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Annulment and Legal Separation

(Annulm ent)
1.

I want to leav e m y estranged wife and m arry som eone else. Can I div orce her?

In thePhilippines, there is no divorce. So, you cannot divorce your wife. But there are other
options for dissolving a marriage in thePhilippines.

2.

Is div orce between Filipinos abroad v alid here in the Philippines?

No, as divorce is not allowed here in the Philippines, what cannot be done directly here cannot
be done indirectly abroad. This is due to the fact that laws relating to family rights and duties,
or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad. (Article 15 of the New Civil Code of the Philippines)

However, the Decree of Judgment of Divorce between Filipinos and their foreign spouses,
which had been initiated by the foreign spouse in his country, may be recognized in the
Philippines. This is because where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.
(Article 26 of the Family Code)

In Republic v . Orbecido, this Court recognized the legislative intent of the second paragraph
of Article 26 which is "to avoid the absurd situation where the Filipino spouse remains married
to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse"

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to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse"
under the laws of his or her country. The second paragraph of Article 26 of the Family Code only
authorizes Philippine courts to adopt the effects of a foreign divorce decree precisely because the
Philippines does not allow divorce. Philippine courts cannot try the case on the merits because it is
tantamount to trying a case for divorce. (Fujiki v . Marinay G.R. No. 196049, June 26 2013)

3.

If I cant div orce m y spouse, how can I dissolv e m y m arriage?

Under Philippine law, parties who wish to have their marriage annulled have two options in
dissolving their marriage:
1. Petition for annulment of marriage;
2. Petition for nullity of marriage.

Annulm ent of m arriage is in the nature of a court proceeding with the end view of severing the
marital bond between husband and wife. It is applicable only to voidable marriages, and is availed of
in a situation where the marriage is valid from the beginning but can be annulled on various
grounds by the court, specifically provided for under Article 45 of the Family Code. A petition for
annulment of marriage is applicable to marriages that are voidable. Under Philippine law, a voidable
marriage is one that is valid until otherwise declared by the court. (Nial vs. Bayadog, G.R. No.
133778, 14 March 2000)

A petition for nullity of marriage presupposes that the marriage was void from the beginning
on account of the inability of the parties to satisfy the formal and essential requisites of
marriage (Article 2 and 3 Family Code of the Philippines) as well as their failure to comply
the essential marital obligations of marriage, namely: to live together, observe mutual love,
respect and fidelity, and render mutual help and support. (Article 68 Family Code of the
Philippines).

4.

What are these essential and form al requisites of m arriage?

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;

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2. A valid marriage license; and

3. A marriage ceremony which takes place with the appearance of the contracting parties
before the solemnizing officer and their personal declaration that they take each other as
husband and wife in the presence of not less than two witnesses of legal age. (Article 3
Family Code of the Philippines)

5.

What are the grounds for annulm ent of m arriage?

a)
That the party in whose behalf it is sought to have the marriage annulled was eighteen
years of age or over but below twenty-one, and the marriage was solemnized without the
consent of the parents, guardians or person having substitute authority over the party, in that
order, unless attaining the age of twenty-one, such party freely cohabited with the other and
both lived together as husband and wife;
b)
That either party is of unsound mind, unless such party after coming to reason, freely
cohabited with the other as husband and wife;
c)
That the consent of either party was obtained by fraud, unless such party afterwards,
with full knowledge of the facts, constituting fraud, freely cohabited with the other as husband
and wife;
d)
That the consent of either party was obtained by force, intimidation or undue influence,
unless the same having disappeared or ceased, such party thereafter freely cohabited with
the other as husband and wife;
e)
That either party was physically incapable of consuming the marriage with the other, and
such incapacity continues and appears to be incurable; or
f)
That either party was afflicted with a sexually transmissible disease found to be serious
and incurable. (Article 45 of the Family Code)

6.
If under the law, I am already considered an adult at 18 years of age, why do I still
need to get m y parents perm ission to get m arried?
In ordinary circumstances, an eighteen year old is already considered an adult under Philippine
laws. But when it concerns marital relations and conjugal responsibilities, the law considers
that a person of at least 18 years and below 21 years, as lacking the degree of maturity
required fully grasping and comprehending the reality and gravity, responsibilities and
consequences that a marital relationship would entail.

7.
Would it m ean that any of the parties of at least 18 years but below 21 years of
age can file an annulm ent of m arriage?
No, it is only the parties whose parents consent were not granted to the marriage who can

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No, it is only the parties whose parents consent were not granted to the marriage who can
file a petition for annulment.

