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.

For Nullification of Marriage

Art. 36 of the Civil Code. 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.

For Annulment of Marriage

Art. 45 of the Civil Code. 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.

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. Infidelity can only be an acceptable basis
for legal separation (a judicial process wherein the spouses are to live separately from
each other and the obligation of mutual support between the spouses ceases, but the
marriage bond is not severed. In legal separation, the spouses are still technically
considered as spouses) or filing a case for concubinage or adultery.
In Dedel vs. Court of Appeals, the Supreme Court held that sexual infidelity of a person
does not by itself constitute psychological incapacity. It “does not necessarily prove that
a person is mentally or physically ill to such an extent that he or she could not have
known the obligations of marriage, or knowing them, could not have given valid
assumption thereof”. The court stated that “sexual promiscuity, to be a ground for
psychological incapacity must be ‘manifestations’ of a disordered personality
which makes the respondent completely unable to discharge the essential
obligations of marriage”.
It was held that "psychological incapacity" has been intended by law to be confined to
the most serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the marriage (Santos v.
Court of Appeals, 310 Phil. 21, 40 (1995). Psychological incapacity must be
characterized by (a) gravity, i.e., it must be grave and serious such that the party would
be incapable of carrying out the ordinary duties required in a marriage, (b) juridical
antecedence, i.e., it must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage, and
(c) incurability, i.e., it must be incurable, or even if it were otherwise, the cure would be
beyond the means of the party involved (Republic v. Cabantug-Baguio, 579 Phil. 187
(2008)).
In the case of Republic v. Court of Appeals and Molina,18 this Court laid down the more
definitive guidelines in the disposition of psychological incapacity
cases, viz.:ChanRoblesVirtualawlibrary

xxxx

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

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

(3) The incapacity must be proven to be existing at "the time of the celebration" of the
marriage. x x x

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

or incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against everyone of the same sex. x x x

(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. x x x In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really accepting and
thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of

the Family Code as regards the husband and wife as well as Articles 220, 221 and 225
of the same Code in regard to parents and their children. x x x

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling or decisive, should be given great
respect by our courts. x x x

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General
to appear as counsel for the state. x x x

Irreconcilable differences, sexual infidelity or perversion, emotional immaturity and

irresponsibility and the like, do not by themselves warrant a finding of psychological
incapacity under Article 36, as the same may only be due to a person's refusal or
unwillingness to assume the essential obligations of marriage (Republic of the
Philippines vs. Court of Appeals and De Quintos, Jr.) In order for sexual infidelity to
constitute as psychological incapacity, the respondent's unfaithfulness must be
established as a manifestation of a disordered personality, completely preventing
the respondent from discharging the essential obligations of the marital state;
there must be proof of a natal or supervening disabling factor that effectively
incapacitated him from complying with the obligation to be faithful to his spouse (Toring
v. Toring, 640 Phil. 434 (2010). It is indispensable that the evidence must show a link,
medical or the like, between the acts that manifest psychological incapacity and the
psychological disorder itself (Marable v. Marable).

Legal Separation
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.

Art. 57. An action for legal separation shall be filed within five years from the time of the
occurrence of the cause.

Art. 62. During the pendency of the action for legal separation, the provisions of Article
49 shall likewise apply to the support of the spouses and the custody and support of the
common children.
Art. 49. During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses,
 the Court shall provide for the support of the spouses and the
custody and support of their common children. The Court shall give
paramount consideration to the moral and material welfare of said
children and their choice of the parent with whom they wish to remain
as provided to in Title IX. It shall also provide for appropriate
visitation rights of the other parent.

Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net profits
earned by the absolute community or the conjugal partnership, which shall be forfeited
in accordance with the provisions of Article 43(2);
Art. 43(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and liquidated,
but if either spouse contracted said marriage in bad faith, his or
her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common
children or, if there are none, the children of the guilty spouse by a
previous marriage or in default of children, the innocent spouse;
(3) The custody of the minor children shall be awarded to the innocent spouse, subject
to the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse
by intestate succession. Moreover, provisions in favor of the offending spouse made in
the will of the innocent spouse shall be revoked by operation of law.

