Annulment and Legal Separation

(Annulment)
1.
I want to leave my estranged wife and marry someone else. Can I divorce her?
In thePhilippines, there is no divorce. So, you cannot divorce your wife. But there are other options for
dissolving a marriage in thePhilippines.

2.
Is divorce between Filipinos abroad valid here in the Philippines?
No, as divorce is not allowed here in the Philippines, what cannot be done directly here cannot be done
indirectly abroad. This is due to the fact that laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad. (Article 15 of the New Civil Code of the Philippines)
However, the Decree of Judgment of Divorce between Filipinos and their foreign spouses, which had
been initiated by the foreign spouse in his country, may be recognized in the Philippines. This is
because where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have capacity to remarry under Philippine law. (Article 26 of the
Family Code)
In Republic v. Orbecido, this Court recognized the legislative intent of the second paragraph of
Article 26 which is "to avoid the absurd situation where the Filipino spouse remains married to the
alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse" under the laws
of his or her country. The second paragraph of Article 26 of the Family Code only authorizes Philippine
courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow
divorce. Philippine courts cannot try the case on the merits because it is tantamount to trying a case
for divorce. (Fujiki v. Marinay G.R. No. 196049, June 26 2013)
3.
If I cant divorce my spouse, how can I dissolve my marriage?
Under Philippine law, parties who wish to have their marriage annulled have two options in dissolving
their marriage:
1.
2.

Petition for annulment of marriage;

Petition for nullity of marriage.

Annulment of marriage is in the nature of a court proceeding with the end view of severing the
marital bond between husband and wife. It is applicable only to voidable marriages, and is availed of
in a situation where the marriage is valid from the beginning but can be annulled on various grounds
by the court, specifically provided for under Article 45 of the Family Code. A petition for annulment of
marriage is applicable to marriages that are voidable. Under Philippine law, a voidable marriage is one
that is valid until otherwise declared by the court. (Nial vs. Bayadog,G.R. No. 133778, 14
March 2000)
A petition for nullity of marriage presupposes that the marriage was void from the beginning on
account of the inability of the parties to satisfy the formal and essential requisites of marriage(Article
2 and 3 Family Code of the Philippines) as well as their failure to comply the essential marital
obligations of marriage, namely: to live together, observe mutual love, respect and fidelity, and
render mutual help and support. (Article 68 Family Code of the Philippines).
4.
What are these essential and formal requisites of marriage?
The essential requisites of marriage are:

1. Legal capacity of the contracting parties who must be a male and a female; and
2. Consent freely given in the presence of the solemnizing officer. (Article 2 Family Code of the
Philippines)
The formal requisites of marriage are:
1. Authority of the solemnizing officer;
2. A valid marriage license; and
3. A marriage ceremony which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age. (Article 3 Family Code of the Philippines)
5.
What are the grounds for annulment of marriage?
a)
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, guardians or person having substitute authority over the party, in that order, unless attaining
the age of twenty-one, such party freely cohabited with the other and both lived together as husband
and wife;
b)
That either party is of unsound mind, unless such party after coming to reason, freely cohabited
with the other as husband and wife;
c)
That the consent of either party was obtained by fraud, unless such party afterwards, with full
knowledge of the facts, constituting fraud, freely cohabited with the other as husband and wife;
d)
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;
e)
That either party was physically incapable of consuming the marriage with the other, and such
incapacity continues and appears to be incurable; or
f)
That either party was afflicted with a sexually transmissible disease found to be serious and
incurable. (Article 45 of the Family Code)
6.
If under the law, I am already considered an adult at 18 years of age, why do I still
need to get my parents permission to get married?
In ordinary circumstances, an eighteen year old is already considered an adult under Philippine laws.
But when it concerns marital relations and conjugal responsibilities, the law considers that a person of
at least 18 years and below 21 years, as lacking the degree of maturity required fully grasping and
comprehending the reality and gravity, responsibilities and consequences that a marital relationship
would entail.
7.
Would it mean that any of the parties of at least 18 years but below 21 years of age
can file an annulment of marriage?
No, it is only the parties whose parents consent were not granted to the marriage who can file a
petition for annulment.

