Annulment, Divorce and Legal Separation in the Philippines: Questions and

Answers
Published by Atty. Fred January 11th, 2007 in Annulment and Legal Separation. 320 Comments
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There are many questions relating to annulment and divorce in the Philippines, and many
of the concerns of our readers had already been addressed in previous articles.
Nevertheless, to consolidate everything for everyone’s easy reference, here are the FAQs on
annulment and divorce in the Philippines:

Is divorce allowed under Philippine laws?

No, divorce is not allowed in the Philippines. However, there are certain instances wherein
the divorce secured abroad by the foreigner-spouse, and even by former Filipinos, are
recognized under Philippine laws. More discussion here (Judicial Recognition of a Foreign
Divorce Decree).

Would it make any difference if I marry abroad where divorce is allowed?

No. Filipinos are covered by this prohibition based on the “nationality principle”, regardless of
wherever they get married (and regardless where they get a decree of divorce). Discussions
relating to Overseas Filipinos or OFWs are transferred in Part V.

Is “annulment” different from a “declaration of nullity” of marriage?

Yes. In essence, “annulment” applies to a marriage that is considered valid, but there are
grounds to nullify it. A “declaration of nullity” of marriage, on the other hand, applies to
marriages that are void or invalid from the very beginning. In other words, it was never valid
in the first place.

Also, an action for annulment of voidable marriages may prescribe, while an action for
declaration of nullity of marriage does not prescribe.

So, if a marriage is void from the very beginning (void ab initio), there’s no need to file
anything in court?

For purposes of remarriage, there must be a court order declaring the marriage as null and
void. Entering into a subsequent marriage without such court declaration means that: (a) the
subsequent marriage is void; and (b) the parties open themselves to a possible charge of
bigamy.

What if no marriage certificate could be found?

Justice Sempio-Dy, in the “Handbook of on the Family Code of the Philippines” (p. 26, 1997
reprint), says: “The marriage certificate is not an essential or formal requisite of marriage
without which the marriage will be void. An oral marriage is, therefore, valid, and failure of a
party to sign the marriage certificate or the omission of the solemnizing officer to send a copy
of the marriage certificate to the proper local civil registrar, does not invalidate the marriage.
Also the mere fact that no record of marriage can be found, does not invalidate the marriage
provided all the requisites for its validity are present.” (Citations omitted)

Can I file a petition (annulment or declaration of absolute nullity of marriage) even if I

am in a foreign country?

Yes, the rules recognize and allow the filing of the petition by Filipinos who are overseas.

What are the grounds for annulment?

1. Lack of parental consent in certain cases. If a party is 18 years or over, but below 21, and
the marriage was solemnized without the consent of the parents/guardian. However, the
marriage is validated if, upon reaching 21, the spouses freely cohabited with the other and
both lived together as husband and wife.

2. Insanity. A marriage may be annulled if, at the time of marriage, either party was of
unsound mind, unless such party after coming to reason, freely cohabited with the other as
husband and wife.

3. Fraud. 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. Fraud includes: (i) non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral turpitude; (ii) concealment by the wife
of the fact that at the time of the marriage, she was pregnant by a man other than her
husband; (iii) concealment of sexually transmissible disease or STD, regardless of its nature,
existing at the time of the marriage; or (iv) concealment of drug addiction, habitual alcoholism
or homosexuality or lesbianism existing at the time of the marriage. However, 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.

4. Force, intimidation or undue influence. If the consent of either party was obtained by any of
these means, except in cases wherein the force, intimidation or undue influence having
disappeared or ceased, the complaining party thereafter freely cohabited with the other as
husband and wife.

5. Impotence. At the time of marriage, either party was physically incapable of consummating
the marriage with the other, and such incapacity continues and appears to be incurable.
Impotence is different from being infertile.

6. STD. If, at the time of marriage, either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable. If the STD is not serious or is
curable, it may still constitute fraud (see No. 3 above).

What if a spouse discovers that his/her spouse is a homosexual or is violent, can

he/she ask for annulment?

