Annulment, Divorce and Legal Separation in the Philippines: Questions and Answers Published by Atty.

Fred January 11th, 2007 in Annulment and Legal Separation. 341 Comments 817Share There are many questions relating to annulment and divorce in the Philippines, and many of the concerns of our readers had already been addressed in previous articles. Nevertheless, to consolidate everything for everyones easy reference, here are the FAQs on annulment and divorce in the Philippines: Is divorce allowed under Philippine laws? No, divorce is not allowed in the Philippines. However, there are certain instances wherein the divorce secured abroad by the foreigner-spouse, and even by former Filipinos, are recognized under Philippine laws. More discussion here (Judicial Recognition of a Foreign Divorce Decree). Would it make any difference if I marry abroad where divorce is allowed? No. Filipinos are covered by this prohibition based on the nationality principle, regardless of wherever they get married (and regardless where they get a decree of divorce). Discussions relating to Overseas Filipinos or OFWs are transferred in Part V. Is annulment different from a declaration of nullity of marriage? Yes. In essence, annulment applies to a marriage that is considered valid, but there are grounds to nullify it. A declaration of nullity of marriage, on the other hand, applies to marriages that are void or invalid from the very beginning. In other words, it was never valid in the first place. Also, an action for annulment of voidable marriages may prescribe, while an action for declaration of nullity of marriage does not prescribe. So, if a marriage is void from the very beginning (void ab initio), theres no need to file anything in court? For purposes of remarriage, there must be a court order declaring the marriage as null and void. Entering into a subsequent marriage without such court declaration means that: (a) the subsequent marriage is void; and (b) the parties open themselves to a possible charge of bigamy. What if no marriage certificate could be found? Justice Sempio-Dy, in the Handbook of on the Family Code of the Philippines (p. 26, 1997 reprint), says: The marriage certificate is not an essential or formal requisite of marriage without which the marriage will be void. An oral marriage is, therefore, valid, and failure of a party to sign the marriage certificate or the omission of the solemnizing officer to send a copy of the marriage certificate to the proper local civil registrar, does not invalidate the marriage. Also the mere fact that no record of marriage can be found, does not invalidate the marriage provided all the requisites for its validity are present. (Citations omitted) Can I file a petition (annulment or declaration of absolute nullity of marriage) even if I am in a foreign country? Yes, the rules recognize and allow the filing of the petition by Filipinos who are overseas. What are the grounds for annulment? 1. Lack of parental consent in certain cases. If a party is 18 years or over, but below 21, and the marriage was solemnized without the consent of the parents/guardian. However, the marriage is validated if, upon reaching 21, the spouses freely cohabited with the other and both lived together as husband and wife. 2. Insanity. A marriage may be annulled if, at the time of marriage, either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife. 3. Fraud. The consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife. Fraud includes: (i) non-disclosure of a previous

conviction by final judgment of the other party of a crime involving moral turpitude; (ii) concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; (iii) concealment of sexually transmissible disease or STD, regardless of its nature, existing at the time of the marriage; or (iv) concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage. However, no other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. 4. Force, intimidation or undue influence. If the consent of either party was obtained by any of these means, except in cases wherein the force, intimidation or undue influence having disappeared or ceased, the complaining party thereafter freely cohabited with the other as husband and wife. 5. Impotence. At the time of marriage, either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable. Impotence is different from being infertile. 6. STD. If, at the time of marriage, either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. If the STD is not serious or is curable, it may still constitute fraud (see No. 3 above). What if a spouse discovers that his/her spouse is a homosexual or is violent, can he/she ask for annulment? Homosexuality or physical violence, by themselves, are not sufficient to nullify a marriage. At the very least, however, these grounds may be used as basis for legal separation. How is legal separation different from annulment? The basic difference is this in legal separation, the spouses are still considered married to each other, and, thus, may not remarry. Is legal separation faster than annulment? Not necessarily. The petitioner in a legal separation, just like in an annulment, is still required to prove the allegations contained in the petition. More important is the mandatory 6-month cooling off period in legal separation cases. This is not required in annulment or declaration of nullity cases. The court is required to schedule the pre-trial conference not earlier than six (6) months from the filing of the petition. This period is meant to give the spouses an opportunity for reconciliation. What are the grounds for legal separation? 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner. 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation. 3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement. 4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned. 5. Drug addiction or habitual alcoholism of the respondent. 6. Lesbianism or homosexuality of the respondent. 7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad. 8. Sexual infidelity or perversion. 9. Attempt by the respondent against the life of the petitioner. 10. Abandonment of petitioner by respondent without justifiable cause for more than one year.

