Annulment of first marriage

By Persida Acosta
December 3, 2021

Dear PAO,
My cousin wants to marry his girlfriend. They have been dating
only for a few months, but he said that he is really into her. The
thing is, he is already married since 2003, though he and his
wife have been living their separate lives for five years now. His
plan is to marry his girlfriend early next year and thereafter seek
for the nullity of their marriage. According to him, his wife was
16 years old when they got married; it was only made to appear
that she was 18 at the time so they can get married since she
was already pregnant. Do you think he can validly marry his
girlfriend?|
Basti

Dear Basti,
One of the essential requisites to a valid marriage under our
laws is the legal capacity of the contracting parties who must be
a male and a female. They must be 18 years old or upwards
and not under any of the legal impediments. (Article 2 (1) and
Article 5, Family Code of the Philippines). Absent any of the
essential or formal requisites set under our laws shall render the
marriage void ab initio, except marriages stated in Article 35 (2)
of the Family Code of the Philippines. (Article 4, Id.)
In the situation of your cousin and his wife, there is a lacking
essential requisite, that is, the legal capacity of the latter
considering that she was only 16 years old at the time of the
celebration of their marriage. The fact that one of the parties is
a minor can be used as a basis for the nullification of such
marriage. Pursuant to Article 35 of the said law:
"Art. 35. The following marriages shall be void from the
beginning:
"(1) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians; x x x"
Nevertheless, it bears stressing that your cousin cannot just
marry yet his girlfriend given that, in the eyes of our laws, he is
still married. There may be a basis for the nullification of their
marriage, but he must first obtain a final judgment declaring
said marriage void. It is expressly provided for under Article 40
of the Family Code of the Philippines that:
"Art. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void." (Emphasis
supplied)
The law is clear that the existing marriage must be nullified first
by the court before one or both of the parties to said marriage
may enter into another marriage. It cannot be the other way
around, that is, a party who is still married contracting a
subsequent marriage then obtaining a decree nullifying his/her
marriage. To do the latter would make said party liable for the
crime of bigamy.
Furthermore, filing a Petition for Declaration of Absolute Nullity
of Marriage after contracting a subsequent marriage knowing
fully well that he is still married will not justify anything. It will
only demonstrate that such petition is just a mere afterthought,
either as an attempt to appease his girlfriend by making
everything seems legal when it is really not or so as to avoid his
prosecution for bigamy later on.
Accordingly, what your cousin should do is to first obtain a
decree from court nullifying his existing marriage, and thereafter
marry his girlfriend.

Psychological incapacity
By Persida Acosta
October 15, 2021
Dear PAO,
Gina's marriage was declared void by the court. She is
encouraging me to file a case for the dissolution of my marriage
with my estranged husband. According to her, she presented a
psychologist who interviewed her and her children to support
her case and the same was successful. She claims that if I
follow what she had done in her case, then there is a guarantee
that I will obtain a favorable decision. Please guide me on this
matter.
Ahmina

Dear Ahmina,
Psychological incapacity is indeed one of the grounds for the
declaration of nullity of marriage. This is supported by the
provision of Article 36 of the Family Code of the Philippines,
which states that:
"A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with
the essential marital obligations of marriage, shall likewise be
void even if such incapacity becomes manifest only after its
solemnization."
However, please be advised that the testimony of an expert
witness (psychologist) alone is not the sole basis of the court in
declaring any of the parties to the marriage psychologically
incapacitated. In fact, the Supreme Court said in one case
entitled Republic of the Philippines vs Tobora-Tionglico (G.R.
218630, Jan. 11, 2018, Ponente: former associate justice Noel
G. Tijam) that:
"To make conclusions and generalizations on a spouse's
psychological condition based on the information fed by only
one side, as in the case at bar, is, to the Court's mind, not
different from admitting hearsay evidence as proof of the
truthfulness of the content of such evidence."
Thus, the report of the psychologist that is based on the
information of one side alone is just like admitting hearsay
evidence.
Further, there is no guarantee that the court will grant your
petition even if you follow Gina's advice. Every case is different
and this finds support in the decision of the Supreme Court in
the case of Castro vs Castro (G.R. 210548, March 2, 2020),
where the Supreme Court speaking through former Associate
Justice Jose C. Reyes Jr., stated that:
"Petitioner's invocation of the case of Camacho-Reyes v Reyes,
wherein this Court gave credence to the Report of the expert
witnesses despite the lack of personal examination as regards
the respondent fails. In fact, in said case, this Court warned that
each case must be decided depending on the set of facts, to
wit:
Each case must be judged, not on the basis of a priori
assumptions, predilections or generalizations but according to
its own facts. In the field of psychological incapacity as a ground
for annulment of marriage, it is trite to say that no case is on "all
fours" with another case. The trial judge must take pains in
examining the factual milieu and the appellate court must, as
much as possible, avoid substituting its own judgment for that of
the trial court."
Applying the above-cited decision in your situation, each case
must be judged according to its own facts and it should not be
based on priori presumptions, predilections or generalizations.
No case is on "all fours" with another case. Thus, the facts of
each case must be examined to determine the existence of
psychological incapacity as a ground for declaration of nullity of
marriage.

Psychological incapacity as ground

for annulment
By Persida Acosta
February 9, 2021

Dear PAO,
I met my Swiss husband through a dating website. He was well-
educated, sweet, thoughtful and, of course, very handsome. I was
easily drawn to him and his charms. Just months after constant
chatting and video calls, he agreed to fly to the Philippines for us to
personally meet and get married. However, as we got to spend more
time together, his personality drastically changed. He became hot-
tempered, wasted money on gambling, drank with friends and
neglected me. I want to have our marriage declared null and void
because of these, but I am not sure if it will prosper based on my
reasons.
Elaine

Dear Elaine,
It would appear that you may be thinking of annulment of marriage
based on psychological incapacity. If that would be the case, we have
to state that for psychological incapacity under Article 36 of the Family
Code of the Philippines to be a valid ground for nullity of marriage, it
“must be characterized by (a) gravity, (b) juridical antecedence, and
(c) incurability,” as stated in Espina-Dan vs Dan (GR 209031, April 16,
2018, Ponente: Associate Justice Mariano del Castillo). Further, the
said case continued with the following explanation:
“The incapacity must be grave or serious such that the party would be
incapable of carrying out the ordinary duties required in marriage; it
must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after marriage;
and it must be incurable or, even if it were otherwise, the cure would
be beyond the means of the party involved. Finally, the burden of
proving psychological incapacity is on the petitioner. x x x ‘Indeed, the
incapacity should be established by the totality of evidence presented
during trial, making it incumbent upon the petitioner to sufficiently
prove the existence of the psychological incapacity.’
“‘Psychological incapacity,’ xxx should refer to no less than a mental
— not merely physical — incapacity that causes a party to be truly
incognitive of the basic marital covenants xxx as so expressed in
Article 68 of the Family Code, xxx include their mutual obligations to
live together, observe love, respect and fidelity and render help and
support. xxx the intendment of the law has been to confine the
meaning of ‘psychological incapacity’ to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or
inability to give meaning and significance to the marriage.” (Ibid.)
In the above-mentioned case, which involves facts similar to your
situation, the court agreed with the trial and appellate courts in
dismissing the case:
“They held that while petitioner alleged such condition, she was
unable to establish its existence, gravity, juridical antecedence, and
incurability based solely on her testimony, which is insufficient, self-
serving, unreliable, and uncorroborated, as she did not know
respondent very well enough - having been with him only for a short
period of time; Dr. Tayag’s psychological report - which is practically
one-sided for the latter’s failure to include respondent in the study;
xxx” (Ibid.)
Given the foregoing and applying them to your situation, you may not
have enough reason to have your marriage declared null and void on
the ground of psychological incapacity.

Annulment of marriage
By Persida Acosta
May 5, 2020

Dear PAO,
My wife and I lived together for 15 years before marrying each other.
Just recently, we decided to live separately because of our constant
bickering and misunderstandings. This led to our decision to file for
annulment. Accordingly, we agreed upon the custody of our child and
made arrangements as to the family expenses. Meanwhile, I have
been in constant communication with my former girlfriend and been
thinking of marrying her in the future. Recently, when I was preparing
all the files needed for annulment, I noticed that we were not able to
obtain a valid marriage license. Thus, I’m wondering if I still need to
file for annulment.
Manny
Dear Manny,
To answer your question, we shall refer to the Family Code of the
Philippines, specifically Article 34 of the said law, which provides that:
“Art. 34. 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. The
contracting parties shall state the foregoing facts in an affidavit before
any person authorized by law to administer oaths. The solemnizing
officer shall also state under oath that he ascertained the qualifications
of the contracting parties are found no legal impediment to the
marriage.” (Emphases supplied)
Applying the said law in your situation, since you lived together as
husband and wife for 15 years, then your marriage is valid despite the
absence of a marriage license. An exception to the rule that a
marriage shall be void if solemnized without a marriage license under
Article 35 (3) is that provided for under Article 34 of the Family
Code. Moreover, it is also worthy to mention that constant bickering,
misunderstandings and living separately from each other are not
included in the enumeration of the grounds for annulment. Article 45 of
the said law provides:
“Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
“(1) 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;
“(2) That either party was of unsound mind, unless such party after
coming to reason, freely cohabited with the other as husband and
wife;
“(3) 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;
“(4) 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;
“(5) That either party was physically incapable of consummating the
marriage with the other, and such incapacity continues and appears to
be incurable; or
“(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable.”

Judgment of annulment
By Persida Acosta
February 7, 2020
Dear PAO,
My marriage was annulled by a court upon the instance of my
husband. This decision was rendered over a decade ago or sometime
in 2003. When I discovered the decision, I failed to interpose an
appeal then since I worked overseas. Nonetheless, I want to know
whether I can still question such order declaring my marriage void,
either through an appeal or through an annulment of such decision on
the ground of the court’s failure to acquire jurisdiction over my person
since I did not personally receive any summons whatsoever from the
court that rendered the decision.
Sula

Dear Sula,
The answer to your question is no. To elaborate this point, we shall
refer to a Supreme Court decision elucidating on the nature of an
annulment of marriage cases. Succinctly, in the case of Alba vs Court
of Appeals (GR 164041, July 29, 2005) penned by Associate Justice
Consuelo Ynares-Santiago, the high court said an annulment case is
deemed as an action in rem in which jurisdiction over the person of a
defendant is not required for a court to acquire jurisdiction and validly
hear the petition, viz:
“Whether or not the trial court acquired jurisdiction over the person of
petitioner and her minor child depends on the nature of private
respondent’s action, that is, in personam, in rem or quasi in rem. An
action in personam is lodged against a person based on personal
liability; an action in rem is directed against the thing itself instead of
the person. xxx Hence, petitions directed against the ‘thing’ itself or
the res, which concerns the status of a person, like a ‘xxx xxx xxx,’
annulment of marriage, as in the instant case, are actions in rem. xxx.
“In a proceeding in rem or quasi in rem, jurisdiction over the person of
the defendant is not a prerequisite to confer jurisdiction on the court,
provided that the latter has jurisdiction over the res. The service of
summons or notice to the defendant is not for the purpose of vesting
the court with jurisdiction but merely for satisfying the due process
requirements.”
You mentioned that you failed to receive any summons which to your
mind renders the decision void. We would like to lead your attention to
the provisions of AM 02-11-10-SC, otherwise known as the “Rule on
Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages,” which allows the service of summons through
publication, precisely, to emphasize its in rem proceeding nature.
Given that the service by publication is allowed, it also follows that the
lack of receipt in person of summons does not necessarily nullify the
court’s decision herein. After all, what only matters is that the court
should acquire jurisdiction in this case through the filing of the petition.
Given that the decision was rendered over a decade ago, definitely,
the decision is final.
The remedy of appeal would no longer be availing since Rule 41,
Section 3 of the Rules of Court provides that the appeal shall be taken
within 15 days from notice of the judgment or final order appealed
from. Similarly, the remedy of annulment of judgment under Rule 47
would also be unavailing since the imprescriptible nature of an
annulment of judgment case only applies to a void judgment. Here, to
recapitulate, the court validly acquired jurisdiction and thus, rendered
a valid judgment.

