Tuesday, September 19, 2017

Wife discovered that her husband has a child by another woman. Can she have her marriage nullified?

  • Dear Attorney,

    What must I do to have my marriage nullified? I discovered that my husband has a child by another woman, so I would like to have my marriage declared void. We have one child.

    - An overseas Filipino 


    There are limited reasons for having a marriage declared null and void. One of these is psychological incapacity to comply with the essential obligations of marriage, according to Article 36 of the Philippine Family Code. 

    Mere sexual infidelity, as in your husband's case, does not make him psychologically incapacitated for marriage. There must be evidence of a personality disorder that completely prevents him from carrying out his marital obligations.

    According to the Philippine Supreme Court in the case of MIRASOL CASTILLO, Petitioner, v. REPUBLIC OF THE PHILIPPINES AND FELIPE IMPAS, Respondent, G.R. No. 214064, February 06, 2017:

    "Irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility and the like, do not by themselves warrant a finding of psychological incapacity under Article 36, as the same may only be due to a person's refusal or unwillingness to assume the essential obligations of marriage. In order for sexual infidelity to constitute as psychological incapacity, the respondent's unfaithfulness must be established as a manifestation of a disordered personality, completely preventing the respondent from discharging the essential obligations of the marital state; there must be proof of a natal or supervening disabling factor that effectively incapacitated him from complying with the obligation to be faithful to his spouse. It is indispensable that the evidence must show a link, medical or the like, between the acts that manifest psychological incapacity and the psychological disorder itself."

    Based on your email, I do not see any basis for having your marriage declared null and void in a way that meets the requirements of the law. You can file an action for legal separation based on sexual infidelity. If you present sufficient evidence and the trial court decides in your favor, a legal separation decree will have four results: your husband will no longer be able to inherit from you; his share in your community property will be forfeited favor of your common child; you are entitled to live separately from him, and you will have custody of your minor child. However, your marriage bond remains and you cannot marry another.

    (Note: This reply is based only on the limited facts given, and is not meant to be applicable to all situations. It is provided for information only. For specific situations, you must consult legal counsel.)

Saturday, September 09, 2017

Ebook on PWD rights now available on Amazon

In this ebook, I discuss the importance of the social model in pushing for access to justice for persons with disability. I emphasize that access to justice is an essential aspect of human rights.

Now available on Amazon. Just click www.amazon.com/dp/B075H8MXNP.