The term child shall include a child by nature or by adoption. Should I file a petition for legal separation, can I use my own sexual infidelity as a ground? It is interesting to note that among the grounds for legal separation, as listed above, only sexual infidelity or perversion is not qualified by the phrase of the respondent or by respondent. This may give the impression that the sexual infidelity of the petitioner, or the one who filed the petition, may be used as a ground in legal separation. We must consider, however, that legal separation is filed by the innocent spouse or the aggrieved party against the guilty spouse. What happens if after learning that your husband (or wife) is unfaithful (No. 8 above), you still co-habitate with him/her? This may be construed as condonation, which is a defense in actions for legal separation. In addition to condonation, the following are the defenses in legal separation: 1. 2. Connivance (in the commission of the offense or act constituting the 3. Mutual guilt (both parties have given ground 4. Collusion (to obtain decree of 5. Prescription (5 years from the occurence of the cause for legal separation). Consent. separation). separation). separation).

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If youre separated from your spouse for 4 years, is that a sufficient ground for annulment? No. De facto separation is not a ground for annulment. However, the absence of 2 or 4 years, depending on the circumstances, may be enough to ask the court for a declaration of presumptive death of the absent spouse, in which case the petitioner may again re-marry. See Can someone remarry without going to court due to absence or separation? What are the grounds for declaration of nullity of marriage? 1. Minority (those contracted by any party below 18 years of age even with the consent of parents or guardians). 2. Lack of authority of solemnizing officer (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. Absence of marriage license (except in certain cases). 4. Bigamous or polygamous marriages (except in cases where the other spouse is declared as presumptively dead). 5. Mistake in identity (those contracted through mistake of one contracting party as to the identity of the other). 6. After securing a judgement of annulment or of asolute nullity of mariage, the parties, before entering into the subsequent marriage, failed to record with the appropriate registry the: (i) partition and distribute the properties of the first marriage; and (ii) delivery of the childrens presumptive legitime. 7. Incestous marriages (between ascendants and descendants of any degree, between brothers and sisters, whether of the full or half blood). 8. Void by reason of public policy. Marriages between (i) collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (ii) step-parents and step-children; (iii) parents-in-law and children-in-law; (iv) adopting parent and the adopted child; (v) surviving spouse of the adopting parent and the adopted child; (vi) surviving spouse of the adopted child and the adopter; (vii) an adopted child and a legitimate child of the adopter; (viii) adopted children of the same adopter; and (ix) parties where one, with the intention to marry the other, killed that other persons spouse, or his or her own spouse. 9. Psychological Incapacity. Psychological incapacity, which a ground for annulment of marriage, contemplates downright incapacity or inability to take cognizance of and to assume the basic marital obligations; not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse. Irreconcilable differences, conflicting personalities, emotional immaturity and irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and abandonment, by themselves, also do

not warrant a finding of psychological incapacity. We already discussed the guidelines and illustrations of psychological incapacity, including a case involving habitual lying, as well as the steps and procedure in filing a petition. Please note, however, that there are still other grounds to declare a marriage as null and void. Should I seek an annulment? This is a personal decision that should not be taken lightly. While divorce is not allowed in the Philippines, the fact that the law provides for annulment means that there are meritorious instances that would justify the annulment of marriage. What specifically is the role of the Solicitor General in the process of annulment? Is it true that the SolGen is often the source of delay? The Solicitor General is authorized to intervene and take part in the proceedings for annulment and declaration of nullity of marriages before the RTC and on appeal to higher courts.The Solicitor General is the principal law officer and legal defender of the land. His intervention in the proceedings ensures that the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or suppression of evidence. This is the express pronouncement of the Supreme Court. The SolGen may or may not appeal an annulment decision, and such decision is within its authority. In other words, its not true, and unfair to say, that the SolGen is the cause of delay. How long does an annulment process usually take? The entire process could take less than a year or, if youre unfortunate, years. There are so many factors that could delay the proceedings. You and your lawyer must be vigilant in making sure that the proceedings go smoothly. How much does