Respondent COURT MEMO

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT BRANCH 6, CEBU CITY

Gerard delos Reyes Petitioner, -versusCivil Case No. 14344 For: Petition for Declaration of Nullity of Marriage Geraldine delos Reyes, Respondent x-------------------------------------------x MEMORANDUM FOR THE RESPONDENT

THE RESPONDENT, Geraldine delos Reyes, respectfully state that:

PREFATORY STATEMENT

The family is the basic unit of society. The family, along with the marriage between the spouses’ shall be protected by the State and shall be shielded from nullifying such sacred union on inadequate grounds. The law recognizes the family as the most important element that makes a society. The justice system shall see to it that this so remains. FACTS OF THE CASE

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January 5, 2011 Gerard and Geraldine delos Santos married. A week after their marriage, her husband went left for abroad for work. They communicated communicated regularly either through email, chat or telephone. Gerard delos Reyes came home sometime in July 2012 for a one-month vacation and left in the middle of August August 2012. A month later, her husband husband left for abroad again. Geraldine delos Reyes discovered discovered that she was pregnant. pregnant. She communicated communicated this to her husband and he planned to come home when she was scheduled to give birth. Gerard came home sometime in the middle of April 2013 and she gave birth to their daughter Joanna on May 3, 2013. Gerard left for abroad again, their communication then was still regular and he sent her regular monthly support but sometime February 2014, he stopped sending regular support support and did not contact contact her for a month. As she was was worried about him, she tried to contact him but he was always out when she

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called. He did not also answer her emails. She never communicated to her after that. Sometime in June 2014, she received a summons for a petition for declaration of nullity of marriage filed by her husband on the ground of psychological incapacity. One of the bases for psychological incapacity was that she was an unfaithful wife, that she got pregnant from another man and that the child was not his. In her husband’s allegation, they had sexual intercourse on August 9, 2012 but she gave birth on May 3, 2013 less than nine months had lapsed. Another allegation of the husband was that she was only after his money as she was always asking him for money. One of his prayers in the petition was for the court to direct petitioner to undergo DNA test. According to Mrs. delos Reyes, she was never unfaithful to her husband and was sure that he was the father of her daughter. She wants to know if she could ask for regular support and if she had to undergo DNA test so that her husband will give support. ISSUE

We now present the following issues: 1. Whether or not the respondent is psychologically incapacitated and has failed to comply with the essential marital obligations to nullify their marriage; 2. Whether or not Joana delos Reyes, the child born during respondent’s marriage to her husband is entitled for support.

ARGUMENTS AND DISCUSSION

I. Geraldine is not psychologically incapacitated. It is stated in Article 36 of the Family Code of the Philippines 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 manifested only after solemnization.

In the landmark case of  Antonio v. Reyes, G.R. No. 155800, the Court, through then Justice (now Chief Justice) Panganiban observed that “[t]he evidence [to establish psychological incapacity] must convince the court that the parties, or one of them, was mentally or psychically ill to such extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereto.” Jurisprudence since then has recognized that psychological incapacity “is a malady so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume.” The case Santos v. Court of Appeals, 310 Phil.21 (1995) is also worth mentioning. Therein, it is stated that psychological incapacity is characterized by (a) Gravity; (b) Judicial Antecedence; and (c) Incurability. 2

It is a rule that psychological incapacity must be confined “to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.” In the case of Dimayuga-Laurena v. Court of Appeals, G.R. No. 159220, 22 September 2008, the Court declared the following parameters: (a) Gravity –   It must be grave and serious such that the party would be incapable of carrying out duties required in a marriage; (b) Juridical Antecedence –   It must be rooted in the history of the  party antedating the marriage, although the overt manifestations may emerge only after the marriage; and (c) Incurability –   It must be incurable, or even if it were otherwise, the cure would be beyond the means of the party involved. The respondent’s psychological incapacity is not founded upon unswerving grounds. The respondent herein was never unfaithful to her husband. Furthermore, she was actually compliant in her marital obligations during the sustenance of their marriage. The requirement that the errant spouse’s incapacity of meeting his marital responsibilities and duties must be due to some psychological illness is not satisfactorily met. The grounds invoked by the complainant to move for the nullity of their marriage are insufficient to meet the strictures set by the law in invoking psychological incapacity.

Article 36 of the Family Code of the Philippines states that downright incapacity, not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse will render a marriage void on the ground of psychological incapacity. II. Joana delos Reyes is entitled for support.  Article 164, of the Family Code provides:  Art. 164. Children conceived or born during the marriage of the parents are legitimate.  Article 105 of the Family Code of the Philippines, further states that:  Art. 105. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; (2)Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brothers and sisters, whether of full or halfblood 

Joana delos Reyes was born during the subsistence of Gerard and Geraldine’s marriage. Thus, as per the provisions above, we can deduce that Joana delos Reyes is under those who his legitimate father is obliged to support. Unless declared by the court 3

through a final judgment that she is an illegitimate child, she is very much entitled to support. Even during the continuance of the proceedings for declaration of nullity of marriage, the child is nevertheless entitled for support. This is reinforced by Article 198 of the Family Code, which states:  Art. 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 the 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.

We thus conclude that Geraldine delos Reyes is not psychologically incapacitated. The petition for the declaration of nullity of marriage should be rendered insufficient. Further, their legitimate child, Joana delos Reyes, shall also be given support. PRAYER WHEREFORE, in view of the foregoing, we respectfully pray to the Honorable Court that the petition for declaration of nullity of marriage between GERARD DELOS REYES and GERALDINE DELOS REYES be DENIED and if the legitimacy of the child is proven of be his own, that support for the minor child be GRANTED.

Other reliefs, remedies, just and equitable reliefs in the premises are likewise prayed for. City of Cebu, March 16, 2017.

ONG OH AND ASSOCIATES ATTORNEYS-AT-LAW Counsel for the Respondent Unit 1, Great Towers Talamban, Cebu City

By:

(Sgd.) ATTY. JOSE B. ONG OH IV IBP. Lifetime No. 098863; 11/6/2000 PTR No. 527451; 01-25-16 Roll of Attorney No. 2007-88372 MCLE Compliance No. III-9864 4

Copy Furnished:

ATTY. RANDY GOMEZ Counsel for Petitioner 1/F Room 1, Cebu Holdings Bldg. Cebu Business Park Cebu City

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