Effects of Legal Separation

Below are the legal consequences of legal separation:

1. Separation. The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed.
2. Property Relations. The absolute community of property (ACP) or the conjugal
partnership of gains (CPG), as the case may be, shall be dissolved and liquidated. The
court, in the absence of a written agreement between the spouses, shall designate
either of them or a third person to administer the absolute community or conjugal
partnership property. The administrator appointed by the court shall have the same
powers and duties as those of a guardian.
3. Custody of Children. The custody of the minor children shall be awarded to the
innocent spouse, but no child under 7 years shall be separated from the mother unless
there are compelling reasons.
During the pendency of the action, the custody of children will be governed either by
written agreement, or by court order, based on the best interest of the child. The court
will apply the following order of preference, both parents jointly: (a) either parent (may
consider the choice of child over 7 years) unless such parent is considered unfit, (b)
surviving grandparent (if several, then choice of child over 7 years, unless grandparent
chosen is unfit/disqualified), (c) eldest brother/sister over 21 unless unfit/disqualified, or
(d) any other person deemed suitable by the court.
4. Support. During the pendency of the action, child and spousal support will be
governed by either written agreement, or in the absence thereof, from the ACP/CPG.
After decree, either parent or both may be ordered by the court to given an amount
necessary for support in proportion to resources/means of giver and necessities of the
recipient. Spousal support is considered as an advance to be deducted from the share
of the spouse supported during liquidation. There may be restitution of spousal support
if after decree, the court finds that the person providing support pendente lite is not
liable therefor. Please note that a judgment granting support never becomes final. It
may be adjusted or modified according to circumstances and the spouse’s financial
capability.
5. Succession. The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent spouse shall be revoked by operation of law.
Within 5 years from the time the decree of legal separation has become final, the
innocent spouse may revoke the donations made by him or by her in favor of the
offending spouse, as well as the designation of the latter as a beneficiary in any
insurance policy, even if such designation be stipulated as irrevocable. Alienations, liens
and encumbrances registered in good faith before the recording of the complaint for
revocation in the registries of property shall be respected. The revocation of or change
in the designation of the insurance beneficiary shall take effect upon written notification
thereof to the insured.

Please note that in judicial separation of property, the spouses’ mutual obligation to
support each other continues. Furthermore, there is no disqualification to inherit, nor
revocation of donations or designation as beneficiary in insurance policies, unlike in
legal separation.
How to File a Declaration of Nullity or Annulment of Marriage in the Philippines
1. Engage the services of a lawyer.
2. Once you signed the Retainer Agreement, your lawyer will interview you to
appraise your case. If on his assessment, what needs to be filed is a Declaration
of Nullity of Marriage based on Psychological Incapacity, your lawyer will refer
you to a psychologist for evaluation.

Your lawyer will need a copy of your Marriage Certificate, Birth Certificate of your

children (if any), names of your witnesses, and other documentary evidence to
support your case.

For the Declaration of Nullity based on psychological incapacity, the report of the
psychologist is also needed before your lawyer can draft the petition.

3. Once your petition is filed, the Office of the Executive Clerk of Court will raffle
your petition for the assignment of the case to the Family Court of the Regional
Trial Court.

The Clerk of Court of the Regional Trial Court where the case is assigned will
then issue a summons directing your spouse to answer the petition.

If you do not know the whereabouts of your spouse, service of summons may
be done through publication once a week for two consecutive weeks in a
newspaper of general circulation in the Philippines. It will also be served on his
last known address by registered mail or other sufficient means.

Before the pre-trial proceedings or at any stage of the case, the Court may
require a social worker to conduct a case study.

4. Pre-trial is mandatory and failure to attend the pre-trial will cause the dismissal of
your case.

In case you cannot attend the Pre-trial because of some valid grounds  (e.g.,
you are abroad), your lawyer or any authorized representative should attend
instead and present your valid excuse before the court.

If your spouse will not answer the petition, the court will order the public
prosecutor to investigate whether collusion (agreement between you and your
spouse on the filing of the petition and agreement that your spouse will not
oppose) exists. The Fiscal, after investigation, will submit a report to the court
stating the findings.

Please note that your petition will be dismissed if you and your husband
colluded.
 Collusion is prohibited. Statements such as “me and my husband have already
agreed to file the annulment” and “my husband has agreed not to oppose the
petition” will surely cause the dismissal of your petition on the ground of
collusion.

