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.
atty. fred:
Thank you very and now I have hints how to get my queries in a way that it suppose to be.Well, so far I have read those grounds in the annulment and seperation coverage and have given me diversity of actions.It is sad that I do not know how to reach those people who can really make this steps posible for me.Is there anyone you know or colleagues here in vancouver canada whom you can refer to me?whom I can ask for counselling or to a lawyer whom I can make process my case?I will be going back to Philippines somewhat in April next year-is there any person whom I can collaborate with there?Such public issues like this is very helpful to the masses and I really value your time attending to us.You are one of a GREAT PUBLIC SERVANT!!More power!I would be always keeping in touch with all the answers to all of my queries,Thanks again in advance.GOD BLESS!
Pamela, the apparent unfairness of Art. 26 is that the Filipino spouse could not initiate the divorce even if the foreign spouse is doing things that would ordinarily be a ground for divorce abroad. This may be unfair, as it may be true that the foreign spouse is guilty of so many things that would considered as grounds for divorce (other than no-fault divorce). However, this “unfairness” is just a recognition of the fact that Filipinos are not allowed to get a divorce. Nevertheless, annulment or declaration of nullity may always be secured here in the Philippines, although it’s not as easy as divorce procedures. The fallback position is Article 36 (psychological incapacity).
I’m not really sure if that divorce will be recognized in the U.S, but perhaps we can post the information here should we confirm it. The rest of your queries are addressed in other posts in this Forum. Perhaps you can start with Part II of this Q&A (see the link at the last part of the article) or you could read further here:
https://jlp-law.com/blog/costs-in-seeking-an-annulment/
Ronald_James, will let you know if I find someone in Vancouver who could assist you (as annnulment may be filed even if you are abroad). Anyway, you could always call our office when you take your vacation in the Philippines.
Good luck to both of you.
hi atty! i read article 26, and somehow it does apply to my situation. im married to an american citizen and got married in the philippines. currently he lives in kuwait with his mistress and their 1 yr old daughter whilst im here in london. my questions are as follows: 1. if he gets a divorce in kuwait, will our government accept that to legally end our marriage ties? (although he’s a us citizen, he hasnt been to the us for almost 5 years). 2. the more i read about the grounds on annulment and legal separation, it seems that our case inclines more towards legal separation (which i dont want) – earlier this year, he confessed to me that they got married somewhere in the middle east so that the child could use his name (child was born in the philippines), but later on divorced the mistress. I do not know as to what grounds i’ll file the annulment for. 3. how long does this process (annulment) normally takes?
thanks!
thank you ever so much atty fred! hopefully, we could get confirmation as to whether a divorced filed or granted in kuwait will be recognized in the us or better yet in our country, especially in our situation that im a filipino citizen and he is a foreigner and that we live separately abroad.
pamela
You’re welcome, Pamela. Good luck.
Atty,
What are the three most common grounds among the 10 to file for Legal Separation? Do you have statistics or anything that could back it up? It’s okay, pag wala, just need the justification. Thank you! God bless!
Rona,
Nakakalungkot ngang isipin na ang pagmamahalan, at ang kasal, ay nagiging marupok sa pagdaan ng panahon at mas nakakalungkot kung may mga bata – na wala namang kasalanan – na naiipit sa hindi pagkakaunawaan ng mag-asawa. Marahil ay iyong nabasa dito sa Forum na ang pagiging iresponsable ay hindi sapat na dahilan para pawalang-bisa ang isang kasal at kailangang tingnan sa pangkalahatan kung ito ay maaaring nasasaklaw sa “psychological incapacity” (but this is in general and may not apply to your situation). Kung sa city hall kayo nagpakasal, baka ang Mayor ang nagkasal sa inyo. Mas mainam na i-discuss mo ang mga ito sa iyong abogado dahil hindi kami maaaring magbigay ng legal advice dito. Ang ibang mga grounds para ma-annul ang isang kasal ay nakalista sa itaas. Good luck.
Maricel,
I couldn’t quite get what you’re trying to say. If you’re asking if a divorce secured by a foreigner-spouse is recognized here in the Philippnes, the answer is yes (as discussed in the posts here). Anyway, please visit the Philippine embassy or consulate should you need help with your papers.
ratatouille,
I’m sorry I have no hard data for you. I believe that data could be secured from the Supreme Court (if you get it, please share it with the rest of us =). Anyway, based on the cases we’re handling, Article 36 (psychological incapacity) is the most common ground used in having a marriage declared as null and void.
atty.fred,
im maricel,22 years old here in korea. i was married to a korean man in the philippines.but now his planning to get divorce with me for only one day here in korea.but how about me is also my papers automatically annuled with him in the philippines.i am not yet a korean citizen here actually my husband didnt hesitate to gave my alien registration here..what will i do next?thats why when we go to the court i say no.my husband get angry with me for what ive done.i just said that they must give me time to think about that.coz im not so sure for my future to remarry again.how about my life i am so young for that matter.i am not sure what will happen in my future.pls.help me..i dont know what will i do next.i cant process my papers here because i dont have alien card here.
