Annulment & Legal Separation

Annulment FAQs
1. Is there divorce in the Philippines?
In Philippine jurisdiction, divorce is non-existent.

2. Is divorce between Filipinos abroad valid here in the Philippines?

No, as divorce is not allowed here in the Philippines, what cannot be done directly here
cannot be done indirectly abroad. This is due to the fact that "laws relating to family
rights and duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad." (Article 15 of the Civil
Code of the Philippines)
3. Since there is no divorce, how can I dissolve my marriage?
Under Philippine law, parties who wish to have their marriage annulled have
three options:
Petition for annulment of marriage;Petition for nullity of marriage.A petition for annulment
of marriage is applicable to marriages that are voidable. Under Philippine law, a
voidable marriage is one that "is valid until otherwise declared by the court." (Nial
vs. Bayadog, G.R. No. 133778, 14 March 2000)

A petition for nullity of marriage presupposes that the marriage was void from the beginning on
account of the inability of the parties to satisfy the formal and essential requisites of marriage
(Article 2 and 3 Family Code of the Philippines) as well as their failure to comply the essential
marital obligations of marriage, namely: to "live together, observe mutual love, respect and
fidelity, and render mutual help and support." (Article 68 Family Code of the Philippines).
4. What are these essential and formal requisites of marriage?
The essential requisites of marriage are:
1. Legal capacity of the contracting parties who must be a male and a female; and
2. Consent freely given in the presence of the solemnizing officer. (Article 2 Family
Code of the Philippines)
The formal requisites of marriage are:
1. Authority of the solemnizing officer;
2. A valid marriage license; and
3. A marriage ceremony which takes place with the appearance of the contracting
parties before the solemnizing officer and their personal declaration that they take
each other as husband and wife in the presence of not less than two witnesses of
legal age. (Article 3 Family Code of the Philippines)

5. What is psychological incapacity?

Psychological incapacity refer to no less than a mental (not physical) incapacity that causes a
party to be truly incognitive of the basic marital covenants that concomitantly must be assumed
and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family
Code, include their mutual obligations to live together, observe love, respect and fidelity and
render help and support. (Santos v. Court of Appeals, et al., 310 Phil. 21 (1995))
Simply put, psychological incapacity is the failure of the party to a marriage to assume and
comply with the essential obligations of marriage.
6. What are the characteristics of psychological incapacity?
Psychological incapacity must be characterized by:
Gravity It must be grave or serious such that the party would be incapable of carrying out the
ordinary duties required in a marriage;Juridical Antecedence It must be rooted in the history of
the party antedating the marriage, although the overt manifestations may emerge only after the
marriage; andIncurability It must be incurable or, even if I were otherwise, the cure would be
beyond the means of the party involved.(Santos v. Court of Appeals, et al., 310 Phil. 21 (1995))

7. My husband and I have constant marital disagreements such that our marital relation is
extremely strained, can I file for annulment on the ground of psychological incapacity?
No, personal differences do not reflect a personality disorder tantamount to psychological
incapacity. (Marable vs. Marable, G.R. No. 178741, 17 January 2011) Mere showing of
"irreconciliable differences" and "conflicting personalities" in no wise constitutes psychological
incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties
as married persons; it is essential that they must be shown to be incapable of doing so, due to
some psychological (nor physical) illness. (Republic of the Philippines vs. CA, G.R. No. 108763,
13 February 1997)
8. Who can file the action to declare the marriage void?

Either party, even the psychologically incapacitated, can file the action. (Edward Kenneth Ngo
Te vs. Rowena Ong Gutierrez Yu-Te, G.R. No. 161793, 13 February 2009)
9. Does the action to declare the marriage void on account of the
psychological incapacity of a party to a marriage prescribe?
No, the action or defense for the declaration of absolute nullity of a marriage does
not prescribe. (Article 39, Family Code of the Philippines)

10. Is there a need for my husband to be personally examined by a psychiatrist for the
declaration of nullity of marriage on the basis of psychological incapacity?
No, there is no requirement that the defendant/respondent spouse should be personally examined
by a physician or psychologist as a condition sine qua non for the declaration of nullity of
marriage based on psychological incapacity. (Marcos vs. Marcos, G.R. No. 136490. 19 October
2000)
11. My husband is physically unable to comply with his marital obligations; can I have my
marriage annulled on the basis of his psychological incapacity?
No, the psychologically refers to the mental incapacity that prevents the party from complying
with his basic marital covenants. (Santos v. Court of Appeals, et al., 310 Phil. 21 (1995)) It bears
stressing that psychological incapacity must be more than just a "difficulty," "refusal" or
"neglect" in the performance of some marital obligations. Rather, it is essential that the
concerned party was incapable of doing so, due to some psychological illness existing at the time
of the celebration of the marriage. (Marable vs. Marable, G.R. No. 178741, 17 January 2011)
It is indispensable that the evidence must show a link, medical or the like, between the acts that
manifest psychological incapacity and the psychological disorder itself. (Marable vs. Marable,
G.R. No. 178741, 17 January 2011)
12. What is a Psychological Report?
The psychological report embodies the findings of a clinical psychologist regarding the
psychological state of an individual. It is the product of a two-part test: the psychological testing
and the clinical interview which the petitioner should undergo.
Legally, it is an indispensable piece of evidence for the declaration of nullity of marriage on the
ground of Psychological Incapacity under Article 36 of the Family Code of thePhilippines.
Absent any Psychological Incapacity on the part of the Petitioner or Respondent would result in
the dismissal of the petition.
13. Is the Psychological Report and testimony of the Psychologist sufficient to establish the
existence of Psychological Incapacity?
No, psychological incapacity must be established by the totality of the evidence presented during
the trial. (Marcos vs. Marcos, G.R. No. 136490. 19 October 2000) Hence other evidence must be
presented during the trial to establish the psychological incapacity.

