Annulment and Legal Separation

OVERVIEW
1. What is the difference between Annulment, Declaration of Nullity of Marriage, Divorce
and Legal Separation?

Annulment is a court proceeding with the objective of severing marital relations between
husband and wife. It is applicable only to voidable marriages or those marriages which are valid
from the beginning but can be declared void due to grounds exclusively provided by law.
A Declaration of Nullity of Marriage is one declared by the court that the marriage subject
of the petition is void ab intio or void from the beginning. It declares the marriage between the
Parties to be inexistent.
Divorce severs the marital union of husband and wife but recognizes that the marriage
between the Parties existed.
Legal Separation merely involves the bed and board separation of husband and wife without
affecting their marital status.

2. Which of the four circumstances are allowed in the Philippines?

Philippine laws only allow Annulment, Declaration of Nullity of Marriage and Legal Separation. The
Philippines is one of the few countries left that do not allow Divorce.

3. If I cant divorce my spouse, how can I dissolve my marriage?

Under Philippine law, parties who wish to have their marriage dissolved have two options. They can
either file:

1. Petition for annulment of marriage; or

2. Petition for nullity of marriage.

ANNULMENT

4. What then are the grounds for Annulment of Marriage?

The grounds for annulment are exclusive.

A marriage may be annulled for any of the following causes, existing at the time of 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;
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. (Article 45, The Family Code of the Philippines)

5. 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.

6. 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 Party whose parents consent was not granted to the marriage can file a petition for
annulment.

7. My husband is diagnosed as having an unsound mind and is now incarcerated in a

mental hospital. Would this be a ground to file for petition for annulment of my marriage to
him?
If your husband was suffering from an unsound mind at the time of the celebration of your marriage
which renders him incapable of comprehension as to what he is getting into and making him unable to
give his consent, then this could be a ground for annulment of marriage.

However, if your husband was of sound mind during the celebration of your marriage, then your
marriage is valid, not voidable. If your husbands affliction came about after the celebration of your
marriage, then this is not the scenario described by the law. The petition for annulment on this
ground would likely not succeed.

8. What are the acts that constitute fraud and would fall under #3 of the previously
enumerated grounds for Annulment?
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 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. (Article 46, The Family
Code of the Philippines)

9. 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(2), of the Family Code of
the Philippines)

10. I was married 2 months ago and I just found out that my husband has a sexually
transmissible disease and has 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.
11. 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 the Philippines, 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 well-
grounded 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 it was so
irresistible that you had no other choice but to willingly give your consent, then a petition for
annulment may succeed.

12. My sister confided in me that her husband was incapable of consummating their
marriage. What does that mean?
Incapacity to consummate a marriage means that a party to the marriage is unable to physically
perform and complete the act of sexual intercourse. The sexual intercourse which is performed by the
newly wed 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. (Persons and Family Relations Law (2004 Edition),
Melencio S. Sta. Maria, Jr., 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 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. (Persons and Family
Relations Law (2004 Edition), Melencio S. Sta. Maria, Jr., , 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, so it is not a ground for annulment of marriage. On the other hand, impotency renders
a person incapable of performing a sexual act which makes it a ground for annulment.

15. I had been married for 13 years. Just recently, I found out that my husband had an STD
which he passed on to me and caused my infertility. Can I 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.

16. 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)

DECLARATION OF ABSOLUTE NULLITY OF MARRIAGE

17. What are the grounds for a Judicial Declaration of Nullity of Marriage?
1) The absence of essential or formal requisites of marriage (Art. 4, Family Code of the
Philippines)
2) The grounds enumerated in Article 35 of the Family Code of the Philippines
3) Psychological incapacity (Art. 36, Family Code of the Philippines)
4) Incestuous marriages (Art. 37, Family Code of the Philippines)
5) Contrary to law or public policy (Art. 38, Family Code of the Philippines)
6) Void subsequent marriages (Arts. 40, 41, 44, 53, Family Code of the Philippines)

18. 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. Either spouse can remarry;

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

19. According to the first ground, what are the 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)

20. 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 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.(Susan Nicdao Cario vs. Susan Yee Cario, G.R. No. 132529, 02 February 2001)
21. Since we did not have a marriage license thereby rendering our marriage void, can I
remarry again since my first marriage is void anyway?
No, you cannot remarry right away. Even if you discovered that your marriage is void from the start,
you still need to file a Petition to declare the nullity of your marriage before you can remarry.

