Sie sind auf Seite 1von 19

Annulment, Legal Separation, and Divorce

The concept of family is an integral part of the law. The Philippine Constitution
recognizes the ideology of family as a basic social institution. The provision regarding the
definition of family is laid down in Article XV, Section 1 of the Constitution which states that:

The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.

According to Bernas, S.J. (2009), family must be understood as a stable heterosexual
relationship whether formalized by civilly recognized marriage or not. Referring family as a
basic social institution is a declaration that it is anterior to the state. The autonomy of family
protects itself against instrumentalization by the state.

The Family Code of the Philippines and I ts Promulgation

The present Family Code of the Philippines has been promulgated almost four decades
since the adoption of the Civil Code of the Philippines. The Family Code we have today was
signed into law by former President Corazon C. Aquino on the 16
th
of July 1987 under Executive
Order No. 209. The Family Code took effect on the 3
rd
of August 1988, one year after its
publication in a newspaper of general circulation. Its promulgation was to address the need to
implement policies embodied in the 1987 Constitution that strengthen marriage and the family as
basic social institutions and ensure quality between men and women.

The provisions in the Family Code have repealed several articles in the Civil Code. These
include the provisions on marriage, legal separation, and property relations.


Marriage in the Philippines

Marriage, as defined in the Article 1 of the Family Code of the Philippines, is a special
contract of permanent union between a man and a woman entered into in accordance with law
for the establishment of conjugal and family life. It is the foundation of the family and an
inviolable social institution whose nature, consequences and incidents are governed by law and
not subject to stipulation, except that marriage settlements may fix the property relations during
the marriage within the limits provided by this Code.

Marriage as a special contract is an inviolable social institution. In the case of Santos vs
CA (240 SCRA 20), the Court said that marriage is not an adventure but a lifetime commitment.
It is a permanent union between a man and a woman at least 18 years of age. It is made valid by
compliance of the essential (legal capacity and consent) and formal requisites (authority of the
solemnizing officer, a valid marriage license, and marriage ceremony) of marriage. It is not
subject to stipulation unless it has to do with the contracting parties marriage settlements.
Marriage can be terminated by death or declaration of nullity or annulment due to legal cause
(Pineda, 2011).

The Family Code of the Philippines cites grounds by which a marriage may be
terminated, dissolved or nullified.

Annulment

In essence, annulment applies to a marriage that is considered valid, but there are
grounds to nullify it. A declaration of nullity 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.

An annulment differs from a divorce, a court order that terminates a marriage, since it is a
judicial statement that there was never a marriage. A divorce, which can only take place where
there has been a valid marriage, means that the two parties are no longer husband and wife once
the decree is issued. An annulment means that the individuals were never united in marriage as
husband and wife.

Grounds for Annulment of Marriage

The Family Code, in one of its provisions, enumerates grounds for the annulment of
marriage. The grounds cover lack of parental consent, unsoundness of mind, consent obtained
through fraud, consent obtained by force, intimidation or undue influence, physical incapability
of consummating the marriage, and affliction of the Sexually- Transmissible Disease. Article 45
provides:

Art. 45. A marriage may be annulled for any of the following causes, existing at
the time of the marriage:
1. That the party in whose behalf it is sought to have the marriage annulled
was eighteen years of age or over but below twenty-one, and the marriage
was solemnized without the consent of the parents, guardian or person
having substitute parental authority over the party order, unless after
attaining the age of twenty-one, such party freely cohabited with 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 other as husband and wife;
5. That either party was physically incapable of consummating 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.


An action of annulment is applicable to marriages, which are considered valid but exhibit
grounds for its nullification. In Rayray vs Choe Kyung (18 SCRA 450), annulment is an action in
rem since it concerns the status of the parties and binds the whole world. In annulment, only the
husband or wife may file the annulment case. The heirs may only question the validity of
marriage in the proceeding for the settlement of the estate of the deceased (Pineda, 2011). It is
important that causes for annulment are existent at the time of the celebration of the marriage.
Article 45 enumerates six (6) causes for annulment.