8.
My husband is diagnosed in hav ing an unsound m ind and in now incarcerated in a
m ental hospital. Would this be a ground to file for petition for annulm ent of m y
m arriage to him ?
The unsoundness of mind should have been present at the time of celebration of the marriage
which renders the afflicted party incapable of comprehension as to what he is getting into and
making him unable to give consent.

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

9.
I was young and easily influenced when I got m arried. Thus, it was easy to
intim idate and force m e into m arrying m y husband by his relativ es. May I use the
ground of force, intim idation and undue influence in filing a petition for annulm ent
against m y husband?
Force, intimidation and undue influence as contemplated under the Family Code and defined by
the Civil Code of thePhilippines, must be established clearly and distinctively.

Force refers to physical violence. There is violence when in order to wrest consent, serious or
irresistible force is employed (Article 1335 of the New Civil Code of the Philippines)

There is intimidation when one of the contracting parties is compelled by a reasonable and
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
irresistible that a person had no other choice but to willingly give his/her consent, then a

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irresistible that a person had no other choice but to willingly give his/her consent, then a
petition for annulment may succeed.

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

11. What does m oral turpitude m ean?

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

12. My sister confided in m e that her husband was incapable to consum m ating their
m arriage. What does that m ean?
Incapacity to consummate a marriage means that a party of the marriage is unable to
physically perform and complete the act of sexual intercourse. The sexual intercourse which is
performed by the newly wed parties after the marriage ceremony signifies as the ceremonial
act that the marriage had been consummated and it establishes that the marriage is valid and
binding between them.

Incapacity to consummate denotes the permanent inability on the part of the spouses to perform
the complete act of sexual intercourse. (Melencio S. Sta. Maria, Jr., Persons and Family
Relations Law (2004 Edition,) p. 278.)

13. Would the incapacity to consum m ate a m arriage m ean the physical incapacity or
the psychological incapacity?
Under Article 45 of the Family Code, incapacity to consummate marriage refers to both the

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Under Article 45 of the Family Code, incapacity to consummate marriage refers to both the
psychological and physical incapacity. The physical incapacity to consummate the marriage
must be the result of the psychological incapacity. It means that the afflicted party must have
a psychological illness which renders him incapable of performing a sexual act.

Non-consummation of a marriage may be on the part of the husband or of the wife and may be
caused by a physical or structural defect in the anatomy of one of the parties or it may be due to
chronic illness and inhibitions or fears arising in whole or in part from psychophysical conditions. It
may be caused by psychogenic causes, where such mental block or disturbance has the result of
making the spouse physically incapable of performing the marriage act. (Melencio S. Sta. Maria,
Jr., Persons and Family Relations Law (2004 Edition,) p.279)

14. I hav e been m arried to m y wife for ov er 15 years and she still hasnt giv en m e a
child. Can I use the ground of sterility in filing a petition for annulm ent of our m arriage?
No. Sterility is not the same as impotency. Sterility does not bar a person from successfully
engaging in sexual acts. However, impotency would render a person incapable of performing a
sexual act which makes impotency a ground for annulment but not sterility.

15. I was m arried 2 m onths ago and I just found out that m y husband has a sexually
transm itted disease and had passed it on to m e. Is there a requirem ent that the STD be
incurable to be able to successfully file a petition for annulm ent against him ?
No. Your husbands omission of the fact that he has an STD at the moment of your marriage
constitutes as an act of fraud. Thus, fraud is a ground for annulment of a marriage and the STD
is not required to be incurable.

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

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

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In Cario v . Cario, the Court considered the marriage of therein petitioner Susan Nicdao and the
deceased Santiago S. Carino as void ab initio. The records reveal that the marriage contract of
petitioner and the deceased bears no marriage license number and, as certified by the Local Civil
Registrar of San Juan, Metro Manila, their office has no record of such marriage license. The court
held that the certification issued by the local civil registrar is adequate to prove the non-issuance of
the marriage license. Their marriage having been solemnized without the necessary marriage
license and not being one of the marriages exempt from the marriage license requirement, the
marriage of the petitioner and the deceased is undoubtedly void ab initio.(G.R. No. 132529)