it usually cost? This is a difficult question, primarily because there are so many variations. If you have absolutely limited resources, you could file the petition as a pauper litigant (for filing fees) and seek free legal aid (discussed below). If you engage the services of a private lawyer, the entire process may cost you at least Fifty Thousand Pesos (PhP50,000). I have a limited amount of money. Where can I seek legal aid? There are certain institutions where you could seek free legal assistance. Start with the Public Attorneys Office (PAO), although they may or may not accept your case, depending on their load (theyre usually overloaded with cases). The Integrated Bar of the Philippines (IBP) and certain law schools, provide free legal aid. Remember, however, that your request may be denied because there are other important cases handled by these institutions. How can I verify if my lawyer really filed the petition in court or if a decision was really issued? Can I obtain a copy of the decision? You may ask your lawyer to provide you with a copy of all documents (motions, pleadings, orders, decisions, etc.) relating to your case. The photocopying cost, of course, will be charged to you. In any case, you could always request to photocopy the record with the court where the petition was filed. If theres already a decision annulling my marriage, but the decision is appealed by the Office of the Solicitor General, is it ok to remarry? No. Unless and until the decision in your favor becomes final and executory (no motion for reconsideration or appeal was filed) and the other requisites have been complied with, you cant remarry. My fiancee and I secured a marriage license, but no marriage ceremony was ever celebrated. I learned, however, that my wife is already using my surname in her documents, including her passport. Am I considered as married? No. A marriage license is valid only for 120 days, and any marriage contracted after that period is null and void. A woman cannot use his putative husbands surname in the absence of a valid marriage.

After a year of marriage, my spouse and I agreed that our marriage is getting nowhere, and that we should go find someone else. We prepared an agreement that we both want an annulment. Would this be of any help in the annulment process? No. Agreement between the spouses is not a ground for annulment/declaration of nullity. On the contrary, as noted in a previous article, the Office of the Solicitor General (OSG) or the public prosecutor, as the case may be, is under legal obligation to make sure that theres no collusion between the parties. In fact, the grounds for annulment or the annulment itself is one of the issues EXPRESSLY removed by law from the matters that could be settled or compromised. Could I file a petition for annulment if my wife doesnt agree? Yes. The petition could still be filed, and the case could still continue, even if the other spouse (husband or wife) does not agree to, or even oppose, the petition. What if I cant find my spouse? Under the rules, summons must be served on the other spouse. This is generally done by serving the summons, together with a copy of the petition, on the other spouse. However, in case the other spouse could not be found, resort could be made to service of summons by publication. My wife (or husband) sent me a letter saying that wala na akong pag-ibig, ginamit lang kita or lets separate. Are these sufficient grounds for annulment? No. The law is always in favor of the validity of the marriage. A signed contract by the spouses that they agree to an annulment, as discussed above, is against the law, moral and public policy. Therefore, it is not valid. My spouse, who is no longer a Filipino citizen, said that he/she will not object to end our marriage. Can I seek an annulment here in the Philippines or, if thats not possible, a divorce in the United States or anywhere abroad? Article 26 is clear that only the former Filipino (or the foreigner spouse) may seek a divorce abroad. In other words, even if a spouse is no longer a Filipino, the other spouse who is still a Filipino cant validly seek a divorce. I am a Filipino citizen, married to a foreigner. I discovered that my foreigner-spouse secured a divorce abroad and is now married to someone else. What should I do to be able to remarry? Is that unfair to the Filipino? This definitely seems unfair to the Filipino spouse, as the foreigner spouse (or the spouse who is no longer a Filipino) could remarry after securing a divorce. The Filipino spouse, on the other hand, must get hold of the divorce decree and have it recognized in Philippine courts. Dura lex, sed lex. The law may be harsh, but it is the law. If my spouse is confined to a mental hospital for years now, can I use that as a ground for annulment? Insanity is a ground for annulment, but it must be shown to be existent at the time of marriage (and, besides, it is subject to ratification by cohabitation). It could also be used to support the ground of psychological incapacity, but such must also be shown to be existent at the time of marriage and must appear to be incurable (among other requirements). Please note, however, that insanity is not synonymous with psychological incapacity. How much will I spend for a petition for annulment or a petition for declaration of nullity? How long does it take? These matters are discussed in a previous