First is the lack of consent. There is a need for a parental consent, or guardians if the
former is absent, for either or both parties between the age of 18 and 21. The absence of parental
consent when required makes the marriage voidable. However, it is validated if upon reaching
the age of 21, the spouses freely cohabited with the other.

Second is the unsoundness of mind or insanity. A marriage is voidable when one of the
parties is insane. The test of soundness of mind is whether the party was capable of
understanding the nature and consequences of the marriage at the time of the celebration.
However, this may be ratified by a freely cohabiting as husband and wife.

Third cause is consent through fraud. Article 46 of the Family Code enumerated
circumstances which constitute fraud. Fraud includes (a) Non-diclosure of a previous conviction
by final judgment of the other party of a crim involving moral turpitude; (b) Concealment by the
wife of the fat 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. Fraud is limited only those
mentioned in provision of Article 46 of the Family Code. This means that deceit as to ones rank,
fortune, and health cannot constitute fraud. Marriage involving consent through fraud may be
ratified by free cohabitation. The misrepresentation, whether by lies or concealment of the truth,
must encompass something directly pertinent to the marriage, such as religion, children, or sex,
which society considers the foundation of a marital relationship.

Consent obtained by force, intimidation or undue influence is a ground for the annulment
of marriage. Marriages, contracted out of consent obtained by force, intimidation or undue
influence are voidable. Force or violence is present when there is serious or irresistible physical
power exerted. There is intimidation when one of the contracting parties is compelled by a
reasonable and well-grounded belief 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 (Art.
1335, part 2, NCC). However, consent, even if against his desire, if given reluctantly is valid.
Undue influence is present when a person takes advantage of his power therefore depriving the
other of his or her freedom of choice. Marriages under these circumstances can be ratified by
free cohabitation.

Physical or emotional conditions may also be grounds for annulment, particularly when
they interfere with sexual relations or procreation. Another ground for annulment of marriage is
impotency, physical incapability of consummating the marriage. Impotency is different from
sterility as it is inability of a person to copulate unlike the latter which is the lack of fertility.
Generally, there are two kinds of impotency: absolute and temporary. Absolute impotency is
incontinuous and incurable, which primarily originate from malformation or defect of the sexual
organs. Temporary impotency, on the other hand, is curable. Thus, it is the absolute or incurable
impotency that is a ground for the annulment of marriage. Impotency must be existing at the time
of the celebration of the marriage. Unlike the previous grounds, impotency could not be ratified
by free cohabitation.

Lastly, the affliction with a Sexually-Transmissible Disease. For this to be a ground for
annulment of marriage, the STD (a) existing at the time of marriage, (b) is a sexually-
transmissible disease, (c) serious (like AIDS), and (d) it appears incurable. It cannot be ratified
by cohabitation due to the seriousness, incurability and contagiousness of the disease.

J urisprudence

A certain provision in the Family Code which is considered as a ground for annulment is
psychological incapacity stated in Article 36 of the Code. It states:

A marriage contracted by any party who, at the time of the celebration, was
psychologically Incapacitated to comply with essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only
after its solemnization.

In the case of Santos vs Court of Appeals (240 SCRA 20), it is stated that 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 the marriage; and it must be
incurable or, even if it were otherwise, the cure would be beyond the means of the parties
involved.

Moreover, in Republic vs CA and Molina (G.R. No. 108763, February 13, 1997), the
Court laid down guidelines in the application of Article 36-

(1) The burden of proof to show the nullity of marriage belongs to the plaintiff.
Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity.
(2) The root cause of the psychological incapacity must be (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by
experts and (d) clearly explained in the decision.
(3) The incapacity must be proven to be existing at the time of the celebration of
the marriage.
(4) Such incapacity must also be shown to be medically or clinically permanent or
incurable.
(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to
71 of the Family Code as regards the husband and wife as well as Articles
220, 221 and 225 of the same Code in regard to parents and their children.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should
be given great respect by our courts.
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the State.