Void marriage
By Persida Acosta
January 27, 2020

Dear PAO,
I married my husband because I thought he was legally capacitated to
contract another marriage. I knew from the beginning that he was
married to Elisa; however, he presented to me a document showing
that his marriage was annulled by the religious sect where he
belongs. May I know if my marriage with my husband is valid?
Clinessy

Dear Clinessy,
For your guidance, please take note of the following definition of
marriage under Article 1 of the Family Code of the Philippines
(Executive Order 209):
“Marriage 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.”
Relative thereto, the following provisions of the same code may find
application in your situation:
“Article 2. No marriage shall be valid, unless these essential requisites
are present:
“1) Legal capacity of the contracting parties who must be a male or
female; and
“2) Consent freely given in the presence of the solemnizing officer
(Article 2, Family Code of the Philippines).
“Article 3. The formal requisites of marriage are:
“1) Authority of the solemnizing officer;
“2) A valid marriage license except in the cases provided for in
Chapter 2 of this Title; and
“3) A marriage ceremony which takes place with the appearance of
the contracting parties before the solemnizing officer and their
personal declaration that they take each other as husband and wife in
the presence of not less than two witnesses of legal age.” (Id.)
“Article 40. The absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void.” (Id.)
Based on the facts that you presented, it appears that there was a
legal impediment for your husband to contract another marriage since
he remains to be married to Elisa. Please be guided by the decision of
the court in the case of Tilar vs Tilar and the Republic of the
Philippines (GR 214529, July 12, 2017), where the Supreme Court,
through Chief Justice Diosdado Peralta, stated that:
“Thus, the contract of marriage is entered into by complying with the
requirements and formalities prescribed by law. The marriage of
petitioner and respondent, which was solemnized by a Catholic priest
and was held in a church was in accordance with the above-quoted
provisions. Although marriage is considered a sacrament in the
Catholic church, it has civil and legal consequences which are
governed by the Family Code. As petitioner correctly pointed out, the
instant petition only seeks to nullify the marriage contract between the
parties as postulated in the Family Code of the Philippines; and the
declaration of nullity of the parties’ marriage in the religious and
ecclesiastical aspect is another matter. Notably, the proceedings for
church annulment which is in accordance with the norms of Canon
Law is not binding upon the State as the couple is still considered
married to each other in the eyes of the civil law. Thus, the principle of
separation of the church and state finds no application in this case.”
Applying the above-cited decision in your situation, the annulment of
the marriage of your husband and Elisa, which is in accordance with
the proceedings provided by the religious sect where he belongs, is
not binding upon the state. Your husband remains to be validly
married to Elisa and he has no legal capacity to contract another
marriage with you. Thus, your marriage with your husband was
bigamous. A bigamous marriage is void from the beginning, and this is
in consonance with Article 35 (4) of the Family Code of the
Philippines.

Can a marriage be annulled on the basis

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By Persida Acosta

August 16, 2019

Dear PAO,

I was 18 years old when I married an American, who was 40 years my senior.

He promised to send me to school, buy me a big vacation house in the

Philippines, give my parents money to start a business and bring me to the

United States where we will live. He made it seem like he was really rich,

which convinced me to marry him so my family and I can have a better

future.

But, after our wedding here in the Philippines, my husband decided to spend

his retirement here. I told him that I wanted to go to the US, but he firmly

insisted on living here. I thought he would buy me a big house, but we live in

a rented condominium instead. He also didn’t give my parents money to start

a business. Of all the things he promised, he only fulfilled that of sending me

to school. I learned that my husband’s money was nearly gone. I think he

only sent me to college so I can support him when I start working. I feel like I

have been fooled. I want to file an annulment because of his

misrepresentation that he was rich and because he wasn’t able to fulfill most

of his promises to me. Can I file an annulment based on these? Do these

misrepresentation and unfulfilled promises constitute as fraud?

Pinky

Dear Pinky,

You cannot file a petition for annulment on the basis of your husband’s

misrepresentation that he is rich and the non-fulfillment of his promises.

Article 45 (3) of the Family Code of the Philippines states that “a marriage

may be annulled [when] the consent of either party was obtained by fraud” at
the time of the marriage. The concept of fraud as the basis to file an

annulment was further explained in Article 46 of the said law, which states

that:

“Article 46. Any of the following circumstances shall constitute fraud

referred to in Number 3 of the preceding Article:

“(1) Non-disclosure of a previous conviction by final judgment of the other

party of a crime involving moral turpitude;

“(2) Concealment by the wife of the fact that at the time of the marriage, she

was pregnant by a man other than her husband;

“(3) Concealment of a sexually transmissible disease, regardless of its nature,

existing at the time of the marriage; or

“(4) 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.” (Emphasis supplied.)

From the above, it is clear that only those enumerated in Article 46 of the

Family Code of the Philippines constitute as fraud to file a petition for

annulment. It further emphasized that no misrepresentation as to fortune

constitutes as fraud to warrant the filing of a petition for annulment of

marriage.
Thus, your husband’s misrepresentation that he is rich, and his unfulfilled

promises to buy you a big house, give money to your parents to start a small

business and to bring you to the US do not constitute as fraud that will give

you ground to file a petition for annulment of marriage.

Dissolution of marriage by a
religious sect does not bind the
state
By Persida Acosta
August 6, 2019

Dear PAO,
I married Juan in 1999 and we separated after two years. I never
heard from him since then, until I met Jake. I filed a petition for the
dissolution of my marriage with Juan before the religious sect, in
which we both belong, and the same was granted in 2004. In 2006, I
married Jake in a simple ceremony held by the same religious sect.
Jake died in 2018 and I tried to claim his death benefits with one of the
social insurance offices of the government, but the same was denied.
According to the agency concerned, my marriage with Jake was
bigamous; hence, I am disqualified as his beneficiary. I presented to
them the certification from my religious sect that my marriage with
Juan was already dissolved in 2004, so I was single when I married
Jake in 2006, but the said document is allegedly immaterial because
what they need is a court order. Is my marriage with Jake bigamous?
Tina

Dear Tina,
Your marriage with Jake is bigamous, considering that you contracted
a second marriage without filing a petition in court for the declaration
of nullity of your marriage with Juan. This is in consonance with Article
40 of the Family Code of the Philippines, which states that “the
absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of final judgment declaring such
previous marriage void.” A second marriage contracted prior to the
issuance of this declaration of nullity is thus considered bigamous and
void (Castillo vs Castillo, GR. 189607, April 18, 2016, ponente: Chief
Justice Maria Lourdes Sereno).
Regarding your social insurance benefits, you are not qualified as
Jake’s beneficiary because your marriage with him is void. This is in
accordance with Article 35 (4) of the Family Code of the Philippines,
which states that those bigamous or polygamous marriages not falling
under Article 41 of the said law are void marriages.
It is important to emphasize that your marriage with Juan was
dissolved in accordance with the process adopted by the religious
sect, where you and Juan belong. That is not, however, the annulment
that is required by law. You still need to file a petition for declaration of
nullity of marriage, which should have been filed before the
appropriate civil court. Please be guided by the decision in the case of
Tilar vs Tilar (GR 214529, July 12, 2017), where the Supreme Court,
through Associate Justice Diosdado Peralta, stated that:
“x x x. Notably, the proceedings for church annulment which is in
accordance with the norms of Canon Law is not binding upon the
State as the couple is still considered married to each other in the
eyes of the civil law. xxx”
Applying the above-cited decision in your situation, the dissolution of
your marriage with Juan through the religious sect is not binding upon
the state. Thus, you remained to be married with Juan, and your
marriage with Jake in 2006 is void ab initio for the simple reason that it
is bigamous. You are not qualified as Jake’s legal beneficiary, so the
denial of your claim with the social insurance is correct. Finally, “xxx a
marriage that is void ab initio is considered as having never to have
taken place and cannot be the source of rights” (Niñal vs Bayadog,
GR 133778, March 14, 2000, ponente: Associate Justice Consuelo
Ynares Santiago).

Homosexuality: Grounds for legal

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By Persida Acosta

July 8, 2019

Dear PAO,
I met my husband in 2015 at a hospital where we both worked as medical

clerks. I married him on March 21, 2016 despite his extraordinary closeness

to his male companions and the warnings I received from our office mates

that he is homosexual. After two years of living as husband and wife, I caught

him going to different gay bars every Friday night. I also saw him kissing

several guys on different occasions. I am now thinking of filing a petition to

annul our marriage. Can homosexuality be a ground for annulment of

marriage?

Deena

Dear Deena,

To answer your question, we shall refer to the provisions of the Family Code,

specifically Articles 55 and 57, which state:

“Article 55. A petition for legal separation may be filed on any of the

following grounds:

“(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; or

“(10) 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.

“Article 57. An action for legal separation shall be filed within five years

from the time of the occurrence of the cause. xxx”

However, it is concealment of homosexuality, which can be a ground for

annulment of marriage. The Supreme Court in the case of Manuel G. Almelor

vs The Hon. Regional Trial Court of Las Piñas City, Branch 254 and Leonida

T. Almelor (GR 179620, Aug. 26, 2008), through Associate Justice Ruben

Reyes stated:

“Even assuming, ex gratia argumenti, that Manuel is a homosexual, the lower

court cannot appreciate it as a ground to annul his marriage with Leonida.

The law is clear — a marriage may be annulled when the consent of either
party was obtained by fraud, such as concealment of homosexuality.

