House panel OKs divorce bill

Albay First District Rep. Edcel Lagman. File Photo

By Ma. Reina Leanne Tolentino

March 22, 2023 120

WITH a vote of 12-0, the House Committee on Population and Family Relations on Tuesday approved the substitute bill on divorce.

"The approval of the bill on absolute divorce for eventual plenary debates assures that the country is now at the threshold of joining the universality of absolute divorce in the community of nations," Albay First District Rep. Edcel Lagman said in a statement.

Annulment, declaration of nullity and legal separation are the only available options in the Philippines.

Last month, the House committee approved in principle the proposed laws for divorce after it heard resource persons' positions on divorce.

"The template of the substitute bill is my House Bill 78, which is almost a replica of the bill approved on third and final reading by the House of Representatives during the 17th Congress. The approval of the same bill during the 18th Congress was stalled by the pandemic," Lagman said.

"While it is said that marriages are solemnized in heaven, the fact is some marriages plummet into hell because of human frailty and imperfections. The Divorce Act seeks to redeem couples, particularly the abused or abandoned wives, from infernal agony," he said.

"But it must be underscored that a law on absolute divorce is not for everybody. This act is for the exceptional circumstances of married couples who are marooned in toxic, dysfunctional and even abusive marriages, particularly for wives who suffer the torment of irreversibly dead marriages," Lagman said.

Under the bill, a divorce petition will undergo a judicial process where proof of the cause for the divorce is established and that the marriage has completely collapsed without any possibility of reconciliation. There will be a 60-day cooling-off period after the filing of a divorce petition "wherein the judge shall exert earnest efforts to reconcile the parties."

The cooling-off period will not apply in cases involving acts of violence against women and their children under the Anti-Violence Against Women and Their Children Act, or an attempt against the life of the other spouse or a common child or a child of the petitioner.

The cooling-off period would not be required for petitions under summary judicial proceedings.

Grounds for absolute divorce that may be subject to summary judicial proceedings will include separation for at least five years; when one of the spouses has contracted a bigamous marriage; when the spouses have been legally separated by judicial decree for at least two years; when one of the spouses has been sentenced to imprisonment for at least six years, even if subsequently pardoned; or when one of the spouses has undergone sex reassignment surgery or has transitioned into another sex.

Fight for divorce law in Philippines continues

Image from Pexels

By THIRD ANNE PERALTA-MALONZO, SunStar Manila

THE fight for the enactment of a law allowing divorce in the Philippines continues as three senators, including two newbies, filed their respective bills pertaining to the matter.

Allowing divorce in the Philippines is one of the pet bills of Senators Risa Hontiveros (Dissolution of Marriage Act), Raffy Tulfo (Divorce Act of 2022) and Robin Padilla (Divorce Act of the Philippines).

A survey conducted by the Social Weather System (SWS) in 2017 showed that an average of 53 percent of adult Filipinos were in favor of the legalization of divorce in the country.

The Philippines and Vatican, which is one of the smallest states in the world, were the only ones that have no divorce law.

Article 45 of the Family Code of the Philippines, however, sets grounds to which a union may be annulled. These grounds include:

* No parental consent if either party was between 18 and 21 years at the time of marriage

* Psychological incapacity

* Fraudulent consent, including non-disclosure of either party of a material fact before marriage, such as pregnancy by another man or a sexually transmitted disease

* Consent obtained by force, intimidation, or undue influence

* Physical inability to consummate the marriage

* That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable

In a gist, annulment makes a marital unity null and void, or as if it never happened, while divorce recognizes and ends a legally valid marriage.

According to the Office of Solicitor General, there is an uptrend in the number of annulment and nullity of marriage cases filed in the country since 2001, where there were only over 4,000 cases filed as against the more than 11,000 filed in 2014.

The agency said over 50 percent of the petitioners were women, and among the reasons for seeking the nullity of their marriage with their spouses are abuses.

In the findings of the 2017 National Demographic and Health Survey conducted by the Philippine Statistics Authority, it showed that one in every four married woman experienced spousal violence, either physical, sexual or emotional.

Tulfo, host of a radio/television program that primarily helps those who are abused, said he has received, over the years, a lot of reports pertaining to marital problems.

He said majority of the spouses wants to avail themselves of annulment or legal separation, but they are financially incapable to afford the process.