14. My husband/wife agreed to have an annulment; can we file the case for nullity of
marriage?
No, in cases of annulment and declaration of absolute nullity of marriage, collusion between
parties is prohibited. (Article 48 Family Code of the Philippines)
This prohibition is due to the fact that "our family law is based on the policy that marriage is not
a mere contract, but a social institution in which the state is vitally interested. The state can find
no stronger anchor than on good, solid and happy families. The break up of families weakens our
social and moral fabric and, hence, their preservation is not the concern alone of the family
members." (Tuason vs. Tuason, G.R. No. 116607, 10 April 1996)
15. What would happen if I was forced to marry my husband/wife?

The marriage is deemed as void from the very beginning. There is an absence of consent if one is
forced against his will to wed another. As consent is an essential requisite of marriage (Article 4
Family Code of the Philippines), the absence thereof is deemed as a ground for the annulment of
marriage.
16. I discovered after the marriage that my husband/wife's character is
vastly different from when we were dating. Can I file for annulment?

No, misrepresentation or deceit as to character, health, rank, fortune or chastity is not considered
as fraud and it cannot be used as a ground for action for the annulment of marriage. (Article 46
Family Code of the Philippines)
17. I discovered that at the time I married my wife, she was already
pregnant with the child of another person, can I file for annulment?

Yes, non-disclosure of the wife that she is pregnant with the child of another man is considered
as fraud under Article 45 of the Family code of the Philippines. (Article 46 paragraph 2 Family
Code of the Philippines)
18. What are the grounds for the annulment of marriage?

Article 45 of the Family Code of the Philippines provides the grounds for the annulment of
marriage which must be present at the time the marriage was celebrated, to wit
:
1.Either party (between the age of 18 to 21 years old) got married without parental
consent unless parties freely cohabited with the other as husband and wife after
attaining the age of twenty-one;

2.Either party was of unsound mind, UNLESS such, freely cohabited with the other as husband
and wife after coming to reason;
3.The consent of either party was obtained by fraud, unless parties lived together as husband and
wife despite the discovery of the fraud by innocent spouse;
4.The consent of either party was obtained by force, intimidation or undue influence, unless
parties continued to live as husband and wife even though the force, intimidation or undue
influence had ceased.
5.The physical inability to have sexual intercourse of either or both parties and such
circumstance is incurable.
6.Either party was afflicted with a sexually-transmissible disease which is serious and appears to
be incurable.
19. What are the grounds for the declaration of nullity of marriage?
The grounds are enumerated under Article 35 and 36 of the Family Code of the Philippines, to
wit:
Either or both parties are below eighteen years of age; Marriage was solemnized by a person not
legally authorized to perform marriages;There is no marriage license;Marriage is bigamous or
polygamous;There was a mistake of one contracting party as to the identity of the other;The
subsequent marriage is void; andPsychological incapacity.
20. What are the effects of the declaration of nullity/annulment of a marriage?

The dissolution of the marriage through annulment or nullity of marriage shall have the
following results:
Either spouse can remarry; Children born during the existence of the marriage are still deemed
legitimate;Custody of the common children shall be awarded to either or both parents, and;The
property regime shall be dissolved and liquidated. (Article 50, Family Code of the Philippines)
Legal Separation FAQs
21. Can I remarry after my Legal Separation is granted?

No, legal separation is merely the separation of spouses from bed and board. (Article 63 Family
Code) While it permits the partial suspension of marital relations, the marriage bond still exists
as the marital bonds are not severed as in the case of annulment or petition for nullity.
22. What are the grounds for Legal Separation?

The grounds for legal separation are:

Repeated physical violence or grossly abusive conduct directed against the petitioner, a common
child, or a child of the petitioner; Physical violence or moral pressure to compel the petitioner to
change religious or political affiliation;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;Final judgment sentencing the respondent to imprisonment of more
than six years, even if pardoned;Drug addiction or habitual alcoholism of the
respondent;Lesbianism or homosexuality of the respondent;Contracting by the respondent of a
subsequent bigamous marriage, whether in thePhilippinesor abroad;Sexual infidelity or
perversion;Attempt by the respondent against the life of the petitioner; orAbandonment of
petitioner by respondent without justifiable cause for more than one year. (Article 55 Family
Code of the Philippines)
23. What would happen to the donation I gave my wife/husband before the legal
separation?
The innocent spouse may revoke the donations he/she made in favor of the offending spouse. If
such donations involve property, such revocations should be recorded in the Register of Deeds in
the places where the properties are located. (Article 64 Family Code of the Philippines)
Note however that such revocation must be done within five years from the time the decree of
legal separation become final.
24. My husband/wife and I agreed to have a legal separation, can we still file a case for legal
separation?
No, collusion or connivance between parties is a ground for the denial of the petition for legal
separation. (Article 56 Family Code of the Philippines)
25. When should I file for Legal Separation?
The action for legal separation should be filed within five (5) years from the time of the
occurrence of the cause. (Article 57 Family Code of the Philippines; A.M. No. 02-11-11-SC, 15
March 2003)
26. What are the effects of Legal Separation?
1. The spouses shall be entitled to live separately from each other, but the marriage bonds shall
not be severed;
2. The absolute community or the conjugal partnership shall be dissolved and liquidated but the
offending spouse shall have no right to any share of the net profits earned by the absolute
community or the conjugal partnership;
3. The custody of the minor children shall be awarded to the innocent spouse; and

4. The offending spouse shall be disqualified from inheriting from the innocent spouse by
intestate succession. (Article 63 Family Code of the Philippines)