8.
My husband is diagnosed in having an unsound mind and in now incarcerated in a
mental hospital. Would this be a ground to file for petition for annulment of my marriage to
him?

The unsoundness of mind should have been present at the time of celebration of the marriage which
renders the afflicted party incapable of comprehension as to what he is getting into and making him
unable to give consent.

However, if the afflicted party was of sound mind during the celebration of the marriage, the marriage
between the parties is still valid despite the affliction of the unsoundness of the mind of the afflicted
party after the wedding. The petition for annulment on this ground would not succeed.

9.
I was young and easily influenced when I got married. Thus, it was easy to intimidate
and force me into marrying my husband by his relatives. May I use the ground of force,
intimidation and undue influence in filing a petition for annulment against my husband?
Force, intimidation and undue influence as contemplated under the Family Code and defined by the
Civil Code of thePhilippines, must be established clearly and distinctively.

Force refers to physical violence. There is violence when in order to wrest consent, serious or
irresistible force is employed (Article 1335 of the New Civil Code of the Philippines)
There is intimidation when one of the contracting parties is compelled by a reasonable and wellgrounded fear of an imminent and grave evil upon his person or property, or upon the person or
property of his spouse, descendants or ascendants, to give his consent. (Article 1336 of the New
Civil Code of the Philippines)
There is undue influence when a person takes improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of choice. (Article 1337 of the New Civil Code
of the Philippines)
Therefore, in your case, if the force and intimidation employed was serious enough or irresistible that
a person had no other choice but to willingly give his/her consent, then a petition for annulment may
succeed.

10. What are the different examples of fraud in terms of a ground for annulment?
Under Article 46 of the Family Code, the examples of fraud as ground for annulment are:
a)
Non-disclosure of a previous conviction by final judgment of a crime involving moral turpitude;
b)
Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a
man other than her husband;
c)
Concealment of sexually transmissible disease, regardless of its nature, existing at the time of
the marriage; or
d)
Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the
time of the marriage.

11. What does moral turpitude mean?

Moral turpitude means the inherent baseness, vileness or depravity in the private and social duties
which a man owes to his fellow men or to society in general. It basically means any crime that gravely
offends human decency, such as but not limited to, killing, is an act involving moral turpitude.

12. My sister confided in me that her husband was incapable to consummating their
marriage. What does that mean?
Incapacity to consummate a marriage means that a party of the marriage is unable to physically
perform and complete the act of sexual intercourse. The sexual intercourse which is performed by the
newly wed parties after the marriage ceremony signifies as the ceremonial act that the marriage had
been consummated and it establishes that the marriage is valid and binding between them.
Incapacity to consummate denotes the permanent inability on the part of the spouses to perform the
complete act of sexual intercourse. (Melencio S. Sta. Maria, Jr., Persons and Family Relations
Law (2004 Edition,) p. 278.)
13. Would the incapacity to consummate a marriage mean the physical incapacity or the
psychological incapacity?
Under Article 45 of the Family Code, incapacity to consummate marriage refers to both the
psychological and physical incapacity. The physical incapacity to consummate the marriage must be
the result of the psychological incapacity. It means that the afflicted party must have a psychological
illness which renders him incapable of performing a sexual act.

Non-consummation of a marriage may be on the part of the husband or of the wife and may be
caused by a physical or structural defect in the anatomy of one of the parties or it may be due to
chronic illness and inhibitions or fears arising in whole or in part from psychophysical conditions. It
may be caused by psychogenic causes, where such mental block or disturbance has the result of
making the spouse physically incapable of performing the marriage act. (Melencio S. Sta. Maria, Jr.,
Persons and Family Relations Law (2004 Edition,) p.279)
14. I have been married to my wife for over 15 years and she still hasnt given me a child.
Can I use the ground of sterility in filing a petition for annulment of our marriage?
No. Sterility is not the same as impotency. Sterility does not bar a person from successfully engaging
in sexual acts. However, impotency would render a person incapable of performing a sexual act which
makes impotency a ground for annulment but not sterility.

