Family Code 45 (5), 47(5)

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(5) That either party was physically incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
Art. 47. The action for annulment of marriage must be filed by the following persons and within the
periods indicated herein:
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after
the marriage.

Jimenez vs. Canizares

L-12790, August 31, 1960

FACTS:

Joel Jimenez, the petitioner, filed a petition for the annulment of his marriage with Remedios Canizares
on the ground that the orifice of her genitals or vagina was too small to allow the penetration of a male
organ for copulation. It has existed at the time of the marriage and continues to exist that led him to
leave the conjugal home two nights and one day after the marriage. The court summoned and gave a
copy to the wife but the latter did not file any answer. The wife was ordered to submit herself to
physical examination and to file a medical certificate within 10 days. She was given another 5 days to
comply or else it will be deemed lack of interest on her part and therefore rendering judgment in favor
of the petitioner.

ISSUE:

Whether or not the marriage can be annulled with only the testimony of the husband.

HELD:

The wife who was claimed to be impotent by her husband did not avail of the opportunity to defend
herself and as such, claim cannot be convincingly be concluded. It is a well-known fact that women in
this country are shy and bashful and would not readily and unhesitatingly submit to a physical
examination unless compelled by competent authority. Such physical examination in this case is not
self-incriminating. She is not charged with any offense and likewise is not compelled to be a witness
against herself. Impotence being an abnormal condition should not be presumed. The case was
remanded to trial court.

Sarao vs. Guevarra

( 1940)
G.R. No. 47063; 40 OG 263

FACTS:
-Felix Sarao (plaintiff) and Pilar Guevarra (defendant) were married in Manila on June 3, 1936.
-In the afternoon of the same day, Sarao tried to have carnal knowledge of Guevarra, but the latter
showed reluctance and begged him to wait until evening.
-When night came, the plaintiff again approached the defendant and tried to have carnal act with her,
but she complained of pains in her private parts and he noticed some purulent matter offensive to the
smell coming out from her genital.
-Every attempt on plaintiff’s part to have carnal act with his wife failed because she would complain of
pains in her genital organs, and he did not want her to suffer.
-Upon the advice of a physician, defendant submitted to an operation on Aug. 7, 1936, and as her uterus
and ovaries were affected with the tumor, these organs were removed with the consent of the plaintiff.
-The removal of said organs rendered defendant incapable of procreation, but not of copulation.
-Plaintiff, however, declared that from the time he witnessed the operation he lost all desire to have
carnal act with her, and has tried not to do it since then.

ISSUE:
Whether or not, incapacity to procreate can be construed as “physically incapable of entering into the
married state,” and is a valid ground for annulment

HELD

No. Under the marriage law at that time, and as consistently applied in the provision in Art. 45 (5) of the
Family Code, marriage may be annulled if “either party was, at the time of marriage, physically incapable
of entering into the married state, and such incapacity continues, and appears to be
incurable.” It is held that the test of impotency is not the ability to procreate, but the ability to copulate.
In this case, the defendant was not impotent at the time the marriage was celebrated, as supported by
the opinion of the doctor that the existence of fibrous tumor in the ovaries did not necessarily render
her incapable of copulation or even procreation. The removal of her uterus and ovaries rendered her
sterile but did not make her unfit for sexual intercourse. Thus, the defendant’s sterility cannot be a
ground for annulment since what the law provides as a ground for annulment is the incapacity to
copulate, and not to procreate.

Alcazar v Alcazar
G.R. No. 174451, October 13, 2009

FACTS:

Veronica and Rey got married. After their wedding, they lived in Rey’s house in Occidental Mindoro.
Then they returned to Manila, but Rey did not live with Veronica in her home in Tondo. Rey then left for
Riyahd where he was working. He never contacted his wife since he left. About a year and a half,
Veronica was informed that her husband is coming home. But she was surprised that he did not go
directly to her in Tondo but to his house in Mindoro instead. Thus, petitioner concluded that respondent
was physically incapable of consummating his marriage with her, providing sufficient cause for
annulment of their marriage pursuant to paragraph 5, Article 45 of the Family Code. Respondent has
been uncooperative to the investigation. Dr. Tayag testified that Rey was suffering from Narcissistic
Personality Disorder, hence, it is a sufficient ground for declaration of nullity of marriage. RTC denied.
CA also denied. Hence, this petition.
 ISSUE

