic v. Court of
Appeals and Molina, G.R. No. 108763, [February 13, 1997], 335 PHIL
664-693)
Firstly, Mr. De Los Reyes claims that his wife is psychologically incapacitated,
therefore, he has the burden to prove that such is medically or clinically
identified and sufficiently proven by experts. His allegation that his wife bore a
child outside of their wedlock does not come under the purview of psychological
incapacity as defined in Republic v. CA and Molina and Santos v. CA.
There being no psychological incapacity to speak of, the next requisites in
the guidelines given to us by the Supreme Court through Republic v. CA and
Molina need not be explained in further detail anymore.

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3.Whether or not Mrs. De Los Reyes can claim support pendente lite on behalf
of her minor child
No. Art. 198 governs the rules on support pending the proceedings
of the declaration of nullity of marriage.
ARTICLE 198. During the proceedings for legal separation or for
annulment of marriage, and for declaration of nullity of marriage, the
spouses and their children shall be supported from the properties of the
absolute community or the conjugal partnership. After final judgment
granting the petition, the obligation of mutual support between the
spouses ceases. However, in case of legal separation, the court may order
that the guilty spouse shall give support to the innocent one, specifying
the terms of such order. (292a) acd||| (Family Code of the Philippines,
Executive Order No. 209 , [July 6, 1987])
However as provided in the aforecited article, after final judgment the
obligation that mutual support will cease. Hence, the support for the child after
the proceedings shall be dependent on the judgment of said proceedings.

PRAYER
WHEREFORE, premises considered, it is respectfully prayed that the judgment
be rendered in favour of respondent and against the plaintiff by:
1. Finding Plaintiff Gerard De Los Reyes as the legitimate father of the
child.
2. Dismissal of the pending case declaring the nullity of marriage
between the Respondent and the Petitioner.
3. Ordering Petitioner to give support to the child
Other just and equitable remedies are also prayed for.

Cebu City, March 10, 2017

(SGD) Atty. Janicka P. Paragados

Counsel of the Respondent
0737 Escario St. Cebu City
IBP No. 82495

Copy Furnished:
Atty. Joan Saniel-Amit
Counsel for the Petitioner