Nowhere in the said decision was it proven by preponderance of evidence

that Manuel was a homosexual at the onset of his marriage and that he

deliberately hid such fact to his wife. It is the concealment of homosexuality,

and not homosexuality per se, that vitiates the consent of the innocent party.

Such concealment presupposes bad faith and intent to defraud the other party

in giving consent to the marriage. Consent is an essential requisite of a valid

marriage. To be valid, it must be freely given by both parties. An allegation

of vitiated consent must be proven by preponderance of evidence. The

Family Code has enumerated an exclusive list of circumstances constituting

fraud. Homosexuality per se is not among those cited, but its concealment.

xxx To reiterate, homosexuality per se is only a ground for legal separation. It

is its concealment that serves as a valid ground to annul a marriage.

Concealment in this case is not simply a blanket denial, but one that is

constitutive of fraud. It is this fundamental element that respondent failed to

prove. Xxx Homosexuality and its alleged incompatibility to a healthy

heterosexual life are not sanctioned as grounds to sever the marriage bond in

our jurisdiction. At most, it is only a ground to separate from bed and board.”

(Emphases Supplied)

Applying the above-mentioned provisions and decision to your situation,

homosexuality cannot be a ground for annulment, but only for legal

separation. You married your husband despite being informed that he is

homosexual. Hence, there was no concealment of your husband’s

homosexuality at the time of your marriage.

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By Persida Acosta

May 7, 2019

Dear PAO,

My wife and I have been together for nine years. I was surprised that she

filed a petition for the annulment of our marriage when she alleged that I was

homosexual. Is this allegation enough to cut our marital ties?

Skippy

Dear Skippy,

The case of Manuel G. Almerol vs Regional Trial Court of Las Piñas and

Leonilda Almelor (GR 179620, Aug. 26, 2008, Ponente: Associate Justice

Ruben Reyes) clarified that sufficient proof is needed to substantiate that a

person is a homosexual.

The following was discussed in the said case:

“Even assuming, ex gratia argument, that Manuel is a homosexual, the lower

court cannot appreciate it as a ground to annul his marriage with Leonilda.

The law is clear: A marriage may be annulled when the consent of either

party was obtained by fraud, such as concealment of homosexuality.

Nowhere in the said decision was it proven by preponderance of evidence

that Manuel was a homosexual at the onset of his marriage and that he

deliberately hid such fact to his wife. It is the concealment of homosexuality,

and not homosexuality per se, that vitiates the consent of the innocent party.

Such concealment presupposes bad faith and intent to defraud the other party

in giving consent to the marriage.”

Clearly, mere allegation of homosexuality is not a sufficient ground to annul

a marriage. There must be proof to substantiate the allegation, and that there

was a deliberate concealment of such fact.

The Supreme Court, in the same case, added, “Homosexuality per se is only a

ground for legal separation [and it is] concealment that serves as a valid

ground to annul a marriage. Concealment in this case is not simply a blanket

denial, but one that is constitutive of fraud. It is this fundamental element that
respondent failed to prove.”

Fraud as ground for annulment

Read Next

Covid-19 vaccination updates

By Persida Acosta

February 3, 2019

Dear PAO,
My sister is having problems with her husband after discovering his dating

history before they got married. She has been married to him for two years,

but she only recently discovered his pre-marital dating history after talking to

his friends. This bothered my sister a lot because some of the women my

brother-in-law dated were her closest friends, including one of her teachers.

She feels like he defrauded her with his failure to inform her about his

previous relationships. This has caused her heartbreak and serious stress to

the point that she is thinking of annulling her marriage. She really wants to

sever her marital ties because of this fraud and dishonesty. Can she use this

kind of fraud as a legal ground to file a case for annulment? Thank you!

Lily

Dear Lily,

To address this question, we need to refer to the Family Code of the

Philippines which enumerates the kinds of fraud that can be used as a ground

to annul a marriage, to wit:

“Article. 46. Any of the following circumstances shall constitute fraud

referred to in Number 3 of the preceding Article:

“(1) Non-disclosure of a previous conviction by final judgment of the other

party of a crime involving moral turpitude;

“(2) Concealment by the wife of the fact that at the time of the marriage, she

was pregnant by a man other than her husband;

“(3) Concealment of sexually transmissible disease, regardless of its nature,

existing at the time of the marriage; or

“(4) 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.” (Emphasis supplied)

The different forms of fraud for purposes of annulment of marriage are

exclusively enumerated in the above cited provision. There is no mention of

failure to disclose previous relationships prior to the marriage as a form of

fraud. In fact, this provision specifically states that no other kind of

misrepresentation or deceit shall be considered as fraud for purposes of

annulment of marriage. Considering this, the fraud that your sister has in

mind with regard to her husband’s non-disclosure of his previous

relationships is not the kind of fraud allowed by law as a ground for

annulment.

This law is applied in a decision of the Supreme Court where it ruled against

using non-disclosure of dating history as a ground for annulment, to wit:

“Non-disclosure of a husband’s pre-marital relationship with another woman

is not one of the enumerated circumstances that would constitute a ground for

annulment; and it is further excluded by the last paragraph of the article,

providing that “no other misrepresentation or deceit as to ... chastity” shall

give ground for an action to annul a marriage. While a woman may detest

such non-disclosure of premarital lewdness or feel having been thereby

cheated into giving her consent to the marriage, nevertheless the law does not

assuage her grief after her consent was solemnly given, for upon marriage she

entered into an institution in which society, and not herself alone, is

interested”  (Anaya vs. Palaroan, GR L-27930, Nov. 26, 1970, Ponente:

Associate Justice JBL Reyes).

To reiterate, what your sister assumes as fraud is not the same kind of fraud

allowed by law to be a ground for annulment. Non-disclosure of his pre-

marital relationships, while detestable to your sister, does not amount to fraud

for purposes of annulling a marriage. The law is clear and exclusive on what
can be considered as fraud in relation to annulment of marriage. Thus, your

sister cannot invoke her husband’s pre-marital activities to annul her

marriage.

Abandonment of spouse ground for legal

separation
Read Next

Covid-19 vaccination updates

By Persida Acosta

December 8, 2018

Dear PAO,

I met my husband at the wedding of my sister in Tagaytay. We got married on

Feb. 14, 2012 and went to Paris for our honeymoon. I was surprised when he

started to change one year after our wedding. My husband became cold and

started to abuse me physically and emotionally. I likewise discovered his

relationships with different girls. I talked to him and begged him several

times to stop seeing other girls, but he never listened to me. He stopped going

home to our conjugal dwelling in October of 2016. I tried to search for him,

but my diligent efforts remained futile. I want to file a petition for annulment

of marriage since my husband had abandoned me. I am so confused. Please

help me. Thank you.

Miles

Dear Miles,

The grounds for annulment of marriage are those found under Article 45 of

the Family Code. In your case, there is no existing ground to annul your

marriage. Abandonment of spouse without justifiable cause for more than one

year is a ground for Legal Separation under Article 55 of the said law, which

states:

“Art. 55. A petition for legal separation may be filed on any of the following

grounds:

(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; or

(10) Abandonment of petitioner by respondent without justifiable cause for

more than one year.” (Emphasis supplied)

It appears based from the facts you have provided that your spouse

abandoned you since October 2016. In the case of Prima Partosa-jo vs. CA, et

al. (GR 82606, Dec. 18, 1992), the Supreme Court through Associate Justice

Isagani Cruz stated that “abandonment implies a departure by one spouse

with the avowed intent never to return, followed by prolonged absence

without just cause, and without in the meantime providing in the least for

one’s family although able to do so.” (Emphasis supplied)

Thus, you may only file a case for legal separation against your husband who

abandoned you. Once the decree of legal separation is granted by the Court,

you and your spouse shall be entitled to live separately from each other;

however, your marriage bond will not be severed.

Married person cannot just contract a

second marriage
Read Next

By Persida Acosta

November 12, 2018

Dear PAO,

I married Juan five years ago. When I obtained a certificate of no marriage

as a requirement to be submitted to his employer, I discovered that he has a

previous marriage with Dina in 2001. I confronted Juan and he said that he

never loved Dina and the marriage was pre-arranged by his parents and his

parents-in-law so it is void. I eventually forgave him and we continue to live

with each other. Suppose such first marriage of Juan will be declared void,

will it affect my marriage to him?

Benevie

Dear Benevie,
The general rule is bigamous or polygamous marriages not falling under

Article 41 of the Family Code of the Philippines shall be void from the

beginning. This is in accordance with Article 35 (4) of the same code.

In your case, the marriage you contracted with Juan is considered bigamous

marriage because the latter was legally married to Dina (his first wife). In the

case of Mercado vs. Tan (G.R. No. 137110, August 1, 2000), the Supreme

Court through Honorable former Chief Justice Artemio V. Panganiban

enumerated the elements of bigamy:

“The elements of this crime are as follows:

“1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her

spouse is absent, the absent spouse could not yet be presumed dead according
to the Civil Code;

3. That he contracts a second or subsequent marriage;

4. That the second or subsequent marriage has all the essential requisites for

validity.”
The above-enumerated elements of bigamy are all present in your marriage to

Juan. Before Juan can contract another marriage, he must obtain a court

decision declaring his marriage to Dina as void. This finds support under

Article 40 of the Family Code of the Philippines which states that “the

absolute nullity of a previous marriage may be invoked for purposes of

remarriage on the basis solely of a final judgment declaring such previous

marriage void.” In the case of Castillo vs. Castillo (G.R. No. 189607, April

18, 2016), the Supreme Court through Honorable former Chief Justice Maria

Lourdes P.A. Sereno stated:

“Marriage, a sacrosanct institution, declared by the Constitution as an

“inviolable social institution, is the foundation of the family;” as such, it

“shall be protected by the State.” In more explicit terms, the Family Code

characterizes it 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.” So crucial are marriage and the family to the

stability and peace of the nation that their “nature, consequences, and

incidents are governed by law and not subject to stipulation.” As a matter of

policy, therefore, the nullification of a marriage for the purpose of contracting

another cannot be accomplished merely on the basis of the perception of both

parties or of one that their union is so defective with respect to the essential
requisites of a contract of marriage as to render it void ipso jure and with no

legal effect - and nothing more. Were this so, this inviolable social institution

would be reduced to a mockery and would rest on very shaky foundations

indeed. And the grounds for nullifying marriage would be as diverse and far-

ranging as human ingenuity and fancy could conceive. For such a socially

significant institution, an official state pronouncement through the courts, and

nothing less, will satisfy the exacting norms of society. Not only would such

an open and public declaration by the courts definitively confirm the nullity

of the contract of marriage, but the same would be easily verifiable through

records accessible to everyone. (Emphases supplied).

Applying the above-cited decision in your situation, Juan cannot just contract

a second marriage because of his own perception that his first marriage is

void. Further, lack of love or pre-arrange marriages is not one of the grounds

for annulment or declaration of nullity of marriage.