In the case of Villanueva vs CA (G.R. No. 132955, October 27, 2006), fraud as a ground
for annulment, was discussed. The Supreme Court held that petitioner freely and voluntarily married
private respondent and that no threats or intimidation, duress or violence compelled him to do so.
Petitioner in his prayer, cited several incidents that created on his mind a reasonable and well-grounded
fear of an imminent and grave danger to his life and safety, to wit: the harassing phone calls from the
appellee and strangers as well as the unwanted visits by three men at the premises of the University of the
East after his classes thereat, and the threatening presence of a certain Ka Celso, a supposed member of
the New Peoples Army whom appellant claimed to have been hired by appellee and who accompanied
him in going to her home province of Palawan to marry her.

The Court is not convinced that appellants apprehension of danger to his person is so
overwhelming as to deprive him of the will to enter voluntarily to a contract of marriage. It is not disputed
that at the time he was allegedly being harassed, appellant worked as a security guard in a bank. Given his
employment at that time, it is reasonable to assume that appellant knew the rudiments of self-defense, or,
at the very least, the proper way to keep himself out of harms way. Moreover, he never sought the
assistance of the security personnel of his school nor the police regarding the activities of those who were
threatening him. And neither did he inform the judge about his predicament prior to solemnizing their
marriage.

As to the second assignment of error, appellant cannot claim that his marriage should be annulled
due to the absence of cohabitation between him and his wife. Lack of cohabitation is, per se, not a ground
to annul a marriage. Otherwise, the validity of a marriage will depend upon the will of the spouses who
can terminate the marital union by refusing to cohabitate. The failure to cohabit becomes relevant only if
it arises as a result of the perpetration of any of the grounds for annulling the marriage, such as lack of
parental consent, insanity, fraud, intimidation, or undue influence x x x. Since the appellant failed to
justify his failure to cohabit with the appellee on any of those grounds, the validity of his marriage must
be upheld.

Revisiting the Past: Divorce in the Philippines

Title II of the Family Code discussed about divorce and legal separation. Revisiting the
past, during the Spanish and Japanese regime, there was the law on divorce. During the Spanish
regime, the divorce law was the Siete Partidas, wherein relative divorce is only allowed. On
March 11, 1917, Act No. 2710 or the Divorce law repealed the provisions of the Siete Partidas.
It authorized the grant of divorce circumventing only two grounds: adultery on the part of the
wife and concubinage on the part of the husband.

Meanwhile, during the Japanese regime, Executive Order No. 141 has enacted a new
absolute divorce. Eight more grounds for divorce were added. These are:
1. Adultery on the part of the wife or concubinage on the part of the husband,
committed under any of the forms described in the Revised Penal Code;
2. Attempt by one spouse against the life of the other;
3. A second or subsequent marriage contracted by either spouse before the
marriage has been legally dissolved;
4. Loathsome contagious disease contracted by either spouse;
5. Incurable insanity which has reached such a state that the intellectual
community between the spouses has ceased;
6. Criminal conviction of either spouse of a crime in which the minimum penalty
imposed is not less than six years imprisonment;
7. Repeated bodily violence by one against the other to such an extent that the
spouses cannot continue living together without endangering the lives of both
or either of them;
8. Intentional or unjustifiable desertion continuously for at least one year prior to
the filing of the action;
9. Intentional absence from the last conjugal abode continuously for three
consecutive prior to the filing of the action; and
10. Slander by deed or gross insult by one spouse against the other to such an
extent as to make further living impracticable.

However, the law was finally stricken when on October 23, 1944, General Douglas
McArthur proclaimed the reestablishment of the Commonwealth Government. All laws of any of
the governments in the Philippines were declared null and void. The proclamation has repealed
Executive Order No. 141. Act 2710 was revived, but was later repealed by the New Civil Code.
The New Civil Code, effective on August 30, 1950 allowed relative divorce and termed it legal
separation. Relative divorce does not end the marriage as it only permits separation from ber and
board. On the other hand, absolute divorce puts an end to marriage.

