Annulment

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Below are the Grounds for Annulment in the Philippines:

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 or psychological incapacity. 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.

SEPARATION: being separated from your spouse with or without communication is not
grounds for annulment. It does not matter how many years you are separated. 

There is no law that annuls or voids a marriage automatically. Only a judge in a court of law
can annul, void or nullify a marriage.

INFIDELITY: is not grounds for annulment in the Philippines.


The declaration of nullity of marriage applies to marriages that are null and void
from the beginning (void ab initio), due to the absence of at least one of the essential
or formal requisites of marriages. It is convenient to classify these void ab initio
marriages into five categories: (a) void marriages due to lack of requisites (Family
Code [“FC”], Article 35); (b) void marriages due to psychological incapacity (FC,
Article 36); (c) incestuous marriages (FC, Article 37); (d) marriages against public
policy (FC, Article 38); (e) bigamous marriages (FC, Article 41); and (e) void
subsequent marriage, when one of the spouses remarry without complying with the
recordal requirement of the judgment of annulment or absolute nullity of the previous
marriage, etc. (FC, Article 52 and 53). The requisites for each of the aforementioned
grounds are more specifically described in the Family Code and in cases decided by
the Supreme Court.

The declaration of nullity of marriage is distinguished from the annulment of


marriage, which considers the marriage valid and existing until it is annulled. The
grounds for annulment of marriage must have been existing at the time of marriage,
and include lack of parental consent (FC, Article 45[1]), insanity (FC, Article 45[2]),
fraud (FC, Article 45[3]), duress (FC, Article 45[4]), impotence (FC, Article 45[5]),
and serious and incurable sexually transmissible disease (FC, Article 45[6]).

The declaration of nullity of marriage is also different from legal separation, which is


a legal remedy for couples suffering from a problematic marriage. The grounds for
legal separation may have arisen after the marriage, and may be filed on the grounds
provided under Article 55 of the FC). In legal separation, the couple is allowed to live
apart and separately own assets. However, legally separated couples are not permitted
to remarry, since their marriage is still considered valid and subsisting.

Below are the legal consequences of the declaration of nullity of marriage:

1. Property Relations. The absolute community of property (“ACP”) or the conjugal


partnership (“CP”), as the case may be, shall be dissolved and liquidated.

In void ab initio marriages (except those under Article 40 of the FC), the property regime
of unions without marriage shall apply (c.f. FC, Articles 147 and 148). There are
differences between unions where the parties are capacitated to marry each other
(Article 147 applies) and unions where the parties are not (Article 148 applies).

Under Article 147, there is a presumption that the contributions are equal. Property
acquired by either exclusively belongs to such property, subject to proof. Property
acquired by both through their work/industry is co-owned. The property relations
between a man and a woman whose marriage was declared null and void on the ground
of psychological incapacity (FC, Article 36) is governed by this article. Note that, even if
one of the spouses did not contribute materially to the common fund, but the said party
took care of the household, the other party and their common children, these acts are
considered the said party’s contribution to the common fund (Buenaventura v.
Buenaventura, G.R. Nos. 127358 & 127449, 31 March 2005).

Under Article 148, there is no presumption of joint acquisition. There is a presumption of


equal sharing only when there is evidence of joint acquisition but none as to the extent
of actual contribution. Otherwise, property acquired by either exclusively belongs to
such property, and property acquired by both through their work/industry is owned by
them in common in proportion to respective contributions.

2. Status of Children Born/Conceived before Declaration of Nullity. The children are


deemed illegitimate, except when the ground for the declaration of nullity is
psychological incapacity or a void subsequent marriage under Article 53 of the FC.

3. Custody of Children. During the pendency of the petition (pendente lite), the custody
of children will be governed either by written agreement, or by court order, based on the
best interest of the child. The court will apply the following order of preference, both
parents jointly: (a) either parent (may consider the choice of child over 7 years, (b) unless
such parent is considered unfit), (c) surviving grandparent (if several, then choice of child
over 7 years, unless grandparent chosen is unfit/disqualified), (d) eldest brother/sister
over 21 unless unfit/disqualified, or (e) any other person deemed suitable by the court.

