Thursday, 11 September 2008

Philippines: Annulment cannot happen merely because a man is gay

In a recent Philippines Supreme Court case, Almelor v Almelor and RTC, the court had to decide whether the marriage should have been annulled (as a lower court had ordered) on the basis that the wife alleged, 11 years after they married, that the husband was gay. She said that there was a fraud, therefore lack of intent to marry and therefore the marriage was not valid.

Ultimately, the Supreme Court held that a marriage could not be annulled on that basis, but it might have been different if the husband had concealed that he was gay when they married- as that would have amounted to fraud.

The husband vehemently denied that he was gay. The wife said that they had separated after seeing that he had gay porn, and that he had kissed another man on the lips. The husband denied it all, and produced alibi evidence. He said that his close relationship with his mother was just that- he loved his mother.

Annulment in Australia

It is rare that annulment will be sought in Australia- because after all, divorce is a waiting game. Wait a year of separation then (subject to being married for less than 2 years in which case a counselling certificate is required) you can apply for divorce- assuming of course that the marriage appears to be over.

So no incentive to apply for annulment.

Annulment in any case can only be obtained in very limited circumstances:
  • the person did not possess the intent to marry due to mistake or fraud - eg he thought that they were engaged in an acting scene of a wedding, but in reality it was a wedding
  • there was duress- she was forced to marry against her will by for example threats made at or in the immediate lead up to the wedding.
  • bigamy

Why annulment might matter

The Filipino case illustrates one key point - the husband was keen to fight the annulment. At first it would not make any sense, because the Philippines is one of the few countries that does not recognise divorce.

Why was he keen to fight?

  • Was it because the wife said that he was violent and cruel? Maybe.
  • Was it because he said that he was wrongly labelled as gay? Maybe.
  • Or was it because if the marriage had been annulled he could no longer jointly control the joint owned property and the lower court forfeited his share in favour of their children? This seems the likely answer.

In Australia there can be real differences in property settlement between being classified as being in a marriage and being in a de facto relationship. Annulments may matter here because of the potential impact on division of property.

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