Divorce is also known as the legal dissolution of marriage. It is a court decree that
terminates a marriage. It cancels the legal duties and responsibilities of marriage and dissolves
the bonds of matrimony between a married couple. The purpose of a divorce is to terminate the
parties marriage. In order to do that, the parties and the court must decide how to handle the
questions of custody and placement of the minor children and how to divide the property and
debts of the parties.

Divorce is not allowed under the Philippine laws. 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. This is because under the nationality principle (Art. 15, Civil Code), all Filipinos
where they may be in the world are bound by Philippine laws on family rights and duties, status,
condition, and legal capacity. However, there are certain instances wherein the divorce secured abroad by
the foreigner-spouse, and even by former Filipinos, are recognized under Philippine laws. Nevertheless,
divorce decrees secured outside the Philippines are recognized in certain instances. This is provided
in Article 26 of the Family Code, which reads in full:

ART. 26. All marriages solemnized outside the Philippines in accordance with the
laws in force in the country where they were solemnized, and valid there as such,
shall also be valid in this country, except those prohibited under Articles 35(1),
(4), (5) and (6), 36, 37 and 38.
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 have capacity to
remarry under Philippine law.
There are two elements that must be shown before the second paragraph of
Article 26 is applied:
1. There is a valid marriage that has been celebrated between a Filipino citizen and a
foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to
remarry.

Furthermore, Filipino Muslim divorces are recognized in the Philippines. Their personal
laws were stated under P.D. 1083 or The Code of Muslim Personal Laws of the Philippines,
which took effect on February 4, 1977. The said Code contains Muslim laws on divorce.

J urisprudence

There was a later interpretation of the Supreme Court of the provision to include cases
involving parties who, at the time of the celebration of the marriage were Filipino citizens, but
later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The
reckoning point is not the citizenship of the parties at the time of marriage, but their citizenship
at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to
remarry. (Philippines vs. Orbecido III, G.R. No. 154380, October 5, 2005).

Legal Separation

Legal Separation is a decree that gives both the parties the right to live separately from
each other. Through this decree, the conjugal partnership of properties or the absolute
community of properties is dissolved. However, the man and woman are still considered married.
Thus, they may not remarry. A legal separation is for couples that do not want to get divorced
but want to live apart and decide on money, property, and parenting issues.

The effect of a decree of legal separation is merely separation in bed and board, and does
not grant to either the husband or the wife, the right to remarry. Likewise, the absolute
community of property or the conjugal partnership is dissolved. The erring spouse shall have no
right to the net gains of the property.

Grounds for Legal Separation

Article 55 of the Family Code of the Philippines enumerated the grounds for legal
separation. The provision provides:

Article 55. A petition for legal separation may be filed on any of the following
grounds:
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.
For purpose of this Article, the term child shall include a child by nature or by
adoption.

The first ground for legal separation, repeated physical violence or grossly abusive
conduct, must be directed against the spouse, or a common child, or child of other spouse in a
previous relationship, or an adopted child. Physical violence or moral pressure must adhere to
a specific purpose, which is to compel the petitioner against his or her will to change religion or
political affiliation. It is subjected only to the spouse and does not cover the children of the
parties. Third, attempt to corrupt or induce engagement in prostitution. A spouse who
commits this act to his or her spouse or to the latters child, or adopted child, or even to the
spouses common child can be sued for legal separation. This may lead to suspension of parental
authority.

