Divorce is a controversial topic, except that it’s often discussed with hushed voices. Many are just waiting for the right opportunity to end their respective marriages, and the reasons are diverse — physical abuse (against the spouse and/or the children), sexual infidelity, irreconcilable differences and conflicting personalities, gross irresponsibility, loss (and transfer) of affection, among others. Unfortunately, these grounds are not enough to severe the marital bond through annulment. In lieu of divorce, married persons resort to annulment and according to the Office of the Solicitor General (OSG), there is an alarming increase in the number of annulment cases in the Philippines. The number of annulment cases filed in courts, which never breached the 7,000-mark prior to 2006, rose to 7,138 (2006) and 7,753 (2007).
Existing Philippine Laws regarding Divorce:
Philippine laws do not provide for absolute divorce, but divorce was available in certain periods in Philippine history. Divorce was allowed under the Divorce Law of 1917 (Act No. 2710) and during the Japanese occupation, pursuant to Executive Order No. 141 (1943). As the law stands today, however, a marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad. In mixed marriages involving a Filipino and a foreigner (or former Filipinos), Article 26 of the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.
It is not really accurate to say that there is absolutely no divorce in the Philippines. Under Presidential Decree No. 1083, also known as the “Code of Muslim Personal Laws of the Philippines,” divorce is allowed in certain instances, but this law applies only when both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law in any part of the Philippines. For the rest of Filipinos, therefore, divorce is not available.
Efforts to Legalize Divorce in the Philippines:
In 2005, party-list representative Liza Masa of Gabriela filed a divorce bill. According to Rep. Masa, the annulment process has been expensive for most Filipinos and has not been responsive to the needs of women, particularly those suffering from marital abuse.” In 2001, similar bills were filed in the Senate (Bill No. 782), introduced by Senator Rodolfo G. Biazon, and House of Representatives (Bill No. 878), introduced by Honorable Bellaflor J. Angara-Castillo. In 1999, Representative Manuel C. Ortega filed House Bill No. 6993, seeking for the legalization of divorce. The highlights of the explanatory note of House Bill No. 6993, in support for divorce, are:
Not all marriages succeed as a permanent union. An increasing number of married individuals find themselves subjected by their marriage partners to physical violence, grossly abusive conduct and other acts of or offenses that — rather than promote blissful, harmonious conjugal and family life — impair, debase or destroy the legitimate ends of the marriage relationship. The bill seeks to give spouses which are shacked by an irretrievably broken marriage the freedom to remarry and possibly succeed in attaining a stable and fulfilling family life.
Divorce is not a novel legal right:
The Family Code sanctions relative divorce (a mensa et thoro). Legal separation is a recognized remedy for victims of failed marriages. Our civil laws on marriage justify and allow the separation of married individuals but does not confer them the legal right or remedy to extricate themselves from the ordeal of a broken marriage.
Divorce is not exclusive to contemporary times:
Before the Spanish colonial rule in the early 16th century, absolute divorce had been widely practiced among our ancestral tribes — the Tagbanwas of Palawan, the Gadang of Nueva Vizcaya, the Sagada and Igorot of the Cordilleras, the Manobo, Bila-an and Moslems of Visayas and Mindanao islands, to name a few.
There were prior divorce laws:
In 1917, Act 2710 allowed divorce on the grounds of adultery on the part of the wife and concubinage on the part of the husband. During the Japanese Occupation, a new law on absolute divorce, E.O. No. 141, was promulgated providing for ten grounds for divorce. These laws are no longer in effect.
Based on the increasing number of failed marriages which confines many of our citizens to a perpetual state of marital limbo, it has become morally and socially acceptable for many Filipinos to grant spouses of broken marriages the legal right to remarry. The present grounds for legal separation which are recognized in our society as justifiable bases for relative divorce should be re-enacted as lawful grounds for absolute divorce. In addition, it is recommended that “irreconcilable marital differences” be included in our present civil laws as a justifiable cause for absolute divorce because not all circumstances and situations that vitiate the institution of marriage could be specifically categorized and defined by our lawmakers. Spouses living in a state of irreparable marital conflict or discord should be given the opportunity to present their marital contrarieties before the courts and have such differences adjudged as substantial grounds to dissolve or sever the legal bond of marriage.
