MEMORANDUM

TO: Atty. Riza RachoBaldovino, PhD.

FROM:

RE: Sherry And Gregorio Case An Action For Legal Separation

DATE: October 28, 2017

QUESTION PRESENTED

Under the Philippine law, will the action for legal separation1, on the ground of
homosexuality filed by Sherry Anot against her husband, Gregorio Gorio Madrigal,
prosper?

SHORT ANSWER

Yes. The action for legal separation on the ground of homosexuality, having been
filed by Sherry after the effectivity of the Family Code2 had come into force, will prosper
event hough the celebration of their marriage and the time of discovery were both under
the Civil Code3.

STATEMENT OF FACTS

Sherry Anot and Gregorio Madriga celebrated their marriage on May 30, 1982. A
few days after the marriage, Sherry discovered that Gorio was a homosexual. The coupe
then decided to live separately. Under the Civil Code 4 , which was the law effective
during the date of discovery of Gorios homosexuality and the celebration of their
marriage, homosexuality was not included among the valid grounds for which legal
separation may be filed. However, with the enactment of the Family Code, the valid
grounds for legal separation were increased. Among thos that were added to the grounds
for legal separation was homosexuality.

Sherry, now, decided to be legally separated from Gorio based on the grounds of
homsexuality. Sherry brought her action for legal separation on September 15, 1988. She
asks whether the action for legal separation will prosper in her case.

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DISCUSSION

Sherry Anot filed an action for legal separation against her husband, Gregorio
Madrigal, on the ground of homosexuality. There became a conflict as to which law is to
be followed since the celebration of their marriage and the discovery of Gorios
homosexuality was under the effectivity of the Civil Code; whereas, the action for legal
separation was filed during the effectivity of the Family Code. The issue in the case is
whether or not the action for legal separation will prosper. A court would likely conclude
that the action for legal separation will prosper because during the time the action for
legal separation was filed, the Family Code was already in effect and under such law,
homosexuality is a valid ground for annulment.

Prior to the effectivity of the Family Code, there only exist two valid grounds for
filing an action for legal separation. Neither of those two inludes homosexuality.
However, as the Family Code took effect, those two grounds increased and became ten
valid grounds. Fortunately, one of those grounds is homosexuality. Now, the question to
be answered would be which of those two laws must we adhere to.

Article 256 of the Family Code5 provides that the Code is given retroactive effect
insofar as it does not prejudice or impair vested or acquired rights. In similar situations in
the past, the Supreme Court in Lahom vs. Sibulo6 applied the law in effect at the time the
petition or the action was made. In the case at bar, it is the Family Code. Applying Article
256 of the Family Code and the jurisprudence aforecited, we must adhere to the
provisions of the Family Code. Furthermore, there was a failure to show any vested or
acquired right that was impaired by the application of Article 55 of the Family Code
which provides for the grounds for legal separation.

We must take note, however, that the Family Code also provides a prescriptive
period for filing an action for legal separation. Article 57 of the Family Code7 provides fo
the said prescription. Under Article 57, An action for legal separation shall be filed
within five years from the time of the occurrence of the cause. In the case at bar, it
evident that more than five years have passed before Sherry filed an action for legal
separation. However, we must also remember that Sherys discovery of Gorios
homosexuality happened prior to the Family Code. This means, she was barred from
filing for an action for legal separation because during those times, homosexuality was
not one of the grounds for legal separation.

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 Technically, this would have caused for the action for legal separation to be
denied; however, we may as the Court to exercise leniency in Sherrys case as she was
left with no other choice since the ground she is invoking now was not yet available five
years ago.

CONCLUSION

On these given set of facts, the court will likely grant the action for legal
separation since there clearly is a valid ground for which legal separation may be
invoked. It is but a mere misfortune on the part of Sherry that during the time she
discovered of the homosexuality of her husband, it was not yet a valid ground for the
remedy she wishes to seek.

1
Art. 55, Family Code of the Philippines.
2
Paras, E. (2002). Civil Code of the Philippines Annotated Vol. 1. Quezon City: Rex
Book Store.
3
Paras E. (2002). Civil Code of the Philippines Annotated Vol. 1. Quezon City: Rex
Book Store.
4
Art. 97, Civil Code of the Philippines.
5
Art. 256, Family Code of the Philippines.
6
G.R. No. 143989, 14 july 2003 (406 SCRA 135).
7
Art. 57, Family Code of the Philippines.