Philippines: Annulment cannot happen merely because a man is gay

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.

Things to Read, Watch & Listen

Forced Marriage

On November 1st 2023, Accredited Family Law Specialist and Page Provan Director Stephen Page presented a paper at the Brisbane Zonta Club about forced marriage. I acknowledge the Jagera and Turrbal peoples, on whose lands we meet today, their elders, past, present and emerging. Ruqia Hidari was aged 21 and living in Victoria, when, according to police,… Read More »Forced Marriage

ACT Government Surrogacy Bill

The ACT Government has today introduced a bill to amend the ACT’s surrogacy laws. The proposed changes are more incremental than fundamental. They include allowing a single person to undertake surrogacy, for the surrogate to be single if needed, a requirement for legal advice and counselling beforehand, a written agreement being required, that traditional surrogacy is… Read More »ACT Government Surrogacy Bill

Planning to resolve: ADR in ART

ADR can help resolve disputes in ART cases. ADR is not limited to mediation and arbitration. Other types of informal dispute resolution can resolve disputes. When assisted reproductive treatment cases go off the rails, they can have the next level of bitterness and volatility. There can be a keen sense of betrayal when things don’t… Read More »Planning to resolve: ADR in ART

Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board