REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT BRANCH 31, MARIKINA CITY Selena Gomez-Magalona Petitioner,

-versusCivil Case No. 72363 For: Petition for Declaration of Nullity of Marriage Andrew Magalona Respondent. x------------------------------------------------------------------------------------------------------------------x MEMORANDUM FOR THE RESPONDENT THE RESPONDENT, Andrew Magalona, through counsel, respectfully state:

STATEMENT OF THE CASE This is a petition filed by SELENA GOMEZ-MAGALONA for Declaration of Nullity of her marriage to respondent ANDREW MAGALONA. The petitioner brought this action based on Article 36 in relation to Articles on 68, 69, 10 and 71 of the Family Code of the Philippines as Amended on the ground that the respondent is psychologically incapacitated to discharge the basic and essential obligations of marriage.

MATERIAL FACTS

Andrew and Selena got married on October 2002. Selena got pregnant and gave birth to a boy on December 2003. Prior to their marriage, they had already lived together under one roof due to Andrews insistence. However, they would soon return to their respective homes as Andrew failed to find a job to support them notwithstanding his college degree. For the second time, Andrew insisted on living together with Selena in the house of Andrews mother. But it proved to be worse as Selena was treated like a servant. Despite having a family, Andrew continued to be jobless even after a year of marriage. Since Andrew failed to provide the needs of Selena and their son, Selena decided to escape together with their son and subsequently, Selena filed a petition for declaration of nullity of marriage on the ground of psychological incapacity.

ISSUE Is the respondent psychologically incapacitated to comply with the essential marital obligations which would warrant a declaration of nullity of his marriage with the petitioner?

DISCUSSION Andrew is not psychologically incapacitated. Selenas petition for declaration of nullity of marriage is anchored on Article 36 of the Family Code which provides: 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 manifest only after its solemnization. In Santos v. Court of Appeals, 310 Phil. 21 (1995), the Court first declared that psychological incapacity must be characterized by (a) gravity; (b) judicial antecedence; and (c) incurability. It 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 Dimayuga-Laurena v. Court of Appeals, G.R. No. 159220, 22 September 2008, 566 SCRA 154, the Court explained: (a) Gravity It must be grave and serious such that the party would be incapable of carrying out the ordinary duties required in a marriage; (b) Judicial 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. Respondents psychological incapacity is premised merely on his being jobless and emotionally immature. Petitioners portrayal of respondent as jobless and irresponsible is not enough. It must be shown that the parties be incapable of meeting their responsibilities and duties as married persons, due to some psychological illness. What the law requires to render a marriage void on the ground of psychological incapacity is downright incapacity, not

refusal or neglect or difficulty, much less ill will.1 The mere showing of "irreconcilable differences" and "conflicting personalities" does not constitute psychological incapacity.2 As held in a long line of cases decided by the Supreme Court, the psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage.

Petitioner failed to show that Andrews psychological incapacity to be so grave and so permanent as to deprive him of the awareness of the duties and responsibilities of the marriage. Moreover, the alleged psychological incapacity had not been clinically or medically identified and not sufficiently proven by experts. While it was held in Marcos v. Marcos, G.R. No. 136490, October 19, 2000 that it is not required for the person alleged to be psychologically incapacitated to be examined by a physician, it is imperative that there be evidence that can adequately prove the partys psychological condition. The incurability of the alleged psychological incapacity was also not established. Andrews failure to find a job does not equate to his incapacity to fulfill his marital obligations enumerated in Articles 68 to 71, 220, 221 and 225 of the Family Code. The petitioner had the burden of proving the nullity of his marriage with respondent but failed to discharge it. This case does not anymore need

1 2

Republic v. Court of Appeals, G.R. No. 108763, 13 February 1997, 268 SCRA 198. Id.

an extended argument to show that respondent is not psychologically incapacitated to comply with his marital duties as a husband of the family. In conclusion, we submit that Andrew is not psychologically

incapacitated to comply with the essential marital obligations. If at all, Andrew was merely irresponsible and emotionally immature, both of which are not equivalent to the psychological incapacity contemplated by law. His being jobless, irresponsible and emotionally immature does not mean that Andrew is suffering from grave psychological maladies that render him incapable of complying with the essential obligations of marriage. Marriage is an inviolable social institution and the foundation of the family 3 that the State cherishes and protects. While we express sympathy with petitioner in her unhappy marital relationship with respondent, totally terminating that relationship, however, may not necessarily be the fitting denouement to it. WHEREFORE, in view of the foregoing, we respectfully move and pray to the Honorable Court that the petition for declaration of nullity of marriage between SELENA GOMEZ-MAGALONA and

ANDREW MAGALONA be DENIED. Other reliefs, remedies, just and equitable in the premises are likewise prayed for. City of Manila, March 22, 2011.

ROSALES AND POOTEN LAW OFFICES Counsel for the Respondent Unit 321-B Otto Towers
3

Section 2, Article XV, 1987 Constitution.

San Roque, Marikina City By:

RICHARD ROSALES IBP. NO. 469854 valid until 2012/06-12-11/Manila PTR. No. 1241/01-09-11/Mendiola, Manila Roll of Attorneys 77895 THERESE ABBAY POOTEN IBP. NO. 365465 valid until 2012/06-12-11/Manila PTR. No. 5678/01-09-11/Mendiola, Manila Roll of Attorneys 77896

EXPLANATION (Pursuant to Section 11, Rule 13) of the 1197 Rules of Civil Procedure) The foregoing Memorandum has been served personally to the Honorable Court as well as to the public prosecutor and registered mail to the Office of the Solicitor General as well as to the counsel for the respondent because of lack of office personnel to serve the same personally.

RICHARD ROSALES THERESE ABBAY POOTEN

Copy furnished:

Prosecutor Carlo Vargas Office of the City Prosecutor Manila

Office of the Solicitor General 134 Amorsolo Street, Legaspi Village, Makati City Atty. Vincent Balili (counsel for respondent) 1241 Metropolitan Avenue Makati City, 1200 Philippines