Concealment of a love child no ground to

annul a marriage
Read Next

By Persida Acosta

September 6, 2018

Dear PAO,
I am Che, an OFW writing from Portland, Oregon. I got married to James, a

Filipino, in 2002 and we now have two kids. While I am here working, James

is taking care of our two wonderful kids back home in Marikina City.

Sadly, last year, I discovered from my relatives and friends that James had a

love child with a woman prior to our marriage. In fact, his illegitimate child

is older than our legitimate children. Although I know for a fact that James

never got married (his CENOMAR was clear of any indication of a previous

marriage), I want to have our marriage annulled because of his past sexual

relations with a different woman. I cannot believe that I was deceived for so

long, and I can’t take it anymore. What is the process for annulment in the

Philippines? Thank you.

Che

Dear Che,

While it is quite unfortunate to discover that your legal spouse of 16 years

fathered a child out of wedlock prior to your marriage, such fact alone cannot

be used to annul your marriage with him. Under Article 46 of the Family

Code of the Philippines, grounds for annulment are limited to as follows:

“Art. 46. Any of the following circumstances shall constitute fraud referred to

in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other

party of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she

was pregnant by a man other than her husband;

(3) Concealment of sexually transmissible disease, regardless of its nature,

existing at the time of the marriage;

(4) 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.”

In the above-quoted provision of law, there is no mention of concealment of a

prior child out of wedlock as a ground to annul a marriage.

In a nutshell, the concealment of the fact that James had a child with a

different woman prior to your marriage does not give rise to a ground for
annulment of your marriage. This conclusion is supported by the case of

Anaya vs. Palaroan (G.R. No. L-27930, November 26, 1970), where the

Supreme Court through Honorable former Associate Justice Jose Benedicto

Luna Reyes decided in this wise, to wit :

“Non-disclosure of a husband’s pre-marital relationship with another woman

is not one of the enumerated circumstances that would constitute a ground for

annulment; and it is further excluded by the last paragraph of the article,

providing that “no other misrepresentation or deceit as to ... chastity” shall

give ground for an action to annul a marriage. While a woman may detest

such non-disclosure of premarital lewdness or feel having been thereby

cheated into giving her consent to the marriage, nevertheless the law does not

assuage her grief after her consent was solemnly given, for upon marriage she

entered into an institution in which society, and not herself alone, is

interested.”

Accordingly, based on the law and jurisprudence cited above, it is therefore

clear that you cannot have your marriage with James annulled solely on

account of his supposed concealment of a love child. This conclusion,

however, may vary should other grounds enumerated under Article 46 of the

Family Code of the Philippines have been found to exist in your marriage as

well.
Divorce does not automatically apply on
Filipinos
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Covid-19 vaccination updates

By Persida Acosta

July 22, 2018

Dear PAO,

My brother and his longtime girlfriend married in 2005. They are both

registered nurses but my sister-in-law decided to migrate abroad, leaving my

brother here in the Philippines. Eventually, their relationship weakened and

they mutually agreed on separating. A few years after their separation, my

sister-in-law got a divorce abroad to which my brother simply acceded since

he knows that there is no possibility of reconciliation. Aside from the fact that

my sister-in-law already became a naturalized foreigner, she was in a new

relationship. Now, my brother is also thinking of working abroad and getting

married again. He wants to be declared as “single” again but he was told

that he needs to file a petition in court first before this can be possible;

otherwise, he is still considered “married” despite the divorce that his ex-

wife obtained abroad. Is this true? Please advise me on this matter.

Mikaela
Dear Mikaela,

At present, we do not have a law granting divorce in our country. Our civil

laws, particularly the Family Code of the Philippines (Executive Order 209),

only provides two ways to sever the marital vinculum, that is, by means of

declaration of absolute nullity of marriage and annulment of marriage. The

bases for these remedies are specifically enumerated under Articles 35, 36,

37, 38 and 45 of the Family Code.

Be that as it may, a divorce validly obtained abroad by a foreign citizen may

be given a binding effect in our jurisdiction, and thus, it will benefit the

Filipino spouse. As stated under Article 26 (2) of the said law:

“x x x 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.”

However, it bears stressing that the decree of divorce by itself does not sever

the marital vinculum insofar as the Filipino spouse is concerned and that it is

still necessary for the Filipino spouse to file before the court a petition for the

recognition of the foreign decree of divorce for it to have a binding effect on

said spouse.
Applying the foregoing to the situation of your brother, we submit that it is

necessary for him to file a petition for recognition of the decree of divorce

which was obtained by your sister-in-law abroad in order for our courts to

determine if there was indeed a divorce decree secured abroad and if such a

decree was obtained in consonance with the applicable foreign law. This is in

line with the ruling of our Supreme Court in the case of Garcia vs. Recio

(G.R. No. 138322, October 2, 2001, Ponente: Honorable former Chief Justice

Artemio V. Panganiban):

“A comparison between marriage and divorce, as far as pleading and proof

are concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens may

obtain divorces abroad, which may be recognized in the Philippines, provided

they are valid according to their national law. Therefore, before a foreign

divorce decree can be recognized by our courts, the party pleading it must

prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it. Presentation solely of the divorce decree is insufficient.”

Ultimately, the said remedy will confer upon your brother not only the right

to revert to his status as “single” but also such other pertinent civil rights.

Getting out of a ‘shotgun marriage’

Read Next

Covid-19 vaccination updates

By Persida Acosta

May 2, 2018

Dear PAO,

My nephew was forced to marry his first girlfriend when the girl’s ultra-

conservative father allegedly caught them in a sexual act. According to my

nephew, he was threatened with mauling by the father and his girlfriend’s
male siblings who were all in the military. Out of fear, my nephew was

forced to marry his girlfriend in a civil wedding.

The intimidation and threats on my nephew continued even after their

wedding just to force him to make good with his commitment to be a

husband to his new wife. My nephew has been suffering greatly because of

this as he can’t stand both his new wife and her abusive family. Because of

this, we want to know if my nephew can have his marriage annulled for being

a victim of a ‘shotgun wedding’? I hope you can advise us on what we can do

about this. Thank you!

Juliebeth

Dear Juliebeth,
According to the Family Code of the Philippines, the consent freely given by

the parties during marriage is one of the essential requisites of a valid

marriage. When consent in marriage is obtained through force, intimidation

or undue influence, a ground to file a legal action for annulment of marriage

can exist. According to Article 45 of this law:

“Art. 45. A marriage may be annuled for any of the following causes,

existing at the time of the marriage:

xxx

(4) 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;

xxx” (Emphasis supplied).

The law states that there is intimidation when one of the contracting parties is

compelled by a reasonable and well-grounded fear of an imminent and grave

evil upon his person or property, or upon the person or property of his

spouse, descendants or ascendants, to give his consent (Article 1335, Civil

Code).
From your narration, it appears that your nephew’s consent to be married to

his girlfriend was forced through the intimidations of the relatives of his

girlfriend. If this is true, then there is a defect in the essential requisites in the

marriage of your nephew since his consent was derived from intimidation

instead of being freely given. This therefore makes his marriage voidable or

valid until annuled.

Note that a petition for annulment of marriage based on a vitiated consent

must be filed within five (5) years from the time the force, intimidation or

undue influence disappeared or ceased (Article 47[4], Family Code). An

action filed after this period will be barred by prescription.

Thus, considering the allegations of intimidation to obtain the consent of your

nephew in his marriage, you may advise him to file an appropriate petition

for annulment of marriage provided that it is supported by evidence and filed

within the aforementioned prescriptive period.

Divorced Filipino should file petition for

recognition of divorce before he can
marry anew
Read Next

By Persida Acosta

April 4, 2018
Dear PAO,

My boyfriend was married to a Canadian citizen. Their marriage did not work

out and eventually his wife obtained a divorce in Canada. She sent him a

copy of the divorce decree and he later learned that she married a US citizen.

Since their divorce, my boyfriend remained single. My boyfriend and I have

been in a relationship for three years now and we are planning to get married

by the end of this year. Can we pursue this without any legal glitch? Someone

told us that there might be a problem since my boyfriend and I are both

Filipino citizens, so the rules on divorce do not apply to us. But there are also

others who told us that we can just present the divorce papers that were given

to my boyfriend and “we’re good to go.” I hope you can enlighten us. Thank

you and more power.

Faustina

Dear Faustina,

Filipino citizens may only have their marriage dissolved through a petition

for absolute declaration of nullity of marriage or a petition for annulment of

marriage. The bases for these petitions are particularly mentioned under
Articles 35, 36, 37, 38 and 45 of Executive Order No. 209, otherwise known

as the Family Code of the Philippines.

It is worthy to note that the provisions mentioned above do not exclude the

possibility of the application of absolute foreign divorce, but only when it is

the foreign spouse who obtains a divorce decree abroad against their Filipino

spouse. In fact, Article 26 (2) of the Family Code recognizes divorce insofar

as it states that:

“x x x 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.”

Nonetheless, it must be emphasized that, in our jurisdiction, the decree of

divorce alone does not automatically capacitate the Filipino spouse to

remarry. It is essential for the Filipino spouse to file first before the court a

petition for the recognition of such foreign decree of divorce. In the case of

Ando vs. Department of Foreign Affairs (G.R. No. 195432, August 27, 2014,

Ponente: Honorable Chief Justice Maria Lourdes P.A. Serreno), which cited a

portion of the decision of the Supreme Court in Garcia vs. Recio (G.R. No.

138322, October 2, 2001, Ponente: Honorable former Chief JusticeArtemio

V. Panganiban) and Corpuz vs. Sta. Tomas (G.R. No. 186571, August 11,

2010, Ponente: Honorable former Associate Justice Arturo D. Brion),

explained the rationale of such petition:

“In Garcia v. Recio, we ruled that a divorce obtained abroad by an alien may

be recognized in our jurisdiction, provided the decree is valid according to

the national law of the foreigner. The presentation solely of the divorce

decree is insufficient; both the divorce decree and the governing personal law

of the alien spouse who obtained the divorce must be proven. Because our

courts do not take judicial notice of foreign laws and judgment, our law on

evidence requires that both the divorce decree and the national law of the

alien must be alleged and proven and like any other fact.

xxx

x x x Hence, any declaration as to the validity of the divorce can only be

made upon her complete submission of evidence proving the divorce decree

and the national law of her alien spouse, in an action instituted in the proper

forum.” (Emphasis supplied)

Accordingly, your boyfriend must first file before the court a petition for the

recognition of foreign decree of divorce. He must be able to establish both

the divorce decree as well as the governing national law of his alien spouse
so that the court may decide in his favor. Only when his petition is granted by

the court can he validly enter anew into a contract of marriage.

