- 1 Marriage is a sacred legal and moral vow
- 2 Difference Between Void and Voidable Marriages
- 3 Difference Between Annulment and Legal Separation
- 4 When is a marriage officially ended?
- 5 Difference Between Annulment and Divorce
- 6 Annulment vs. Dissolution of Marriage
- 7 Is there an uncontested annulment or petition for the declaration of nullity of marriage?
- 8 Proposed Law for Dissolution of Marriage
- 9 Dissolution of Marriage vs. Divorce
- 10 Does divorce nullify the last will and testament?
- 11 Action for Declaration of Nullity of Marriage: Imprescriptible
- 12 Nullity of Marriage: Final Judgment is Required for Purposes of Remarriage
Annulment of Marriage in the Philippines or Declaration of Nullity thereof must remain an exception rather than a rule in Philippine culture. However, if certain situations, conditions, and status of existing marriage legally satisfy the grounds for the termination of the same, then the authority of the law must be invoked to lawfully cut the marriage bond. Here, the practice of law comes in.
Marriage, as defined under Article 1 of the Family Code, is 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 this Code.
Marriage is a sacred legal and moral vow
Unlike any other country, marriage is very important in the culture of the Filipinos. It signifies a union between man and woman that is blessed by God.
However, nowadays, some couples seek to sever their relationship with each other, as if there was no marriage at all. In the legal aspect, declaration of nullity or annulment of marriage is the best option for Filipino couples to end their marital union.
As a conservative State, the Philippines has given much value to the sanctity of marriage. The Filipinos simply give high regard to such union, signifying that the husband and the wife become one through marriage. Consequently, they are bound here on earth so they are also bound in heaven.
Unlike other contracts, marriage is a special one, as emphasized under Article 1 of the Family Code. It serves as the basis of social organization and the preservation of which is essential to public welfare.
Yet, in 2015, the Congress has tried to change the stigma of divorce as an evil undertaking. In fact, even Pope Francis, who is the head of the Catholic Church, has urged his ministers to take a more compassionate stance toward divorced Catholics, but to no avail for there is no such thing, according to Filipinos.
While marriage is a fundamental right and an inviolable union between man and woman to be protected, certain cases, conditions, and situations must be acknowledged for it not to become absolutely dysfunctional. In this regard, marriage may be declared, under the authority of law, to be void or be characterized as voidable [valid until annulled], as the case may be. Legal separation between husband and wife may also be an option depending upon spouses’ choice of separation.
Difference Between Void and Voidable Marriages
A void marriage is not valid from its inception, hence, void ab initio. On the other hand, a voidable marriage is valid until annulled; the Court may eventually declare it as void when the evidence warrants, and it satisfies the grounds for annulment of said marriage.
|Void Marriages||Voidable Marriages|
|Contracted by any party below eighteen (18) years of age even with the consent of parents or guardians||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|
|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||Either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife|
|Either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife||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|
|Bigamous or polygamous marriages not falling under Article 41||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|
|Contracted through mistake of one contracting party as to the identity of the other||Either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable|
|Subsequent marriages that are void under Article 53 (Article 35)||Either party was afﬂicted with a sexually transmissible disease found to be serious and appears to be incurable (Article 45)|
|Contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage even if such incapacity becomes manifest only after its solemnization (Article 36)|
|Incestuous marriage, whether the relationship between the parties be legitimate or not (Article 37)|
|Marriages against public policy (Article 38)|
|Marriage contracted by any person during the subsistence of a previous marriage, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead.|
Valid Bigamous Marriage
In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufﬁcient. For the purposes of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided for in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.
There have been several decided cases of the Supreme Court where the ground of psychological incapacity was cited as one of the grounds for declaring certain marriage void.
Article 36 of the Family Code, as amended by Executive Order No. 227, provides that a marriage contracted by any party who, at the time of celebration, has been 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 law does not give the exact definition of psychological incapacity. Nonetheless, the determination of such is within the jurisdiction of the court on a case-to-case basis. The facts of the case play the most important role in the determination of such ground.
