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.
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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.
Rwan, in general, minors must be represented by parents or guardians. In other words, contracts (and the subsequent transfer) are signed by the parent or guardian, in trust for the minor. However, please don’t take this as entirely suitable for your purposes, because there may be other concerns that I don’t know of (besides, I can’t possibly go into those details).
Good luck.
Sorry I think I have post this question to a wrong window/topic.
I would like to inquire about the role the state regarding filing a bigamy case. Can anyone file the charges if somebody they know commited the crime? A family member of the spouse or friend?
hi atty,
got a question if an immigrant divorce his/her partner outside the philippines and after a year became a citizen does the divorce decree applies here in the philippnes and does his/her betterhalf can remarry again? thanks!
Isn’t it true that a legal separation in the Philippines involves everything a divorce does in a western country except for the fact the couple cannot remarry…thank you
k_pm, under the Revised Rules of Criminal Procedure, the following crimes must be initiated by the offended party: adultery, concubinage, seduction, adbuction, acts of lasciviousness, and defamation consisting of imputation of these offenses. You will note that bigamy is not one of them.
ishin, if I remember correctly, an immigrant does not lose his/her Filipino citizenship. As repeatedly mentioned in this blog, a divorce secured by a Filipino citizen, as a rule, is not recognized here.
emcoluk, I’m not sure if legal separation, vis-a-vis divorce in a western country, involves “everything” other than the capacity to remarry. Still, I’m not aware of anything that differentiates it other than the capacity to remarry.
So in other words, Bigamy crime cannot be filed by anybody except the offended party, and that is only the wife. Thanks for your prompt response and help to clarify things.
Dear Atty,
Will a marriage in Hongkong be valid? Will the US Immigration accept the validity, and will they check with NSO about previous records of marriage in the Philippines?
indoubt
indoubt, as you may have read from the article above (and other articles in this blog), a second marriage is null and void, as long as there is a valid subsisting first marriage. This applies to all Filipinos, wherever they are in the world and wherever they may contract the second marriage. As to whether US immigration checks with the NSO, I’m really not sure.
Hi…Not sure if am posting my question in the right place. But here it goes – got married in the US in 1999 to a naturalized US citizen. We had a son born in the US. Things fell apart – i left for the Philippines; still a filipino citizen- with no US visa and no means of going back to the US. 6 years later; i want to re-marry in Church and currently trying to get a divorce. However, this is what they are telling me: The court may require me to appear in court since my son will be residing in the Philippines here with me and i will have full custody. My hopefully- soon to be ex husband has agreed to all the conditions… Here is the dilemma that the paralegal in the US sent me:
Another complication is that your son lives in the Philippines, so there is a question of whether or not a Nevada court has jurisdiction to grant you (a non U.S. citizen) sole physical custody of your son. If you read the attached link, it will explain that the Philippines has jurisdiction of any U.S. Citizen child residing in the Philippines because they are not party to the Hague Convention Treaty. Therefore, a Reno court might not be willing to issue an order regarding custody of your son. See http://www.international-divorce.com/ca-philippines.htm
Now, i know i can file for dual citizenship for my son – i am a filipino citizen and his father was born here as well… I also checked with NSO and am still ‘technically’ single – we did not register our marriage to the Philippine consulate.. is the marriage valid? Can i get married w/o having to wait for the divorce decree? The only problem i am foreseeing is that i have plans of migrating to the US.
Help…
Hello.
I have been talking and getting to know a philippino lady now for almost two years and now we want to be married. The confusion here for me is. she states that she was married over four years ago and marriage was annuled. She has one 10 year old son. That the father wont let leave the country yet. I need documents that show she is legaly annuled and able to marry again .. She seems or dont know how to obtain this information. I have read many things on the net about annumlents in the philippines and i am still unsure how to find out this legal information that she can legaly marry me. She has no idea how to obtain or find this information.. I am unsure if this is true however as i see you have to go to court to get a declaration of annulment (how it seems to me) Anyone have any ideas on helping me with this information.. Shouldnt she know were to go to find this or have a letter to show this?
Thanks for your time and help if you are able to give me some insight.
Path
Unlearned, please read the answer here.
Path, the fact of annulment is reflected in the record with the National Statistics Office (NSO). The more cumbersome way of doing it is to ask which court and branch that issued the annulment decree, and to request for information there.
Good luck.
Dear Atty,
When a person is legally separated, is he/she allowed to co-habit with another without the threat of being sued for adultery?
Ian, under Article 63 of the Family Code, legal separation has the effect, among others, of allowing the spouses to “live separately from each other, but the marriage bonds shall not be severed.” In other words, the obligation of mutual fidelity remains. If any of the spouses remarry, that spouse is liable for bigamy. They are also open to a charge of concubinage/adultery, as the case may be.
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My brother got married a few years ago and 3months after their civil wedding, his wife was granted a work visa in the US using a different name. Three years later, (after having no communication at all during those years),his wife called and told him that she wanted to file an annulment. When they learned the expenses of getting the annulment and to save the expenses, she said that its better that he just find another woman to marry because she no longer wants to save their marriage and for him to refrain from doing anything to let his wife be deported back to the Philippines since my brother has a plan of doing that. Since my brother has a girlfriend of 1 year that time, and was depressed of what has happened to his marriage, and cannot do nothing to let his wife go back, he married his girlfriend instead without knowing that he could be charged for Bigamy.
A year after, When one of his 1st wife’s best friend learned about this, she got mad and told him that she will file a legal complaint so he could be charge for a crime. My brother now wants to pursue an annulment by PAO because he cannot afford the legal fees for annulment and hire a private lawyer. His wife contacted him last January and told him not to worry because she will not file any complaint against him.
My brother has some dispute with his 1st wife’s bestfriend and told him that to get even with him, she will pursue filing a legal case against him. Can you give us legal advise on how he can straight things out? I pity my brother for getting into this kind of situation.