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Evelyn breathes heavily.
Her heart is pounding. She just finished video chatting with George – her boyfriend from the US she met online. George just suggested he will come to the Philippines next year and they will get married at a beach wedding.
Along with the excitement, a sudden migraine attack occurred as she realized she has one big problem – her marriage to her husband whom she has been separated for more than 10 years is not yet annulled.
Evelyn’s problem, along with many other Filipinos is common – trapped in the past and cannot move on because of a previous marriage that is costly and difficult to sever.
Data culled from the Office of the Solicitor General recorded a growing trend of people wanting to end their marriage¹. From 2008 to 2017 alone, 87,236 cases have been filed with psychological incapacity as the most common ground for nullity cases.
In this article, I’ll show you different ways to end your marriage, what are the grounds for the Declaration of Nullity and Annulment of Marriage, what to expect in the entire process including costs and timeline involved.
I’ll also discuss recent legislation currently pending before the House of Representatives and Senate as well as delve into your most frequently asked questions.
Table of Contents
- How to End a Marriage or Separate From Your Spouse: 5 Ways.
- What are the Grounds for Declaration of Nullity of Marriage (Void Marriages)?
- What are the Grounds for Annulment of Marriage (Voidable Marriages)?
- How to File a Declaration of Nullity or Annulment of Marriage in the Philippines: 6 Steps.
- Latest News and Developments Related to Annulment Laws and Processes in the Philippines.
- Tips and Warnings.
- Frequently Asked Questions.
- 1. How much does it cost to file an annulment case in the Philippines?
- 2. Where can I file an annulment case in the Philippines?
- 3. How long does it take before my marriage is annulled?
- 4. What happens to the conjugal properties after an annulment?
- 5. Who will have custody of the children after an annulment?
- 6. My marriage has finally been annulled. Can I remarry? If so, when?
- 7. Our marriage was already annulled by the Catholic Church, do I still need to file an annulment case in court?
- 8. Can one file a petition for an annulment without appearing in court?
- 9. Do I need to attend all hearings or trials set by the court?
- 10. How can I file for annulment when I am living/working abroad?
- 11. My husband is a foreigner and our marriage was already divorced abroad, do I still need to file an annulment in the Philippines before I can remarry?
- 12. Both Filipinos got married abroad. Later on, one of them divorced the other. Is this divorce valid in the Philippines?
- 13. Annulment is expensive, is it possible to file an annulment for free?
- 14. Can the Public Attorney’s Office (PAO) handle my annulment case?
- 15. Can I file the annulment case when I am the one who has the psychological incapacity and not my spouse?
- 16. Can you obtain a divorce under Philippine law?
- 17. Is adultery a ground for annulment in the Philippines?
- Other FAQs.
- 18. I have not heard of my spouse for 20 years. I want to move on with my life and marry my current partner, can I do it?
- 19. I thought my first marriage was not registered in NSO so I got married again for the second time. I found out my first marriage was registered and valid. Do I still need to file an annulment for my second marriage even though it is not valid from the beginning?
- 20. Both I and my husband have been separated for 10 years and we already have our own partners. Can we just sign a document giving permission to each other to separate and agree not to file adultery or concubinage to each other?
- 21. Can I file an annulment without hiring a lawyer?
- About the Author.
How to End a Marriage or Separate From Your Spouse: 5 Ways.
“I want to file an annulment. I want my marriage annulled”, says your friend who has been complaining about the infidelity of her husband.
In the Philippines, we call it in generic terms as an annulment. Legally speaking, there are different ways to sever your marriage or separate from your spouse and the difference lies on the grounds.
1. Declaration of Nullity of Marriage.
Declaration of Nullity of Marriage can be filed if your case falls under Art. 35, 36, 37, 38, and 53 of the Family Code of the Philippines. The essence of this is that the marriage is void from the beginning. It is as if it did not exist.
Included in this category is the most common ground used in filing the petition – psychological incapacity under Art. 36.
2. Annulment of Marriage.
If your case falls under Art 45 of the Family Code, then Annulment of Marriage is your remedy. This means that your marriage is valid from the beginning but due to the presence of circumstances, the same is voidable.
3. Declaration of Presumptive Death.
If your spouse has been absent for four consecutive years (only two if the disappearance is with a danger of death) and you have a well-founded belief that your spouse is already dead, you may institute a summary proceeding for the declaration of presumptive death.
You need to go through the proceedings before you can remarry. This is without prejudice to the effect of the reappearance of the absent spouse.
4. Recognition of Foreign Judgment (Divorce).
This applies when you are married to a foreigner.
Art 26 of the Family Code provides that when your marriage to a foreigner is validly celebrated abroad and divorce was validly obtained by the foreigner spouse capacitating the latter to remarry, you shall have the capacity to remarry as well.