In addition to these reasons, there are criticisms that the existing laws on annulment are anti-poor, as the high cost needed to pursue a case for annulment prevents the poor from securing one. This, however, is the very reason cited by those who oppose divorce — the high cost is intended to discourage the people from trifling with marriage. Allowing divorce would serious weaken the institution of marriage. Anyone could decide to get married without thinking twice because they can get out of the marriage easily with divorce. If the current increase of annulment cases is alarming, imagine how the allowance of divorce would greatly increase the figure.
Annulment Divorce & Legal Separation in Philippines:
A decree of Legal Separation gives the spouses the right to live separately from each other, dissolves the conjugal partnership, awards the minor children to the innocent spouse and disqualifies the offending spouse from inheriting from the estate of the innocent spouse.
What is the main difference between Legal Separation and Annulment?
Once a Decree of Annulment has been issued by the court the parties may choose to remarry. A decree of Legal Separation allows the spouses to live separately but does not sever the bonds of marriage (remarriage is not allowed).
What are the grounds for legal separation?
There are ten (10) grounds on which a petition of for Legal Separation may be filed.
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.
In a Petition of Legal Separation the term “child” shall include a child by nature or by adoption.
There is a six (6) month waiting period from the time of the filing of thePetition of Legal Separation and the time that the trial may start. During the waiting period it is the duty of the court to try to reconcile the spouses.
Grounds for Annulment of Marriage in the Philippines:
Art. 45 of The Family Code of the Philippines states 6 grounds by which the court can annul a marriage.
The grounds for annulment of marriage are:
1. Absence of Parental Consent. A marriage was solemnized and one or the other party was eighteen (18) years of age or over but below twenty-one (21) and consent was not given by the parents, guardian or person having substitute parental authority. The Petition of Annulment must be filed within five (5) years of having attained the age twenty-one. However, if the parties freely cohabited with the other as husband and wife after having reached the age of twenty-one (21) a Petition of Annulment can no longer be filed.
2. Mental Illness. One or the either party was of unsound mind at the moment of the marriage. But if the parties freely cohabited with each other after he or she came to reason the law prohibits the filing of a Petition.
3. Fraud. That the consent of either party was obtained by fraud, unless such party once having knowledge of the fraud freely cohabited with the other as husband and wife. The petition must be filed within five (5) of finding out the facts of the fraud.
4. That the consent of either party was obtained by force, intimidation or undue influence. Except when the same has ceased and the party filing the petition freely cohabited with the other as husband and wife. The injured party must file within five (5) years from the point in time the force, intimidation or undue influence disappeared or came to an end.
5. One or the other party was physically incapable of consummating the marriage, and such incapacity continues and appears to be incurable. The filing of the Petition of Annulment must be filed within five (5) years after the marriage.
6. Either party was at the time of marriage afflicted with a sexually-transmitted-disease (STD) found to be serious and seems to be incurable. This may also constitute fraud. The filing of the Petition of Annulment must be filed within five (5) years after the marriage.
Q: What documents do I need to give BC Philippines Lawyers to start the case for Annulment of Marriage?
a) An authenticated copy of your marriage certificate; and
B) An authenticated copy of the birth certificate/s of your children (if any) from the National Statistics Office (NSO)
Q: Both my husband and I are Filipino citizens living overseas. Can we file for an annulment in the Philippines?
A: Yes, the rules of court now allow for non-resident Filipinos to file petitions of annulment of marriage in the Philippines.
Q: What is the best city in the Philippines for me to file my petition of annulment?
A: You, as the petitioner have the choice to file in the Family Court of the province or city where you or your husband/wife has been residing for at least 6 months prior to the of filing of the petition, or in the case of a non-resident respondent, where he/she may be found in the Philippines.
Q: Do we need to go back to the Philippines to proceed with an annulment of marriage case?
A: Yes, you will have to come to the Philippines. You will have to appear at least twice in court once for the Pre-trial and once to Testify. If you do not appear in court your petition will be dismissed. You can be excused from appearing at the pre-trial for valid reasons such as illness.
Some Judges allow the non- appearance of the Petitioner in cases of Annulment of Marriage where the ground cited is Bigamous Marriage under Article 35 of the Family Code of the Philippines.
Q: How long does it take to get an annulment?
A: If the proceedings go smoothly, at least 6 months but there is no guarantee to that. There are factors that need to be taken into consideration that could delay the procedure such as but not limited to court-sanctioned postponement of hearings, and justifiable absences of State Prosecutor, if any.