Whether or not, the respondent is psychologically incapacitated to perform his essential marriage
obligations

HELD:

SC denied. The action originally filed was annulment of marriage based on Article 45, paragraph 5 of the
Family Code. Article 45(5) of the Family Code refers to lack of power to copulate.[16] Incapacity to
consummate denotes the permanent inability on the part of the spouses to perform the complete act of
sexual intercourse. No evidence was presented in the case at bar to establish that respondent was in
any way physically incapable to consummate his marriage with petitioner. Petitioner even admitted
during her cross-examination that she and respondent had sexual intercourse after their wedding and
before respondent left for abroad. Petitioner was actually seeking for declaration of nullity of her
marriage to respondent based on the latter’s psychological incapacity to comply with his marital
obligations of marriage under Article 36 of the Family Code. he Court declared that “psychological
incapacity” under Article 36 of the Family Code is not meant to comprehend all possible cases of
psychoses. It should refer, rather, 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.

Affliction with STD, FC (45(6), compare with FC 46(3), 47(5), 47(3)

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears
to be incurable.

Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the
preceding Article:
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the
marriage; or

Art. 47. The action for annulment of marriage must be filed by the following persons and within the
periods indicated herein:
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after
the marriage.

Art. 47. The action for annulment of marriage must be filed by the following persons and within the
periods indicated herein:
(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the
discovery of the fraud;
Others

REPUBLIC OF THE PHILS. VS. ALBIOS

G.R. No. 198780 October 16, 2013

FACTS:

Fringer and Liberty Albios got married on October 22, 2004, before the sala of Judge Calo in Mandaluyong
City. 2 years after their marriage (December 6, 2006), Albios filed with the RTC a petition for declaration
of nullity of her marriage with Fringer. According to her, the marriage was a marriage in jest because she
only wed the American to acquire US citizenship and even arranged to pay him $2,000 in exchange for his
consent. Adding that immediately after their marriage, they separated and never lived as husband and
wife because they never really had any intention of entering into a married state and complying with their
marital obligations. The court even sent summons to the husband but he failed to file an answer.

Both the RTC and CA ruled in favor of Albios declaring that the marriage was void ab initio for lack of
consent because the parties failed to freely give their consent to the marriage as they had no intention to
be legally bound by it and used it only as a means to acquire American citizenship in consideration of
$2,000.00.. However, the Office of the Solicitor General (OSG) elevated the case to the SC. According to
the OSG, the case do not fall within the concept of a marriage in jest as the parties intentionally consented
to enter into a real and valid marriage. That the parties here intentionally consented to enter into a real
and valid marriage, for if it were otherwise, the purpose of Albios to acquire American citizenship would
be rendered futile.

ISSUE:

Is a marriage, contracted for the sole purpose of acquiring American citizenship in consideration of
$2,000.00, void ab initio on the ground of lack of consent?

HELD:

NO. Both Fringer and Albios consented to the marriage. In fact, there was real consent because it was not
vitiated nor rendered defective by any vice of consent.

Their consent was also conscious and intelligent as they understood the nature and the beneficial and
inconvenient consequences of their marriage, as nothing impaired their ability to do so.

That their consent was freely given is best evidenced by their conscious purpose of acquiring American
citizenship through marriage. Such plainly demonstrates that they willingly and deliberately contracted
the marriage. There was a clear intention to enter into a real and valid marriage so as to fully comply with
the requirements of an application for citizenship. There was a full and complete understanding of the
legal tie that would be created between them, since it was that precise legal tie which was necessary to
accomplish their goal.

Under Article 2 of the Family Code, for consent to be valid, it must be (1) freely given and (2) made in the
presence of a solemnizing officer.
A "freely given" consent requires that the contracting parties willingly and deliberately enter into the
marriage.

Consent must be real in the sense that it is not vitiated nor rendered defective by any of the vices of
consent under Articles 45 and 46 of the Family Code, such as fraud, force, intimidation, and undue
influence. None of these are present in the case.

Therefore, their marriage remains valid.