1. Q. Annulment , Nullity of Marriage & Legal Separation, are they the same?
A. Annulment is a term loosely used by layman to refer to both cases for annulment and declaration of nullity of marriage. But what is the difference between the two?
Under the Family Code of the Philippines (FCP) annulment of marriage is a legal remedy if based on any of the grounds of Article 45[1] of FCP like in the following cases:1) marriage without parental consent, 2) either party was of unsound mind, 3)consent of party was obtained by fraud (see Article 46 of FCP[2]), 4) consent to marry was obtained by force, intimidation or undue influence (locally known as shotgun marriage), 5) physical incapability of consummating the marriage (i.e impotency ) and 6) party is afflicted with sexually transmissible disease.
In annulment cases, marriages are valid from the start but can be voided within a limited period of time (5 years), except in the case of unsound mind, see Article 47 of FCP below for full details).
In short, despite the defects that marriage can become valid and those grounds can be cured if not annulled within a specific period of time.
On the other hand, a petition for declaration of absolute nullity of marriage refers to grounds that will render the marriage void from the beginning (void ab initio) and it cannot be cured and there is no limitation of period of time to file it.
The common ground for nullity of marriage filed in most courts today is psychological incapacity by any party to the marriage (Article 36 of The Family Code). The others grounds are those contracted by any of the party below 18 years of age, marriages without a license, bigamous and polygamous marriage and others under Article 35 of the Family Code[3].
Legal separation is different from the above remedies because a decree or decision granting legal separation will not nullify the marriage and will not permit the parties to remarry but there will be a physical separation of parties, dissolution of their community of properties and fixing of support due to their children if applicable.
2. Q. Who can file the Petition and where it will be filed?
A. Married person with proper grounds as enumerated below may file a petition. It can be filed in the family court (a Regional Trial Court) where the petitioner resides for the past six (6) months prior to the filing or at the place of respondent (husband being sued) at the choice of petitioner or the filing party.
3. Q. What are the grounds to file a petition for nullity of marriage?
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A. Articles 35 and 36 of the Family Code enumerated the grounds for declaration of absolute nullity of marriage.
4. Q. How long is the period of pendency?
A. Period of pendency is primarily affected by the following factors, namely:1) receipt of respondent of summons, 2) case load of the court that will handle it 3) appearance and readiness of witnesses.
Average pendency [4] for unopposed petition and where the only issue is with regard to the validity of marriage is from 12 to 16 months more or less and may be longer for opposed petition and those coupled with issues of custody right, liquidation of conjugal assets/community of properties.
5. Q. Can I delegate the filing of Petition to my representative?
A. No. Petition for nullity/annulment of marriage is a personal action that cannot be assigned or delegated to another. It will be dismissed if not filed by petitioner.
6. Q. How many court appearances are required for the petitioner?
A. If the petition is opposed at least two (2) appearances. One during pre trial conference/pre trial and one during trial to give his/her testimony.
If the petitioner is not contested or opposed additional appearance is required before the prosecutor that will be directed by the judge to determine if there is a collusion between the parties.
7. Q. How many witnesses are required to be presented?
A. Based on the current process, most practitioners present at least three (3) witnesses if the ground is psychological incapacity (Article 36) and they are: 1) the petitioner 2) psychologist of psychiatrist as expert witness and 3) common friend or acquaintance of parties to strengthen the testimony of the petitioner with regard to the manifestations of behavioral problems or personality problems and disorders of respondent
7. Q. Can a person working abroad (OCW) file a Petition?
A. Yes. There is just a need to notarize the Petition before the nearest Philippine consul of the country where the petitioner works then send that notarized Petition to the handling lawyer for filing in the proper court and the petitioner OCW can come home when there is a need to appear in court.
9. Q. I heard the no appearance or fast result promises from others. Is this true?
A. Such is not allowed under the Rules governing the nullity/annulment proceedings. Petition will be dismissed or denied if petitioner and his/her witnesses will not appear. Beware of those who make this kind of promises.
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A lawyer who is practicing in the field of family laws and a member of the Philippine bar in good standing will not even suggest this.
10. Q. We have been separated for more than 10 years, can we just prepare an Agreement to separate and notarize it so that we can remarry and lives of our own?
A. That is not allowed. In fact, a lawyer who will prepare or notarize it can be disbarred for gross ignorance of the law.
Only the court can make a pronouncement on issues of validity of marriage and rights related to it. The local civil registrar and NSO will only annotate a final decree of absolute nullity of marriage.
11. Q. How much is the cost of nullity of marriage?
A. Lawyers all over the Philippines have their different rates and charges. For this reason it will be best to inquire from different lawyers that practice family law and ask for their specific rates and terms of payment and based on those series of inquiries and answers a prospective petitioner can make decision on the rate that will suit his/her means to pay.
The usual arrangement is for the client to pay an acceptance fee and appearance fee per hearing (fixed rates in your agreement) and the client will answer for all the actual cost related to the case. Some clients prefer to have an all in fee agreement and it can also be agreed upon between lawyer and client.
12. Q. What are the papers or documents that I need to prepare to support the filing of Petition?
A. The basic documents are: 1) marriage contract (NSO certified), 2) birth certificates of children 3) titles if there are real properties acquired during marriage, 4) psychologist or psychiatrist report (for those filed under Article 36 or psychological incapacity). Other documents may be required but those documents for purposes of filing the Petition will do. Petitioner is allowed to mark addition documents to support his/her allegations in the Petition during pre-trial stage of the proceedings.
[1] Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; 4
(3) That 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;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)
[2] Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.
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] Based only on my actual experience in handling nullity/annulment of marriage cases and do not reflect the actual statistical data of the courts nationwide. Pendency means case is concluded and the trial is terminated and considered submitted for Decision.