However, for you to be able to remarry, you need to have the divorce recognized in the Philippines by filing a Petition for Recognition of Foreign Judgment in the Regional Trial Court.
In the recent landmark ruling of the Republic of the Philippines vs. Marelyn Tanedo Manalo², the Supreme Court held that a foreign divorce obtained by a Filipino is also considered valid in the Philippines, even if it is the Filipino spouse who files for divorce abroad. Same as when your foreign spouse is the one who obtained a divorce, you also need to file a Petition for Recognition of Foreign Judgement before the divorce decree can be recognized and before you can remarry.
5. Legal Separation.
Repeated physical violence, drug addiction, lesbianism or homosexuality of your spouse, sexual infidelity or perversion, among others, are some of the most common grounds for filing a Petition for Legal Separation under Art. 53 of the Family Code.
However, please note that compared to the above, legal separation will not sever your marriage bonds. It will only allow you to live separately from each other, thus, either of you can not remarry.
For the rest of the article, I will focus on the Declaration of Nullity of Marriage and Annulment of Marriage as these are the most common remedies filed in Court.
What are the Grounds for Declaration of Nullity of Marriage (Void Marriages)?
1. Bigamous Marriage.
You got married to your husband without knowing he has been married previously – this is a bigamous marriage and one of the grounds for the Declaration of Nullity.
Take note that bigamy is ground for both legal separation and declaration of nullity of marriage. The difference is the person who has the cause of action (the person filing).
In a legal separation, the party who has the cause of action is the first marriage (e.g. wife can file legal separation vs. her husband who contracted subsequent marriage). In nullity of marriage, the party who has the cause of action is the second marriage (e.g. the wife of the second marriage can file the case because the second marriage is bigamous and not valid. The first marriage is still valid.)
2. Essential Requisites of Marriage are Lacking.
Your marriage is void from the beginning if you got married when you are below 18 years old; the solemnizing officer has no authority to perform the marriage (except if you or both of you believed he does have the authority); no marriage license was obtained; mistake as to the identity of the other.
3. Incestuous Marriages.
Marriage between ascendants and descendants or between brothers and sisters.
4. Those Against Public Policy.
Marriages between collateral blood relatives up to the fourth degree of consanguinity, step-parents, and step-children, parents in law and children in law, adoptive child, among others.
5. Psychological Incapacity.
As already mentioned, psychological incapacity is the most common ground used in filing the petition. Courts are swamped with cases using this ground. Most likely, your case will fall under this category.
Art 36 of the Family Code³ provides that
“A marriage contracted by any party who, at the time of the celebration of marriage, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”
The law did not define the term “psychological incapacity”. However, in long lines of cases, the Supreme Court has laid down several guidelines to help the court in determining the existence or non-existence of psychological incapacity.
For example, in the Republic of the Philippines vs. Court of Appeals and Molina4, the Supreme Court ruled that “psychological incapacity” should refer to no less than a mental (not physical) incapacity that causes a party to be truly incapable of understanding basic marital covenants.
The intent of the law is to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.
Thus, a mere showing of irreconcilable differences, conflicting personalities, being an irresponsible and immature spouse, sexual promiscuity, abandonment per se, among others, do not constitute psychological incapacity, unless it is shown that the condition is due to some psychological illness.
The Supreme Court has emphasized that the determination of psychological incapacity remains to be on a case-to-case basis and depends heavily on the facts of your case.
To determine the existence of psychological incapacity, it is important to submit yourself to a psychologist for evaluation. Upon examination and your narration of facts, the psychologist may be able to find grounds.
What are the Grounds for Annulment of Marriage (Voidable Marriages)?
The following cases, existing at the time of marriage, can be annulled:
1. Lack of Parental Consent (either you or your spouse is above 18 years old but below 21 years old and your parents or guardian did not consent to the marriage)
2. Either you or your spouse is insane
3. Your consent or the consent of your spouse was obtained through fraud. The fraud referred here is limited to the following:
- Concealment of a conviction of a crime involving moral turpitude which refers to everything done contrary to justice, honesty, modesty, or good morals
- Concealment of the wife of his pregnancy at the time of marriage to a different man
- Concealment of the sexually transmitted disease existing at the time of marriage
- Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of marriage. Just to make it clear: It is the concealment or non-disclosure of homosexuality that is ground to annul a marriage, not homosexuality per se.
The list above is exclusive. Hence, if you later found out that your spouse is no longer a virgin, is not healthy, has no rank, is actually not rich as your spouse claims to be – these concealments do not constitute fraud and will not be a ground for an annulment.
Also, please note the grounds provided under Art. 45 have conditions before your case can prosper. For example, if you still freely cohabited with your spouse after reaching the age of 21, no case of annulment will prosper. Read the exact texts of the law here to find out if your situation falls under the conditions.