Homosexuality or physical violence, by themselves, are not sufficient to nullify a marriage. At

the very least, however, these grounds may be used as basis for legal separation.

How is “legal separation” different from annulment?

The basic difference is this – in legal separation, the spouses are still considered married to
each other, and, thus, may not remarry.

Is legal separation faster than annulment?

Not necessarily. The petitioner in a legal separation, just like in an annulment, is still required
to prove the allegations contained in the petition. More important is the mandatory 6-month
“cooling off” period in legal separation cases. This is not required in annulment or declaration
of nullity cases. The court is required to schedule the pre-trial conference not earlier than six
(6) months from the filing of the petition. This period is meant to give the spouses an
opportunity for reconciliation.

What are the grounds for legal separation?

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.

The term “child” shall include a child by nature or by adoption.

Should I file a petition for legal separation, can I use my own sexual infidelity as a
ground?

It is interesting to note that among the grounds for legal separation, as listed above, only
“sexual infidelity or perversion” is not qualified by the phrase “of the respondent” or “by
respondent”. This may give the impression that the sexual infidelity of the petitioner, or the
one who filed the petition, may be used as a ground in legal separation. We must consider,
however, that legal separation is filed by the innocent spouse or the “aggrieved party” against
the guilty spouse.

What happens if after learning that your husband (or wife) is unfaithful (No. 8 above),
you still co-habitate with him/her?

This may be construed as condonation, which is a defense in actions for legal separation. In
addition to condonation, the following are the defenses in legal separation:

1. Consent.
2. Connivance (in the commission of the offense or act constituting the ground for legal
separation).
3. Mutual guilt (both parties have given ground for legal separation).
4. Collusion (to obtain decree of legal separation).
5. Prescription (5 years from the occurence of the cause for legal separation).

If you’re separated from your spouse for 4 years, is that a sufficient ground for
annulment?

No. De facto separation is not a ground for annulment. However, the absence of 2 or 4 years,
depending on the circumstances, may be enough to ask the court for a declaration of
presumptive death of the “absent spouse”, in which case the petitioner may again re-marry.
See Can someone remarry without going to court due to absence or separation?

What are the grounds for declaration of nullity of marriage?

1. Minority (those contracted by any party below 18 years of age even with the consent of
parents or guardians).

2. Lack of authority of solemnizing officer (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).

3. Absence of marriage license (except in certain cases).

4. Bigamous or polygamous marriages (except in cases where the other spouse is declared
as presumptively dead).

5. Mistake in identity (those contracted through mistake of one contracting party as to the
identity of the other).

6. After securing a judgement of annulment or of asolute nullity of mariage, the parties, before
entering into the subsequent marriage, failed to record with the appropriate registry the: (i)
partition and distribute the properties of the first marriage; and (ii) delivery of the children’s
presumptive legitime.

7. Incestous marriages (between ascendants and descendants of any degree, between

brothers and sisters, whether of the full or half blood).

8. Void by reason of public policy. Marriages between (i) collateral blood relatives whether
legitimate or illegitimate, up to the fourth civil degree; (ii) step-parents and step-children; (iii)
parents-in-law and children-in-law; (iv) adopting parent and the adopted child; (v) surviving
spouse of the adopting parent and the adopted child; (vi) surviving spouse of the adopted
child and the adopter; (vii) an adopted child and a legitimate child of the adopter; (viii)
adopted children of the same adopter; and (ix) parties where one, with the intention to marry
the other, killed that other person’s spouse, or his or her own spouse.

9. Psychological Incapacity. Psychological incapacity, which a ground for annulment of

marriage, contemplates downright incapacity or inability to take cognizance of and to assume
the basic marital obligations; not a mere refusal, neglect or difficulty, much less, ill will, on the
part of the errant spouse. Irreconcilable differences, conflicting personalities, emotional
immaturity and irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or
perversion, and abandonment, by themselves, also do not warrant a finding of psychological
incapacity. We already discussed the guidelines and illustrations of psychological incapacity,
including a case involving habitual lying, as well as the steps and procedure in filing a
petition.

Please note, however, that there are still other grounds to declare a marriage as null and
void.