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.

Philippine Supreme Court Relaxes Rules on Marriage Annulment

The Supreme Court (SC) has taken a liberal stand in allowing the annulment of marriage on the ground of psychological incapacity. The court reversed itself and nullified a marriage of private individuals, saying that a strict implementation of the rules would allow diagnosed sociopaths, schizophrenics, narcissists and the like to stay married.

In a 25-page ruling, the FC's First Division through Associate Justice Lucas P. Bermasin, reversed its September 2011 ruling "after taking a second hard look" at the facts of the case. The SC said that the lower court failed to make factual findings which can serve as legal bases for concluding that one of parties is suffering from psychological incapacity.

In its recent ruling, the SC said that Article 36 of the Family Code should not be so strictly and too literally applied. This article provides "that a marriage contracted by any party who, at the time of 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".

In 1997, the SC set specific guidelines before a marriage can be nullified on the ground of psychological incapacity. These guidelines have turned out to be rigid, such that their application to every instance practically condemned the petition for declaration of nullity to the fate of certain rejection - so the SC in its recent ruling.

"Instead, every court should approach the issue of nullity 'not on the basis of a priori assumptions, predilections or generalization, but according to its own facts' in recognition of the verity that no case would be on "all fours" with the next one in the field of psychological incapacity as a ground of the nullity of marriage; hence, every 'every trial must take pains in examining the factual', the SC said.

In this case, the SC granted the motion for reconsideration filed by the husband against who loves to play mahjong and frequents the beauty parlor, displaying narcissistic behavior.

Aside from medical experts, the SC also gave credence to the testimony of Fr. Gerald Healy, S.J., a canon law expert and a consultant of the Family Code Revision Committee, who testified that the wife's duties to her husband and children bad become secondary to hear beauty, being a former model, her going-out, going to beauty parlor and mahjong.

The SC added that taking her children with her while playing mahjong is exposing them to a culture of gambling which was 'a very grave and serious act of subordinating their needs of parenting to the gratification of her own personal and escapist desires.

In relaxing the rules in determining psychological incapacity for nullification of marriages, the SC said that they are 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 scared blood'.

The SC added that the courts may be flooded by petitions for nullity of marriage but there is no reason to be worried because of ample saveguards such as intervention of the government.

"The court should rather be alarmed by the rising of cases involving marital abuse, child abuse, domestic violence and incestuous rape", the SC said.