After the decree, the court shall award custody to the innocent spouse, but no child
under 7 years shall be separated from the mother unless there are compelling reasons.

4. Child Support. Pendente lite, child support will be governed by either written
agreement, or in the absence thereof, from properties of the ACP or CP. After decree,
either parent or both may be ordered by the court to given an amount necessary for
support in proportion to resources/means of giver and necessities of the recipient.

5. Spousal Support. Pendente lite, spousal support will be governed by either written
agreement, or in the absence thereof, from properties of the ACP or CP, considered as
an advance to be deducted from the share of the spouse supported during liquidation.
There may be restitution of spousal support if after decree, the court finds that the
person providing support pendente lite is not liable therefor.

Below is a general outline of the steps in the declaration of nullity of marriage. Please
note that in some instances, these steps may not be followed.

1. Preparation / Psychiatric Evaluation. The client goes to the lawyer and discusses
his/her case. After conferring with the lawyer and submission of all of the requirements,
the lawyer will draft the petition for declaration of nullity of marriage.
If the ground for the declaration of nullity of marriage is psychological incapacity, it is
advisable to secure the services of an expert witness (psychologist/psychiatrist) at this
stage. The expert witness will later on testify on the psychological incapacity of the
petitioner and/or the respondent. It is also advisable that the executive summary of the
report of the expert witness form part of the petition.

2. Filing of Petition. The petition is filed before the Central Office of the Regional Trial
Court. Cases involving marriage and family matters will be raffled only to designated
Family Courts. This will take about a week. After the raffle, the petition will be
forwarded to the selected court.

3. Summons. The court will issue summons one or two weeks after the case is raffled.
The respondent has 15 days to file his/her answer. In some instances, the lawyer of the
respondent may ask an extension of 15 days to file his/her answer or any pleading.

4. Notice to the Office of the Solicitor General (OSG). The court will issue an order
requiring the petitioner to submit copies of the petition to the OSG and the prosecutor
assigned. Note, however, that under pertinent rules, a copy of the petition should be
furnished to the OSG within 5 days from filing thereof.

5. Collusion Hearing. The judge will order the prosecutor assigned to the case to
investigate whether collusion exists between the parties and if the evidence submitted is
not fabricated or suppressed. The prosecutor is usually given 20 days from receipt of the
order to investigate the parties. The report of the investigation of the prosecutor should
be submitted 10 days after the 20-day period.

6. Preliminary Hearing/ Pre-Trial Order. The court will hold a preliminary hearing, which
requires both parties to attend. A pre-trial order will be issued. Usually the preliminary
hearing is called about two to four months after the filing of the petition.

7. Hearing. This is the time when the petitioner will present his/her evidence of
psychological incapacity. The number witnesses will depend on the case, but usually, two
to three witnesses will be enough, if the case is not contested (meaning, the respondent
will not object). The witnesses will be the petitioner herself/himself, the expert witness
and one collaborating witness.

Below is the order of presentation of evidence:

a. Presentation of the petitioner herself/himself


• Direct examination of the petitioner by her counsel
• Cross-examination by the State
• Redirect examination by the petitioner’s counsel
• Re-cross-examination by the State.

b. Presentation of the psychologist or psychiatrist


• Direct examination of the petitioner by his/her counsel
• Cross-examination by the State
• Redirect examination by the petitioner’s counsel (if necessary)
• Re-cross-examination by the State (if necessary)

c. Formal Offer of Exhibits

d. Comments/Objections to the Formal Exhibits by the State Prosecutor


• The prosecutor is given an opportunity to comment or object to the offer exhibits. (10-
15 days from receipt of the Formal Offer of Exhibits)

8. OSG Certification. An order will be issued directing the OSG to issue a certification
briefly stating its reasons for its agreement or its objection to the petition within 30 days
from the receipt of the said order. Likewise, the petitioner will be directed to submit all
exhibits and transcribed stenographic notes to the OSG within 7-15 days from receipt of
the order.