Another ground for legal separation is final judgment in criminal case. It is important to
note that a judgment must have been rendered in criminal case with a penalty of imprisonment
for more than six years. Even if the spouse was granted pardon, the accused cannot use the
pardon as an exemption from the case of legal separation. Drug addiction or habitual
alcoholism and lesbianism or homosexuality must be present during the marriage. In the case of
lesbianism or drug addiction, when concealed to the other party, may be a ground for
annulment. Another ground for legal separation is bigamy. Bigamy is committed when a spouse
contracts a second or subsequent marriage before the former marriage has been legally dissolved,
or before the absent spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings (Article 349, Revised Penal Code). An exception to this is
Article 41 where a spouse contracted a subsequent marriage during the lifetime of the other
acting in good faith because of a well-founded belief that the absent spouse is dead due to the
latters absence for four consecutive years (Pineda, 2011).

Sexual infidelity or perversion is also a ground for legal separation. Any husband who
will have sex, other than his wife, is guilty of sexual infidelity. The same goes with the wife who
engages in sex other than the husband. Infidelity may be proven by love letters, photographs or
intimacies, cohabitation, birth or baptismal certificates, and judgment of conviction for adultery
or concubinage. Moreover, perversion refers to any pervert act where one agrees and the other
does not. Another ground for legal separation is attempt against life of the other spouse. The
attempt must be unjustified, because if it is justified done in self-defense, it is not a ground for
legal separation. Lastly, the unjustifiable abandonment for more than one year. This means that
a spouse has deserted the conjugal dwelling without the intention of returning. However,
physical estrangement is not sufficient for this provision, but also financial and moral desertion.
Defenses in Legal Separation (Article 56, Family Code)

The above mentioned grounds of legal separation shall be denied by: (a) condonation, the
expressed or implied forgiveness after the commission of the offense; (b) consent, acquiescence
or permissions or willingness of committing the complained act; (c) connivance, the tacit
permission of the act complained, (d) mutual recrimination, present when both parties are guilty
of an act or acts which are grounds for legal separation; (e) collusion, commission of acts which
are grounds of legal separation to obtain a decree of legal separation; and (f) prescription, loss or
extinction of the right to file an action within the period prescribed by law. The law fixed a five-
year period from the date of the occurrence of the cause for the filing of a decree of legal
separation. If five (5) years had already lapsed, the petition for the same shall be denied.

J urisprudence

Mentioned as one of the legal defense the defendant may raise is condonation. According
to Pineda (2011), condonation is forgiveness after the commission of the offense or act
complained of and not before. Forgiveness may either be implied or expressed. Expressed
forgiveness is characterized by manifestation in words or writing, while it is implied when it can
be deduced from the conduct of the offended spouse showing the intention to forgive.

In the benchmarked case of Bugayong vs Ginez (GR No. 10033, December 28, 1956), the
Supreme Court held that there is implied condonation when the offended spouse having full
knowledge and awareness of the offense, deliberately and willfully cohabited or had sexual
intercourse with the offender.

Looking into another case, Ong vs Ong (G.R. No. 153206, October 23, 2006), the
Supreme Court discussed on abandonment as a ground for legal separation. Lucita, herein
petitioner, filed a Complaint for Legal Separation under Article 55 par. (1) of the Family Code

before the Regional Trial Court (RTC) of Dagupan City, Branch 41 alleging that her life with
William was marked by physical violence, threats, intimidation and grossly abusive conduct.
William for his part denied that he never inflicted physical harm on his wife, used insulting
language against her, or whipped the children with the buckle of his belt. RTC ordered a decree
of legal separation. CA affirmed RTC decision.

Petitioner claimed that since respondent is guilty of abandonment, the petition for legal
separation should be denied following Art. 56, par. (4) of the Family Code. Petitioner argues that
since respondent herself has given ground for legal separation by abandoning the family simply
because of a quarrel and refusing to return thereto unless the conjugal properties were placed in
the administration of petitioners in-laws, no decree of legal separation should be issued in her
favor.

The Supreme Court ruled in favor of the petitioner, affirming the decisions of the lower
courts. The Supreme Court held that Williams argument claiming that since Lucita has
abandoned the family, a decree of legal separation should not be granted, following Art. 56, par.
of the Family Code which provides that legal separation shall be denied when both parties have
given ground for legal separation is without merit. The abandonment referred to by the Family
Code is abandonment without justifiable cause for more than one year.