4. Your consent or the consent of your spouse was obtained through force, intimidation, and undue influence
5. Either you or your spouse is physically incapable (e.g.impotency) to consume the marriage and such incapacity continues and appears incurable
6. Either you or your spouse has serious and incurable Sexually Transmitted Diseases
It should be noted that there’s a specific and limited time frame during which you can file the petition based on each of the above-mentioned grounds for annulment. Here’s a summary:
- Where there’s a lack of consent, the case must be filed before the party turns 21 years old
- Where there is insanity, either before the death of either party or before the insane spouse becomes lucid/coherent
- Where there’s an occurrence of fraud, force, intimidation, or undue influence and incapacity to consummate the marriage, you only have five years to file from such occurrence
- Where there’ s a presence of STD (sexually transmissible disease), you only have 5 years to file from the time of knowledge/discovery of the said disease
How to File a Declaration of Nullity or Annulment of Marriage in the Philippines: 6 Steps.
1. Engage the services of a lawyer.
The first thing you need to do is to look for a lawyer who will assist you in filing the petition. There are plenty of lawyers who specialize in annulment cases. You can find leads from your friends or colleagues who can recommend one.
If you do not know anyone, you can always visit the Legal Office of your city or municipality as most often, there will be one lawyer who could handle your case.
2. For the Lawyer: Prepare the petition and file the case in court.
Once you signed the Retainer Agreement, your lawyer will interview you to appraise your case. If on his assessment, what needs to be filed is a Declaration of Nullity of Marriage based on Psychological Incapacity, your lawyer will refer you to a psychologist for evaluation.
For the Declaration of Nullity based on psychological incapacity, the report of the psychologist is also needed before your lawyer can draft the petition.
3. For the Clerk of Court: Raffle the case and issue the summons.
Once your petition is filed, the Office of the Executive Clerk of Court will raffle your petition for the assignment of the case to the Family Court of the Regional Trial Court.
The Clerk of Court of the Regional Trial Court where the case is assigned will then issue a summons directing your spouse to answer the petition.
If you do not know the whereabouts of your spouse, service of summons may be done through publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines. It will also be served on his last known address by registered mail or other sufficient means.
Before the pre-trial proceedings or at any stage of the case, the Court may require a social worker to conduct a case study.
4. Attend the Pre-trial proceedings.
Pre-trial is mandatory and failure to attend the pre-trial will cause the dismissal of your case.
In case you cannot attend the Pre-trial because of some valid grounds (e.g., you are abroad), your lawyer or any authorized representative should attend instead and present your valid excuse before the court.
If your spouse will not answer the petition, the court will order the public prosecutor to investigate whether collusion (agreement between you and your spouse on the filing of the petition and agreement that your spouse will not oppose) exists. The Fiscal, after investigation, will submit a report to the court stating the findings.
Please note that your petition will be dismissed if you and your husband colluded.
Collusion is prohibited. Statements such as “me and my husband have already agreed to file the annulment” and “my husband has agreed not to oppose the petition” will surely cause the dismissal of your petition on the ground of collusion.
During this stage, the court may also refer your case to a mediator to assist you and your spouse reach an agreement and compromise on matters not prohibited by law.
5. Go through the actual trial.
During this stage, you will need to present all your evidence and witnesses to prove your case including personally sitting in the witness stand to testify. If you are abroad, you have to go home to the Philippines. It is possible that you will need to attend more than once depending on the flow of your case and the schedule of the trial of the court.
In the case of the Declaration of Nullity of Marriage by reason of psychological incapacity, the psychologist who evaluated your case will also testify as an expert witness to present his findings. It is advisable to give additional witnesses who personally know your marital relationship so that your statement will be corroborated.
Please also note that the public prosecutor will be present and will act as the adverse counsel. The latter is tasked by the court to ensure no collusion occurs between you and your spouse and no suppression and fabrication of evidence takes place during the proceedings.
6. Wait for the judgment.
After the trial is terminated and all pleadings have been filed in court, your case will now be submitted for decision. Here’s an estimate of how long it will take for the marriage to be annulled and here’ a summary of what happens next once the annulment becomes final.
Latest News and Developments Related to Annulment Laws and Processes in the Philippines.
We all know it. Annulment or nullity proceedings are time-consuming and costly.
The passage of divorce law is always met with opposition. The Philippines, being predominantly a Catholic country, has failed to produce a law allowing divorce.
Recent legislation with the purpose of easing the process of severing a marriage is still pending. Some of these are the following:
1. House Bill 6779 and Senate Bill 1745 (Recognizing the Civil Effects of Church Annulment Decrees).
The bill proposes to recognize church or religious sect annulments to have the same effects as annulment declared by a competent court.
HB No. 6779 was approved on its third and final reading at the House of Representative while SB 1745 is currently pending with the Committee.