9. Decision. The Court will then issue an order that the case is submitted for resolution.
The decision may be released 30-90 days after the said order is issued.

A declaration of nullity of marriage may be finished from 10 months or several years


depending on various factors like the complexity of the case (e.g. properties and custody,
support are heavily contested), availability of the court, witnesses and documentary
evidence, and also the place where the petition will be filed.

Below is a list of some of the requirements before filing a petition for declaration of
nullity of marriage:

• NSO copy of marriage certificate of the spouses and birth certificates of the children
(obtained within 6 months from the filing of the petition)
• Barangay certificate and Community Tax Certificate evidencing residence over the last
6 months of the province or city where the petition will be filed
• Psychiatric evaluation of the spouses (if the ground relied upon is psychological
incapacity)
• Copy of marriage settlement or pre-nuptial agreement, if any
• Copy of agreement, if any, relating to custody, support, etc.
• Inventory of properties of the spouses and of the ACP or CP (Please see questionnaire
or other document request list of the counsel)
• List of witnesses (Please see questionnaire to be provided by the counsel)
• Other documentary or object evidence

The major cost components of having a marriage declared void ab initio include the
following:
1. Filing Fee (Under PhP10,000.00, if no properties are involved; higher, if there are
properties involved);
2. Legal Fees (Acceptance Fee, Pleading Fees, Appearance Fees); and
3. Psychological/Psychiatric Evaluation and Expert Witness Fees (varies, estimated
PhP40,000 to PhP60,000.00).
1. PREPARATION AND FILING OF PETITION
The petition must be filed within the prescriptive period. The petition must be verified and must
allege, among others, the facts that constitute the ground relied upon (see grounds for
annulment or grounds for declaration of nullity). The documents supporting the petition,
including the marriage certificate, must be attached. It has to be signed by the petitioner (the
spouse filing the petition).
Overseas Filipinos may file the petition while abroad. The Verification Page of the petition has
to be signed and authenticated, through the Authentication Certification (or “red ribbon“)
issued by Philippine consuls in the jurisdiction where divorce decree was secured or, in certain
countries, conveniently through the Apostille.
The petition may be filed, at the option of the petitioner, in the Family Court of the
province/city where the petitioner or the other spouse (called the “respondent”) resides for the
last six (6) months prior to the date of filing. [Must-read: Residence: Guidelines to Validate
Compliance with Jurisdictional Requirement (Annulment, Declaration of Nullity, Legal
Separation)]
Incidentally, upon filing of the petition or anytime thereafter, the court may issue provisional
protective orders (PPOs).
2. SERVICE OF SUMMONS
In simplest terms, this is giving notice to the respondent. Where the respondent cannot be
located at the given address or the whereabouts are unknown and cannot be ascertained by
diligent inquiry, service of summons may be done by publication. This is crucial because the
court cannot validly proceed without a valid service of summons.
3. ANSWER
The respondent must answer within 15 days from service of summons (or within 30 days from
the last issue of publication in case of service of summons by publication). Unlike in civil cases,
the respondent in annulment proceedings is not declared in default if he/she fails or refuses to
file an answer, but the public prosecutor shall be ordered to investigate whether collusion
exists between the parties.
4. COLLUSION INVESTIGATION
The court orders the public prosecutor to conduct a collusion investigation, and thereafter, to
prepare and submit a collusion investigation report. The public prosecutor issues a subpoena to
both spouses, ordering them to appear for the conduct of the collusion investigation. This is a
challenge when the petitioner is an Overseas Filipino.
It is mandatory for the court to check the existence of collusion between the parties. There are
two outcomes:
 if the court is convinced that collusion exists, it shall dismiss the petition.
 if there is no collusion, the court shall set the case for pre-trial conference.
The collusion investigation shall also include a determination of the party’s residencies.