“Saan, halimbawa, kukuha ng pambayad sa lawyer’s acceptance and appearance fees, court filing fees, professional fees ng mga eksperto gaya ng psychologist at iba pa, ang isang minimum wage earner o wala pa gaya ng security guard, factory worker, kasambahay, at simpleng empleyado? Sweldo pa lang nila kapos na para sa pang-araw-araw na pamumuhay,” said Tulfo.

“Marami ring kasong ganito: Nagpasyang maghiwalay ang mag-asawa. Nagpirmahan pa nga sa barangay. (Hindi na sila nag-file ng annulment sa korte dahil magastos nga yun). Makalipas ang ilang taon ng walang pakialamanan sa buhay at pag-abandona, nagka-boyfriend si babae (o nagka-girlfriend si lalaki), tapos ayun, biglang susulpot si esposo/esposa mula sa kawalaan at iiinvoke ang kasal at kakasuhan ang misis/mister nya. Sa tingin nyo makatarungan ba naman yun?” he added.

Cost

Lawyer Philip Jurado, who discussed Padilla’s proposed Divorce Act of the Philippines, along with the senator in a recent Facebook live, said a person may spend an average of P250,000 to P500,000 to fulfill an annulment case.

An annulment in the Philippines may take two to four years on average, if the other spouse does not contest the proceedings and there are no issues, such as property and custody and/or support of/for the children.

Tulfo said one of the usual grounds for annulment of couples is the psychological incapacity, where the petitioner needs to prove that his/her spouse is psychologically incapable in performing his/her marital obligations.

This may need a psychological examination by a licensed psychologist that may also include the witnesses, which may be presented by the petitioner.

Tulfo said this is one of the factors that make the annulment process expensive.

“Yan kasi ang lalong nagpapamahal at nagpapatagal sa proseso ng paghihiwalay nang matiwasay -- yung kailangan pang patunayan sa korte na ang isang partido ay may ‘psychological incapacity.’ Maraming kaso na kailangan pang magsiraan ang dating nagmahalan, gumawa ng kwentong-kutsero, at umupa ng psychologist para lamang mapanindigan ang kaso,” he said.

He said it also affects a person’s reputation, noting that he/she will have a “psychological incapacity” record in court.

“Requirement kasi ang mental health clearance sa trabaho, so malinis dapat ang mental health record ng isang indibidwal,” said Tulfo.

What adds to the stress caused by the annulment proceedings is the conduct of hearings where one party will have to destroy the other in order to win the case.

The other factors that affect the speed of reaching the finality of an annulment case include retirements or promotion of judges, difficulties in scheduling the hearing considering the availability of the witnesses, opposition by the other party and issues such as custody, support or property and court inventory.

Padilla’s bill

Among the grounds for the filing of a divorce petition based on Padilla’s proposed bill are the following:

* When either of the spouses has no capacity to perform the essential marital obligations of the marriage and the incapacity continues and appears to be incurable;

* When there is an existing irreconcilable marital difference;

* When a spouse obtained a divorce abroad;

* When a spouse is presumed dead under Articles 390 and 391 of the Civil Code of the Philippines;

* Upon conviction of an offense under Republic Act 9262, otherwise "Anti-Violence Against Women and their Children Act of 2004";

* Attempt by the respondent against the life of a common child or a child of the petitioner;

* Having a child with another person other than one’s spouse during the marriage, except when upon the mutual agreement of the spouses, a child is born to them in vitro or through a similar procedure or when the wife bears a child after being a victim of rape;

* When any of the grounds for annulment of marriage under Article 45 of the Family Code of the Philippines, filed by the persons and within the periods provided in Article 47 of said Code are present;

* Except when circumstance is present under Article 56 of the Family Code of the Philippines when any of the grounds for legal separation under Article 55 of the said Code are present;

* When the spouses are separated in fact for at least two consecutive years at the time of the filing of the petition for divorce;

* When the spouses have been legally separated by judicial decree under Article 55 of the Family Code of the Philippines

Padilla’s proposed bill also includes a six months cooling-off period after the filing of the petition and this will be observed before a competent court. During the period, the court shall exercise all efforts to reunite and reconcile the parties.

Hontiveros’ bill

Under Hontiveros’ proposed bill, the grounds are as follows:

* Five continuous years of separation, with or without a judicial decree of separation;

* The commission of the crime of rape by the respondent-spouse against the petitioner-spouse before or after the marriage;

* The grounds for legal separation under Article 55 of the Family Code of any other special law;

* A final decree of absolute divorce validly obtained in a foreign jurisdiction;

* Irreconcilable marital differences or irreparable breakdown of the marriage despite earnest effort at reconciliation.

