REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT

BRANCH 31, MARIKINA CITY

Selena Gomez-Magalona Petitioner,

-versus-

Civil Case No. 72363For: Petition for Declaration

of Nullity of Marriage

Andrew Magalona Respondent.

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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 Andrew’s 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

Andrew’s 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.

Selena’s 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.

Respondent’s psychological incapacity is premised merely on his being jobless and

emotionally immature. Petitioner’s 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.

1  Republic v. Court of Appeals, G.R. No. 108763, 13 February 1997, 268 SCRA 198.2 Id.

Petitioner failed to show that Andrew’s 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 party’s psychological condition. The incurability of

the alleged psychological incapacity was also not established. Andrew’s 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 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.

3 Section 2, Article XV, 1987 Constitution.

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 RespondentUnit 321-B Otto Towers

San Roque,Marikina City

By:

RICHARD ROSALESIBP. NO. 469854 valid until 2012/06-12-11/Manila

PTR. No. 1241/01-09-11/Mendiola, Manila Roll of Attorneys 77895

THERESE ABBAY POOTENIBP. 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 ROSALESTHERESE ABBAY POOTEN

Copy furnished:

Prosecutor Carlo VargasOffice of the City ProsecutorManila

Office of the Solicitor General134 Amorsolo Street,Legaspi Village, Makati City

Atty. Vincent Balili (counsel for respondent)1241 Metropolitan AvenueMakati City, 1200 Philippines