Republic of the Philippines

REGIONAL TRIAL COURT

__ Judicial Region
Branch__, Davao City

ANGELO DELOS ANGELES

Petitoner,
-versus- CIVIL CASE NO. ____
FOR: DECLARATION
ANNIE DELOS ANGELES OF NULLITY OF
Respondent, MARRIAGE
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MEMORANDUM FOR DEFENDANT

Respondent, by counsel, respectfully states that:

STATEMENT OF THE CASE

There is a petition filed by Angelo Delos Angeles, the petitioner, for
the Declaration of Nullity of their marriage with Respondent Annie Delos
Angeles. Angelo alleges that their marriage with Annie is null and void on
the ground that the former’s consent was vitiated through fraud, as the latter
concealed the fact that the child was not Angelo’s at the time of the
marriage.
STATEMENT OF THE FACTS
1. Respondent Annie delos Angeles is of legal age, Filipino, married,
residing at 456 Bacalso St., Cebu City, where summons and other processes
of this Honorable Court will be served there;

2. Petitioner is likewise of legal age, Filipino, married, residing at 123

Nangka Street, Davao City, where he may be served with notices and other
processes of this Honorable Court;

3. That petitioner and respondent contracted marriage before the Hon.

Presiding Judge, Municipal Trial Court in Cities Branch 1 Palace of Justice,
Capitol, Cebu City on January 29, 2011. (Attached as Annex “A” is the
Certificate of Marriage);

4. That while undergoing training in Batangas, the petitioner being a

member of the Armed Forces of the Philippines came to know the
respondent sometime on May 2010 through the internet as a government
employee based in Cebu City and this continued internet chatting, led to
their first personal meeting, when respondent went to Manila on October 18,
2010 and stayed in Batangas up to October 24, 2010, returning to Cebu City
the following day. They had their first carnal knowledge on October 18,
2010 during their overnight stay in Manila and thereafter during their stay in
Batangas;

5. That on December 21, 2010, the pregnancy test had shown positive
results, so respondent asked petitioner to go to Cebu City. The petitioner was
in great surprise. He went to Cebu City on December 30, 2010 where
respondent insisted they have to marry, as she may be removed from the
government service for immorality.

6. That the petitioner who was pressed to marry respondent, who

answered for all expenses of the marriage, the petitioner married her on
January 29, 2011 on the belief that the child she was bearing was his. Even
before such marriage, respondent related to petitioner that she had broken up
with her boyfriend some months back.

7. On June 25, 2011, the respondent gave normal birth to a baby boy at
36 1/7 old, AOG, named Angelo Andrew delos Angeles at the Cebu Velez
Hospital, while the petitioner is somewhere in Mindanao. Attached as Annex
B is the Certification dated July 5, 2011.

8. On June 5, 2011, the relevant findings thereat show that respondent’s

LMP was September 20, 2010 with remarks pregnancy uterine, 35 weeks
and 1 day (+ 3 weeks) by fetal biometry, live, singleton, cephalic
presentation with estimated fetal weight is within the 10th-90th percentile of
normal growth curve pattern for a 36-37 week fetus, attached as Annex C is
the photocopy of the UItrasound report;

9. While married, the respondent never informed petitioner that the child
she was bearing was not his, as in no way petitioner could have impregnated
respondent when they had their first carnal knowledge on October 18, 2010,
having given birth to a normal baby 36 1/7 weeks AOG on June 25, 2011,
thus the consent of petitioner in marrying respondent was obtained by fraud;

10. Subsequent to their marriage, the petitioner stayed for one week in
Cebu with doubts about being the father of the said child, then left for his
assignment in Mindanao up to June 2012. On Petitioner last visit to Cebu
City on December 15-20, 2012, after a heated quarrel, petitioner parted ways
with respondent. That was the last time he saw respondent.

11. Therefore, the marriage between petitioner and respondent that took
place on January 29, 2011 is a total nullity, because the consent of petitioner
in marrying respondent was obtained through fraud. In other words, without
the fact that the respondent was pregnant and because of it, she would be
dismissed from the Government service, the petitioner would not have been
married to her.

ISSUES
Based of the abovementioned facts and circumstances, the following
issues are presented for discussion:
1. Whether or not the marriage is void ab initio on the ground that the
consent of the petitioner was obtained through fraud.
2. Whether or not the Petitioner is not the legitimate father of the child.

ARGUMENTS
I. Their marriage is not void ab initio but is only a voidable one
a. Petitioner erred in contending that their marriage is void ab
initio on the ground that consent was obtained through fraud.
i. Art 35 of the Family Code laid down the list of void ab
initio marriages which are;
“Art. 35- The following marriages shall be void
from the beginning:
1) Those contracted by any party below eighteen
years of age even with the consent of parents or
guardians;
 2) Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in good faith that the solemnizing
officer had the legal authority to do so;

3) Those solemnized without a license, except those

covered by the preceding Chapter;

4) Those bigamous or polygamous marriages not

falling under Article 41;

5) Those contracted through mistake of one

contracting party as to the identity of the other; and

6) Those subsequent marriages that are void under
Article 53.”

ii. Fraud in obtaining the consent of one party is not among

those mentioned in Art 35 of the Family Code.
iii. Fraud in obtaining the consent of one party is a ground of
annulment under Art 45 of the Family Code and is thus, only
voidable and not void ab initio.
iv. Fraud must be proved by the one who alleges the same,
that is, to prove the filiation of the child. Absence if such
proof will not constitute fraud and cannot be used as a ground
to annul the marriage.
v. Since it cannot be proved that Angelo is not the father,
his consent was not obtained through fraud and thus the
marriage cannot be annulled

II. Consent of Angelo was not obtained through fraud

a. Angelo is presumed to be the legitimate father of their child
with Annie.
i. Under Article 164 of the Family Code, children
conceived or born during the subsistence of the marriage of the
parents are legitimate.
 ii. Since the birth of the child, was during the marriage of
Mr. and Mrs. Delos Angeles, the child is presumed to be
legitimate.
iii. Paternity of the child can only be impugned on certain
grounds such as physical impossibility to have sexual
intercourse within the first 120 days of the 300 days
immediately preceded the birth of the child.
iv. Since Angelo was with Annie on such period, this ground
cannot be availed of by the Petitioner.
v. Angelo being the legitimate father of their child, his
consent to contract marriage was not obtained through fraud.

PRAYER
WHEREFORE, premises considered, it is respectfully prayed that
judgment be rendered in favor of Respondent and against Petitioner by:
1) FINDING the Petitioner the legitimate father of their child with
the Respondent.
2) ORDERING the Regional Trial Court of Davao to dismiss the
case for lack of evidence to support that the Petitioner’s consent to contract
marriage was obtained through fraud.
Other just and equitable remedies under the circumstances are
likewise prayed for.
Davao City, April 29, 2019.
ATTY. ANGELA NICOLE S. ELPA
Counsel for Respondent
Copy furnished:
ATTY. __________
Counsel for Petitioner
 EXPLANATION
In view of time and manpower restrictions, the above Memorandum
was served via registered mail as personal service could not be availed of
without causing undue hardship to plaintiff.

ATTY. ANGELA NICOLE S. ELPA

Counsel for Respondent