Presumption of Death and Remarriage:
Many people ask us: I have not heard from my spouse in 7 years, can I remarry?
The answer is no. No matter how long spouses have been separated 2, 4, 7, 15 years or more, one can not remarry without the courts having issued a:
• Decree of Annulment or Nullity
• Judicial Decree of Absolute Divorce
• Death Certificate of the Deceased Spouse
Article 41 of The Family Code of the Philippines states:
A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four (4) consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance, where there is danger of death under the circumstances set forth in the provision of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
Danger of Death pertains to:
• A person who was on board a ship or airplane which has gone missing and who has not been heard of for 2 years
• A person in one or the other branch of the military who has taken part in war or other military operations, and has been missing for 2 years
• A person who has been abducted and there has been no news about them for 2 years
• Or other situations where there is a high chance that death may have occurred within a 2 year period. Presumption of Death should not be used as a work around to be to remarry, as the law provides that if an affidavit of reappearance is recorded, the presumption of death is automatically terminated. If the presumption of death is terminated; any remarriage is immediately voided.
Declaration of Nullity of Marriage in the Philippines:
When one files a Petition to declare a marriage void, there is the presumtion that the marriage never existed. Of course it is up to the court to decide if the grounds of your petition are valid.
The Family Code of the Philippines states in Articles 35, 36, 37 and 38 the grounds to declare a marriage void from the beginning.
Let’s examine the grounds to declare a marriage void:
A - Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (lack of legal capacity to marry).
B - 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;
C - Those solemnized without license except if otherwise covered by other laws.
D - Those bigamous or polygamous marriages except those covered by the laws of presumption of death of the absent spouse.
E -Those contracted through mistake of one contracting party as to the identity of the other;
F - A remarriage shall be null and void if the partition and distribution of the proprieties of the spouses, the children’s’ presumptive legitimes and the judgment of absolute nullity of the marriage are not recorded in the necessary civil registry and registries of property.
G - Any psychological incapacity at the time of the marriage celebration, which prevents either the husband or wife from fulfilling the essential marital obligations of marriage, shall also be void even if such incapacity becomes manifest only after the solemnization.
(Psychological incapacity is not automatically lunacy but it does mean that one or both spouses have abnormal interpersonal behavior, or a psychological characteristic which inhibits the spouse to fulfill the essential obligations of marriage.)
H - Marriages between ascendants and descendants of any degree; between brothers and sisters whether full- or half-blood are incestuous and void from the beginning.
I - Though not incestuous the following between relatives are void from the beginning for reasons of public policy:
1. Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;
2. Between step-parents and step-children;
3. Between parents-in-law and children-in-law;
4. Between the adopting parent and the adopted child;
5. Between the surviving spouse of the adopting parent and the adopted child;
6. Between the surviving spouse of the adopted child and the adopter;
7. Between an adopted child and and a legitimate child of the adopter;
8. Between adopted children of the same adopter;
9. Between parties where one, with the intention to marry the other, killed the other person’s spouse, or his or her own spouse.
Once the decision of nullity has been issued by the court it must be registered with Local Civil Registrar where your marriage was registered, the Civil Registry of the place where the Family Court is situated and with the National Statistics Office (NSO). Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and if there are children: the delivery of the children’s presumptive legitimes in cash, property, or sound securities.
Only after complying with the aforementioned will the court issue the Final Decree of Nullity or Annulment of Marriage.
Without a Final Decree of Nullity or Annulment of Marriage any remarriage will be void and the spouse who marries may be charged with a criminal case of bigamy.
How to File an Annulment in the Philippines:
Contact a lawyer to discuss the merits of your petition and whether the grounds exist for you to file a Petition for Annulment of Marriage or a Declaration of Nullity of your marriage.
Annulment of Marriage:
Art. 45 of the Family Code of the Philippines lists the grounds for Annulment of Voidable Marriages for causes existing at the time of the marriage.
Declaration of Nullity Void and Voidable Marriages:
The grounds for the declaration of nullity can be any of those stated in:
Article 35 - Lack of the Formal and Essential Requisites of Marriage
Article 36 - Psychological Incapacity
Article 37 - Incestuous Marriages
Article 38 - Marriages that are Void by Reason of Public Policy
The majority of Petitions to void marriages in the Philippines are filed on the grounds of Psychological Incapacity.
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