In the case of Chi Ming Tsoi v. Court of Appeals, G.R. No. 119190 [January 16, 1997], the Court did not base its judgment on the stipulation of facts but, appellant [the husband] admitted that he did not have sexual relations with his wife after almost ten months of cohabitation, and it appears that he is not suffering from any physical disability.
Such abnormal reluctance or unwillingness to consummate his marriage is strongly indicative of a serious personality disorder which to the mind of this Court [Supreme Court of the Philippines] clearly demonstrates an ‘utter insensitivity or inability to give meaning and significance to the marriage’ within the contemplation of aforementioned provision [Article 36 of the Family Code of the Philippines].
Psychological incapacity, as held by the Supreme Court [of the Philippines], has been intended by law to be confined to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.
Psychological incapacity must be characterized by:
- Gravity: It must be grave and 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
- Incurability: It must be incurable, or even if it were otherwise, the cure would be beyond the means of the party involved.
Under Article 68 of the Family Code, it provides that the husband and wife are obliged to live together, observe mutual love, respect, and fidelity, and render mutual help and support.
In the case of Republic v. Cabantug-Baguio, G.R. No. 171042, June 30, 2008, it was held that psychological incapacity cannot be mere refusal or neglect to comply with the obligations, it must be downright incapacity perform.
Difference Between Annulment and Legal Separation
To differentiate the two, let us first define each based on the pertinent provisions of Family Code as follows:
Article 45 of the Family Code states that – A marriage may be annulled for any of the following causes, existing at the time of the marriage:
- 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;
- That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
- 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;
- 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;
- That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
- That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a [Former Article 85 of the New Civil Code])
Six grounds of annulment are expressly stated the above-stated provisions which pertain to the absence of, or defect in, one of the essential or formal requisites of marriage, to wit:
- First is lack of parental consent,
- Second is insanity,
- Third is when marriage is obtained in fraud,
- Fourth is when marriage is obtained by force,
- Fifth is impotence, and
- Sixth is when one is found to have an incurable sexually transmissible disease.
Nevertheless, in case of Fraud as a ground for annulment of marriage, the same must relate to the provisions of Article 46 of the Family Code of the Philippines, to wit:
Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:
- 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. (86a [Former Article 86 of the New Civil Code of the Philippines])
Annulment is a petition, a legal process, filed in court to annul the marital union between a husband and a wife, namely, a marriage which was defined in Article 1 of Family Code.
Annulment implies that the marriage is valid and remains the same until annulled by the court.
On the other hand, Article 55 of the Family Code states that – A petition for legal separation may be filed on any of the following grounds:
- 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 the Philippines or abroad;
- Sexual infidelity or perversion;
- Attempt by the respondent against the life of the petitioner; or
- Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term “child”shall include a child by nature or by adoption. (9a)
Legal separation is a partial suspension of marital relations between a husband and wife. It merely presupposes separation of spouses from room, bed, and board. Grounds for the aggrieved party to petition the Court are stated in the abovementioned provision.
To compare side by side, the annulment invalidates the marriage while legal separation is partial suspension of marriage.
As to the effects, annulment legally severed the marriage ties while in legal separation the same still subsists; and thus, they are still husband and wife.
Lastly, as to reconciliation: in annulment, parties are allowed to remarry under Article 53 of the Family Code after complying the requirements of preceding article; while in legal separation, they are not, this is because their marriage is considered still valid and subsisting, corresponding joint manifestation under oath duly signed by them is enough, to be filed with same court for legal separation proceeding.
When is a marriage officially ended?
Marriage is officially ended once the parties seek the declaration of nullity (Article 35, 36, 37 and 38) or annulment (Article 45) under our Family Code provided that there is a final judgment as stated in the Article 40 of Family Code, declaring the marriage void.
In the former, marriage is considered void ab initio, while in the latter, marriage is considered void once annulled.
