Q: Do we have divorce in the Philippines?

There is no absolute divorce under Philippine laws. The only divorce recognized by the
Family Code is relative divorce, or more commonly known as legal separation. It must be noted,
though, that legal separation does not dissolve the marriage, and the spouses remain married to
each other. Though they will be separated from bed and board, and the guilty spouse shall be
prevented from inheriting from the aggrieved spouse, both of them are still prevented from
contracting a subsequent marriage.

Q: What is the difference between annulment of marriage and

declaration of nullity of marriage?
When a marriage is believed to be null and void from the beginning, the proper action to
be filed is a Petition for the Declaration of Absolute Nullity of Marriage. However, when a
marriage is merely voidable (meaning it is valid until it is voided), the proper action is Petition
for Annulment of Marriage.

The two actions are entirely different from each other.

Under the Family Code of the Philippines, a marriage is void from the beginning if it was
contracted in the absence of any of the essential and formal requisites of marriage, such as legal
capacity to enter into marriage (age requirement, gender requirement), and those marriages
which are considered as against public policy such as incestuous and bigamous marriages.
Marriages contracted when either or both parties are suffering from psychological incapacity that
prevents them from performing the essential marital obligations provided under the Family Code
are likewise considered by law as void from the very beginning. In such case, once declared by
the court as null and void, such marriage shall be considered as if it did not exist and had never
taken place.

On the other hand, a voidable marriage is valid, but shall be considered as severed only
after so adjudged by the court. Examples of voidable marriage are those contracted when the
consent of either party was vitiated by force, intimidation or undue influence, or those contracted
when either party is of unsound mind. Even after annulment of such marriage, the marriage shall
be considered to have existed prior to the judgment cancelling or annulling the marriage.

Q: Where do I file petition for annulment of marriage, or for

declaration of nullity of marriage?
The petition shall be filed in the Regional Trial Court acting as Family Court of the
province or city where the petitioner or the respondent has been residing for at least six months
prior to the date of filing, or in the case of a non-resident respondent, where he may be found in
the Philippines, at the election of the petitioner.

Q: When do I file a petition for annulment of marriage, or for

declaration of nullity of marriage?
For voidable marriages, the period within which to file a petition for annulment depends
on the grounds for annulment.

(1) In case the marriage was contracted through force, intimidation or undue influence,
within 5 years from the time such force, intimidation or undue influence has disappeared or
ceased.

(2) In case of marriages contracted by parties between ages 18 to 21 without parental

consent, within 5 years from the time the party has reached 21 years old.

(3) In case of fraud in contracting the marriage, within 5 years from the discovery of
fraud.

(4) In case of impotence or incurable sexually transmitted disease, within 5 years from
the time of marriage.

(5) In case of unsoundness of mind, the one with unsound mind, during lucid intervals, or
through relatives, guardians, or legal custodians, may file a petition for annulment anytime
before the death of either of the contracting parties.

For marriages that are void from the beginning, the action or defense for the declaration
of absolute nullity of marriage shall not prescribe, meaning there is no time limit as regards the
filing of the petition for declaration of nullity of marriage.

Q: Can my husband and I just execute a written agreement that we

are not anymore married to each other? Alternatively, can we just agree
to fix an expiration date for our marriage contract?
No. Marriage is defined by law as a special contract of permanent union between a man
and a woman entered into in accordance with law for the establishment of conjugal and family
life. It is the foundation of the family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject to stipulation, except that
marriage settlements may fix the property relations during the marriage within the limits
provided by the Family Code (See Article 1, Family Code).
 Based on the definition of marriage, since it is a special contract, and since its nature,
consequences and incidents are governed by law and not subject to stipulation, the husband and
wife cannot just execute an agreement stating that they are not anymore married. For the same
reason, the husband and wife also cannot fix an expiration date for their marriage contract.

Q: What is the effect of collusion in my petition for annulment or

declaration of nullity of marriage?
The existence of collusion between the contracting parties to have their marriage severed
is a ground for the dismissal of the petition for annulment or declaration of nullity of marriage, in
case one is filed.