post. The amount of expenses depends on the grounds relied upon, as some grounds are relatively easier than the rest, like psychological incapacity. It also depends on the acceptance fee of the lawyer. The duration of the entire process also depends on a lot of things, e.g., the grounds relied upon, docket of the court, availability of the judge or the public prosecutor, postponements, etc. In other words, theres really no fixed cost or duration. I believe that my marriage is null and void because my spouse had a previous marriage. What should I do to remove my marriage file at the National Statistics Office (NSO)? Nobody could simply remove any official record at the NSO, as this is a criminal offense. A petition for annulment or declaration of nullity (see distinction between a petition for annulment and a petition for declaration of nullity) must be filed in court and once a favorable decision is issued, the decree is registered with the pertinent civil registries and the NSO.

Im separated from my wife for years now. I recently learned that she got pregnant by another man. Can this be used as a ground for annulment? Can I have custody over our child? Infidelity is not a ground for annulment (please see the grounds for annulment in the previous post). At most, it could be a basis for legal separation or filing a case for adultery. As to custody, the Supreme Court already ruled that sexual infidelity, by itself, is not sufficient to grant custody over a child. Please read the previous post on the primary criterion in granting custody. Are the grounds mentioned in Civil Code exclusive? If the reason does not fall within the grounds, will the annulment case prosper? The grounds for annulment or declaration of nullity of marriage, as the case may be, are provided under the Family Code, which amended the Civil Code. These grounds are exclusive. However, the specific facts or acts that support each ground may vary on a case to case basis. For instance, psychological incapacity (Art. 36) was purposely drafted without a specific definition. As noted by the SC in one case, judicial understanding of psychological incapacity may be informed by evolving standards, taking into account the particulars of each case, current trends in psychological and even canonical thought, and experience. The guidelines are not set in stone, the clear legislative intent mandating a case-to-case perception of each situation. What is the remedy if my spouse could not be found? Im having a difficult time starting the annulment process because I cant find my husband (or wife). The presence of the other spouse in the proceedings is not required, provided there is a valid service of summons. The summons is usually served by handing a copy to the other spouse. However, if the other spouse could not be found, service of summons is done through publication. The petitioner files a motion asking the court, for valid reasons, that summons be served through publication. My petition for annulment was granted, but before it became final, I remarried. Is my second marriage valid? No. The law provides that remarriage during the existence of a previous marriage is not valid. The mere fact of filing the petition, or the grant thereof without complying with all the requisites, is not a reason for contracting a subsequent marriage. My petition for annulment was denied even if my wife didnt appear. I didnt tell any lies during my testimony. Shouldnt the petition be granted considering that my wife didnt even appear and testify to the contrary? The absence of the other party is not enough ground to grant a petition for annulment or declaration of nullity of marriage. The court, in deciding whether to grant or deny a petition, must look at the sufficiency of the evidence supporting the ground used in the petition. The court may deny the petition if the evidence presented is not enough, even if the other spouse does not appear. The Solicitor General or the Public Prosecutor may even oppose the petition, on behalf of the State, if the grounds are not sufficient. I got married without parental advice. Is my marriage valid? A marriage is valid even if no parental advice was given. There is a separate discussion on the distinctions between parental consent and parental advice. How will I know if my attorney is a valid one? Is there a website available to check if its valid? A lawyer must be registered by the Supreme Court. It may happen that a person in Supreme Court Law List: (a) is already dead; (b) had been suspended from the practice of law; or (c) disbarred. It may also happen that the name is registered in the Law List, but the identity of that lawyer is being used by a non-lawyer. Check this previous discussion. Im single and I was surprised to learn that a Marriage Certificate is on file with the NSO. My ex-boyfriend is reflected as my husband, but we didnt get married. What shall I do? Weve encountered variations of this problem a number of times. The common thread is this: there was absolutely no marriage, but for one reason or another, a marriage certificate ended up with the NSO. The good news is, its relatively easier to show that there indeed was no marriage. The bad news is, a petition still has to be filed to declare the alleged marriage as null and void. If a Filipino couple later became U.S. citizens, then got divorced, is their marriage still valid under Philippine law?