Parties aged between 18 and 21 need

parental consent to get married
Read Next

Covid-19 vaccination updates

 By Persida Acosta

March 22, 2018

Dear PAO,

My husband and I got married civilly. We were both only 20 years old at the

time and very much in love, at least that was what I thought. We did not tell

anyone about our marriage, except a couple of our closest friends, until after

a month from its celebration when we finally decided to move in together.

Sadly, our marriage did not work out and my husband decided to move out of

our condo unit. I just want to know if I can file for the annulment of our

marriage considering that my parents did not give their consent for me to get

married. Please advise me.

Anie

Dear Anie,
Parties who are both of legal age, that is 18 years or older, and not under any

of the impediments mentioned under the law have the capacity to enter into a

contract of marriage (Article 5, Family Code of the Philippines).

If, however, either or both of the parties are between the ages of 18 and 21,

their respective fathers, mothers, surviving parents or guardians or persons

having legal charge of them must signify in writing their consent to their

marriage. This is pursuant to Article 14 of the Family Code that provides:

“Art. 14. In case either or both of the contracting parties, not having been

emancipated by a previous marriage, are between the ages of eighteen and

twenty-one, they shall, in addition to the requirements of the preceding

articles, exhibit to the local civil registrar, the consent to their marriage of

their father, mother, surviving parent or guardian or persons having legal

charge of them, in the order mentioned. Such consent shall be manifested in

writing by the interested party, who personally appears before the proper

local civil registrar, or in the form of an affidavit made in the presence of two

witnesses and attested before any official authorized by law to administer

oaths. The personal manifestation shall be recorded in both applications for

marriage license, and the affidavit, if one is executed instead, shall be

attached to said applications.”

Corollary, a contract of marriage may be annuled when the above-mentioned

consent is absent. But we wish to emphasize that the petition for the

annulment of such marriage may only be instituted by the persons and under

the circumstances particularly mentioned under the code as well as within the

period mentioned therein. As provided under Articles 45 and 47 of the law:

“Art. 45. A marriage may be annuled for any of the following causes,

existing at the time of the marriage:

(1) 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; x x x

Art. 47. The action for annulment of marriage must be filed by the following

persons and within the periods indicated herein:

(1) For causes mentioned in number 1 of Article 45 by the party whose parent

or guardian did not give his or her consent, within five years after attaining

the age of twenty-one, or by the parent or guardian or person having legal

charge of the minor, at any time before such party has reached the age of

twenty-one; x x x”

Applying the foregoing to the situation that you have presented, we submit

that you may file a petition for the annulment of your marriage on the basis

that your parents did not give their consent to your marriage if after attaining

the age of 21, you did not freely cohabit with your husband and neither did

you both live together as husband and wife, and you must not be beyond the

age of 26 in order for the action to still be well within the five-year

prescriptive period mentioned under the law. Conversely, if you freely lived

together with your husband after turning 21 years old and if the five-year

period after turning the age of 21 has already lapsed, then you may no longer

pursue the filing of your desired petition in court.

Husband’s imprisonment not ground for

annulling marriage
Read Next

By Persida Acosta

February 8, 2018

Dear PAO,
I am a battered wife. Because of my husband’s maltreatment of me and our

daughter, I filed a criminal case, particularly for violation of Republic Act

(RA) 9262 or the Anti-Violence Against Women and their Children Act of

2004, against him. He was found guilty for the crime charged and sentenced

to be imprisoned. Three years have lapsed from the promulgation of

judgment against my husband, and he is still imprisoned. Considering the

circumstances that our marriage has suffered, can I file for the annulment of

my case based on the judgment by the court that I was a victim under RA

9262?

Thank you, Betchay

Dear Betchay,

A promulgation of judgment convicting your husband for violation of

Republic Act (RA) 9262 to suffer imprisonment is not a ground to annul your

marriage. Executive Order 209, as amended or the Family Code of the

Philippines, particularly Article 55, provides that a final judgment sentencing

the respondent to imprisonment is only a ground to file a petition for legal

separation.
“Art. 55. 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 child of the petitioner;

xxx;

xxx;

Final judgment sentencing the respondent to imprisonment of more than six

years, even if pardoned;

xxx”

Moreover, pursuant to the Family Code, specifically Articles 35, 36, 37 and
38, only the following circumstances are considered as valid grounds for the

annulment or declaration of absolute nullity of marriage, to wit: (i) either

party is below 18 years of age, even with the consent of parents or guardians;

(ii) marriage was solemnized by a person not legally authorized to perform

marriages, unless it was contracted with either or both parties believing in

good faith that the solemnizing officer had the legal authority to do so; (iii)

marriage was solemnized without license, except those allowed under the
law; (iv) bigamous or polygamous marriages not falling under Article 41; (v)

marriage was contracted through mistake of one contracting party as to the

identity of the other; (vi) subsequent marriages that are void under Article 53;

(vii) either party was psychologically incapacitated to comply with the

essential marital obligations of marriage at the time of the celebration of the

marriage; (viii) incestuous marriages; (ix) marriages which are void from the

beginning for reasons of public policy.

Articles 35, 36, 37 and 38 of the law are quoted below:

“Art. 35. The following marriages shall be 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 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) Those solemnized without license, except those covered by the preceding

chapter;
(4) Those bigamous or polygamous marriages not falling under Article 41;

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

identity of the other; and

(6) Those subsequent marriages that are void under Article 53.

“Art. 36. A marriage contracted by any party who, at the time of the

celebration, was psychologically incapacitated to comply with the essential

marital obligations of marriage, shall likewise be void even if such incapacity

becomes manifest only after its solemnization. (As amended by Executive

Order 227)

“Art. 37. Marriages between the following are incestuous and void from the

beginning, whether relationship between the parties be legitimate or

illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood. (81a)

“Art. 38. The following marriages shall be 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 a legitimate child of the adopter;

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

(9) Between parties where one, with the intention to marry the other, killed

that other person’s spouse, or his or her own spouse. (82)”

Applying the foregoing to your case, a judgment by the court sentencing your

husband to imprisonment for the violation of RA 9262 is not a ground for the
annulment of your marriage considering that the grounds provided by law for

the annulment of marriage are exclusive.

Legally annuling a marriage goes beyond

the ‘barangay’
Read Next

By Persida Acosta

December 11, 2017

Dear PAO,

My husband and I agreed to live our lives separately. We didn’t have any

children during our short time together as a married couple. We also agreed

before barangay (village) authorities to mutually and formally annul our

marriage and to let each other go already. I am in a new relationship now,

and my boyfriend at present and I are planning to get married. We applied

for a marriage license in our town but we were refused since I was still

married according to them despite the fact that I provided them with the copy

of my agreement with my ex-husband from our barangay about our

annulment years ago. Why don’t they allow us to marry again despite the

consent of my ex-husband to the annulment? What do you think, PAO?

Please give us an advice! God bless you!

Romancita
Dear Romancita,

It is important to understand that the law characterizes marriage as an

inviolable social institution whose nature, consequences and incidents are

governed by law and not subject to stipulations (Article 1, Title 1, Family

Code of the Philippines). As such, the procedure in both allowing and

dissolving a marriage is based on provisions of law, not on mere agreement

of the parties.

It takes more than just an agreement in the barangay to legally annul a

marriage. Annulment of a marriage requires filing of an appropriate petition

before the court and the conduct of a formal hearing therein to prove that

specific legal grounds to annul a marriage are present in a case. The court

will then ascertain and decide if requirements of law have been satisfied, and

only then can there be legal annulment of marriage.

On your intention to remarry and your attempt to apply for a marriage

license, it is only right for the civil registrar of your locality to disapprove

your application since applicants who were previously married are required

by law to furnish their office the judicial decree of annulment or declaration

of nullity of a previous marriage. (Article 13, Id.) Since there is no judicial

declaration of annulment or nullity of your previous marriage, the local civil

registrar cannot allow your application for a marriage license.

Should you insist on marrying your current partner despite having a legally

existing marriage, note that the law provides that any subsequent marriage

despite an existing prior marriage will make the subsequent marriage void

from the beginning. (Article 35(4), Id.) Thus, should you really desire to

marry your current partner, we advise you to file the necessary legal action to

judicially annul or nullify your current and existing marriage. Should you

obtain a judicial decree annulling or nullifying your existing marriage, then

you may legally remarry.

Annulment of marriage based on

psychological incapacity
Read Next
By Persida Acosta
December 7, 2017

Dear PAO,
My husband often plays computer games, such as League of
Legends, Defense of the Ancients, which is popularly known as
DOTA. If he’s not playing, he’s either sleeping or drinking alcohol with
friends at home. Since our marriage in 2014, I’ve been complaining
that he should find a decent job and that we should not be dependent
on his parents. He always ignores me whenever I bring up my issue
with him. I even bought him newspaper almost everyday but he told
me that the competition in big companies is tight and he has no
chance of getting the job. Moreover, he argued that he has no clothes
to wear during interviews. To inspire him, I bought him new clothes
needed for his interviews. Sometime later, he told me he already
found a job. Of course, I was overjoyed with the news he gave me.
Weeks after, however, I was informed that my husband had been
going to his mother when he was supposed to be at work. Thereafter,
I confronted him about the issue. He answered me honestly that the
rumors are true. He told me that he pretended to have work, so that I
would stop nagging him about applying for a job. Further, he argued
that his parents could support our needs for the family, especially the
education of our children.
I consulted a law student if there’s a way to annul our marriage. He
simply answered that I may file for the annulment of our marriage
based on psychological incapacity. Can you please enlighten me what
psychological incapacity is all about? Thank you.
Evelyn

Dear Evelyn,
Psychological incapacity as a ground for the annulment of marriage
may be found in Article 36 of Executive Order 209 or the Family Code
of the Philippines, to wit:
“Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization.”
It may be emphasized, however, that this law did not define the term
“psychological incapacity.” The Supreme Court, on the other hand,
enunciates in a long line of cases that psychological incapacity, as a
ground to nullify a marriage under Article 36 of the Family Code,
should refer to no less than a mental--not merely physical--incapacity
that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the
parties to the marriage which, as so expressed in Article 68 of the
Family Code, among others, include their mutual obligations to live
together; observe love, respect and fidelity; and render help and
support. There is hardly a doubt that the intent of the law has been to
confine the meaning of “psychological incapacity” to the most serious
cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the
marriage. Article 68 of the law provides:
“Art. 68. The husband and wife are obliged to live together; observe
mutual love, respect and fidelity; and render mutual help and support.”
Moreover, the Supreme Court in the case of Silvino A. Ligarde vs.
May Ascension A. Patalinghug, et al. (G.R. No. 168796, April 15,
2010; ponente, Associate Justice Jose Mendoza) stressed that
“[p]sychological incapacity required by Art. 36 [of the Family Code]
must be characterized by [a] gravity, [b] juridical antecedence and [c]
incurability. The incapacity must be grave or serious such that the
party would be incapable of carrying out the ordinary duties required in
marriage. It must be rooted in the history of the party antedating the
marriage, although the overt manifestations may emerge only after the
marriage. It must be incurable or, even if it were otherwise, the cure
would be beyond the means of the party involved.”
Thus, the intendment of the law is to confine the meaning of
psychological incapacity to the most serious cases of personality
disorders clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage. The Supreme Court
further explained in the case of Edward Kenneth Ngo Te vs. Rowena
Ong Gutierrez Yu-Te (G.R No. 161793, February 13, 2009; ponente,
former Associate Justice Antonio Eduardo Nachura) that “in dissolving
marital bonds on account of either party’s psychological incapacity,
the court is not demolishing the foundation of families but it is actually
protecting the sanctity of marriage, because it refuses to allow a
person afflicted with a psychological disorder, who cannot comply with
or assume the essential marital obligations, from remaining in that
sacred bond. It may be stressed that the infliction of physical violence,
constitutional indolence or laziness, drug dependence or addiction and
psychosexual anomaly are manifestations of a sociopathic personality
anomaly.”