In legal separation, however, there is no dissolution of marriage, they are only entitled to live separately. Marriage is not ended.
Difference Between Annulment and Divorce
Since we have already discussed the Declaration of Nullity and Annulment of Marriage and Legal Separation, we now proceed to Divorce.
As we are all aware, Divorce is not recognized at present under Philippine law.
To give a brief background, Divorce, however, has not always been proscribed in the Philippines. During the Spanish Era, relative divorce was allowed in cases of adultery or when one party joins a religious order. Subsequently, though, it was outlawed.
Thereafter, our divorce law depends on the colonizers. During the American Era, divorce once again was allowed, but only again on the grounds of adultery and concubinage. While the Japanese brought us the liberal divorce laws. Following this, divorce was again outlawed under the Philippine Civil Code of 1949.
Until now, Philippine law does not recognize divorce, subject to the provision of Article 26 par. 2 of the Family Code.
To differentiate, divorce legally ends, dissolves, and terminates a valid marriage. On the other hand, annulment formally declares the marriage legally invalid. It erases the marriage by declaring it null and void.
As to the effects, when the party seeks divorce, it declares the spouse to be single again. While in Annulment, the marriage records remain on file, even though the marriage is erased.
Both annulment and divorce end a marriage; however, they are distinct in many aspects.
- First, annulment is legal in the Philippines. On the other hand, divorce is not provided for under Philippine laws, but when an alien spouse has validly obtained a divorce decree abroad, his or her Filipino spouse may remarry under Philippine law.
However, in the landmark case of Republic vs. Manalo (G.R. No. 221029, April 24, 2018), the Supreme Court held that a foreign divorce secured by a Filipino is also considered valid in the Philippines, even if it is the Filipino spouse who files for divorce abroad; provided that the foreign divorce decree has been judicially enforced or confirmed in the Philippines by filing the proper civil action.
- Second, annulment or a Petition for Annulment of Marriage is sought when the parties’ marriage is voidable or valid and existing but should be nullified pursuant to the grounds laid down by the Family Code and supported by jurisprudence. On the other hand, in Divorce, the parties acknowledge that a perfectly valid marriage existed but either or both of the parties decide to end it.
- Third, in annulment, the grounds for which should have been present at the time of marriage. On the other hand, divorce may be sought even without fault from either of the parties or if with fault, it need not be existing at the time of marriage.
- Fourth, the grounds for annulment are limited to the ones specifically provided for by the Family Code particularly Articles 45 and 46 e. no parental consent by party aged 18-21 years old, insanity or unsound mind, fraud, vitiated consent, physical incapacity to consummate marriage, or serious or incurable sexually transmitted disease. On the other hand, the grounds for divorce may either be no-fault i.e. irreconcilable differences, incompatibility, etc. or at-fault i.e. adultery or cheating, bigamy, mental or physical abuse, etc.
- Fifth, annulment may be filed by the parents or guardians of the party aged 18 to 21 years old who contracted marriage without consent, by the insane spouse during a lucid interval, or by the injured spouse. On the other hand, divorce may only be filed by either of the spouses.
- Sixth, the right to file for a Petition for Annulment of Marriage prescribes in accordance with Article 47 of the Family Code e. within 5 years after the discovery of fraud by the injured spouse, within 5 years from the time the force, intimidation, or undue influence ceased, etc. On the other hand, the right to file for divorce does not prescribe.
Annulment vs. Dissolution of Marriage
As previously discussed, in annulment of marriage, the court shall determine whether or not to nullify the marriage based on the evidence presented by the parties and pursuant to the grounds laid down by Articles 45 and 46 of the Family Code.
On the other hand, dissolution of marriage is a general term for the termination, or end, of marriage. Dissolution thereof may be the consequence of Declaration of Nullity of Marriage or Annulment thereof. It is worthy to stress also that death of either or both spouses dissolves their marriage.
What may be agreed upon is the Dissolution of spouses’ respective property regime governing their marriage.
Is there an uncontested annulment or petition for the declaration of nullity of marriage?
