LEGAL OFFICE MEMORANDUM

TO : Christina De la Cruz
FROM : Atty. Kristian Romeo L. Napinas
DATE : March 28, 2020
SUBJECT : Questioning Paternity in the Declaration of Nullity of Marriage because of Psychological
Incapacity
_____________________________________________________________________________________

Statement of Assignments:

You have asked me to prepare a memorandum of law addressing the question of whether
Mrs. De la Cruz (our client) could ask for regular support from Christian De la Cruz, her husband,
and if she had to undergo DNA test so that the latter will provide support.
Issue:
 Under the Civil Code provisions on support, is Mrs. De la Cruz allowed to seek and
ask support from his husband after the declaration of nullity of marriage?
Sub-Issue:
 Under the Civil Code provisions on support, is Mrs. De la Cruz have to undergo DNA
test so that his husband will give support?

Brief Answer:
1. Yes, she can seek and ask for support from her husband.
2. No, she doesn’t have to undergo DNA test so that her husband will give support.
Statement of Facts:
Christian and Christina got married sometime March 5, 2017. Around one week after
their marriage, being an Overseas Filipino Worker, Christian left for abroad. They
communicated regularly through email, chat or telephone.

Christian came home sometime in December 2017 and then left in the middle of January
2018. Around one month after her husband left, Christina discovered that she was pregnant.
She communicated this to her husband and he then came home sometime in the middle of
September 2018, around the time when she was scheduled to give birth. Their daughter,
Joanna, was born on October 3, 2018. Christian left for abroad and the parties were on good
terms until around December 2019, when he stopped sending regular support and did not
contact Christina for a month. She tried to contact him but he did not answer his calls or emails.
He never communicated to her after that.

Christina was surprised that on March 19, 2020, she received a summons for a petition
for declaration of nullity of marriage filed by her husband on the ground of psychological
incapacity. One of the bases for psychological incapacity was that she was an unfaithful wife
because she got pregnant from another man. In his allegation, they had sexual intercourse on
January 9, 2018 but she gave birth on October 3, 2018--within less than nine months. Another
allegation was that she was only after his wealth as she was always asking him for money. One
of his prayers in the petition, aside from declaring their marriage null and void, was for the court
 LEGAL OFFICE MEMORANDUM

to undergo a DNA test. Thus, she immediately went to your office since the deadline for the
Answer to the Petition is within 15 days.

According to Mrs. Christina Dela Cruz, it was not true that she was unfaithful to her
husband and she was 100% sure that Mr. Dela Cruz was the father of her daughter. She wants
to know if she has to undergo a DNA test for her husband to continue giving regular support.

Analysis:
I.
The rule of law governing the claim for support from husband is expressly stated under
Article 195 of the Family Code “the following obliged to support each other to the whole extent
set forth in the preceding article” 1.) Spouses. Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with
the financial capacity of the family. However, during the pendency of an action for annulment of
marriage, support of the husband and wife shall be taken from the conjugal partnership or from
absolute community as the case may be. Once the court grants the annulment of marriage, the
obligation to give support ceases. (Compendium on the Law on Persons and Family Relations,
Alex L. Monteclar, p. 316)
In the case at bar, Christian and Christina got married sometime March, 2017 which
makes them obliged to support each other. However, the former filed a Declaration of Nullity of
Marriage because of Psychological Incapacity. Therefore, applying the above comment from textbook
of Monteclar, while the pending the case of annulment of marriage the wife is entitled to claim of
support from husband which will be taken from the conjugal partnership or absolute community.
II.
The law governing paternity is under Article 164 of the Family Code states that “Children
conceived or born during the marriage of the parents are legitimate”. The court may deny it if
there is already preponderance of evidence to establish paternity and DNA test result would only
be corroborative. It must be emphasized that the necessity of DNA test for support is not
absolutely required. In the case at bar, the preponderance of evidence to establish paternity is
when Joana was born on a lawful marriage and thus, it follows that the child is legitimate and the
necessity to undergo DNA is immaterial.

CONCLUSION

Applying the Civil Code provisions governing support, the wife is entitled for the support
from his husband while the case of the nullity of their marriage on the grounds of psychological
incapacity under Article 36 of the Family Code. Furthermore, the wife can seek and ask for
support even without the DNA testing.

RECOMMENDATIONS
 LEGAL OFFICE MEMORANDUM

1. The next step should be requesting a motion to dismiss the case. Pyschological
Incapacity has three characteristics and they are: 1.) It must be existing at the time of
celebration of marriage (Judicial Antecedent); 2.) Must be a serious defect (Gravity);
and 3.) Not Curable (Incurability). None of these are present in the case at bar.