As it was established that
Lucita left William due to his abusive conduct, such does not constitute abandonment
contemplated by the said provision. As Lucita has adequately proven the presence of a ground
for legal separation, the Court has no reason but to affirm the findings of the RTC and the CA,
and grant her the relief she is entitled to under the law.

Nullity of Marriage and Annulment Distinguished

Annulment and nullity of marriage are at times either used interchangeably or understood
to mean just the same. But is annulment different from nullity of marriage. The answer is yes. As
mentioned above, annulment applies to a marriage that is considered valid, but there are grounds
to nullify it, while a declaration of nullity of marriage applies to marriages that are void or
invalid from the very beginning. In other words, it was never valid in the first place.

The Family Code of the Philippines classifies grounds for the declaration of nullity of
marriages. Article 35 of the Family Code laid down grounds for declaration of a marriage void
ab initio. The provision provides:

Art. 35. 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 by 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.

The marriage is void from the beginning when a requisite is absent whether it is essential
or formal. The minimum age for both male and female is eighteen (18). The consent of the
parents or guardians of either or both of the contracting parties below 18 years does not make the
marriage valid. The absence of a solemnizing officer likewise renders the marriage void ab initio
unless, either or both parties entered into the marriage in good faith with a belief that the
solemnizing officer had the legal authority to do so. Marriages contracted without marriage
license are also void ab initio with the exceptions on marriages in articulo mortis (article 27);
marriages in remote places (Article 28); marriages in articulo mortis within the zone of military
operation (Article 32); marriages among Muslim or among members of ethnic cultural
communities (Article 33); and marriages between men and women who have lived for more than
five years as husband and wife without legal impediment (Article 34).

The act of contracting a subsequent marriage before the former marriage has been legally
dissolved or before the former spouse has been declared presumptively dead by means of judicial
declaration constitutes bigamy, a ground for a void marriage. The mistake in identity of other
party renders a marriage void from the beginning.

Article 37 of the Family Code on Incestuous Marriages provides marriage to be
void ab initio. Incestuous marriages are those marriages involving close relatives by blood,
whether legitimate or illegitimate relationship. The article provides:

Art. 37. Marriages between the following are incestuous and void from the
beginning, whether the relationship between the parties be legitimate or
illegitimate:
1. Between ascendants and descendants of any degree; and
2. Between brothers and sisters, whether of the full or half blood.

Exceptions in Article 37 are marriages between relatives within the fourth civil degree.
However, it is considered void from the beginning for reasons of public policy as provided by
Article 38 of the Family Code. The said provision states:

Art. 38. The following marriages shall be void from the beginning for reasons for
public policy:
1. Between collateral blood relatives, whether legitimate or illegitimate,
up to the fourth civil degree;
2. Between step-parents and step-children;
3. Between parent-in-law and children-in-law;
4. Between the adopting parent and the adopted child;
5. Between the surviving spouse of the adopting parent and the adopted
child;
6. Between the surviving spouse of the adopted child and the adopter;
7. Between the adopted child and a legitimate child of the adopter;
8. Between adopted children of the same adopter; and
9. Between parties where one, with the intention to marry the other, killed
that other persons spouse, or his or her own spouse.


The act for nullification of marriage is different from that of annulment since the former
does not prescribe, while the latter may.

Annulment vs Legal Separation

Similar to the issue raised on the difference between legal separation and annulment,
much has been raised to identify the difference between annulment and legal separation.
Basically, in legal separation, the spouses are considered married to each other. Hence, they are
not allowed to remarry. In legal separation cases, the courts observe the mandatory 6-month
cooling off period to give the spouses an opportunity for reconciliation. This is not required in
annulment or declaration of nullity cases. However, petitioner in legal separation, similar to that
in an annulment case, is required to prove the allegations stated in the petition.