Yes, there may be an uncontested annulment. After the finding of the Public Prosecutor that there is no collusion between the spouses, the proceedings for annulment may continue regardless of the presence or absence of the other spouse.
Hence, there will be no declaration of default. The proceedings will continue, although, maybe regarded now as uncontested. Such uncontested annulment makes the court’s determination faster since fewer witnesses shall be presented.
This may take an estimated period from one to four years [not necessarily exact and may still be extended] depending on many factors like the calendar of the court, availability of witnesses, and other issues.
Proposed Law for Dissolution of Marriage
House Bill No. 6027
In July 24, 2017, House Bill No. 6027, “An Act Providing for Grounds for the Dissolution of a Marriage” was filed before the Seventeenth Congress of the Republic of the Philippines.
This bill aims to ease the access to legal processes to terminate a marriage as the process of annulment provided in the Family Code is extremely adversarial in nature and is very expensive.
It also intends to preserve the chance for a post-marriage scenario which allows a peaceful and productive co-existence between the former spouses which is beneficial to the family.
The bill provides that a marriage may be dissolved based on irreconcilable differences, or severe and chronic unhappiness, of the spouses which shall have caused the irreparable breakdown of the marriage. However, it does not expound, clarify, and list the grounds of what constitutes severe and chronic unhappiness.
One or both parties may file a petition for dissolution of marriage on either of the grounds mentioned in the preceding paragraph together with a joint plan for parenthood over their common children in cases of a joint petition.
This joint plan must provide for the support, parental authority, custody, and living arrangements of the common children. In the absence thereof, the Court shall determine the best parenthood plan that will protect the rights and interests of the common children.
House Bills No. 7303, 116, 1062, and 2380
In February 28, 2018, the Committee on Population and Family Relations submitted before the same Congress House Bill No. 7303, “An Act Instituting Absolute Divorce and Dissolution of Marriage in the Philippines” in substitution of the aforementioned bill and House Bills numbered 116, 1062, and 2380 which refers to instituting absolute divorce, prescribing additional ground for annulment, and amending and repealing selected articles under the Family Code, respectively.
This bill defines absolute divorce as the separation between married couples that is total and final where the husband and wife return to their status of being single with the right to contract marriage again.
It provides for the grounds on the grant of an absolute divorce decree to include the grounds for legal separation and annulment of marriage under the Family Code, separation in fact for at least five (5) years, legal separation by judicial decree for at least two (2) years, psychological incapacity, gender reassignment surgery, irreconcilable differences, and joint petition of spouses. It also provides priority for OFWs with respect to court hearings.
One of the key provisions of this bill is to ensure inexpensive and affordable court proceedings in securing an absolute divorce decree. It also intends to protect the children from the pain and stress resulting from their parent’s marital problems.
Dissolution of Marriage vs. Divorce
Dissolution of marriage and divorce both mean the same which is to terminate or end marriage permanently. With divorce yet to be legalized in the Philippines, this explains the House Bills, mentioned in the preceding paragraphs, filed before the Congress.
In Connecticut, U.S.A., dissolution of marriage is a legal term for divorce (CTLawHelp.org). However, in few States, a dissolution of marriage is not the same as a divorce because it does not permanently terminate marital status or because it can only be used for certain cases (DivorceNet).
In the Philippines, as discussed in House Bill Nos. 6027 and 7303, dissolution of marriage and divorce differs on the grounds on which the petition may be filed.
House Bill No. 6027 provides that the basis for the dissolution of marriage is irreconcilable differences, or severe and chronic unhappiness, of the spouses resulting in the irreparable breakdown of the marriage.
House Bill No. 7303, on the other hand, lists the grounds for divorce such as:
- The grounds for legal separation and annulment of marriage under the Family Code,
- Separation in fact for at least five (5) years
- Legal separation by judicial decree for at least two (2) years
- Psychological incapacity
- Gender reassignment surgery
- Irreconcilable differences, which is the ground for a dissolution of marriage and joint petition of spouses
Does divorce nullify the last will and testament?
