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ANNULMENT, NULLITY OF MARRIAGE SIMPLIFIED

(Frequently Asked Questions & Answers - FAQ & A)

1. Q. Annulment , Nullity of Marriage & Legal Separation, are they the same?

A. Annulment is a term loosely used by layman to refer to both cases for
annulment and declaration of nullity of marriage. But what is the difference
between the two?

Under the Family Code of the Philippines (FCP) annulment of marriage is a legal
remedy if based on any of the grounds of Article 45[1] of FCP like in the following
cases:1) marriage without parental consent, 2) either party was of unsound
mind, 3)consent of party was obtained by fraud (see Article 46 of FCP[2]), 4)
consent to marry was obtained by force, intimidation or undue influence (locally
known as shotgun marriage), 5) physical incapability of consummating the
marriage (i.e impotency ) and 6) party is afflicted with sexually transmissible
disease.

In annulment cases, marriages are valid from the start but can be voided within
a limited period of time (5 years), except in the case of unsound mind, see
Article 47 of FCP below for full details).

In short, despite the defects that marriage can become valid and those
grounds can be cured if not annulled within a specific period of time.

On the other hand, a petition for declaration of absolute nullity of marriage
refers to grounds that will render the marriage void from the beginning (void ab
initio) and it cannot be cured and there is no limitation of period of time to file it.

The common ground for nullity of marriage filed in most courts today is
psychological incapacity by any party to the marriage (Article 36 of The Family
Code). The others grounds are those contracted by any of the party below 18
years of age, marriages without a license, bigamous and polygamous marriage
and others under Article 35 of the Family Code[3].

Legal separation is different from the above remedies because a decree or
decision granting legal separation will not nullify the marriage and will not permit
the parties to remarry but there will be a physical separation of parties,
dissolution of their community of properties and fixing of support due to their
children if applicable.

2. Q. Who can file the Petition and where it will be filed?

A. Married person with proper grounds as enumerated below may file a petition.
It can be filed in the family court (a Regional Trial Court) where the petitioner
resides for the past six (6) months prior to the filing or at the place of respondent
(husband being sued) at the choice of petitioner or the filing party.

3. Q. What are the grounds to file a petition for nullity of marriage?

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A. Articles 35 and 36 of the Family Code enumerated the grounds for
declaration of absolute nullity of marriage.

4. Q. How long is the period of pendency?

A. Period of pendency is primarily affected by the following factors, namely:1)
receipt of respondent of summons, 2) case load of the court that will handle it
3) appearance and readiness of witnesses.

Average pendency [4] for unopposed petition and where the only issue is with
regard to the validity of marriage is from 12 to 16 months more or less and may
be longer for opposed petition and those coupled with issues of custody right,
liquidation of conjugal assets/community of properties.

5. Q. Can I delegate the filing of Petition to my representative?

A. No. Petition for nullity/annulment of marriage is a personal action that cannot
be assigned or delegated to another. It will be dismissed if not filed by petitioner.

6. Q. How many court appearances are required for the petitioner?

A. If the petition is opposed at least two (2) appearances. One during pre trial
conference/pre trial and one during trial to give his/her testimony.

If the petitioner is not contested or opposed additional appearance is required
before the prosecutor that will be directed by the judge to determine if there is
a collusion between the parties.

7. Q. How many witnesses are required to be presented?

A. Based on the current process, most practitioners present at least three (3)
witnesses if the ground is psychological incapacity (Article 36) and they are: 1)
the petitioner 2) psychologist of psychiatrist as expert witness and 3) common
friend or acquaintance of parties to strengthen the testimony of the petitioner
with regard to the manifestations of behavioral problems or personality
problems and disorders of respondent

7. Q. Can a person working abroad (OCW) file a Petition?

A. Yes. There is just a need to notarize the Petition before the nearest Philippine
consul of the country where the petitioner works then send that notarized
Petition to the handling lawyer for filing in the proper court and the petitioner
OCW can come home when there is a need to appear in court.

9. Q. I heard the no appearance or fast result promises from others. Is this true?

A. Such is not allowed under the Rules governing the nullity/annulment
proceedings. Petition will be dismissed or denied if petitioner and his/her
witnesses will not appear. Beware of those who make this kind of promises.


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A lawyer who is practicing in the field of family laws and a member of the
Philippine bar in good standing will not even suggest this.

10. Q. We have been separated for more than 10 years, can we just prepare an
Agreement to separate and notarize it so that we can remarry and lives of our
own?

A. That is not allowed. In fact, a lawyer who will prepare or notarize it can be
disbarred for gross ignorance of the law.

Only the court can make a pronouncement on issues of validity of marriage and
rights related to it. The local civil registrar and NSO will only annotate a final
decree of absolute nullity of marriage.

11. Q. How much is the cost of nullity of marriage?

A. Lawyers all over the Philippines have their different rates and charges. For this
reason it will be best to inquire from different lawyers that practice family law
and ask for their specific rates and terms of payment and based on those series
of inquiries and answers a prospective petitioner can make decision on the rate
that will suit his/her means to pay.

The usual arrangement is for the client to pay an acceptance fee and
appearance fee per hearing (fixed rates in your agreement) and the client will
answer for all the actual cost related to the case. Some clients prefer to have an
all in fee agreement and it can also be agreed upon between lawyer and
client.

12. Q. What are the papers or documents that I need to prepare to support the
filing of Petition?

A. The basic documents are: 1) marriage contract (NSO certified), 2) birth
certificates of children 3) titles if there are real properties acquired during
marriage, 4) psychologist or psychiatrist report (for those filed under Article 36 or
psychological incapacity). Other documents may be required but those
documents for purposes of filing the Petition will do. Petitioner is allowed to mark
addition documents to support his/her allegations in the Petition during pre-trial
stage of the proceedings.

[1] Art. 45. A marriage may be annulled for any of the following causes, existing
at the time of the marriage:

(1) 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, guardian or person having
substitute parental authority over the party, in that order, unless after attaining
the age of twenty-one, such party freely cohabited with the other and both
lived together as husband and wife;

(2) That either party was of unsound mind, unless such party after coming to
reason, freely cohabited with the other as husband and wife;
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(3) That 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;

(4) 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;

(5) That either party was physically incapable of consummating the marriage
with the other, and such incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found to
be serious and appears to be incurable. (85a)

[2] Art. 46. Any of the following circumstances shall constitute fraud referred to in
Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other party
of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she
was pregnant by a man other than her husband;

(3) Concealment of sexually transmissible disease, regardless of its nature,
existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of the marriage.

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] Based only on my actual experience in handling nullity/annulment of
marriage cases and do not reflect the actual statistical data of the courts
nationwide. Pendency means case is concluded and the trial is terminated and
considered submitted for Decision.