Annulment, Divorce and Legal Separation in the Philippines: Questions and Answers

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” 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.

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.

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 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).

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.

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.

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?

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).

6. After securing a judgement of annulment or of asolute nullity of mariage, 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.

——————

Browse through the comments below to check if your questions are similar to that of others. Other common issues are consolidated in Part II, Part III, Part IV, Part V, Costs in seeking an Annulment, and other related posts. You can check the Related Posts at the bottom of each post.

392 Responses to “Annulment, Divorce and Legal Separation in the Philippines: Questions and Answers”


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  1. 15 rwan Feb 7th, 2007 at 5:40 pm

    atty,
    with regards to ur jan27 reply to my msg, can i at least register a property (should i buy one) under my 9-yr old son? how does this go?

    tnx again

  2. 14 Atty. Fred Feb 7th, 2007 at 1:51 am

    Jasmine, yes, it’s possible to secure an annulment or a declaration of nullity even if the other spouse does not appear or sign anything. As I mentioned earlier, this is the reason why the public prosecutor is under obligation to check if there’s a collusion between the spouses. Please read again this article, because the grounds are discussed in it. In my estimate, the average length of time is 1 year, and it may be shorter or longer depending on the circumstances.

    As long as the spouse seeking the divorce is a Filipino (a former Filipino is an entirely difference matter), any divorce decree issued is not recognized under Phil. laws.

    For your other queries, please check the other articles. You may use the search function the right sidebar.

    Good luck.

  3. 13 angel_jasmine Feb 5th, 2007 at 7:09 pm

    Continuation…

    That is, if in case the husband doesn’t want to give the wife’s copy.

  4. 12 angel_jasmine Feb 5th, 2007 at 6:59 pm

    Thanks for the reply atty. fred but I’m still confused.

    So are you saying that eventhough the wife (currently in America and has a divorce decree herself; neither a US immigrant or a US citizen) doesn’t appear in court and doesn’t sign any document in the process of the annulment, the husband can still acquire a decree of annulment? On what grounds can the petition be granted? how long does it normally take?

    If the husband has a copy of the divorce decree, can this be used as a strong evidence that can expedite the process of the annulment? Does the phil. court recognized the divorce decree as legal eventhough the wife is not a citizen of America?

    Can the wife, eventhough not yet annuled, get married in America to a US immigrant? or does it have to be a US citizen to completely consider the previous marriage null?

    Does the wife have the right to have a copy of the annulment decree eventhough she didn’t do anything in the process? What does she need to do to obtain a copy? where?

    I would appreciate your response.

  5. 11 Atty. Fred Feb 1st, 2007 at 1:38 pm

    Guys, sorry for the delayed reply, there were technical problems with the blog. First off, please understand that we are prohibited from giving legal advice in this Forum, so you may notice that we have declined from answering some of the questions. Nevertheless, as to general matters, here are some notes that may hopefully point you in the right direction.

    1. As discussed somewhere, it is indispensable, for the purpose of remarriage, to seek an annulment or an order declaring a marriage as null and void. Ckeck with the NSO if a marriage certificate is on file. There’s such a thing as a CENOMAR or a “Certificate of No Marriage Record” (read here).

    2. A decree of annulment may be issued without the other party appearing in court. In fact, the signature or appearance of the other spouse doesn’t mean that the petition will be granted. The other spouse may choose NOT to appear, which is the reason why the public prosecutor is under obligation to check if there’s no collusion between the parties.

    3. There’s a requisite dispensation before someone whose marriage had been annuled may get married again in church.

    By the way, angel_jasmine, I can’t understand your question. Please clarify.

    Good luck to everyone.

  6. 10 angel_jasmine Jan 30th, 2007 at 7:10 am

    Atty Fred,

    Will the Philippine court still recognized the divorce even the wife is neither a US immigrant or citizen?

  7. 9 SEK800i Jan 30th, 2007 at 4:57 am

    Atty. Fred,

    Should an annulment be granted, can a church wedding be possible? Thank you for your time. I’m looking forward to your response. God bless.

  8. 8 angel_jasmine Jan 28th, 2007 at 10:31 pm

    Attorney Fred,

    Is there a way to file or get an annulment eventhough the wife doesn’t appear in court? Are there documents that needs to be signed by the wife in the process of the annulment? What if she doesn’t agree to sign? Is it still possible to continue the annulment? Is the divorce decree enough to finalize the annulment?

  9. 7 marchfour08 Jan 27th, 2007 at 7:07 pm

    Attorney Fred,

    Could that be a valid ground to file for a petition of declaration of absolute nullity of marriage? Is that certification an enough and valid proof that we don’t have any marriage license? How long will it usually take for such petition in family court? How long does it usually cost? Should I really need to wait for the court’s declaration before I could get married? Please help me. Thanks.

  10. 6 Atty. Fred Jan 27th, 2007 at 9:54 am

    Rwan, I’m not aware of any. On the other hand, a married woman is required to use the family name of the husband. The extent by which a married woman may acquire property under her own name largely depends on the kind of property relationship legally established during the time of marriage. Beyond that information, I suggest you consult with your lawyer since we’re prohibited from giving any legal advice in the absence of atty-client relationship. Of course, something could be done to achieve your goal and I trust your lawyer knows it.

    Good luck!

  11. 5 rwan Jan 27th, 2007 at 4:21 am

    in addition to what i wrote, i got married in 1997 and got separated in 2004. the father of my 9-yr old son and i have no communication since then (no child support, etc which is not the issue). i’m planning to buy a house & lot but wonder if i can use my maiden name. and of course, i don’t want him to have a ‘share’ with this in case i file for annulment in the future.

    tnx again

  12. 4 rwan Jan 25th, 2007 at 2:33 am

    attorney,

    is there such a law where a married woman can buy a property using her maiden name? will it be still considered ‘conjugal’?

    tnx

  13. 3 Atty. Fred Jan 24th, 2007 at 5:27 pm

    emcoluk, foreigners are governed by their own laws when it comes to divorce. As long as they validly secure a divorce outside the Philippines, the divorce decree is respected under Philippines laws.

    kpm, I’m terribly sorry; please read the “Terms“. In the near future, we may be discussing preliminary investigations, warrantless arrests and inquests in criminal cases. You might see the answers in that post. Thank you.

  14. 2 emcoluk Jan 24th, 2007 at 12:08 pm

    If two foreigners marry in the Philippines and then obtain a divorce outside the Philippines…is this divorce recognised under Philippines Law

  15. 1 kpm_0301 Jan 22nd, 2007 at 4:54 am

    Dear Atty,

    I would like to inquire abt the bigamy case. My cousin has remarried before his first marriage was dissolved. Now his second wife got into trouble and got a fight with her friend about a certain loan. Her friend wants her to shoulder the loan or the money that was missing and they told her that if she do not pay that they will file a case against her and will definitely petition a bigamy case for her and my cousin. Threatening her that they can easily issue a warrant of arrest because her friend is an attorney and has access to most city halls and nbi. How will that be possible? They are both scared, scared enough to come to work because they know that somebody might just catch them and arrest them.

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