During this stage, the court may also refer your case to a mediator to assist you
and your spouse to reach an agreement and compromise on matters not
prohibited by law.

5. Go through the actual trial.

During this stage, you will need to present all your evidence and witnesses to
prove your case including personally sitting in the witness stand to testify. If you
are abroad, you have to go home to the Philippines. It is possible that you will
need to attend more than once depending on the flow of your case and the
schedule of the trial of the court.

In the case of the Declaration of Nullity of Marriage by reason of psychological

incapacity, the psychologist who evaluated your case will also testify as an
expert witness to present his findings. It is advisable to give additional
witnesses who personally know your marital relationship so that your statement
will be corroborated.

Please also note that the public prosecutor will be present and will act as the
adverse counsel. The latter is tasked by the court to ensure no collusion occurs
between you and your spouse and no suppression and fabrication of evidence
takes place during the proceedings.

6. Wait for the judgment.

Art. 334. Concubinage. — Any husband who shall keep a mistress in the conjugal
dwelling, or shall have sexual intercourse, under scandalous circumstances, with a
woman who is not his wife, or shall cohabit with her in any other place, shall be
punished by prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro.

Take note that it is not enough that a married man has sexual intercourse with his
mistress. It must be shown that it was done under scandalous circumstances. It does
not mean that sex must be done in public. Scandalous circumstances mean that the
affair was done in the general sight of the community as to offend modesty and the
innate sense of morality and decency of the community.
Concubinage is punishable by imprisonment ranging from 6 months and 1 day to 4
years and 2 months. On the other hand, the mistress is merely imposed a punishment
of destierro. It is akin to a restraining order where the mistress shall not be permitted to
enter designated places within the radius specified by law.

Unfaithfulness is also punishable under Republic Act No. RA 9262 , otherwise known as
the Anti-Violence Against Women and Their Children Law (“VAWC Law”). Repeated
marital infidelity is considered as psychological violence which is punishable with a
stiffer imprisonment of 6 years and 1 day to 12 years.
Art. 100. The separation in fact between husband and wife shall not affect the
regime of absolute community except that:
(1) The spouse who leaves the conjugal home or refuses to live therein, without
just cause, shall not have the right to be supported;
(2) When the consent of one spouse to any transaction of the other is required by
law, judicial authorization shall be obtained in a summary proceeding;
(3) In the absence of sufficient community property, the separate property of both
spouses shall be solidarily liable for the support of the family. The spouse
present shall, upon proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate property of the other
spouse and use the fruits or proceeds thereof to satisfy the latter's share. (178a)

Art. 101. If a spouse without just cause abandons the other or fails to comply with
his or her obligations to the family, the aggrieved spouse may petition the court
for receivership, for judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such precautionary
conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to

marital, parental or property relations.

A spouse is deemed to have abandoned the other when he or she has left the conjugal
dwelling without intention of returning. The spouse who has left the conjugal dwelling for
a period of three months or has failed within the same period to give any information as
to his or her whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling.

Upon dissolution of the absolute community regime, in the partition of the properties, the
conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse
with whom the majority of the common children choose to remain. Children below the
age of seven years are deemed to have chosen the mother, unless the court has
decided otherwise. In case there in no such majority, the court shall decide, taking into
consideration the best interests of said children.

Art. 198. During the proceedings for legal separation or for annulment of marriage, and
for declaration of nullity of marriage, the spouses and their children shall be supported
from the properties of the absolute community or the conjugal partnership. After the final
judgment granting the petition, the obligation of mutual support between the spouses
ceases. However, in case of legal separation, the court may order that the guilty spouse
shall give support to the innocent one, specifying the terms of such order.

Art. 213. In case of separation of the parents, parental authority shall be exercised by
the parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit.

Child Custody

Parental authority over minor children is jointly exercised by both parents. Should there
be any disagreement, the decision of the father shall prevail, unless there is a judicial
order to the contrary (Article 211, Family Code of the Philippines [FCP]).

The exercise of parental authority includes, among others, the right to have custody
over the minor children, the duty to support, educate and instruct them by right precept
and good example, provide for their upbringing in keeping with their means, impose
discipline on them as may be required under the circumstances, as well as to represent
them in all matters affecting their interests (Articles 220 (1), (5) and (7), FCP).