If the respondent does not file his/her answer to the complaint, the court shall order the
public prosecutor (who represents the state) to conduct an investigation as to whether or not
collusion exists between the parties. If there is collusion, the prosecutor shall report the same to
the court, who may then dismiss the case on such basis.

Q: Under the law, what marriages are void from the beginning?
(1) Those contracted by any party below eighteen years of age even with the consent of
parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages;

(3) Those solemnized without license;

(4) Bigamous or polygamous marriages;

(5) Those contracted through mistake of one contracting party as to the identity of the
other;

(6) Those solemnized without complying with the requirement that the properties of the
spouses be partitioned and distributed, and their children’s presumptive legitimes be delivered
first after a judgment of annulment or absolute nullity of marriage is decreed by the court;

(7) Marriage contracted by any party who, at the time of its celebration, was
psychologically incapacitated to comply with the essential marital obligations, even if such
incapacity becomes manifest only after its solemnization;

(8) Marriages between ascendants and descendants of any degree and those celebrated
between brothers and sisters, whether of the full or half blood.
 (9) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth
civil degree;

(10) Between step-parents and step-children;

(11) Between parents-in-law and children-in-law;

(12) Between the adopting parent and the adopted child;

(13) Between the surviving spouse of the adopting parent and the adopted child;

(14) Between the surviving spouse of the adopted child and the adopter;

(15) Between an adopted child and a legitimate child of the adopter;

(16) Between adopted children of the same adopter; and

(17) Between parties where one, with the intention to marry the other, killed that other
person's spouse, or his or her own spouse.

Q: What are the grounds for annulment of marriage?

(1) That the party who seeks annulment was eighteen years of age or over but below
twenty-one at the time of marriage, and the marriage was solemnized without the consent of the
parents, guardian or person exercising parental authority;

(2) That either party was of unsound mind;

(3) That the consent of either party was obtained by fraud;

(4) That the consent of either party was obtained by force, intimidation or undue
influence;

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

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

Q: What kind of fraud does the law speak of in order to have the
marriage annulled?
 Not all kinds of fraud may constitute a ground for annulment of marriage. In order to
constitute fraud for purposes of annulment, it should be any of the following:

 Non-disclosure of a previous conviction by final judgment of the other

party of a crime involving moral turpitude
 Concealment by the wife of the fact that at the time of the marriage, she
was pregnant by a man other than her husband;
 Concealment of sexually transmissible disease, regardless of its nature,
existing at the time of the marriage; or
 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.

Q: If the marriage is void from the beginning, since the marriage is

considered as non-existing, does it automatically permit one of the
spouses to contract a subsequent marriage?
No. The Family Code requires that, for purposes of remarriage, there should first be a
declaration by the court that the marriage is void, before the contracting parties may validly
contract a subsequent marriage. In fact, without such declaration, the parties may even be
prosecuted for bigamy if they contract a subsequent marriage, despite the marriage being void
from the beginning.

Q: After the court in an action for annulment of marriage has

become final, what steps should I take before I can finally remarry?
The Entry of Judgment in your annulment case must be registered first in the Local Civil
Registrar of the place where your marriage was solemnized, and in the Local Civil Registrar of
the place where the Regional Trial Court issuing the entry of judgment is located.

Q: Do I really need to secure a marriage license before I get

married?
Yes, a marriage license is among the formal requisites of a valid marriage. Without such
license, the marriage will be void from the beginning.
 However, no license shall be necessary for the marriage of a man and a woman who have
lived together as husband and wife for at least five years and without any legal impediment to
marry each other. In such case, instead of securing a marriage license, the contracting parties
may just execute an affidavit stating such fact.

Q: What is “psychological incapacity” as a ground to declare a

marriage null and void?
Article 36 of the Family Code provides that a marriage contracted by any party who, at
the time of its celebration, was psychologically incapacitated to comply with the essential marital
obligations of marriage, shall be void even if such incapacity becomes manifest only after its
solemnization. The concept of psychological incapacity as a ground for nullity of marriage is
novel in our body of laws, although mental incapacity has long been recognized as a ground for
the dissolution of a marriage.

