Chapter 1: The Family Code of the Philippines

Lesson 4: Annulment, Divorce and Legal Separation in the Philippines

Source: Marriage Laws in the Philippines by Atty. Gabby Concepcion. Retrieved

on August 12, 2019 at https://slideplayer.com/slide/4770336/

Lesson Contents:

Lesson 4 comprise the following topics:

 Divorce under Philippine Laws
 Annulment and divorce distinguished
 Void marriage ab initio
 Absence of a marriage certificate
 Legal separation and annulment of marriage distinguished
 Grounds for the declaration of nullity of marriage

Objectives:
a. Determine on what grounds can annulment and legal separation be filed
b. Give justifications on the validity of marital scenarios

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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 everyone’s 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”

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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
(Please see the previous discussion on this topic).

So, if a marriage is void from the very beginning (void ab initio), there’s 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.

According to Article 349 of the Revised Penal Code of the

Philippines, a person can be criminally responsible for the crime of bigamy
if: the offender is legally married; the marriage has not been nullified; or the
absent spouse could not yet be presumed dead based on the Civil Code.
Bigamy takes place when a second marriage is contracted and has met the
essential requisites of a valid marriage.

Under Article 349 of the Revised Penal Code, the elements of the
crime of Bigamy are:

(1) that the offender has been legally married;

(2) that the first marriage has not been legally dissolved or, in case his or
her spouse is absent, the absent spouse could not yet be presumed dead
according to the Civil Code;

(3) that he contracts a second or subsequent marriage; and

(4) that the second or subsequent marriage has all the essential requisites
for validity.

Does signing a marriage contract automatically hold a man

criminally responsible? The subsequent marriage will only be considered
valid if it meets the requisites of a valid marriage. This means that the
consent must be freely given by both parties in the presence of the
solemnizing officer. The solemnizing officer should also have the authority
to solemnize the marriage. Without a valid marriage license, the contract of
marriage will not take place and the crime of bigamy will not prosper in
court.

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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

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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).

Sexually Transmitted Disease (STD) is an infectious disease that

spreads from person to person during sexual contact. STDs are syphilis,
trichomoniasis, and HIV infection are caused by bacteria, parasites, and
viruses.

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.

Homosexuality is defined as, sexual interest in and attraction to

members of one’s own sex. The term gay is frequently used as a synonym
for homosexual; female homosexuality is often referred to as lesbianism.

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.

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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?

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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) Consent.

2) Connivance (in the commission of the offense or act constituting

the ground for legal separation).

3) Mutual guilt (both parties have given ground for legal

separation).

4) Collusion (to obtain decree of legal separation).

5) Prescription (5 years from the occurence of the cause for legal

separation).

If you’re 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).

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6) After securing a judgement of annulment or of absolute nullity of

marriage, 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
children’s 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 person’s 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.

Evaluation

Roel and Hannah became a couple when they met in Harvard University while
studying law. They fell in love and decided to go back in the Philippines and settle
down. Their relationship was bliss until one day Roel found out that Hannah is
demanding and always got jealous. She doesn’t know a simple household chore; Roel
is the one doing everything. Because of that, he fell for Luisa their housemaid. They
have a covert affair. One day, when Luisa was cleaning she got hold of a birth certificate
stating that Hannah is a male. Roel confronted her and admitted that she just had an

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operation. In the middle of the heated argument, Roel even learned that Hannah had an
affair with their driver as shown by various pictures showing them in a compromising
position.

1. Was their marriage valid? Justify your answer.

2. Can Roel remarry on the grounds that Hannah is a male? Explain.

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