Opinions and Reflections
The Philippines, before the Spanish conquest, practiced divorce. Those who say that
divorce is not advisable in our country forget about our history. We had a divorce law from
1917 until 1950, before the Civil Code took effect. It is not accurate to say that divorce does not
exist in present Philippine law. The prohibition against divorce under Philippine law applies
only to Filipinos whose marriages are not governed by the Muslim Code.
Others think that we do not need a divorce law because marriages can be terminated
through annulment. This argument misleads. In annulment, the burden of proof lies on the
aggrieved party that needs to sufficiently establish facts that are based on specified grounds that
occurred at the time of the celebration of the marriage, such as lack of parental consent and
vitiated consent. The remedy of annulment expires, and the defect may actually be cured by
ratification through free and voluntary cohabitation.
When lay people speak of annulment as a means of terminating a marriage, they
actually refer to the remedy under Article 36 of the Family Code. Article 36 declares that a
marriage is void from the beginning when one or both spouses are psychologically incapacitated
to perform the essential marital obligations. Under Article 36, a court does not terminate a
marriage but only declares it void. One must prove psychological incapacity by presenting
evidence that the condition already existed before the marriage; that it is grave or serious; and
that it is incurable. To do this, one usually needs the help of a psychiatrist or psychologist to
testify as an expert witness.
Irreconcilable differences, immaturity, sexual infidelity, violence, unfaithfulness,
abandonment, indolence, habitual alcoholism or drug addiction may not be used for
annulment, or for a marriage to be declared void under Article 36. If these acts existed only
after the celebration of marriage, the aggrieved spouse can only file for a decree of legal
separation. Unless it can be proved that these are manifestations of a psychological incapacity
that predated the marriage, then one can file for a declaration of nullity of marriage.
According to the Party List Gabriela, legalizing divorce would give married couples in
irreparable marriages another legal remedy that they can resort to in addition to the countrys
existing laws on legal separation and annulment. A divorce law will provide a remedy that
Article 36 does not. Divorce does not concern itself with validity or invalidity of a marriage. It
terminates a marriage based on a ground that occurred during the marriage, which makes the
marital relationship no longer tenable, regardless of the spouses psychological constitution. A
divorce law will provide a straightforward remedy to a marital failure. It will benefit Filipinos
wherever they are.
The Philippines and the Vatican are the only countries in the world that has no divorce
law. To be sure, the Catholic Church will be the staunchest opponent of the divorce bill. It will
once again argue against the bill on moral grounds. It will invoke the constitutional provision
directing the State to protect marriage and the family, and another that refers to the sanctity of
family life. But these constitutional provisions were never intended to prohibit Congress from
legalizing divorce. The law should only give people a choice, to be exercised according to their
own personal beliefs.
It is time to give the remedy of divorce to those who need it, even as we respect the
decision of those who want to stay married despite their miserable marital life. If the country
wants to move forward, it has to confront the realities of marital and family life of Filipinos in
the Philippines and abroad.
How can one stay in an irreparable marriage, and suffer of violence, infidelity, disrespect,
and irreconcilable differences? When you marry someone life seems wonderful. You plan your
life and believe in your heart that all will be well, but then suddenly you are beaten, cheated on,
treated with disrespect. You have to have a way out, to be able to move on in life and not be tied
down to a life of pain and suffering.
People change. Change is inevitable. We break vows. We breach commitments. We are
human. We make mistakes. We make bad decisions. Sadly, that is the truth. If we do not
embrace change and impermanence, we will stagnate. When we fail to learn from our
stereotypes, life has a way of repeating them to foster understanding. We can have reasonable
expectations of how we would like something to turn out, but we cannot marry ourselves to that
result. Nothing lasts forever. Nothing. If we accept and embrace change, we will start looking for
and finding lessons in it. Change becomes our greatest teacher, but only if we give ourselves
permission to learn from it.