18. After 15 years of m arriage, Im no longer in lov e with m y husband. We dont hav e
any problem s but the lov e and affection required of m e as a wife is no longer present.
Can I file a petition for nullity on such ground?
No, lack of affection or love is not a ground to file a petition for nullity against your husband.
The Supreme Court held in the case of Renato Reyes So v s. Valera, To be tired and give up on
ones situation and on ones spouse are not necessarily signs of psychological illness; neither can
falling out of love be so labeled. When these happen, the remedy for some is to cut the marital knot
to allow the parties to go their separate ways. This simple remedy, however, is not available to us
under our laws. Ours is a limited remedy that addresses only a very specific situation a
relationship where no marriage could have validly been concluded because the parties; or where
one of them, by reason of a grave and incurable psychological illness existing when the marriage
was celebrated, did not appreciate the obligations of marital life and, thus, could not have validly
entered into a marriage. (G.R. No. 150677, 05 June 2009)

19. What is psychological incapacity?

Psychological incapacity refer to no less than a mental (not physical) incapacity that causes a
party to be truly incognitive of the basic marital covenants that concomitantly must be assumed
and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family
Code, include their mutual obligations to live together, observe love, respect and fidelity and render
help and support. (Santos v . Court of Appeals, et al., 310 Phil. 21 (1995))

Simply put, psychological incapacity is the failure of the party to a marriage to assume and
comply with the essential obligations of marriage.

20. What are the characteristics of psychological incapacity?

Psychological incapacity must be characterized by:

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

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

psychological incapacity. It is not enough to prove that the parties failed to meet their
responsibilities and duties as married persons; it is essential that they must be shown to be
incapable of doing so, due to some psychological (nor physical) illness. (Republic of the
Philippines vs. CA, G.R. No. 108763, 13 February 1997)

22. Who can file the action to declare the m arriage v oid?
Either party, even the psychologically incapacitated, can file the action. (Edward Kenneth Ngo Te
v s. 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- Llav e 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)

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23. Does the action to declare the marriage void on account of the psychological
incapacity of a party to a marriage prescribe?
No, the action or defense for the declaration of absolute nullity of a marriage does not
prescribe. (Article 39 of the Family Code of the Philippines)

24. Is there a need for my husband to be personally examined by a psychiatrist for the
declaration of nullity of marriage on the basis of psychological incapacity?
No, there is no requirement that the defendant/respondent spouse should be personally examined
by a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage
based on psychological incapacity. (Marcos vs. Marcos, G.R. No. 136490. 19 October 2000)

25. My husband is physically unable to comply with his marital obligations; can I have my
marriage annulled on the basis of his psychological incapacity?
No, mere inability to physically comply with his marital obligations does not necessarily mean
that your husband is psychologically incapacitated.

The psychologically incapacity refers to the mental incapacity that prevents the party from
complying with his basic marital covenants. (Santos v . Court of Appeals, et al., 310 Phil. 21
(1995))

It bears stressing that psychological incapacity must be more than just a "difficulty," "refusal" or
"neglect" in the performance of some marital obligations. Rather, it is essential that the concerned
party was incapable of doing so, due to some psychological illness existing at the time of the
celebration of the marriage. (Marable vs. Marable, G.R. No. 178741, 17 January 2011)

It is indispensable that the evidence must show a link, medical or the like, between the acts that
manifest psychological incapacity and the psychological disorder itself. (Marable vs. Marable, G.R.
No. 178741, 17 January 2011)

26. I recently discovered that my husband had been having an affair for two years. Will
knowledge of his infidelity be sufficient to prove that he has psychological incapacity and
file a petition for nullity against him?
No, infidelity is not enough per se to illustrate or establish that the guilty party is

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No, infidelity is not enough per se to illustrate or establish that the guilty party is
psychologically incapacitated.
It has been held in various cases that sexual infidelity, by itself, is not sufficient proof that
petitioner is suffering from psychological incapacity. It must be shown that the acts of
unfaithfulness are manifestations of a disordered personality which make petitioner completely
unable to discharge the essential obligations of marriage. (Villalon vs. Villalon, G.R. No.
167206, 18 November 2005)

Furthermore, in the case of Toring v s. Toring, To constitute psychological incapacity, it must be

shown that the unfaithfulness and abandonment are manifestations of a disordered personality
that completely prevented the erring spouse from discharging the essential marital obligations.
(G.R. No. 165321, 03 August 2010)

27. What is a Psychological Report?

The psychological report embodies the findings of a clinical psychologist regarding the
psychological state of an individual. It is the product of a two-part test: the psychological
testing and the clinical interview which the petitioner should undergo.

Legally, it is an indispensable piece of evidence for the declaration of nullity of marriage on the
ground of Psychological Incapacity under Article 36 of the Family Code of thePhilippines. Absent
any Psychological Incapacity on the part of the Petitioner or Respondent would result in the
dismissal of the petition.

