Homosexuality per se NOT a ground to annul marriage, rather its concealment


This is a story of a desperate man determined to salvage what remains of his marriage. Persistent in his quest, he fought back all the heavy accusations of incapacity, cruelty, and doubted masculinity thrown at him.

The trial court denied his wife’s petition for nullity of their marriage as it had “no basis at all because the supporting grounds relied upon cannot legally make a case under Article 36 of the Family Code.”

But instead of dismissing the petition, the trial court nullified the marriage between Manuel and Leonida on the ground of vitiated consent by virtue of fraud.

Evidently, no sufficient proof was presented to substantiate the allegations that Manuel is a homosexual and that he concealed this to Leonida at the time of their marriage. The lower court considered the public perception of Manuel’s sexual preference without the corroboration of witnesses. Also, it took cognizance of Manuel’s peculiarities and interpreted it against his sexuality.
Homosexuality is not a ground to annul marriage. 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 (Art. 45(3), Family Code), such as concealment of homosexuality (Art. 46(4), Family Code). 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.

Consent is an essential requisite of a valid marriage. To be valid, it must be freely given by both parties. An allegation of vitiated consent must be proven by preponderance of evidence. The Family Code has enumerated an exclusive list of circumstances constituting fraud. Homosexuality per se is not among those cited, but its concealment. (G.R. No. 79620)

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