15. I was married 2 months ago and I just found out that my husband has a sexually
transmitted disease and had passed it on to me. Is there a requirement that the STD be
incurable to be able to successfully file a petition for annulment against him?
No. Your husbands omission of the fact that he has an STD at the moment of your marriage
constitutes as an act of fraud. Thus, fraud is a ground for annulment of a marriage and the STD is not
required to be incurable.

16. I had been married for 13 years. Just recently, I had found out that I had an STD which
caused my infertility. Can a file a petition for annulment against my husband on this
ground?
Yes, STD may still be a ground for annulment provided that the STD is found to be serious and
incurable. Your infertility resulting from the STD transmitted by your husband is of a serious and
incurable nature that it can be used as ground for annulment of your marriage.

17. My husband and I got married 2 years ago in front of a priest. We discovered that we
didnt have any marriage license. What is the status of our marriage?
A valid marriage license is one of the formal requisites of marriage. Absence of such would render the
marriage as void initio.

In Cario v. Cario, the Court considered the marriage of therein petitioner Susan Nicdao and the
deceased Santiago S. Carino as void ab initio. The records reveal that the marriage contract of
petitioner and the deceased bears no marriage license number and, as certified by the Local Civil
Registrar of San Juan, Metro Manila, their office has no record of such marriage license. The court held
that the certification issued by the local civil registrar is adequate to prove the non-issuance of the
marriage license. Their marriage having been solemnized without the necessary marriage license and
not being one of the marriages exempt from the marriage license requirement, the marriage of the
petitioner and the deceased is undoubtedly void ab initio.(G.R. No. 132529)
18. After 15 years of marriage, Im no longer in love with my husband. We dont have any
problems but the love and affection required of me as a wife is no longer present. Can I file
a petition for nullity on such ground?
No, lack of affection or love is not a ground to file a petition for nullity against your husband. The
Supreme Court held in the case of Renato Reyes So vs. Valera, To be tired and give up on ones
situation and on ones spouse are not necessarily signs of psychological illness; neither can falling out
of love be so labeled. When these happen, the remedy for some is to cut the marital knot to allow the
parties to go their separate ways. This simple remedy, however, is not available to us under our laws.
Ours is a limited remedy that addresses only a very specific situation a relationship where no
marriage could have validly been concluded because the parties; or where one of them, by reason of a
grave and incurable psychological illness existing when the marriage was celebrated, did not
appreciate the obligations of marital life and, thus, could not have validly entered into a
marriage. (G.R. No. 150677, 05 June 2009)
19. What is psychological incapacity?
Psychological incapacity refer to no less than a mental (not physical) incapacity that causes a party
to be truly incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code,
include their mutual obligations to live together, observe love, respect and fidelity and render help and
support. (Santos v. Court of Appeals, et al., 310 Phil. 21 (1995))
Simply put, psychological incapacity is the failure of the party to a marriage to assume and comply
with the essential obligations of marriage.
20. What are the characteristics of psychological incapacity?
Psychological incapacity must be characterized by:

1.

Gravity It must be grave or serious such that the party would be incapable of carrying out
the ordinary duties required in a marriage;
2.
Juridical Antecedence It must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage; and
3.
Incurability It must be incurable or, even if I were otherwise, the cure would be beyond the
means of the party involved.(Santos v. Court of Appeals, et al., 310 Phil. 21 (1995))
21. My husband and I have constant marital disagreements such that our marital relation
is extremely strained, can I file for annulment on the ground of psychological incapacity?
No, personal differences do not reflect a personality disorder tantamount to psychological
incapacity. (Marable vs. Marable, G.R. No. 178741, 17 January 2011)

Mere showing of "irreconciliable differences" and "conflicting personalities" in no wise constitutes

psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities
and duties as married persons; it is essential that they must be shown to be incapable of doing so,
due to some psychological (nor physical) illness. (Republic of the Philippines vs. CA, G.R. No.
108763, 13 February 1997)
22. Who can file the action to declare the marriage void?
Either party, even the psychologically incapacitated, can file the action. (Edward Kenneth Ngo Te
vs. Rowena Ong Gutierrez Yu-Te, G.R. No. 161793, 13 February 2009)
Furthermore, in cases of bigamous marriages involving foreign spouses, the first spouse who is a
Filipino can have the decree of divorce of the second marriage of his spouse to a foreigner be
recognized in the Philippines.