Lawmakers said the process of divorce may take only “a few months,” or at most a year, but assured that the procedures will be more accessible and way ahead inexpensive.

Once annulment and/or divorce has reached finality, the husband and wife will be allowed to remarry.

The children of the estranged parties will still be considered legitimate while their custody, particularly of the minors, will be determined by the court.

The judgment in both processes should provide a liquidation, partition and distribution of the properties of the spouses, the custody and support of the children, the conjugal dwelling and the lot on which it is situated shall be adjudicated in accordance with the Family Code of the Philippines, and the effects on the spouses of the intestate successions, testamentary dispositions, donations, and insurance on beneficiaries shall be observed. (SunStar Philippines)

Filipinos relieved by divorce ruling

Divorce obtained abroad by a Filipina married to a foreigner recognized by Philippine top court...

Image Credit: Istockphoto

Published: 17:23 April 25, 2018

Janice Ponce de Leon, Staff Reporter

 

Dubai: Divorce obtained abroad and initiated by Filipinos with foreign spouses will now be recognised in the Philippines in a landmark ruling by its Supreme Court.

The Philippines’ top court on Tuesday ruled in favour of Marelyn Tanedo Manalo, a Filipina divorced from her Japanese husband.

Manalo’s divorce was granted in Japan in 2011. Based on Philippine laws, however, a local court must recognise the ruling before it can be considered valid in the Philippines.

Divorce is legal around the world except in two nation-states — the Philippines and the Vatican. An absolute divorce bill is pending in congress.

Marriages in the Philippines can be dissolved in two ways: through a declaration of nullity or through annulment.

Attorney Barney Almazar, director of Gulf Law and counsel of some Filipinos seeking annulment and divorce in the UAE, said the ruling makes the process easier for Filipinos seeking recognition for their foreign divorce decree. But it is limited in scope.

“Once the foreign decree is recognised, the court will order the civil registrar to dissolve the marriage and annotate the marriage certificate accordingly. This process may take about a year but is definitely faster, cheaper and less complicated than annulment,” Almazar told Gulf News.

Manalo’s court proceedings ran for nearly seven years from the Regional Trial Court until it reached the Supreme Court (SC).

RELATED LINKS

• Divorced in the UAE but not in the Philippines
• Filipino lawmakers back bid to legalise divorce
• Slum mum woes as birth control plans fail
• Wife gets divorce from narcissistic husband
• Filipino expats endangered by 'kind nature'
• Awaken the hero in you, Aquino tells citizens
• Two Filipina lawmakers file divorce bill at House

Almazar noted, however, that the ruling does not apply to two Filipinos seeking divorce.

“Marriages between two Filipinos are not covered by this exemption. If the parties are both Filipinos, only annulment or declaration of nullity of marriage will dissolve the marriage. Divorce secured between two Filipinos will be valid worldwide except in the Philippines and the Vatican,” Almazar said.

“The parties to a divorce may find themselves in a peculiar situation where they have two marital statuses — married in the Philippines and single in the rest of the world,” he added.

Gulf News last week reported the case of Jun, a Filipino who got a divorce in the UAE but is still technically married in the Philippines. Their annulment proceedings have been ongoing for the past three years.

Jun earlier said he favours the divorce bill to be enacted as the annulment process takes a long time and has already burnt a hole in their pockets.

Prior to the SC ruling, only divorce secured by the foreign spouse will capacitate the Filipino partner to remarry. The latter can now remarry even if he or she was the initiator of the divorce, according to the ruling.

Philippines moves closer to allowing divorce

By BBC London

• 19 March 2018

• Share this with Facebook
 
• Share this with Twitter
 
• Share this with Messenger
 
• Share this with Email
 
• Share

Image copyrightAFP/GETTY

Image captionDivorce remains illegal in the Philippines, which has a large Catholic population.

The Philippines' lower house of Congress has passed a divorce bill on the third reading, moving the country closer to legalisation.

The bill passed despite opposition from President Rodrigo Duterte, who had his own marriage legally annulled.

However, for divorce to become legal the Senate also has to pass a bill in favour, and even then Mr Duterte could still use his veto to strike it down.

Worldwide, divorce is only illegal in the Philippines and Vatican City.