Insofar as legal guardianship over minor children is concerned, the same shall also be
jointly exercised by the father and the mother. There is no need to secure appointment
from the court given that the right is guaranteed by law. In case of disagreement, the
father’s decision shall also prevail, unless there is a judicial order to the contrary (Article
225, FCP).

If an agreement is signed by the husband allowing the wife to retain the sole custody
and guardianship over their children, such agreement will not prevent the husband from
invoking his right or deny him to exercise the very right guaranteed by our laws.
Furthermore, an agreement of this sort is void because parental authority and
responsibility over a minor child may not be renounced or transferred except in the
cases authorized by law (Article 210, FCP).

This holds true even if the husband and wife have already been separated for years.
There is still a necessity for the wife to secure a lawful order from the court. The Family
Code of the Philippines provides: “In case of separation of the parents, parental
authority shall be exercised by the parent designated by the Court. The Court shall take
into account all relevant considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit. x x x No child under seven years of age
shall be separated from the mother unless the court finds compelling reasons to order
otherwise” (Article 210).

The compelling reasons for a mother to lose child custody:

1. insanity
2. neglect
3. abandonment
4. immorality and unemployment
5. habitual drunkenness
6. drug addiction
7. maltreatment of the child
8. affliction with a communicable illness

For children older than seven years of age, they have the right to state their preference.
However, the court is not bound by the children's choice as it also has to exercise its
discretion by ensuring that the parent who gets the custody is deemed fit for the role.
The custody may also be given to a third person.

"Art. 209. Pursuant to the natural right and duty of parents over the person and property
of their unemancipated children, parental authority and responsibility shall include the
caring for and rearing them for civic consciousness and efficiency and the development
of their moral, mental and physical character and well-being. (n)

The State ought not to interfere with the right of parents to bring up their child unless its
exercise causes potential harm to him. The State steps in, through the law, only if there
are compelling reasons to do so. State intrusion is uncalled for where the welfare of a
child is not jeopardized.

Regardless of marital circumstances, the mother and the father are presumed to be fit
and competent to act in the best interest of their child. They can agree to share parental
authority or, if you will, parental custody even as they decide to live under separate
roofs. In a voluntary joint custody the mother might want to keep the child in her home
during schooldays but allow the father to have him on weekends. And they could agree
on some device for arriving at a consensus on where the child will study and how his
spiritual needs are to be attended to.

The law does not take away from a separating couple the authority and competence to
determine what is best for their child. If they resolve on their own that shared parental
custody is in their child's best interest, then the law and the courts have no business
vetoing their decision. The parents enjoy a primary right to make such decision.

The second paragraph of Article 213 of the Family Code should not be read as
prohibiting separated couples from agreeing to a custody arrangement, other than sole
maternal custody, for their child of tender age. The statutory preference for the mothers
custody comes into play only when courts are compelled to resolve custody fights
between separated parents. Where the parents settle the matter out of court by mutual
agreement, the statutory preference reserved to the mother should not apply.

A reading of the entire text of Article 213 shows that the second paragraph applies only
to custody disputes that have reached the courtroom. Thus:

Article 213. In case of separation of the parents, parental authority shall be exercised by
the parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise.

In choosing the parent who will exercise parental authority, the court must take into
account all relevant considerations. One of these is the child's age, as the court is
directed to give due regard to the child's choice, if the child is more than seven years of
age. If the child, however, is below seven years of age, the court cannot separate the
child from the mother, except for compelling reasons. This is the import of the entire
provision.

Thus, no legislative policy is violated if separated parents are allowed to voluntarily

agree to a child custody arrangement other than sole maternal custody. It is not the
policy of the state to prohibit separated parents from compromising on child custody
even if the child is of tender age. On the contrary, voluntary custody agreements are
generally favored as it can only work for the best interest of the child.

It is not logical to say that the Court would be subverting the legislative policy of
avoiding a tragedy where a mother has seen her baby torn away from her if separated
parents are allowed to enter into a joint custody agreement. It can hardly be said that a
child is being torn away from the mother, if the mother sees the wisdom and benefit of
sharing custody of the child with the father. The voluntary nature of the agreement
negates any deep sorrow or sense of deprivation that the mother may experience on
account of her separation from the child."