Causes, period and party to file petition

for annulment of marriage
Read Next

By Persida Acosta

November 1, 2017

Dear PAO,

I want to file for the annulment of my marriage. I no longer want to live with

my husband but I just don’t want legal separation. I want our marriage to be

annulled. I was advised before by my friend that I cannot file for declaration

of nullity of marriage, so I might as well file for the annulment of my

marriage. I have been wanting to do this ever since our son was born. He is

now 8 years old. Please advise me on this matter.

Fatima

Dear Fatima,

You mentioned in your letter that you want to file a petition for the

annulment of your marriage. You, however, did not mention on what

ground/s you are basing the petition. It is essential to determine first the basis
for your petition as only grounds mentioned under the law can be recognized.

Pursuant to Article 45 of the Family Code of the Philippines, only the

following causes that are existing at the time of the marriage may serve as

bases for seeking the annulment of a marriage:

“(1) 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;

(2) That either party was of unsound mind, unless such party after coming to

reason, freely cohabited with the other as husband and wife;

(3) That the consent of either party was obtained by fraud, unless such party

afterward, with full knowledge of the facts constituting the fraud, freely

cohabited with the other as husband and wife;

(4) 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;

(5) That either party was physically incapable of consummating the marriage

with the other, and such incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found

to be serious and appears to be incurable.”

If any of the foregoing is applicable to your case, then you may utilize the

same as your cause for your petition. Nevertheless, it should be emphasized

that the petition may only be filed within the prescriptive period and by the

specific persons mentioned under the law, for even if you have a lawful basis

to seek such annulment, it may be rendered naught if it is filed beyond the

prescriptive period or by a person not authorized by law. It is explicitly stated

under Article 47 of the code:

“Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:

(1) For causes mentioned in number 1 of Article 45 by the party whose parent

or guardian did not give his or her consent, within five years after attaining

the age of twenty-one, or by the parent or guardian or person having legal

charge of the minor, at any time before such party has reached the age of

twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same spouse, who

had no knowledge of the other’s insanity; or by any relative or guardian or

person having legal charge of the insane, at any time before the death of

either party, or by the insane spouse during a lucid interval or after regaining

sanity;

(3) For causes mentioned in number 3 of Article 45, by the injured party,

within five years after the discovery of the fraud;

(4) For causes mentioned in number 4 of Article 45, by the injured party,

within five years from the time the force, intimidation or undue influence

disappeared or ceased;

(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured

party, within five years after the marriage.”

Marriage entered for the purpose of

acquiring citizenship is valid
Read Next

By Persida Acosta

September 18, 2017

Dear PAO,
I married an American citizen in 2010 in a simple ceremony solemnized by a

mayor in Metro Manila. Our real intention in contracting such marriage was

merely for convenience, because it would help me in my petition for

citizenship in her country. I paid her $3,000.00 for such arrangement. I must

admit that I was not successful in my application for citizenship in her

country; hence, I returned to the Philippines.

At present, I am living with someone whom I intend to marry; however, I

knew that my marriage with my alien wife will be a hindrance. Can I file a

case for annulment or declaration of nullity of my marriage since the said

marriage was merely contracted for the purpose of acquiring citizenship?

Andy

Dear Andy,

The marriage you contracted is valid as long as the essential and formal

requisites of marriage are present. The essential requisites of marriage are

found under Article 2 of the Family Code of the Philippines, to wit:

“1) Legal capacity of the contracting parties who must be a male or female;

and
2) Consent freely given in the presence of the solemnizing officer.”

The formal requisites under Article 3 of the same law are as follows:

“1) Authority of the solemnizing officer;

2) A valid marriage license except in the cases provided for in Chapter 2 of

this Title; and

3) A marriage ceremony which takes place with the appearance of the

contracting parties before the

solemnizing officer and their personal declaration that they take each other as

husband and wife in the presence of not less than two witnesses of legal age.”

In the case of Republic of the Philippines vs. Albios(G.R. No. 198780,

October 16, 2013), the Supreme Court through the Honorable Associate

Justice Jose C. Mendoza ruled that:

“The avowed purpose of marriage under Article 1 of the Family Code is for

the couple to establish a conjugal and family life. The possibility that the

parties in a marriage might have no real intention to establish a life together

is, however, insufficient to nullify a marriage freely entered into in

accordance with law. The same Article 1 provides that the nature,
consequences, and incidents of marriageare governed by law and not subject

to stipulation. A marriage may, thus, only be declared void or voidable under

the grounds provided by law. There is no law that declares a marriage void if

it is entered into for purposes other than what the Constitution or law

declares, such as the acquisition of foreign citizenship. Therefore, so long as

all the essential and formal requisites prescribed by law are present, and it is

not void or voidable under the grounds provided by law, it shall be declared

valid.

Motives for entering into a marriage are varied and complex. The State does

not and cannot dictate on the kind of life that a couple chooses to lead. Any

attempt to regulate their lifestyle would go into the realm of their right to

privacy and would raise serious constitutional questions. The right to marital

privacy allows married couples to structure their marriages in almost any way

they see fit, to live together or live apart, to have children or no children, to
love one another or not, and so on. Thus, marriages entered into for other

purposes, limited or otherwise, such as convenience, companionship, money,

status, and title, provided that they comply with all the legal requisites, are

equally valid. Love, though the ideal consideration in a marriage contract, is

not the only valid cause for marriage. Other considerations, not precluded by

law, may validly support a marriage.” (Emphasis supplied)

Applying the said decision in your situation, the marriage you contracted is

valid regardless of the intention of the contracting parties. Marriage for

convenience is not one of the grounds provided by the Family Code of the

Philippines to annul or declare your marriage as null and void.

Spouse’s infidelity: Grounds for

annulling marriage
Read Next

By Persida Acosta

August 22, 2017

Dear PAO,

I am an overseas Filipino worker (OFW). I was married in 200, and my wife

and I lived together until 2005. In 2006, I went abroad to work as an OFW

but, when I came back, I discovered that my wife cheated on me with another

man and had a child with him. I am now separated from her and I want to

have my marriage annulled. Thank you. God bless!

Nathan

Dear Nathan,
A marriage may only be nullified or annulled by filing a Petition for

Declaration of Nullity of Marriage or Petition for Annulment of Marriage, as

the case may be, in accordance with the specific grounds enumerated under

the Family Code.

The grounds for filing a Petition for Declaration of Absolute Nullity of

Marriage, which shall sever the marital vinculum, are provided under Articles

35, 36, 37 and 38 of the Family Code, viz:

“Art. 35. The following marriages shall be 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 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) Those solemnized without license, except those covered by the preceding

chapter;

(4) Those bigamous or polygamous marriages not falling under Article 41;
(5) Those contracted through mistake of one contracting party as to the

identity of the other; and

(6) Those subsequent marriages that are void under Article 53.

Art. 36. A marriage contracted by any party who, at the time of the

celebration, was psychologically incapacitated to comply with the essential

marital obligations of marriage, shall likewise be void even if such incapacity

becomes manifest only after its solemnization.

Art. 37. Marriages between the following are incestuous and void from the

beginning, whether relationship between the parties be legitimate or

illegitimate:

(1) Between ascendants and descendants of any degree; and

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

Art. 38. The following marriages shall be 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 a legitimate child of the adopter;

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

(9) Between parties where one, with the intention to marry the other, killed

that other person’s spouse, or his or her own spouse.”

On the other hand, a Petition for Annulment of Marriage must be based on

the grounds enumerated under Articles 45 and 46 of the same code, to wit:

“Art. 45. A marriage may be annulled for any of the following causes,

existing at the time of the marriage:

(1) 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;

(2) That either party was of unsound mind, unless such party after coming to

reason, freely cohabited with the other as husband and wife;

(3) That the consent of either party was obtained by fraud, unless such party

afterward, with full knowledge of the facts constituting the fraud, freely

cohabited with the other as husband and wife;

(4) 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;

(5) That either party was physically incapable of consummating the marriage

with the other, and such incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found

to be serious and appears to be incurable.

Art. 46. Any of the following circumstances shall constitute fraud referred to

in Number 3 of the preceding article:

(1) Non-disclosure of a previous conviction by final judgment of the other

party of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she

was pregnant by a man other than her husband;

(3) Concealment of sexually transmissible disease, regardless of its nature,

existing at the time of the marriage; or

(4) 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.”

It is very clear from the aforementioned provisions of laws, that sexual

infidelity of a spouse is not a legal ground for filing either a Petition for

Declaration of Nullity of Marriage or a Petition for Annulment. Otherwise

stated, the sexual infidelity of your spouse will not render your marriage void
or voidable and is therefore insufficient to cause the severance of the marital

vinculum.

Thus, the alleged sexual infidelity of your spouse is not enough to cause the

nullification or annulment of your marriage with her. If, however, there were

certain details that you failed to mention, which may give rise to grounds for

the filing of either a Petition of Declaration of Nullity of Marriage or Petition

for Annulment of Marriage, and you still wish to file the same, you will need

the assistance of a lawyer.

Legally annuling a marriage beyond the

‘barangay’
Read Next

By Persida Acosta

August 11, 2017

Dear PAO,

My husband and I agreed to live our lives separately. We didn’t have any

children during our short time together as a married couple. We had an

agreement in the barangay (village) that we mutually agree to formally annul

our marriage on that day, and to let each other go already. I am in a new

relationship now, and my current boyfriend and I are planning to get married.

We applied for a marriage license in our town, but we were refused since I
was still married according to them despite the fact that I provided them with

the copy of my agreement with my ex-husband from our barangay about our

annulment years ago. Why don’t they allow us to marry again despite the

consent of my ex-husband on our annulment? I need your advice.

Romancita

Dear Romancita,

The law characterizes marriage as an inviolable social institution whose

nature, consequences and incidents are governed by law, not subject to

stipulations (Article 1, Title 1, Family Code of the Philippines). As such,

procedure in both allowing and dissolving a marriage is based on provisions

of the law, not on mere agreement of the parties.