Over 80% of people in the Philippines describe themselves as Catholic, and the church has a powerful influence in the country.

Congresswoman Emmi de Jesus said the bill was filed because of a "clamour of women trapped in abusive relationships", who need the government to give them a means out of "irreparable marriages".

• Is Catholic Church's influence in Philippines fading?
• Philippine MPs back contraception

The Divorce Bill, or House Bill 7303, passed with 134 votes in favour and 57 against, with two abstentions.

What can Filipinos currently do to get out of a marriage?

Currently, the only means to end a marriage legally in the Philippines is annulment.

Such a ruling requires a civil case in which spouses have to undergo mental health tests and testify in court, all in a bid to have a judge declare a marriage invalid.

• Philippines eyes easier annulment
• Philippines reviews divorce law

Such cases can last up to ten years and are generally expensive. President Duterte won his annulment before he entered office.

His spokesperson, Harry Roque, said the president feared the divorce bill would cause problems for the children of divorced couples.

What would the new bill allow?

This divorce bill would mean a court ruling could dissolve a marriage if it is deemed "irremediably broken", allowing individuals to remarry another person of the opposite sex.

Image copyrightEPA

Image captionPhilippine President Rodrigo Duterte had his marriage annulled before he entered office.

The bill would also give courts the power to decide custody "in accordance with the best interests" of minors. Children under seven could not be separated from their mothers unless there were "compelling reasons" to do so.

Opposition leader Edcel Lagman, one of the bill's sponsors, said that in such divorce cases, "there is no more marriage to protect or union to destroy because the marriage has long perished".

The bill does not end the "steadfast commitment of the state to protect and preserve marriage", he said.

In any case, divorce will not become legal in the Philippines unless the Senate passes a so-called counterpart bill, which the upper house has not even drafted.

Legislators have advanced numerous divorce bills since 1999, but until now they have all failed to pass committee stage.

Polls suggest a narrow majority in favour of divorce in the Philippines.

Divorce/Annulment in The Philippines

By Dutch expat in the Philippines JAN VAN DAM

Philippine law does not allow divorces (the only country in the world, next to the Vatican) but it does allow legal separation, annulment and marriage “voids” under the Family Code of the Philippines.

• Annulment, covered mainly by Article 45 of the laws, applies to a legitimate marriage that has a valid ground to undo it
• while a marriage, being declared void is considered invalid from the beginning.

The above terms are important, and you should know the difference between them.

Read also other articles in this series:
Separation and annulment
Marriage and divorce history
Marriage to a Philippine citizen

The following article is derived from a story from someone who wanted to share his ‘adventures’ of having a marriage annulled. I re-wrote it the way it is now so it is understandable and gives a good idea of the difficulties one has to face when starting an annulment procedure. And I added some facts, definitions and quotes from different sources.

Why couples separate

Many Filipino men and women have been thinking it was the right thing to do – marry after college or high school, have a family, and live happily ever after. Unfortunately, the union does not always last.
There are many reasons for a separation:

• Sometimes one of the spouses has enough of it, leaves the house and never returns, leaving the partner and eventual children alone.
• A man often leaves his house for another woman and moves in with her.
• Sometimes the separation is because of a continuing physical abuse.
• And sometimes it is a mutual agreement to split up. Both spouses know that a divorce is not possible, so re-marrying will not be possible unless an annulment case will be started.

Definition of separation

A legal separation is an agreement where both parties split their properties and start living separately. They can not re-marry but may call themselves: legally separated. 
If the spouses have been married in church, which is very common in the Philippines, a civil annulment needs to be followed by a church annulment or separation if the spouses like to get married again in church. But that’s another story. This posting is about the civil procedure only.

Annulment Procedure

Of course lawyers are involved to start an annulment procedure. You need to find a good one who is specialized in this kind of procedures, more special in Family Law. A foreigner should not show his face to this lawyer because it might raise the price a lot. Foreigners have to pay the so-called ‘white skin’ tax; and believe me or not, the moment a lawyer notices that a foreigner is involved, his price goes up multiple times.
Let the ‘to be divorced’ person handle it alone. Ask a few lawyers about their rates, how much the whole procedure might cost, ask for possible time frames and what steps are to be taken and how much each step costs.

