Solid union

A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison - The Philippine Star

Can a marriage bond be severed because the husband is a homosexual? What is the remedy of the wife in such a case? These are the questions answered in this case of Diane and Gerry.

Diane first met Gerry in 1981 when they were still medical students working at a hospital as medical clerks. Diane’s initial impression of Gerry was a very thoughtful person who got along well with other people. So in no time at all they became sweethearts after finishing their medical courses with Gerry becoming an anesthesiologist and Diane, a pediatrician.

At that time, Gerry knew very well that people around him including his friends already doubted his sexual preference. Even Diane heard these rumors and told Gerry about them but Gerry just denied them and even threatened to sue those people spreading those rumors. Yet he did not do anything to prove once and for all the truth of his denials. He just told Diane that there were more important matters to attend to than waste time and efforts filing cases and be affected by those people. So putting more premium on Gerry’s denials, Diane married him in 1989 three years after they became sweethearts.

Their marital union appeared to be blissful indeed as they begot three children within the first five years of marriage. But Gerry’s kind and gentle demeanor did not last long. In public, he was the picture of a perfect husband  and father, but in his private life and at home, Diane observed that he was a harsh disciplinarian, more authoritative in knowing what clothes or jewelry shall fit her, unreasonably meticulous even over  small details in the house like wrongly folded bed sheets, and easily angered. His unreasonable way of imposing discipline on their children was the cause of their frequent quarrels especially in view of the stark contrast to the lavish affection Gerry had for his mother to whom he had deep attachment and dependence for decision making.

Diane also noticed Gerry’s peculiar closeness to his male companions. She caught him in an indiscreet telephone conversation manifesting his affection to a male caller. She also found several pornographic homosexual materials in his possession. Then her worst fears were confirmed when she saw Gerry kiss another man on the lips. When Diane confronted him and Gerry again denied everything, Diane already took her children and left the conjugal abode. Since then Gerry stopped giving support to their children.

Then after 11 years of marriage, Diane filed a petition with the Regional Trial Court (RTC) to declare their marriage a nullity on the ground that Gerry was psychologically incapacitated to perform his essential marital obligations. To prove her case, she testified and narrated her above story and experience during those 11 years of marriage. A clinical psychologist who had a one-time interview with Gerry also testified and presented her conclusion that Gerry was indeed psychologically incapacitated which incapacity existed even before the marriage and appeared to be incurable.

Gerry did not present any psychologist to refute these findings of Diane’s psychologist. Instead he and his brother just testified denying Diane’s story, explaining and giving his own version.

After trial, the RTC declared that Diane’s petition for nullity had no basis at all because the supporting grounds relied upon cannot legally make a case of psychological incapacity under Article 36 of the Family Code (FC). But it still nullified the marriage because of Gerry’s homosexuality which is incompatible with heterosexual marriage since the law recognizes marriage as a special contract exclusively and only between a man and a woman. The RTC ruled  that Gerry’s denial of his homosexuality is a concealment that constitutes fraud in obtaining Diane’s consent to their marriage which is a ground for annulment under Article 45 (3) in relation to Article 46 (4) of the Family Code. Was the RTC correct?

No. even assuming that Gerry is a homosexual, the RTC cannot appreciate it as a ground to annul his marriage with Diane. A marriage may be annulled when consent of either party is obtained by fraud such as concealment of homosexuality. It is concealment of homosexuality, and not homosexuality per se, that vitiates consent of the innocent party. Concealment in this case is not simply a blanket denial, but one that is constitutive of fraud. It presupposes bad faith and intent to defraud the other party in giving consent to the marriage. Diane failed to prove this fundamental element.

Homosexuality and its alleged incompatibility to a healthy heterosexual life are not sanctioned as ground to sever the marriage bond in our jurisdiction. At most it is only a ground for legal separation or separation from bed and board under Article 55 (6) of the FC. So Diane’s petition should be for legal separation only.     

The constitutional policy is to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family. The State and the public have vital interest in the maintenance and preservation of these social institutions against desecration. Thus any doubt must be resolved in favor of the validity of marriage (Almenor vs RTC of Las Piñas City, G.R. 179620, August 26, 2008).

E-mail: attyjosesison@gmail.com.

  • Latest
  • Trending
Are you sure you want to log out?

Philstar.com is one of the most vibrant, opinionated, discerning communities of readers on cyberspace. With your meaningful insights, help shape the stories that can shape the country. Sign up now!

or sign in with