Atty.Fred
In my case …I marry a man I like but he doesnt like me. Im 7 yrs. older than him.That time dahil sa malaki talaga ang ang pagkagusto ko sa kanya ginawa ko ang lahat para may mangyari sa amin.Katunayan 2 beses na nya akong inayawan at iniyakan ko.Una ang totoo wala pa pala syang karanasan.Napatigil sa pag-aaral at natakot ng umuwi sa kanila kahit na sinusundo pa sa amin. Nagsama kami pero wala nga un sweetness.Pinagkatiwallan ko sya at palibhasa bata pa naubos nya ang savings ko sa kakagala lamang. Magaling syang gumawa ng kwento akala ko my trabaho sya un pala ang ginagamit nya un savings ko nun dalaga pa ako.Iresponsable sya… at lagi kong sinasabihan na walang kwenta at walang silbi. Nakatikim ako ng suntok dahil dun.Meaning atty fred nakasal ng walang pag-ibig.Nagkaanak kami ng isa at walang 1 yr hiwalay na. 1991 – 2007. Wala pa rin syang pagbabago tamad pa rin at irresposable. Mula ng magkahiwalay kami 4 na beses pa lng kami nagkita un ay dahil ako pa ang tumatawag kahit na malayo at busy ako…naghahanap kc ng ama ang bata.Year 2002 un huli na nakita ko sya pero hindi kami nagkausap. Pwede ko bang ipa annul ang kasal namin? Ayoko na pong kasing gamitin ang apelyido nya? Ano po ba ang mga grounds na puede ko isampa para mapa annul ko ang kasal namin. Nga pla atty. fred nagpakasal kami sa city hall… ang nagkasal sa amin sa natatandaan ko po ay hindi judge ewan ko po mukhang raket un…basta na lng po nagkapirmahan eh…Last wk ko lng po na tsek sa NSO at nakaregister nga.
Atty. pcencia na po… gusto ko na po kc na magkaroon ng peace of mind.
Rona
Louie,
The specifics on your wife are not really necessary, partly because it’s better for the parties to retain the respect for each other, if only for the kids. Besides, we can’t possibly consider those facts because legal advice, as it applies to your situation, is not dispensed in this forum. That being said, let’s discuss general information.
There’s such a thing as de facto separation, which simply means separation in fact. The spouses simply decide to live separately from each other. Custody while the case is being heard is called custody pendente lite (just like support pendente lite). The custody of children is generally with the wife, although a child over 7 years of age may choose which parent to be with. For those below 7, the father must show compelling reasons to deprive the mother of custody, discussed here:
https://jlp-law.com/blog/basic-issues-in-child-custody/
Properties in possession of either spouses are always subject to the orders of the court.
Atty Fred,
I hope you can help me.
I am professional engineer working as an OFW and have been married for 18 years. I have 3 kids, aged 17, 14 & 6. My wife is Manila with my kids. I have a strong evidence that my wife is having an affair with another man. And this has happend in several occassions (with different men) during our married life especially when I am abroad. Now that I cannot take it anymore and my kids are now affected, I would like to file a petition for Legal Separation against my wife using sexual infidelity.
I am concern about the safety, custody and continued education of my kids especially the eldest which is graduating this year. My wife, being so violent may harm my kids (lalasunin ko itong mga anak mo as she say sometime) when she finds out that a case of sexual infidelity is filed against her. My question is, upon filing this petition, can I get a provisional order from the court granting me custody for my kids prior to her summon and while case is being heard. Basis will be child safety, welfare, and continued education?
Once summon is served to my wife, can I immediately live separately with my kids in my custody while the case is being heard?
Can I take some of my properties, two (2) cars and land titles for safe keeping?
Your advise is greatly appreciated.
My wife is just a high scholl graduate, very rude with my kids and does not give regards to the future of my kids. What if the man she is seeing lately has a plan to harm me to take my place in this family.
atty,
my wife will be filing an annulment and will be using the pyschological incapacitated against me..pero nag usap narin kami regarding this matter sabi nya eto na raw ang pinaka mabilis na process ng annulment..my questions are; can i still get marry? coz i heard kung sino lang ang nag file ng annulment sya lang ang pwedeng magpakasal at akong pinalabas na masama just to have an annulment sa marriage namin eh wala nang chance makapagpakasal?at meron pa bang akong karapatan sa mga kids namin?
thanks
atty.fred
once again thanks for the reply…i have another question about our divorce here in korea..what if me and my husband together initiate the divorce and that divorce paper enclosed that my husband made the mistake so that we are going to take that divorce..Is it automatically accepted in the philippines?..MORE POWER AND GOD BLESS!!!!!!!!!!!!!!
Ilongranger, your concerns were addressed in your other comment.
Maricel, incidentally, we had a similar academic discussion over lunch some time ago. The law provides that the divorce should be “validly obtained abroad by the alien spouse.” The question is this – if it’s a joint petition, would it still be covered by Article 26? Let’s have a discussion/debate. =)
George, it should be a relatively simple process and takes only a couple of months. Good luck.
I have a question to ask too. I am a filipino by birth but is an american citizen when i got married in the phil 3 yrs ago. My wife refused to come to the US. Instead, she went to UK. She is now living in with another Filipino who is the father of his 1 yr old son. I am filing a divorce in order to end the marriage.. I understand that i can remary in the Philippines provided i file a petition for recognition and enforcement of the divorce (filed here in the US)in the Philippine court. How long will it take to file and process for this petition.
I greatly appreciate any information you can give me.