Many steps to follow

When the procedure starts a psychological evaluation of both spouses needs to be done. If the other spouse cannot be traced new problems arise. Your lawyer will know the procedure in such case. The example below is about two people who do not live far from each other and even see each other from time to time because of the children involved.
Several meetings will be held, many court hearings need to be attended and if you are lucky the annulment will be granted after a few years.
Psychological it might be a stressful period, not only of the long time it takes, but also because of the endless repeating same stories and paperwork what needs to be done.

Costs of the procedure

You probably have heard stories that filing for annulment is expensive and only those with money can afford it to get out of that so called ‘marriage’. If you cannot afford the money or you do not like to wait a few years, you are stuck in it.

WARNING
But be careful in living together with your girlfriend!
It happens a lot that a couple was married, but after some time the man runs away and lives somewhere else, most of the time with another woman. They call themselves separated, but are not able to legally marry again; they are often not even officially separated. If you meet such a woman and you want to marry her, you will have some problems to solve first.

Of course, you can just live with her and act if you are married, but if the original husband finds out, he can make many problems for you. He could demand for all your money because he will claim that he was only away to find work or something like that and upon return finds his wife committing adultery. In such cases, the richer party (mostly the foreigner) will have to pay him off to agree in an annulment or he will report you to some friendly (and willing for a share of the money) police officers so you might end up in jail (and maybe your girlfriend too). So be careful when you do something like this.

Articles 333 and 334 of the Revised Penal Code (Marital Infidelity laws) define adultery and concubinage. According to these articles, a wife may be found guilty of adultery if she has sexual relations with a man not her husband. In contrast, a husband would only be guilty of concubinage by meeting certain specific conditions. The punishment for adultery is heavier than concubinage. The law implies that husbands can get away with infidelity so long as they don’t meet certain conditions, making it discriminatory against women.

In general the one who files for the annulment is paying for it. For the above mentioned psychological evaluation one should prepare something between 40 and 50 thousand. After finishing this, both partners will be psychologically incapacitated, which is an acceptable ground for annulment.

(There are now more legal grounds for annulment, being mentioned at the end of this article)

A civil annulment, which is completely different from legal separation, voids the civil marriage and allows both parties to remarry in civil ceremonies.

Once you have an acceptable ground for annulment: you are psychologically incapacitated, it is time to file the annulment case in a Family court where you live. Civil annulment cases are always handled by family courts.
In this stage, it is necessary to have a good and caring lawyer who is able to listen to you and is able to get you a good and acceptable settlement.
The ‘still a couple’ will be asked to reconsider the procedure by the Office of the Solicitor General and to try to keep on living as a married couple. It is their task to try to make the spouses reconsider their decision by asking them to go to counseling, therapies and retreats. They take their time hoping that the couple decides to give the marriage another try.
Cost for this step is more than thrice the psychological evaluation. Count an amount of 150,000 pesos or more.
Always keep in mind that, even if you have spend already a lot of money, the annulment might not be granted and be prepared that it might take several years to have a final decision.

But let’s say that, after waiting a long time you receive the message that the annulment is final and granted, many practical problems only start at that moment. Getting married in a civil procedure will be possible now, but not in a church. To be separated in church is a different long-lasting (and costly) procedure done through the diocese where you have been married.

Name Change

One of the ‘court orders’ is that both spouses are not allowed anymore to use each other’s name. Therefore, many papers and documents need to be ‘fixed’.
All documents you have, like passport, bank accounts, id cards and more of that, have the name stated of both spouses, or just the wrong spouse’s name. To change these is also a time-consuming process. If properties, like a house, are involved, the title needs to be changed.
Your bank, for example, needs a copy of the annulment papers. And because this might be a thick file of papers, start making copies! An easier way is to close the account and open a new one (in another branch).
Also BIR, SSS, Pag-Ibig and if you have a job: your employer; all need to change your married name into your single name. Be prepared to give them copies of the annulment file.

Cancelled marriage certificate

To change the name in the passport you should not forget to go to a NSO office and get a “cancelled marriage certificate”. In this certificate, it states that the marriage never happened. The moment you have this, you may apply for a new passport.
The same certificate is needed to get married again.

A general advice: try to be ‘friends’ with the ‘ex’. It will make the procedure easier and much faster. Make peace first with him or her.

More possible legal grounds for annulment

As spoken of earlier in this article, there are more possible legal grounds for annulment in the Philippines.
The following text was published on the website of Foreign Assistence Center to make annulment a little easier.