Psychological incapacity pertains to the inability to understand the obligations of

marriage, as opposed to a mere inability to comply with them. The evidence to establish
psychological incapacity must convince the court that the parties, or one of them, was mentally
or psychically ill to such extent that the person could not have known the obligations he was
assuming, or knowing them, could not have given valid assumption thereto. Jurisprudence has
recognized that psychological incapacity is a malady so grave and permanent as to deprive one
of awareness of the duties and responsibilities of the matrimonial bond one is about to
assume [See Antonio vs. Reyes, G.R. No. 155800, March 10, 2006].

Q: What are the essential marital obligations under the law?

The essential marital obligations are those embraced under Articles 68 to 71 of the
Family Code.

Article 68. The husband and wife are obliged to live together, observe mutual love,
respect and fidelity, and render mutual help and support.

Article 69. The husband and wife shall fix the family domicile. In case of disagreement,
the court shall decide.

The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with the solidarity of the family.

Article 70. The spouses are jointly responsible for the support of the family. The
expenses for such support and other conjugal obligations shall be paid from the community
property and, in the absence thereof, from the income or fruits of their separate properties. In
case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from
the separate properties.

Article 71. The management of the household shall be the right and the duty of both
spouses. The expenses for such management shall be paid in accordance with the provisions of
Article 70.

Q: What are the guidelines set by the Supreme Court in determining

the presence of psychological incapacity?
In Molina vs. Court of Appeals, the Supreme Court provided guidelines as to what constitutes
psychological incapacity, as follows:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the existence and continuation of the marriage and against
its dissolution and nullity.

(2) The root cause of the psychological incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly
explained in the decision.

(3) The incapacity must be proven to be existing at “the time of the celebration” of the
marriage. The evidence must show that the illness was existing when the parties exchanged their
“I do's.” The manifestation of the illness need not be perceivable at such time, but the illness
itself must already be existing at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or

incurable.

(5) Such illness must be grave enough to bring about the disability of the party to assume
the essential obligations of marriage.

Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in
the Philippines regarding what constitutes psychological incapacity, while not controlling or
decisive, should be given great respect by our courts.

Be it noted however, that the Supreme Court in a more recently decided case (Kalaw vs.
Fernandez, G.R. No. 166357, January 14, 2015), said that the foregoing guidelines may not be
strictly adhered to by the courts. The High Court advised the judges to exercise extreme
prudence in taking into consideration the relevant circumstances and the peculiarities of each
case in coming up with decisions as to whether or not psychological incapacity is present.
Q: Is sexual infidelity or perversion considered as psychological
incapacity?
Sexual infidelity and perversion do not by themselves constitute psychological incapacity
within the contemplation of the Family Code. Neither could emotional immaturity and
irresponsibility be equated with psychological incapacity. It must be shown that these acts are
manifestations of a disordered personality which makes a person completely unable to
discharge the essential obligations of the marital state, not merely due to youth, immaturity or
sexual promiscuity [See Dedel vs. CA, G.R. No. 151867, January 29, 2004].

Q: Is the submission of a psychological report indispensable in order

to declare my marriage void on the ground of psychological incapacity?
There is no requirement that the defendant/respondent spouse should be personally
examined by a physician or psychologist before a marriage may be declared null and void based
on psychological incapacity. However, the totality of evidence presented must be adequate to
sustain a finding of psychological incapacity [Marcos v. Marcos, G.R. No. 136490, October
19 2000].

Q: Do I need to attend to court hearings?

You will be required to attend only in the following stages: (1) the pre-trial conference,
(2) the hearing where you are scheduled to testify as a witness, and (3) the hearing called by the
public prosecutor to determine the existence of collusion. Other than that, you may not attend the
hearings.

Q: I am a Filipino citizen. What if my marriage to a foreigner is

dissolved through divorce obtained abroad, will I be able to remarry?
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

This rule is now recognized under the Family Code to avoid the unfair situation where
the Filipino spouse shall remain married to the alien spouse who, on the other hand, may already
remarry, as such foreigner validly obtained already a divorce in accordance with his/her own
national laws. Please take note that only the divorce obtained by the foreigner spouse shall be
recognized by law. Any divorce obtained abroad by the Filipino spouse shall not be valid and
binding upon such Filipino.