When the right of the spouse to protect his marriage is violated, the spouse is clearly an injured
party and is therefore interested in the judgment of the suit. Juliano-Llave ruled that the prior
spouse "is clearly the aggrieved party as the bigamous marriage not only threatens the financial and
the property ownership aspect of the prior marriage but most of all, it causes an emotional burden to
the prior spouse." Being a real party in interest, the prior spouse is entitled to sue in order to declare
a bigamous marriage void. For this purpose, he can petition a court to recognize a foreign judgment
nullifying the bigamous marriage and judicially declare as a fact that such judgment is effective in the
Philippines. Once established, there should be no more impediment to cancel the entry of the
bigamous marriage in the civil registry. (Fujiki v. Marinay G.R. No. 196049, June 26 2013)
23. Does the action to declare the marriage void on account of the psychological incapacity
of a party to a marriage prescribe?
No, the action or defense for the declaration of absolute nullity of a marriage does not prescribe.
(Article 39 of the Family Code of the Philippines)
24. Is there a need for my husband to be personally examined by a psychiatrist for the
declaration of nullity of marriage on the basis of psychological incapacity?
No, there is no requirement that the defendant/respondent spouse should be personally examined by
a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based
on psychological incapacity. (Marcos vs. Marcos, G.R. No. 136490. 19 October 2000)
25. My husband is physically unable to comply with his marital obligations; can I have my
marriage annulled on the basis of his psychological incapacity?
No, mere inability to physically comply with his marital obligations does not necessarily mean that
your husband is psychologically incapacitated.
The psychologically incapacity refers to the mental incapacity that prevents the party from complying
with his basic marital covenants. (Santos v. Court of Appeals, et al., 310 Phil. 21 (1995))
It bears stressing that psychological incapacity must be more than just a "difficulty," "refusal" or
"neglect" in the performance of some marital obligations. Rather, it is essential that the concerned
party was incapable of doing so, due to some psychological illness existing at the time of the
celebration of the marriage. (Marable vs. Marable, G.R. No. 178741, 17 January 2011)
It is indispensable that the evidence must show a link, medical or the like, between the acts that
manifest psychological incapacity and the psychological disorder itself. (Marable vs. Marable,G.R.
No. 178741, 17 January 2011)

26. I recently discovered that my husband had been having an affair for two years. Will
knowledge of his infidelity be sufficient to prove that he has psychological incapacity and
file a petition for nullity against him?
No, infidelity is not enough per se to illustrate or establish that the guilty party is psychologically
incapacitated.
It has been held in various cases that sexual infidelity, by itself, is not sufficient proof that petitioner
is suffering from psychological incapacity. It must be shown that the acts of unfaithfulness are
manifestations of a disordered personality which make petitioner completely unable to discharge the
essential obligations of marriage. (Villalon vs. Villalon, G.R. No. 167206, 18 November 2005)
Furthermore, in the case of Toring vs. Toring, To constitute psychological incapacity, it must be
shown that the unfaithfulness and abandonment are manifestations of a disordered personality that
completely prevented the erring spouse from discharging the essential marital obligations. (G.R. No.
165321, 03 August 2010)
27. What is a Psychological Report?
The psychological report embodies the findings of a clinical psychologist regarding the psychological
state of an individual. It is the product of a two-part test: the psychological testing and the clinical
interview which the petitioner should undergo.