The Supreme Court (SC) has relaxed its own rules regarding the annulment of marriage on the ground of psychological incapacity, describing the rules it had in place for 18 years now as “rigid.” In a 25-page decision penned by Associate Justice Lucas Bersamin, the high court, through its First Division, reversed a September 2011 ruling in an annulment case where it had affirmed a Court of Appeals (CA) decision upholding the marriage of two individuals.
“After taking a second hard look” at the facts of the case, the high court said it had to reverse the 2011 ruling which involves a petition for annulment filed by a husband whose wife constantly plays mahjong and displays narcissistic behavior. The high court said Article 36 of the Family Code, which points out psychological incapacity as a ground for annulment of marriage, should not be too strictly or literally applied. In keeping with the provision, the high court set guidelines in 1997 for nullification of marriage due to psychological incapacity, which include: the root cause of the psychological incapacity must be medically or clinically identified, alleged in the complaint, sufficiently proven by experts, proven to be existing at the time of the celebration of the marriage, and clinically or medically incurable, among others. “The foregoing guidelines have turned out to be rigid, such that their application to every instance practically condemned the petitions for declaration of nullity to the fate of certain rejection,” the latest decision read. The high court stressed that courts should rule on every annulment case not based on “assumptions, predilections or generalizations, but according to its own facts.” In the case involved, the high court said that the wife’s duties to her husband and children are primary, and that taking her children with her while playing mahjong exposes them to a culture of gambling. The high court clarified that it is “not demolishing the foundation of families but 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.” Ample safeguards remain in place to ensure that petitions for annulment of marriage are decided with extreme care, the high court added. Instead of being worried about the stream of annulment cases that may be filed following the ruling, the high court said that it would “rather be alarmed by the rising number of cases involving marital abuse, domestic violence and incestuous rape.”

Family law, a few articles

A few valid reasons for legal separation are:

• One of the spouses is sentenced to jail for more than 5 years
• A spouse physically abuses the husband/wife or a child in the household
• A spouse attempts to marry another person (= left the house and moved in with another person)
• If one spouse has a drug or alcohol problem or is homosexual
• Adultery
• Aggressive attempts by one spouse to get the other spouse to change religions, or adopt political views or to prostitute herself or a child in the home

If one spouse leaves the other spouse without having a reason held as valid by the court, the abandoned spouse can file for separation after a year has passed. The spouse must file within five years of the qualifying event, and the court can deny the petition for various reasons, including evidence the filing spouse consented to the qualifying event.

Valid reasons for annulment

A marriage can be annulled if one spouse was not mentally sound at the time of the marriage or was forced into it, unless they continued living as husband and wife after regaining mental competence or the threat of force disappeared. Fraud on behalf of either spouse when agreeing to marry is grounds for annulment, as well as the discovery of an incurable sexually transmitted disease or permanent impotence. If either spouse was over 18, but not yet 21, and got married without parental consent, the marriage can be annulled if the parties no longer lived together as husband and wife once the spouse turned 21.

Voided marriages

All marriages between persons under 18 are automatically voided by law, as well as a marriage performed by an unlicensed official. However, if at least one of spouses believed the official had authority, the marriage is still valid.
Polygamous, bigamous and incestuous marriages are invalid. If one spouse was incompetent at the time of the marriage but his condition didn’t present itself until after the ceremony, the marriage might be voided on those grounds under Article 36.
According to Article 46, fraud that can lead to annulment includes a spouse who hid a drug problem, an alcohol addiction, homosexuality or a sexually transmitted disease. Deception involving chastity, money, station in life or moral character isn’t grounds for annulment under fraud. If a person remarried because she believed her prior spouse was dead, the bigamy void might not apply, and the second marriage could be upheld. The prior spouse must be absent for at least four years for the second marriage to be valid, but only two years is needed if there’s reason to believe he’s dead, such as an accident. To preserve the marriage if the missing spouse reappears, the remarried spouse must also have had the first marriage declared annulled or voided in court during the prior spouse’s absence. Article 213 places a custody stipulation on legal separation cases. Unless the mother is an unfit parent, she receives custody if the child is under 7. Otherwise, the innocent spouse, or the spouse who filed for separation, gets custody, providing she is fit.

A few Questions and answers

What if no marriage certificate could be found at any CSO?

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

How is “legal separation” different from “annulment”?

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

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

• No. De facto separation is not a ground for annulment. However, the absence of 2 or 4 years, depending on the circumstances, may be enough to ask the court for a declaration of presumptive death of the “absent spouse”, in which case the petitioner may again re-marry.