The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis
solely of a final judgment declaring such previous marriage void. (Article 40, The Family Code of
the Philippines)

22. What are the grounds enumerated under Article 35 of the Family Code?
The following marriages shall be void from the beginning:

1) Those contracted by any party below eighteen years of age even with the consent of parents or
guardians;

2) 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) Those solemnized without license, except those covered the preceding Chapter;

4) Those bigamous or polygamous marriages not falling under Article 41;

5) Those contracted through mistake of one contracting party as to the identity of the other; and

6) Those subsequent marriages that are void under Article 53.

23. 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., G.R. No. 112019, 04 January 1995)
Simply put, psychological incapacity is the failure of one of the spouses to assume and comply with
the essential obligations of marriage.

24. What are the characteristics of psychological incapacity?

xxx psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c)
incurability. The incapacity must be grave or serious such that the party would be incapable of carrying
out the ordinary duties required in marriage; it must be rooted in the history of the party antedating
the marriage, although the overt manifestations may emerge only after the marriage; and it must be
incurable or, even if it were otherwise, the cure would be beyond the means of the party
involved. (Santos v. Court of Appeals, et al., G.R. No. 112019, 04 January 1995)

25. 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.

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. (Renato Reyes So vs. Valera, G.R. No. 150677, 05 June
2009)

26. My husband and I have constant marital disagreements such that our marital relation
is extremely strained, can I file for nullity of marriage 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 "irreconcilable 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)

27. 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)

28. Is there a need for my spouse 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)

29. 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., G.R. No. 112019, 04
January 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)

30. 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 per se is not enough 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)

31. 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 Parties should undergo.

This report is usually made part of the evidence for the declaration of nullity of marriage on the
ground of Psychological Incapacity under Article 36 of the Family Code of the Philippines.

32. 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.

33. My spouse and I mutually agree 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)

34. 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)

DIVORCE
35. Since divorce is not allowed in the Philippines, what if get a divorce abroad? Will the
divorce decree be valid and recognized in the Philippines?
No, since 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)

36. What if we married abroad in a country where divorce is allowed, will the divorce
decree be sufficient to severe our marital relations since divorce is permitted in the foreign
country?
The divorce decree will not attach to your marriage and will not affect your marital status when you
return to the Philippines. Filipino citizens are covered by the nationality principle which states that
the national law of the citizen is binding upon him even if abroad.

37. What if I married a foreigner in the Philippines and during our life abroad, I decided to
obtain a divorce decree abroad, will the divorce decree be recognized in the Philippines?
No, Philippine law will only recognize a Divorce Decree obtained abroad if such decree was obtained by
the alien spouse and not the Filipino spouse. This is for the reason that divorce is not allowed in the
Philippines. Philippine laws will not tolerate its citizens to secure a divorce decree abroad in order to
circumvent the laws.

38. Does that mean if a divorce decree was obtained by my foreigner spouse, it will
automatically apply to me and therefore, I can remarry as well?
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. (G.R. No. 154380, 05 October 2005)
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)
However, this divorce decree does not automatically entitle the Filipino spouse to remarry in the
Philippines. A Petition for Judicial Recognition of Foreign Divorce must first be secured by the Filipino
spouse to entitle him/her to remarry.

39. Once I have presented the divorce decree in court, will that be sufficient to severe my
marital relations with my spouse and entitle me to remarry?
Unfortunately, the presentation of the divorce decree is not enough. You must satisfy the courts of the
authenticity and due execution of the decree. This would mean that you would have to prove the
applicable laws involved in your divorce. Remember that Article 26 of the Family Code of the
Philippines specifically state that such divorce must be valid according to the foreigner spouses
national law.

LEGAL SEPARATION
40. What are the effects of a Decree 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)

41. Can I remarry after my Legal Separation is granted?

No, 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.

42. What are the grounds for Legal Separation?

The grounds for legal separation are exclusive. These are as follows:
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; or
10. Abandonment of petitioner by respondent without justifiable cause for more than one
year. (Article 55 of the Family Code of the Philippines)

43. What would happen to the donation I gave my spouse 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.

44. My spouse 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)

45. 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)

46. What would happen if my spouse and I choose to reconcile and get back together
during the pendency of the proceedings?
If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them
shall be filed with the court in the same proceeding for legal separation. (Article 65 of the Family
Code of the Philippines)