Legally, it is an indispensable piece of evidence for the declaration of nullity of marriage on the ground
of Psychological Incapacity under Article 36 of the Family Code of thePhilippines. Absent any
Psychological Incapacity on the part of the Petitioner or Respondent would result in the dismissal of
the petition.
28. Is the Psychological Report and testimony of the Psychologist sufficient to establish the
existence of Psychological Incapacity?
No, psychological incapacity must be established by the totality of the evidence presented during the
trial. (Marcos vs. Marcos, G.R. No. 136490. 19 October 2000) Hence other evidence must be
presented during the trial to establish the psychological incapacity.
29. My husband/wife agreed to have an annulment; can we file the case for nullity of
marriage?
No, in cases of annulment and declaration of absolute nullity of marriage, collusion between parties is
prohibited. (Article 48 of the Family Code of the Philippines)
This prohibition is due to the fact that our family law is based on the policy that marriage is not a
mere contract, but a social institution in which the state is vitally interested. The state can find no
stronger anchor than on good, solid and happy families. The breakup of families weakens our social
and moral fabric and, hence, their preservation is not the concern alone of the family
members. (Tuason vs. Tuason, G.R. No. 116607, 10 April 1996)
30. I discovered after the marriage that my husband/wifes character is vastly different
from when we were dating. Can I file for annulment?
No, misrepresentation or deceit as to character, health, rank, fortune or chastity is not considered as
fraud and it cannot be used as a ground for action for the annulment of marriage. (Article 46 of the
Family Code of the Philippines)
31. I discovered that at the time I married my wife, she was already pregnant with the
child of another person. Can I file for annulment?

Yes, non-disclosure of the wife that she is pregnant with the child of another man is considered as
fraud under Article 45 of the Family code of the Philippines. (Article 46, paragraph 2, of the
Family Code of the Philippines)
32. What are the grounds for the declaration of nullity of marriage?
The grounds are enumerated under Article 35 and 36 of the Family Code of the Philippines, to
wit:
1.
Either or both parties are below eighteen years of age;
2.
Marriage was solemnized by a person not legally authorized to perform marriages;
3.
There is no marriage license;
4.
Marriage is bigamous or polygamous;
5.
There was a mistake of one contracting party as to the identity of the other;
6.
The subsequent marriage is void; and
7.
Psychological incapacity.
33. What are the effects of the declaration of nullity/annulment of a marriage?
The dissolution of the marriage through annulment or nullity of marriage shall have the following
results:
1.
2.
3.
4.

Either spouse can remarry;

Children born during the existence of the marriage are still deemed legitimate;
Custody of the common children shall be awarded to either or both parents, and;
The property regime shall be dissolved and liquidated. (Article 50 of the Family Code of
the Philippines)

(Legal Separation)
34. Can I remarry after my Legal Separation is granted?
No, legal separation is merely the separation of spouses from bed and board. (Article 63 of the
Family Code) While it permits the partial suspension of marital relations, the marriage bond still
exists as the marital bonds are not severed as in the case of annulment or petition for nullity.
35. What are the grounds for Legal Separation?
The grounds for legal separation are:

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
thePhilippinesor abroad;
8.
Sexual infidelity or perversion;
9.
Attempt by the respondent against the life of the petitioner; or
10. Abandonment of petitioner by respondent without justifiable cause for more than one year.
(Article 55 of the Family Code of the Philippines)

36. What would happen to the donation I gave my wife/husband before the legal
separation?
The innocent spouse may revoke the donations he/she made in favor of the offending spouse. If such
donations involve property, such revocations should be recorded in the Register of Deeds in the places
where the properties are located. (Article 64 of the Family Code of the Philippines)
Note however that such revocation must be done within five years from the time the decree of legal
separation become final.
37. My husband/wife and I agreed to have a legal separation, will there be any
consequences if the State found out about our agreement?
Yes, the court may deny the petition for legal separation once it has been proved that there was an
agreement between the parties in aiming to get legally separated.

Collusion or connivance between parties is a ground for the denial of the petition for legal
separation. (Article 56 of the Family Code of the Philippines)
38. When should I file for Legal Separation?
The action for legal separation should be filed within five (5) years from the time of the occurrence of
the cause. (Article 57 of the Family Code of the Philippines; A.M. No. 02-11-11-SC, 15 March
2003)
39. What are the effects of Legal Separation?
1. The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be
severed;
2. The absolute community or the conjugal partnership shall be dissolved and liquidated but the
offending spouse shall have no right to any share of the net profits earned by the absolute community
or the conjugal partnership;
3. The custody of the minor children shall be awarded to the innocent spouse; and
4. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession. (Article 63 of the Family Code of the Philippines)