Dear PAO,

Jose seemed to be the ideal husband, or at least that was my impression when we were still sweethearts. I also knew that he was gay, but I still chose to marry him. Eventually, our marriage turned sour that we cannot really get along anymore. We are now separated-in-fact. My friend told me that homosexuality is a ground for annulment of marriage, is this correct?

Maskilina

Dear Maskilina,

In general, consent in marriage obtained by fraud may be ground for its annulment. This is in consonance with Article 45 (3) of the Family Code of the Philippines, which provides that:

“A marriage may be annulled for any of the following causes, existing at the time of the marriage: x x x (3) That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife. x x x“Correlative thereto, its Article 46 (4) also states that:

“Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: xxx (4) Concealment of drug addiction, habitual alcoholism, or homosexuality or lesbianism existing at the time of the marriage. Xxx”

Concealment of homosexuality constitutes fraud. It is concealment, not gender preference, which is a ground for annulment. This is backed by the decision in the case of Almelor vs. Hon. Regional Trial Court of Las Piñas and Almelor, GR 179620, Aug. 26, 2008, where the Supreme Court, speaking through Associate Justice Ruben Torres, stated that:

“Even assuming, ex gratia argumenti, that Manuel is a homosexual, the lower court cannot appreciate it as a ground to annul his marriage with Leonida. The law is clear — a marriage may be annulled when the consent of either party was obtained by fraud, such as concealment of homosexuality. Nowhere in the said decision was it proven by preponderance of evidence that Manuel was a homosexual at the onset of his marriage and that he deliberately hid such fact to his wife. It is the concealment of homosexuality, and not homosexuality per se, that vitiates the consent of the innocent party. Such concealment presupposes bad faith and intent to defraud the other party in giving consent to the marriage.”

Applying the above-quoted decision to your situation, homosexuality per se is not a ground for annulment of marriage but the concealment of homosexuality which vitiates consent constitutes fraud. However, such ground cannot be availed of based on the given set of facts since it appears that you have actual knowledge that your husband is gay prior to your marriage, and yet you contracted the marriage with him. It then follows that fraud as a ground for annulment of marriage, in your situation, does not exist.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].