SUMALINOG LAW OFFICE

Cardinal Rosales Avenue, Cebu Business Park, Cebu City

Telephone #: 143-1444 Cellphone #: 09171694095
Email: abril3h8sumalinog@gmail.com

24 April 2018

Ms. Ann Cutis

456 Apple Mango St.,
Cagayan De Oro, City

Re: Possible declaration of absolute nullity of marriage under Article 45 of the

Family Code of the Philippines.

Dear Ms. Cutis:

This opinion seeks to answer your question as to whether or not you

can apply for an annulment to nullify your marriage.

The Facts:
Per our discussion, and the documents you have shown me, the
following are the pertinent facts:

On April 3, 2015, you married Mr. Paulo Pascua in Cagayan de Oro City.
You got married three years ago but until now you do not have a child yet
because your husband is impotent. At first, you thought it is your fault
because you might not be sexually attractive, so you take sexual advances
to him. However, he takes more extensive steps to avoid physical contact
with you.

In addition, your husband cannot keep his eyes off every single woman
who walks by and you call him a womanizer – especially when he is
constantly handling out his mobile number. He tends to withdraw and
incommunicative which leave you feeling isolated and confused. The reason
you suspected your partner is having an affair.

You also claimed that your husband of being so irresponsible, always

looking for excuses to be away from you and prefer hanging with the boys.
Thereafter, you learned that not only he has been an alcoholic but a drug
dependent as well. Worse, he concealed all these before your marriage.

These allegations, however is denied by Mr. Pascua, he being a good

and ideal husband.
The Applicable Law:

The grounds for annulment of marriage are enumerated in Article 45 of

the Family Code of the Philippines. One of which is under paragraph 3, when
the consent of either party to the marriage was obtained through fraud
unless such party afterwards, with full knowledge of the facts constituting
the fraud, freely cohabited with the other as husband and wife.

The following circumstances constitute fraud as grounds for annulment

of marriage: 1) non-disclosure of a previous conviction by final judgment of
the other party of a crime involving moral turpitude; 2) concealment by the
wife of the fact that at the time of the marriage, she was pregnant by a man
other than her husband; 3) concealment of a sexually transmissible disease,
regardless of its nature, existing at the time of the marriage; or 4)
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
fraud as will give grounds for action for the annulment of marriage (Article
46, Family Code of the Philippines).

Drug addiction by itself cannot be used as a ground for annulment of

marriage. If drug addiction is known to the spouse from the beginning or if
drug addiction occurs after marriage, it is not a ground in the annulment of
marriage. Drug addiction can only be used for the annulment if there is
concealment of it before marriage.

On the other hand, impotency of a spouse is also 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 annulled 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 husband’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.

The Applicable Jurisprudence:

Further, it is essential for you to clearly establish your husband’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.

The law specifically enumerates the legal grounds that must be proved
to exist by indubitable evidence, to annul a marriage. 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).

To sum it up, nullity of marriage or annulment of marriage does not

cover being a womanizer. I recommend that you file your petition for
annulment of your marriage under paragraph 5 of Article 45 which is
impotence because it seems that impotency of your husband 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,

APRIL B. SUMALINOG
Legal Counsel