Thus, it takes more than just an agreement in the barangay to legally annul a
marriage. The annulment of a marriage requires filing of an appropriate

petition before the court and the conduct of a formal hearing therein to prove

that the specific legal grounds to annul a marriage is present in a case. The

court will then ascertain and decide if the requirements of law have been

satisfied, and only then can there be a legal annulment of marriage.

On your intention to remarry and your attempt to apply for a marriage

license, it is only right for the civil registrar of your locality to disapprove

your application since applicants who were previously married are required

by law to furnish their office the judicial decree of annulment or declaration

of nullity of a previous marriage. (Article 13, Id.) Since there is no judicial

declaration of annulment or nullity of your previous marriage, the local civil

registrar cannot allow your application for a marriage license.

Should you insist on marrying your current partner despite having a legally

existing marriage, the law provides that any subsequent marriage despite an

existing prior marriage will make the subsequent marriage void from the

beginning. (Article 35(4), Id.) Thus, should you really desire to marry your

current partner, we advise you to file the necessary legal action to judicially

annul or nullify your current and existing marriage. Should you obtain a

judicial decree annulling or nullifying your existing marriage, then you may
legally remarry.

Again, we find it necessary to mention that this opinion is solely based on the

facts you have narrated and our appreciation of the same. The opinion may

vary when the facts are changed or elaborated.

Grounds for filing annulment of
marriage are exclusive
Read Next

By Persida Acosta

May 12, 2017

Dear PAO,

I want to file for the annulment of my marriage since my wife and I have been

separated for 11 years now, and I am planning to open myself up again to the

possibility of having a new relationship with someone whom I can grow old

with. I just want to know if this is possible under our laws. Thank you and

more power.

Gabriel

Dear Gabriel,

It is explicitly provided under our laws that a marriage may be annulled only

on the following grounds, which must exist at the time of the marriage, to

wit:

“(1) 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;

(2) That either party was of unsound mind, unless such party after coming to

reason, freely cohabited with the other as husband and wife;

(3) 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;

(4) 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;

(5) That either party was physically incapable of consummating the marriage

with the other, and such incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found

to be serious and appears to be incurable.” (Article 45, Family Code of the

Philippines)
Taking the foregoing into consideration, we submit that the mere fact that

you have been separated from your wife for 11 years now is not enough basis

to have your marriage annulled. You must be able to anchor your desired

petition on one of the causes aforementioned.

Furthermore, we wish to emphasize that there is a prescribed period for filing

a petition for annulment of marriage in court and it may only be done by the

persons specifically mentioned under the law. As stated under Article 47 of

the Family Code, if the ground for the annulment of marriage is the lack of

consent of the parents, guardian or person having substitute parental authority

over the party, such petition may only be filed by the party whose parent or

guardian did not give consent, within five (5) years after attaining the age of

21, or by the parent or guardian or person having legal charge of the minor, at

any time before such party has reached the age of 21. If the basis for the

annulment is unsoundness of mind, the petition may only be filed by the

spouse who had no knowledge of the other’s insanity, or by any relative or

guardian or person having legal charge of the insane, at any time before the

death of either party, or by the insane spouse during a lucid interval or after

regaining sanity.

Should the petition be anchored on account of fraud, as mentioned under

Article 46 of the same code, the same may only be filed by the injured party
within five years after the discovery of such fraud. Should the annulment be

based on vitiated consent of either party by reason of force, intimidation or

undue influence, the petition may only be filed by the injured party within

five years from the time such force, intimidation or undue influence

disappeared or ceased. Lastly, if the petition is based on a spouse’s physical

incapacity to consummate the marriage or existence of a sexually-

transmissible disease, such may only be filed by the injured party within five

years after the marriage.

Parental consent required in issuance of

marriage license
Read Next

By Persida Acosta

March 3, 2017

Dear PAO,

My 19-year-old girlfriend, Joan, and I would like to marry this year. When

we applied before the local civil registrar for a marriage license, however, 

the official required Joan’s parents to give their consent. I know that Joan

cannot obtain such parental consent because her mother (surviving parent) is

objecting to our relationship. She does not want me to be her son-in-law.

Instead, she wants a certain businessman to marry her daughter. What will
be the effect on our marriage if Joan cannot obtain the parental consent of

her mother?  

Brix

Dear Brix,

Parental consent is a requirement for the issuance of marriage license if one

or both of the contracting parties is/are between the ages of eighteen (18) and

twenty-one (21). This finds support under Article 14 of the Family Code of

the Philippines that specifically states:

“In case either or both of the contracting parties, not having been

emancipated by a previous marriage, are between the ages of eighteen and

twenty-one, they shall in addition to the requirements of the preceding

articles, exhibit to the local civil registrar, the consent to their marriage of

their father, mother, surviving parent or guardian, or persons having legal

charge of them, in the order mentioned. Such consent shall be manifested in

writing by the interested party, who personally appears before the proper

local civil registrar, or in the form of an affidavit made in the presence of two

witnesses and attested before any official authorized by law to administer

oaths. The personal manifestation shall be recorded in both applications for

marriage license, and the affidavit, if one is executed instead, shall attached

to said applications.”

Correlative thereto, Article 16 of the code also provides: “In the cases where

parental consent or parental advice is needed, the party or parties concerned

shall, in addition to the requirements of the preceding articles, attach a

certificate issued by the priest, imam or minister authorized to solemnize

marriage under Article 7 of the code or a marriage counsellor duly accredited

by the proper government agency to the effect that the contracting parties

have undergone marriage counselling. Failure to attach said certificate of

marriage counselling shall suspend the issuance of the marriage license for a

period of three months from the completion of the publication of the

application. Issuance of marriage license within the prohibited period shall

subject the issuing officer to administrative sanctions but shall not affect the

validity of the marriage.”

In your case, the marriage license will still be issued despite the refusal of

Joan’s mother to give her consent. But please remember that lack of parental

consent could be a ground for annulment of marriage under Article 45 (1) of

the same code, which can be filed by the parents, guardian or person having

substituted parental authority over the party any time before Joan reaches 21

or Joan herself before attaining the age of 21.

Jealousness, laziness no grounds for
annulment
Read Next

By Persida Acosta

February 4, 2017

Dear PAO,

I have been married to Leon for almost a year now. His patience and lack of

vices made me like him during the time that he was still courting me.

However, I discovered that he is a very lazy and very jealous type of person.

I would like to have our marriage annulled at its early stage, because I know

sooner or later that I will suffer if I will continue living with him. Are

laziness and jealousy sufficient grounds to declare him as psychologically

incapacitated?

Belinda

Dear Belinda,

Based on the facts stated in your letter, there is no basis to declare your

husband as psychologically incapacitated. Under Article 36 of the Family

Code of the Philippines, it is stated that: “A marriage contracted by any party

who, at the time of the celebration, was psychologically incapacitated to

comply with the essential marital obligations of marriage, shall likewise be

void even if such incapacity becomes manifest only after its solemnization.”

However, this ground must be duly established and cannot be presumed from

one’s spouse’s laziness or jealousness.

In Republic of the Philippines vs. Melgar (G.R. No. 139676, March 31,

2006), the Honorable former Associate Justice Alicia Austria-Martinez said

that:

“Further, no other evidence was presented to show that Eulogio was not

cognizant of the basic marital obligations as outlined in Articles 68 to 72,

220,221, and 225 of the Family Code. It was not sufficiently proved that

Eulogio was really incapable of fulfilling his duties due to some incapacity of

a psychological nature, and not merely physical. The Court cannot presume

psychological defect from the mere fact of Eulogio’s immaturity, habitual

alcoholism, unbearable jealousy, maltreatment, constitutional laziness, and

abandonment of his family. These circumstances by themselves cannot be

equated with psychological incapacity within the contemplation of the Family

Code. It must be shown that these acts are manifestations of a disordered

personality which make Eulogio completely unable to discharge the essential

obligations of the marital state.

“At best, the circumstances relied upon by Norma are grounds for legal

separation under Article 55 of the Family Code. As the Court ruled in

Republic of the Philippines v. Molina, it is not enough to prove that a spouse

failed to meet his responsibility and duty as a married person, it is essential

that he must be shown to be incapable of doing so due to some psychological,

not physical, illness. There was no proof of a natal or supervening disabling

factor in the person, an adverse integral element in the personality structure

that effectively incapacitates a person from accepting and complying with the

obligations essential to marriage.”

In your situation, your husband’s laziness and jealousness cannot be equated

to psychological incapacity. His inability or failure to comply with the

essential marital obligations is the primary consideration, and not because of

his mere laziness and jealousness.

Spouse’s address unknown? File

marriage annulment case anyway
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   By Persida Acosta

November 4, 2016

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Persida Acosta

Dear PAO,

I wish to have my marriage annuled. I was told that I need to secure the

address of my wife in order to file the case. I’ve lost contact with my wife

when we separated, so I do not know where she is or where she lives. Can I

really not file a complaint for annulment if I don’t have the address of my

wife?

Ax
   
360p geselecteerd als afspeelkwaliteit

Dear Ax,

I wish to clarify that the purpose of securing the address of a respondent or

defendant is to allow the court to serve summons on him in order to inform

him of the charges filed against him, and to give him an opportunity to

explain his side. Such right to be afforded an opportunity to be heard is

enshrined under the due process clause of our Constitution. It cannot be

simply lightly taken for its violation will entail dire consequences.

As a result, service of summons is generally required in civil cases for the

court to acquire jurisdiction over the defendant. Such service will empower

the court to render a decision on a particular case, and bind the defendant to

its judgment and other orders. A summons is generally served either by

personally handing the summons to the defendant in person, or by simply

tendering it to him, if he refuses to receive it, or by leaving a copy of the

summons at the defendant’s residence or at his office or regular place of

business (Sections 6 & 7, Rule 14, Rules of Court). These two (2) usual
modes of service of summons obviously require the plaintiff or complainant

to provide the address of the defendant or at least his whereabouts so that the

court’s process server will be able to deliver the summons.

It is likely that the advice you got to the effect that you need to secure the

address of your wife in order to file an annulment case is grounded on the

above-mentioned rules on service of summons. Such advice, however, is not

accurate. There are other modes of service of summons.

For one, the summons may, with leave of court, be served by publication in a

newspaper of general circulation in case the defendant is unknown, or if his

whereabouts are unknown and cannot be ascertained by diligent inquiry.

(Sec. 14, Id.) Further, if the defendant is a non-resident who is not in the

country, extraterritorial service of summons may be resorted to and which

can be effected out of the Philippines either personally, by publication in a

newspaper of general circulation and sending a copy of the summons and

order of the court by registered mail to the last known address of the

defendant, or in any other manner. (Sec. 15, Id.) Please note that

extraterritorial service of summons is only available in actions affecting the

personal status of the plaintiff, or relates to claims or interest in a property

found within the Philippines, or the property of the defendant has been

attached within the Philippines. (Ibid.)