[see Residence: Guidelines to Validate Compliance with Jurisdictional Requirement (Annulment,
Declaration of Nullity, Legal Separation)]
5. PRE-TRIAL CONFERENCE
During the mandatory pre-trial conference, the court and the parties deal with certain matters,
such as stipulation of facts, for the purpose of expediting the proceedings. The petition may be
dismissed if the petitioner fails to appear during pre-trial.
The parties are required to submit their pre-trial conference briefs, attaching their
documentary evidence including the judicial affidavits. The judicial affidavit, containing the
written testimony of the witness in Q&A form, must be signed by the witness and properly
notarized. Overseas Filipinos may sign the judicial affidavit in the Philippines, or, when abroad,
have it authenticated, through the conventional Authentication Certification (or “red ribbon“)
procedure or through the Apostille.
Any documentary evidence must be marked during the pre-trial conference. Without the pre-
marking of the documents (or the submission of judicial affidavit) during the pre-trial
conference, the document (or the witness) cannot be presented during trial.
At this stage, the court may also refer the issues to a mediator who shall assist the parties in
reaching an agreement on matters not prohibited by law (no compromise allowed in civil status
of persons, validity of marriage or of legal separation, grounds for legal separation, jurisdiction
of courts, and future support and legitime). The court may also require a social worker to
conduct a case study and submit a report at least 3 days before the pre-trial conference, or at
any stage of the case whenever necessary.
6. TRIAL
This is the stage where the ground for annulment is proved and opposed. The court may order
the exclusion from the courtroom of all persons, including members of the press, who do not
have a direct interest in the case.
The OSG, who must be notified of the filing of the petition, is duty-bound to ensure that the
institution of marriage is amply protected. The OSG can do this directly but, in most cases we
handled, the OSG deputizes the public prosecutor to appear in the case. A court hearing may be
cancelled or postponed due to the absence of the OSG or public prosecutor.
Notwithstanding the preparation and submission of the judicial affidavit, the witness must still
personally appear and testify in court. The direct examination generally involves only the
identification of the judicial affidavit and the documentary exhibits. The cross-examination
follows.
7. DECISION
After the trial proper, the court renders its decision, which is different from the Decree of
Annulment. A decision, whether granting or dismissing the petition, becomes final upon the
expiration of 15 days from notice to the parties.
Even if the other spouse did not participate in the proceedings, the OSG may, and usually do,
seek a reconsideration of the decision granting the petition.
8. APPEAL
The aggrieved party or the Solicitor General may appeal from the decision within 15 days from
notice of denial of the motion for reconsideration or new trial. The appeal is generally filed with
the Court of Appeals (CA).
The entire process may stretch for years. The proceedings at the trial court level usually takes at
least one year. The filing and resolution of the motion for reconsideration may take a couple of
months. The filing and resolution of the appeal at the CA level may take at least one year. If the
CA affirms the grant of the petition, the OSG can, and usually do, elevate the case to the
Supreme Court. This process may take at least one year.
9. INCIDENTAL MATTERS
The liquidation, partition and distribution, custody, support of common children and delivery of
their presumptive legitimes, must be done upon entry of the judgment granting the petition.
10. DECREE OF ANNULMENT
The court issues the Decree after: (i) registration of the entry of judgment granting the
annulment in the Civil Registry where the marriage was celebrated and in the Civil Registry of
the place where the court is located; (ii) 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 (iii) delivery of the children’s presumptive legitimes in cash, property, or sound
securities.
11. REGISTRATION OF DECREE
The Decree must be registered in the Civil Registry where the marriage was registered, the Civil
Registry of the place where the court is situated, and in the Philippine Statistics Authority (PSA).
The Decree is annotated on the Marriage Certificate.

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