28. Is the Psychological Report and testimony of the Psychologist sufficient to establish
the existence of Psychological Incapacity?
No, psychological incapacity must be established by the totality of the evidence presented during
the trial. (Marcos v s. Marcos, G.R. No. 136490. 19 October 2000) Hence other evidence
must be presented during the trial to establish the psychological incapacity.

29. My husband/wife agreed to have an annulment; can we file the case for nullity of
marriage?
No, in cases of annulment and declaration of absolute nullity of marriage, collusion between
parties is prohibited. (Article 48 of the Fam ily 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

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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 v s. Tuason, G.R. No. 116607, 10 April 1996)

30. I discovered after the marriage that my husband/wifes character is vastly different
from when we were dating. Can I file for annulment?
No, misrepresentation or deceit as to character, health, rank, fortune or chastity is not
considered as fraud and it cannot be used as a ground for action for the annulment of
marriage. (Article 46 of the Family Code of the Philippines)

31. I discovered that at the time I married my wife, she was already pregnant with the
child of another person. Can I file for annulment?
Yes, non-disclosure of the wife that she is pregnant with the child of another man is
considered as fraud under Article 45 of the Family code of the Philippines. (Article 46,
paragraph 2, of the Family Code of the Philippines)

32. What are the grounds for the declaration of nullity of marriage?
The grounds are enumerated under Article 35 and 36 of the Family Code of the Philippines,
to wit:
1.
2.
3.
4.
5.
6.
7.

Either or both parties are below eighteen years of age;

Marriage was solemnized by a person not legally authorized to perform marriages;
There is no marriage license;
Marriage is bigamous or polygamous;
There was a mistake of one contracting party as to the identity of the other;
The subsequent marriage is void; and
Psychological incapacity.

33. What are the effects of the declaration of nullity/annulment of a marriage?

The dissolution of the marriage through annulment or nullity of marriage shall have the
following results:
1.
2.
3.
4.

Either spouse can remarry;

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

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

35. What are the grounds for Legal Separation?

The grounds for legal separation are:

1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a
common child, or a child of the petitioner;
2. Physical violence or moral pressure to compel the petitioner to change religious or
political affiliation;
3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of
the petitioner, to engage in prostitution, or connivance in such corruption or
inducement;
4. Final judgment sentencing the respondent to imprisonment of more than six years, even
if pardoned;
5. Drug addiction or habitual alcoholism of the respondent;
6. Lesbianism or homosexuality of the respondent;
7. Contracting by the respondent of a subsequent bigamous marriage, whether in
thePhilippinesor abroad;
8. Sexual infidelity or perversion;
9. Attempt by the respondent against the life of the petitioner; or
10. Abandonment of petitioner by respondent without justifiable cause for more than one
year. (Article 55 of the Family Code of the Philippines)

36. What would happen to the donation I gave my wife/husband before the legal
separation?
The innocent spouse may revoke the donations he/she made in favor of the offending spouse. If
such donations involve property, such revocations should be recorded in the Register of Deeds in
the places where the properties are located. (Article 64 of the Family Code of the Philippines)

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Note however that such revocation must be done within five years from the time the decree of
legal separation become final.

37. My husband/wife and I agreed to have a legal separation, will there be any
consequences if the State found out about our agreement?
Yes, the court may deny the petition for legal separation once it has been proved that there
was an agreement between the parties in aiming to get legally separated.

Collusion or connivance between parties is a ground for the denial of the petition for legal
separation. (Article 56 of the Family Code of the Philippines)

38. When should I file for Legal Separation?

The action for legal separation should be filed within five (5) years from the time of the
occurrence of the cause. (Article 57 of the Family Code of the Philippines; A.M. No. 02-1111-SC, 15 March 2003)

39. What are the effects of Legal Separation?

1. The spouses shall be entitled to live separately from each other, but the marriage bonds
shall not be severed;
2. The absolute community or the conjugal partnership shall be dissolved and liquidated but
the offending spouse shall have no right to any share of the net profits earned by the
absolute community or the conjugal partnership;
3. The custody of the minor children shall be awarded to the innocent spouse; and
4. The offending spouse shall be disqualified from inheriting from the innocent spouse by
intestate succession. (Article 63 of the Family Code of the Philippines)

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Atty.Rainier R. Mamagun

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Profiles

Atty.Rainier R. Mamagun
Unit 2305 Antel Global Corporate Center,
#3 Julia Vargas, Ortigas Center,
Pasig City
Philippines

Contact Us

Mobile : +63 9998843531

Email : mycounsel@ymail.com

Firm
Services

C opyright 2011 Atty.Rainier R. Mamagun

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