Hence, even if you do not know the address of your wife, you may still file a

petition for annulment of marriage. You may resort to other modes of service

of summons such as by publication in a newspaper of general circulation

following Section 14, Rule 14 of the Rules of Court. You should, however,

show not only that the whereabouts of your wife is unknown, but that you

also diligently looked for her, but your efforts proved futile. Additionally, if

your wife is a non-resident who is not in the country, you can also resort to

extraterritorial service of summons to comply with the requirement of due

process considering that a petition of annulment is an action that affects the

personal status of the plaintiff and therefore covered by the rule on

extraterritorial service of summons.

Annulling a marriage marred by fraud

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  By Persida Acosta

November 1, 2016

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Persida Acosta

Dear PAO,

Is it possible to invalidate a marriage if the wife’s consent was obtained by

some fraud done by the husband?

Ethel
   
360p geselecteerd als afspeelkwaliteit

Dear Ethel,

Saying “I do” is an important part of wedding ceremonies. More than just

being ceremonial, such declaration is of utmost importance as it signifies that

the parties to the marriage have given their respective consents to be bound to

each other as husband and wife.

As required under our laws, consents of the parties must be freely given in

the presence of the solemnizing officer (Article 2, Family Code of the

Philippines). The Supreme Court emphasized that “x x x “freely given”

consent requires that the contracting parties willingly and deliberately enter

into the marriage. Consent must be real in the sense that it is not vitiated nor

rendered defective by any of the vices of consent under Articles 45 and 46 of

the Family Code, such as fraud, force, intimidation and undue influence.

Consent must also be conscious or intelligent, in that the parties must be

capable of intelligently understanding the nature of, and both the beneficial or

unfavorable consequences of their act. x x x” (Republic vs. Albios, G.R. No.

198780, October 16, 2013, ponente, Supreme Court Associate Justice Jose

Catral Mendoza).

If the consent of either party was obtained by fraud, such marriage may be

invalidated by our courts, provided that such fraud existed at the time of the

marriage and that the innocent party, after having full knowledge of the facts

constituting the fraud, did not freely cohabit with the other (Article 45 (3),

Family Code).

It, however, bears stressing that the fraud mentioned under the law refers

only to the suppression or concealment of the specific circumstances

mentioned under Article 46 of the law, to wit: (1) A party’s non-disclosure of

a previous conviction by final judgment of a crime involving moral turpitude;

(2) A wife’s concealment of the fact that at the time of the marriage, she was

pregnant by a man other than her husband;

(3) A party’s concealment of sexually transmissible disease, regardless of its

nature, existing at the time of the marriage; or (4) A party’s 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 will

give ground for action for the annulment of marriage. (Ibid.)

We wish to remind you that the action for annulment of marriage on account

of fraud must be filed by the injured party within five (5) years after the

discovery of the fraud. (Article 47, Id.)

Impotency as a ground for annulment of

marriage
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  By Persida Acosta

September 27, 2016

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Persida Acosta
Dear PAO,

I want to annul my marriage. My wife and I got married four years ago but

until now we do not have a child yet. I think there is something wrong with

my wife. We have active sexual relations, but I am really wondering why

until now we still don’t have a child. My friend told me that she may be

impotent, so I can use that as a ground for annulment of marriage. If so, until

when can I bring the action?

Iggy
   
360p geselecteerd als afspeelkwaliteit

Dear Iggy,

ADVERTISING

Impotency of a spouse is a ground for annulment of marriage. To be more

specific, Article 45 (5) of the Family Code of the Philippines provides that a

marriage may be annuled if, at the time of the marriage, either party was

physically incapable of consummating the marriage with the other, and such

incapacity continues and appears to be incurable. The action for annulment of

marriage based on this ground must be filed by the injured party within five

(5) years after the celebration of the marriage (Article 47, Ibid.).

Accordingly, you must be certain that your wife’s condition is indeed that of

impotency, not mere sterility or the

incapacity to produce a child. Sterility is not equated to impotency, contrary

to what your friend claims.

Further, it is essential for you to clearly establish your wife’s impotency and

that you have sought professional medical help to address your wife’s

condition, yet it still persists and there appears to be no cure for it. It bears

stressing that a person’s impotency can never be presumed. Our courts will

not dissolve a marriage by mere presumption of the party petitioning the

same. The Supreme Court, through Justice Teodoro Padilla, explained:

“x x x Marriage in this country is an institution in which the community is

deeply interested. The state has surrounded it with safeguards to maintain its

purity, continuity and permanence. The security and stability of the state are

largely dependent upon it.

xxx

The law specifically enumerates the legal grounds that must be proved to
exist by indubitable evidence, to annul a marriage.

xxx

Impotency being an abnormal condition should not be presumed. The

presumption is in favor of potency. The lone testimony of the husband that

his wife is physically incapable of sexual intercourse is insufficient to tear

asunder the ties that have bound them together as husband and wife. x x x”

(Jimenez vs Cañizares,109 Phil. 273, August 31, 1960)

Mom who marries after leaving husband,

kid liable for bigamy
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  By Persida Acosta

August 23, 2016

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Persida Acosta

Dear PAO,
My sister-in-law abandoned my brother and my niece three years ago. My

brother said she had a change of heart and just left without a word. Since

then, I have been helping my brother raise my niece. Just recently, I learned

from my friend, who also knows my sister-in-law, that my sister-in-law got

married in Butuan City. Is this valid? I mean, how can she do this if my

brother is still alive and they have not legally separated or anything like that?

Can you please enlighten me so that I can also explain to my brother the

legalities of this matter. Thank you and more power.

Ms. Minty
   
360p geselecteerd als afspeelkwaliteit

Dear Ms. Minty,

Under our civil laws, a person who has already entered into a contract of

marriage may not engage in a second or subsequent marriage without having

their subsisting marriage lawfully nullified or annulled, or in proper cases

secure from the courts a declaration of presumptive death of the absent

spouse. This is clear from the provisions of our Family Code. As stated

therein:

Art. 35. The following marriages shall be void from the beginning: x x x (4)

Those bigamous or polygamous marriages not falling under Article 41; x x x

Art. 41. A marriage contracted by any person during 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 consecutive

years and the spouse present has 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 provisions of Article 391 of the Civil

Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding

paragraph, the spouse present must institute a summary proceeding as

provided in this code for the declaration of presumptive death of the absentee,

without prejudice to the effect of reappearance of the ab- sent spouse.

Accordingly, if your sister-in-law in fact entered into a subsequent marriage

without seeking from the proper court the dissolution of her marriage with

your brother or the annulment thereof, it may be said that such subsequent

marriage is null and void. The fact that they have been living separately for

about three (3) years will have no bearing, because physical separation of the

spouses does not entitle either of them to enter into another or subsequent

marriage.

Besides, she may be held criminally liable for bigamy. Pursuant to Article

349 of the Revised Penal Code of the Philippines, “The penalty of prision

mayor shall be imposed upon any person who shall contract a second or

subsequent marriage before the former marriage has been legally dissolved,

or before the absent spouse has been declared presumptively dead by means

of a judgment rendered in the proper proceedings.”

Wife can remarry after declaring
husband presumptively dead
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Persida Acosta

Dear PAO,

In 2005, I married Paul, a soldier. In 2006, Paul took a vacation leave from

his unit and returned home to me in Aklan. After spending his vacation, he

said goodbye to me and left Aklan. I have not received any information about
him since. I tried hard to know his whereabouts, calling his co-workers and

immediate superiors, but they told me that they were also looking for my

husband. They said he was AWOL. I also inquired from his relatives in his

hometown, friends and even places he frequently visited to no avail.

I have reported the matter to the police and even made a broadcast message

through radio that I am looking for him. At present, I am living with

someone. Can I file an annulment of marriage, so that I can marry my

partner?     
   
360p geselecteerd als afspeelkwaliteit

Jessa

Dear Jessa,

Annulment of marriage or declaration of nullity of marriage is not the proper

remedy for you to marry your present partner considering that your situation

does not fall under any of the grounds provided in the Family Code of the

Philippines for annulment or declaration of nullity of marriage.

It is best for you to declare your husband as presumptively dead so that you

can remarry. This is governed by the provision of Article 41 of the law,

which 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 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 a 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 purpose of contracting a subsequent marriage under the preceding

paragraph, the spouse present must institute a summary proceeding as

provided in this code for the declaration of presumptive death of the absentee,

without prejudice to the effect of reappearance of the absent spouse.

In your case, you have to present proofs of well-founded belief that your

husband was dead. Here are the requisites for the declaration of presumptive

death as enumerated in the case of Republic of the Philippines vs Granada

(G. R. No. 187512, June 13, 2012), to wit:

1. That the absent spouse has been missing for four consecutive years, or two

consecutive years if the disappearance occurred where there is danger of

death under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead;

and
4. That the present spouse files a summary proceeding for the declaration of

presumptive death of the absentee.

Abandonment is ground for legal

separation
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Persida Acosta

Dear PAO,
I have been married to Adrian for almost 10 years now, and have been

separated from him since 2005. In the same year, he left our house without

any reason. I only discovered lately that he has been living with his mistress

somewhere in Pangasinan. I am now planning to file a case for either

declaration of nullity or annulment of marriage. Is there a sufficient ground

to annul or declare my marriage void?

Felicine
   
360p geselecteerd als afspeelkwaliteit

Dear Felicine,

ADVERTISING

The grounds for declaration of nullity of marriage are those found under

Article 35 (void due to absence of any of the essential requisites of marriage),

Article 36 (psychological incapacity to comply with the essential marital

obligations), Article 37 (incestuous marriages), and Article 38 (void from the

beginning for reasons of public policy) of the Family Code of the Philippines,

while the grounds for annulment of marriage are those found under Article 45

of the same code.

In your situation, there is no existing ground to annul or declare your

marriage void. What is present is abandonment without justifiable cause for

more than one (1) year or sexual infidelity. Both of which are grounds for

legal separation under Article 35 of the Family Code of the Philippines. Other

grounds for legal separation, mentioned below, are provided by Article 55 of

the same Code, to wit:

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 judgement 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 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.

Partosa-Jo vs CA (G. R. No. 82606, December 18, 1992) discussed

abandonment on this wise:“Abandonment implies a departure by one spouse

with the avowed intent never to return, followed by prolonged absence

without just cause, and without in the meantime providing in the least for

one’s family although able to do so. There must be absolute cessation of

marital relations, duties and rights, with the intention of perpetual separation.

This idea is clearly expressed in the above-quoted provision, which states that

“a spouse is deemed to have abandoned the other when he or she has left the

conjugal dwelling without any intention of returning.