In Philippine law, as we have stated, we have no divorce, except under Article 26 par. 2 of the Family Code. In the law of succession in the Philippines, the intention, will, option, and choice of the testator are of paramount consideration, subject of course to the laws on legitime.
Hence, since the Philippines does not recognize divorce, any provision in the will of one or both spouses in their respective favors will not necessarily result in revocation by reason of such “divorce”, unless there is a clear condition in the will to the contrary, without prejudice to the application of the law on succession for that matter.
A divorce does not nullify last will and testament. In most States in the U.S.A. wherein divorce is legalized, if an individual was granted a divorce after making a last will and testament, any provision that specifically benefits the spouse will be revoked but the last will and testament remains to be valid.
For example, if the testator left his/her entire estate to the estranged spouse, and left their children as alternate beneficiaries, the last will and testament will continue to be valid, however, the provision benefitting the former spouse will be nullified. Therefore, the estate will pass to their children.
The California Probate Code provides that unless the will expressly states otherwise, if after executing a will the testator’s marriage is dissolved or annulled, the dissolution or annulment revokes … any disposition or appointment of property made by the will to the former spouse.
Action for Declaration of Nullity of Marriage: Imprescriptible
Settled is the rule now that an action or defense based on the absolute nullity of marriage is imprescriptible, pursuant to Article 39 of the Family Code which provides that the action for the declaration of absolute nullity of marriage shall not prescribe.
The reason for the non-prescription for an action on the declaration of nullity of marriage is that a judicial decree of nullity of marriage does not legally dissolve a marriage because the same is void from the beginning, or in other words, non-existent, hence, cannot be dissolved. The judicial decree only declares the marriage as void or its incipient validity.
Nullity of Marriage: Final Judgment is Required for Purposes of Remarriage
For an ex-wife or husband to validly remarry another individual, there must be a final judgment from a competent court [within Philippine Jurisdiction] that the previous marriage has been declared null and void.
The invocation thereof for purposes of remarriage is expressly mandated and recognized under Article 40 of the Family Code. Hence, no subsequent marriage may validly be celebrated unless and until the first void marriage has been judicially declared void.
Therefore, the declaration of nullity of marriage by a competent court shall now be the remedy of the aggrieved party involved in a void marriage and a condition precedent in case one or both of them desire to marry another person again.
As mentioned, the final judgment in the declaration of nullity of marriage under Article 40 of the Family Code applies to marriages which are void from the beginning or void ab initio.
To briefly discuss a void marriage, these marriages are invalid even from its inception, mainly rooted from the absence of any of essential or formal requisites as provided for by Articles 2 and 3 of the Family Code.
In accordance with the applicability of the declaration of nullity of marriage, Article 35 of the Family Code enumerates the marriages which are also void in the beginning. Also presented in the table above, they are as follows:
- Those contracted by any party below eighteen years of age even with the consent of parents or guardians, as such are declared by law as not possessing the legal capacity to contract marriage;
- 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, as the solemnizing officer has no authority to do so;
- Those solemnized without license, since a marriage license is a formal requisite of a valid marriage;
- Those bigamous or polygamous marriages not falling under Article 41 of the same Code; since the law prohibits any person from contracting another marriage;
- Those contracted through mistake of one contracting party as to the identity of the other, as there is an absence of consent and mistake in identity is an instance of fraud;
- Those subsequent marriages that are void as provided by Article 53 because they did not comply with the requirements of Article 52 which is having recorded in the appropriate civil registry and registries of property the judgment of annulment or of absolute nullity of marriage, the partition and distribution of the properties of the spouses, and the delivery of the children’s presumptive legitimes;
- Marriages contracted by any party who was psychologically incapacitated to comply with the essential marital obligations;
- Incestuous marriages, whether the relationship between the parties be legitimate or illegitimate; and
- Marriages which are void by reason of public policy, as provided by Article 38.