2. House Bill 502 (Prescribing Five Years of Separation as Ground for Annulment).
The bill seeks to introduce a 5-year separation as an additional ground for an annulment. It seeks to acknowledge a factual and existing marital condition for many Filipinos. The bill is currently pending with the Committee on Revision of Laws.
3. House Bill 7303 and Senate Bill 288 (Instituting Absolute Divorce and Dissolution of Marriage in the Philippines).
The bills seek to introduce absolute divorce and dissolution of marriage in the Philippines providing for more grounds for termination of the marriage. It also intends to ease access to the legal process by making it less tedious, inexpensive and not adversarial.
HB 7303 was approved by the House on third and final reading while SB 288 is currently pending with the Committee.
Tips and Warnings.
- After the marriage is annulled, the woman can use her maiden name/surname again.
- Children of an annulled marriage are still considered legitimate under the law even though their parents have separated.
- If you’re previously married but never obtained a decree of annulment in the Philippines, you can’t escape or circumvent the law by trying to get married in another country. Art. 15 of the Civil Code of the Philippines provides that laws relating to family rights and duties, or to the status, condition, and legal capacity of persons are binding upon Filipino citizens regardless of where they go abroad. Hence, if you’re still married in the Philippines, your status won’t change and your “second” marriage will never be recognized here even if the wedding ceremony is performed in Timbuktu or even the North Pole!
Frequently Asked Questions.
7. Our marriage was already annulled by the Catholic Church, do I still need to file an annulment case in court?
11. My husband is a foreigner and our marriage was already divorced abroad, do I still need to file an annulment in the Philippines before I can remarry?
12. Both Filipinos got married abroad. Later on, one of them divorced the other. Is this divorce valid in the Philippines?
15. Can I file the annulment case when I am the one who has the psychological incapacity and not my spouse?
18. I have not heard of my spouse for 20 years. I want to move on with my life and marry my current partner, can I do it?
You have to obtain a Decree of Annulment or Decree of Nullity first before you can remarry. It does not matter whether you have been separated for a long time. As long as no judgment from a competent court has been obtained, you remain married to your spouse.
19. I thought my first marriage was not registered in NSO so I got married again for the second time. I found out my first marriage was registered and valid. Do I still need to file an annulment for my second marriage even though it is not valid from the beginning?
Yes. Even if your second marriage is not valid from the beginning, you still need to file a Declaration of Nullity of Marriage. The law is not automatic.
20. Both I and my husband have been separated for 10 years and we already have our own partners. Can we just sign a document giving permission to each other to separate and agree not to file adultery or concubinage to each other?
No. you have to file an annulment or nullity case. Such a document is not valid.
21. Can I file an annulment without hiring a lawyer?
Yes, you can but it is not advisable. Given the above-discussed process of annulment, a lawyer is needed to help you navigate the tedious and complicated annulment proceedings.
1. Number of Annulment and Nullity Cases filed for the last 10 Years. (2017). Retrieved from http://www.osg.gov.ph/documents/open-data/mrcwithdecisions.pdf
2. Republic of the Philippines vs. Marelyn Tanedo Manalo, G.R. No. 221029 http://www.chanrobles.com/cralaw/2018aprildecisions.php?id=302 (Supreme Court of the Philippines 2018).
3. Republic Act No. 8533 An Act Amending Title I, Chapter 3, Article 39 of Executive Order No. 209, Otherwise Known as the Family Code of the Philippines, Nullifying the Prescriptive Period for Action or Defenses Grounded on Psychological Incapacity (1987).
4. The Republic of the Philippines vs. Court of Appeals and Molina, G.R. No. 108763 https://www.lawphil.net/judjuris/juri1997/feb1997/gr_108763_1997.html (Supreme Court of the Philippines 1997).
5. OCA Circular No. 63-2019. (2019). Retrieved from http://oca.judiciary.gov.ph/wp-content/uploads/2019/05/OCA-Circular-No.-63-2019.pdf
6. The LawPhil Project. Presidential Decree No. 1083: A Decree to Ordain or Promulgate a Code Recognizing the System of Filipino Muslim Laws, Codifying Muslim Personal Laws, and Providing for its Administration, and for Other Purposes.
7. David Dedel v. Court of Appeals and Sharon Corpuz-Dedel a.k.a. Jane Ibrahim, G.R. No. 151867 lawphil.net/judjuris/juri2004/jan2004/gr_151867_2004.html (Supreme Court of the Philippines 2004).
About the Author.
Kareen Lucero has been a lawyer for thirteen years previously doing litigation before working for different agencies in the government and for a multinational corporation. She has traveled to 52+ countries including 3-month solo backpacking in South East Asia and more than 1 year of solo traveling across four continents in the world. As part of giving back, she is passionate about sharing her knowledge of law and travel. She is currently doing consulting work for a local government. Connect with her on Facebook.