There are a lot of questions relating to this issue, even with the number of articles (please go here, here, here and here) that deal squarely with this issue. These articles also discuss the situation wherein the foreigner-spouse refuses to file for divorce. Again, kindly search the site before posting a query. Thank you. Divorce is allowed in the country where Im located. Can I get a divorce here and would this be recognized in the Philippines? Some countries allow the filing of divorce by Filipinos within their jurisdiction. The problem, however, is a divorce obtained by a Filipino abroad is not recognized in the Philippines (but the rule is different if the divorce is secured by the foreign spouse). Its a useless exercise as far as Philippine law is concerned. If a divorce secured by my foreign spouse is recognized in the Philippines, what should I do? You need to file a petition for recognition of a foreign divorce decree with the appropriate court in the Philippines. Ask your lawyer to prepare the petition for you. See Judicial Recognition of Foreign Divorce Decree. Other related questions on foreign divorce decrees are discussed in that article. Would it make any difference if I marry abroad (where divorce is allowed) so I could get a divorce later on in that place? No. Filipinos are covered by the prohibition against divorce, regardless of wherever they get married (and regardless where they get a decree of divorce). This is based on the nationality principle which basically provides that Philippine laws affecting their status follow them wherever they may be. Would it make any difference if I later become a citizen of the other country? For instance, I was married in the Philippines and secured a divorce in the United States. Both of us are Filipinos and my spouse voluntarily signed the divorce papers. After the divorce, I married another guy, a former Filipino who had acquired U.S. citizenship. I am still a Filipino citizen. Is my previous marriage still valid in the Phils.? Yes, the first marriage is still considered valid in the Philippines because divorce between Filipinos, wherever secured and even if with the consent of both spouses, is not recognized under Philippine laws. In other words, as far as the Philippines is concerned, the second marriage is null and void. What if Im naturalized in another country and subsequently secures a divorce? Naturalization in a foreign country is one of the ways to lose Filipino citizenship. A Filipino who loses his citizenship through naturalization may secure a divorce decree abroad and have the valid divorce decree recognized in the Philippines through the proper process in court. If divorce is not allowed in the Philippines, does this mean that spouses have no remedy in getting out of a problematic marriage? While divorce is against public policy and is prohibited by law, the Family Code provides for certain grounds to annul a marriage or declare it as null and void. Why not allow divorce in the Philippines? Good question. But this is properly addressed to your representatives in the House and your Senators. As members of the legislative department, they have the power to make laws and change existing laws. Can I file the petition for annulment or declaration of nullity even if Im abroad? Yes. You could prepare and file the petition for annulment or declaration of nullity even if youre abroad. You could sign the document abroad and have it authenticated at the nearest Philippine embassy. You could then transmit the documents for filing here in the Philippines. Your lawyer should be able to guide you every step of the way, including the preparation and filing of the petition.