As we said at the beginning of this series of articles on ending marriage in the Philippines, the usual way most people go about it is to either obtain a Declaration of Absolute Nullity (because the marriage was void from the beginning and thus never happened in the eyes of the law) or they obtain an Annulment of Marriage. So, what are the grounds on which either outcome can be achieved?
Declaration of Absolute Nullity
A – Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (lack of legal capacity to marry).
B – 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;
C – Those solemnized without license except if otherwise covered by other laws.
D – Those bigamous or polygamous marriages except those covered by the laws of presumption of death of the absent spouse.
E -Those contracted through mistake of one contracting party as to the identity of the other;
F – A remarriage shall be null and void if the partition and distribution of the proprieties of the spouses, the children’s’ presumptive legitimes and the judgment of absolute nullity of the marriage are not recorded in the necessary civil registry and registries of property.
G – Any psychological incapacity at the time of the marriage celebration, which prevents either the husband or wife from fulfilling the essential marital obligations of marriage, shall also be void even if such incapacity becomes manifest only after the solemnization.
H – Marriages between ascendants and descendants of any degree; between brothers and sisters whether full- or half-blood are incestuous and void from the beginning.
I – Though not incestuous the following between relatives are void from the beginning for reasons of public policy:
- Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;
- Between step-parents and step-children;
- Between parents-in-law and children-in-law;
- Between the adopting parent and the adopted child;
- Between the surviving spouse of the adopting parent and the adopted child;
- Between the surviving spouse of the adopted child and the adopter;
- Between an adopted child and a legitimate child of the adopter;
- Between adopted children of the same adopter;
- Between parties where one, with the intention to marry the other, killed the other person’s spouse, or his or her own spouse.
‘G’ is the one that allows the lawyers to get very creative and is the usual loop hole through which the marriage is declared null.
Annulment of Marriage
Under Art.45 of The Family Code Of The Philippines there are 6 grounds on which a court can annul a marriage. These are:
- Absence of Parental Consent. A marriage was solemnized and one or the other party was eighteen (18) years of age or over but below twenty-one (21) and consent was not given by the parents, guardian or person having substitute parental authority.
- Mental Illness. Either party was of unsound mind at the moment of the marriage. But if the parties freely cohabited with each other after he or she came to reason the law prohibits the filing of a Petition.
- Fraud. That the consent of either party was obtained by fraud, unless such party once having knowledge of the fraud freely cohabited with the other as husband and wife.
- Consent Gained Under Duress. That the consent of either party was obtained by force, intimidation or undue influence. Except when the same has ceased and the party filing the petition freely cohabited with the other as husband and wife.
- Physical Incapacity. One or the other party was physically incapable of consummating the marriage, and such incapacity continues and appears to be incurable.
- Diseased. Either party was at the time of marriage afflicted with a sexually-transmitted-disease (STD) found to be serious and seems to be incurable. This may also constitute fraud.
All of these must be filed within 5 years of the grounds being discovered. Basically it is a long, drawn out and expensive process that can be easily thwarted if the other spouse wishes to make life difficult. Usually this is done to gain a large payment from his replacement. Even if granted, the Prosecutor has a duty to the honour and integrity of the Filipino family to appeal the annulment… and too often they do! As I said back at the start, awareness and avoidance is by far the best strategy but, failing that and finding yourself in need of somehow ending the marriage of your betrothed, do not despair, there are options. Get help, get lots of money and get ready for an experience of a lifetime.
Perry Gamsby, D.Lit, MA(Writing), Dip.Bus, Dip. Mktg is a writer and lecturer who lives with his Cebuana wife and five Aus-Fil daughters in Western Sydney. The author of a series of best-selling ‘self-help’ books for expats and those married to Filipinas, he is also a Master of Filipino Martial Arts and a former World Stickfighting Champion who has lived, worked and vacationed in the Philippines since 1988. Perry and his family return to the Philippines on a yearly basis. You can read more of his writing on Philippines topics at www.streetwisephilippines.biz
This article and website sponsored by Down Under Visa, Australian Registered Migration Agents in Manila – The Australian Partner Visa Specialists