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BRIEF DISCUSSION ON

DIVORCE, NULLITY AND ANNULMENT OF MARRIAGE, AND


LEGAL SEPARATION IN THE PHILIPPINES

I. There is No Divorce Law yet in the Philippines. But a Divorce Decree may be
Judicial Recognized:

As of this time, the Philippines have yet to have a law allowing divorce, unlike
in other countries. As such, divorce is not allowed in the Philippines, although a
divorce decree obtained abroad by a qualified citizen may have an effect in the
Philippines through Judicial Recognition of a Foreign Divorce.

For an instance when a marriage between a Filipino citizen and a foreigner is


validly celebrated, and a divorce decree is thereafter validly obtained abroad by the
alien spouse capacitating him or her to marry, the Filipino spouse shall likewise
have the capacity to remarry under the Philippine Law by filing a petition for Judicial
Recognition of a Foreign Divorce in order that the effects of the said divorce decree
may be effected and implemented in the Philippines.

II. Nulity of Marriage vs Annulment of Marriage:

A declaration of nullity of marriage applies to marriages which are void ab


initio by reason of absence of essential requisites of marriage. Void Marriages are
considered as having never been taken place. They are void from the very
beginning. The action for nullity of marriage has no prescriptive period.

On the other hand, Annulment applies to a marriage that is valid until


otherwise declared by the court annulled on basis of grounds provided by the law.
Moreover, unlike nullity cases, the action to annul marriage has prescriptive period
of five (5) years from marriage, discovery or cessation, depending on the ground
existing.

(NOTE: Prescriptive period simply means that the petition based on a particular
ground can no longer be filed beyond a given period.)

III. Grounds to Declare the Nullity of A Marriage.

The following marriages are void ab initio:

1. Lack of legal capacity to marry - Where either or both of the parties are of
legal ageThose contracted by any party below eighteen years of age even
with the consent of parents or guardians;

2. Absence of authority by 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 valid Marriage License - Those solemnized without license


except if otherwise covered by other laws;

4. Bigamous or Polygamous Marriages marriages celebrated but either or


both of the spouses have an existing and valid marriage except those
covered by the laws of presumption of death of the absent spouse;
5. Mistake of Identity - Those contracted through mistake of one contracting
party as to the identity of the other;

6. Incestuous Marriages – marriages between relatives by blood up to the 4th


civil degree of consanguinity, affinity or relationship by adoption up to certain
degree; and

7. Psychological Incapacity – grave and incurable incapacity to perform the


essential marital obligations.

IV . Psychological Incapacity Discussed:

Psychological Incapacity contemplates the incapacity to perform the basic


marital obligations. The said incapacity must be grave enough to be the cause of
the party’s inability to assume the essential obligations of marriage. This inability
should not be a mere refusal, neglect, or difficulty to perform such
obligations. The root cause of the incapacity must be medically proven and must
be shown to be medically or clinically incurable; such root cause must be identified
as psychological illness. Each case of Psychological Incapacity is to be treated
differently.

V. Grounds for annulment of marriage and respective prescriptive period:

1. No parental consent. This covers anyone who was eighteen (18) or over,
but below twenty-one (21) at the time of marriage, and the marriage was
solemnized without the consent of the parents, guardian or person having
substitute parental authority over the party.
 Who may file the action: The spouse whose parent or guardian did not give
his or her consent.
Time frame: Within five years after attaining the age of twenty one (21).

 Who may file: The parent or guardian or person having legal charge of the
minor.
 Time frame: At any time before his/her child reaches the age of twenty one
(21).

2. Insanity. This means either party was of unsound mind, unless such party,
after coming to reason, freely cohabited with the other as husband and wife.
 Who may file: The sane spouse who had no knowledge of the other’s
insanity; by any relative, guardian or person having legal charge of the
insane.
 Time frame: Any time before the death of either party.

 Who may file: The insane.


 Time frame: During a lucid interval or after regaining sanity.

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. Unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as husband and wife.
 Who may file: The injured party.
 Time frame: Within five (5 )years after the discovery of the fraud.

4. Force. (called “Shot-gun marriage”)This covers a marriage where 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.
 Who can file: The injured party.
 Time frame: Within five (5) years from the time of the force, intimidation or
undue influence disappeared or ceased.

5. Impotence. This is a situation wherein either party was physically incapable


of consummating the marriage with the other, and such incapacity continues
and appears to be incurable.
 Who can file: The injured party (the one who is not impotent).
 Time frame: Within five (5) years after the marriage.

6. Sexually Transmitted Disease. Either party was afflicted with a sexually


transmissible disease (STD) found to be serious and appears to be
incurable.
 Who can file: The injured party.
 Time frame: Within five (5) years after the marriage.

VI. Legal Separation:

A decree of legal separation is nothing more than bed-and-board separation


of the spouses. Unlike nullity and annulment, the marriage between the spouses
remains, but they are permitted to live separately. Thus, the spouses cannot
remarry.

VII. What are the grounds for Legal Separation?

Article 55 of the Family Code provides that a petition for legal separation may
be filed on any of the following grounds:

1. Repeated physical violence or grossly abusive conduct


2. Physical violence to compel the petitioner to change religious or political
affiliation
3. Attempt of respondent to corrupt or induce to engage in prostitution
4. Imprisonment of more than six years
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
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.

Note: The discussions made herein are very brief and based are based on Civil Code of the
Philippines. For queries and questions, it is best to consult your lawyers.