FAQS (FREQUENTLY ASKED QUESTIONS) (ANNULMENT, DECLARATION OF NULLITY OF MARRIAGE IN THE PHILIPPINES AND FOREIGN DIVORCE) VALIDITY OF MARRIAGE

Q: What are the requisites of a Valid Marriage? Q: What is the effect of the absence of any of essential requisites? Q: What is the effect of defects or irregularities in essential or formal requisite? Q: How about irregularities in formal requisites? Q: Is there such thing as a secret marriage? FOREIGN MARRIAGES OF FILIPINO CITIZENS

Q: Are foreign marriages of Filipinos valid? Q: How about a foreign divorce obtained by a Filipino, is it valid under Philippine laws? Q: In case of a divorce secured by a foreigner-spouse or a former Filipino, can the Filipino spouse remarry? Q: What if a Filipino remarried after securing a divorce abroad, is the second marriage valid? Q: Can I still file a petition for declaration of nullity or annulment of marriage if I am residing abroad ? May an overseas contract worker (OCW) or overseas foreign worker (OWF) file annulment case while he is working abroad? My friends annulment was started even if she was abroad, how was she able to do this? Q: If divorce is not allowed in the Philippines, does this mean that spouses have no more remedy to severe or end marital ties or to get out of a troubled marriage? ANNULMENT OF MARRIAGE AND DECLARATION OF NULLITY

Q: Is annulment different from a declaration of nullity of marriage? Q: If a marriage is void from the very beginning (void ab initio), what must be filed in court? Q: What are the grounds for Declaration of Nullity of Marriage? Q: What is the most common ground in petitions for declaration of nullity of marriages? Q: What are some of the behavioral manifestations of psychological incapacity? Q: Who can file petition for declaration of absolute nullity of marriage? Q: Who can file an action to declare marriage void based on psychological incapacity? Q: What are the grounds for Annulment of Voidable Marriages? Q: If one spouse is absent or has disappeared for two years, can the present spouse remarry? Q: How long does an annulment of marriage process usually take? Q: What is the cost of annulment proceedings? Parties are looking for fast and cheap and less expensive annulment, is this possible? Q: When can one file a petition for declaration of absolute nullity of marriage? Q: How will I know if my attorney is licensed to practice? Q: How can I verify if my lawyer really filed the petition in court? 1

Q: If the other spouse opposes the annulment, can one still file an annulment? Q: I have filed for annulment, but my husband threatens to kill me if I proceed. What should I do? Q: If the whereabouts of a spouse cannot be found or his address is not known, can an annulment still be filed? Q: Can one file an annulment if his/her spouse had a previous marriage?

VALIDITY OF MARRIAGE

Q: What are the requisites of a Valid Marriage? A: The essential requisites of marriage are as follows: a. Legal capacity of the parties, who must be 18 years of age, male and female, and without any of the impediments mentioned in Arts. 37 and 38 of the Family Code. b. Consent freely given in the presence of the solemnizing officer. Its formal requisites, on the other hand, are as follows: a. Authority of the solemnizing officer; b. Valid marriage license, except those provided for in Chapter 2, Title I, Family Code; c. 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 two witnesses of legal age.

Q: What is the effect of the absence of any of essential requisites? A: Marriage is VOID. Examples : marriage contracted by a minor or below 18 even with parental consent; same sex marriage; marriage between first cousins; marriage in jest; mistake of one party as to identity of another.

Q: What is the effect of the absence of any of formal requisites? A: Marriage is VOID. Examples : solemnized by a fake judge, priest or pastor (unless such marriage was contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so), no marriage license(except under Articles 2734) or fake marriage license or expired marriage license, marriage by proxy.

Q: What is the effect of defects or irregularities in essential or formal requisite? A: In case of irregularities in essential requisites, marriage is VOIDABLE. Examples: when a party is between 18 and 21 years old and gets married without parental consent; or when there is defect in the consent of either party. Note: If the marriage is solemnized without parental advice, it is still VALID because lack of parental advice is only an irregularity. See below.

Q: How about irregularities in formal requisites? A: Defect is considered only an IRREGULARITY hence marriage is still VALID. Examples: Issuance of license without posting of application for marriage license for 10 days; filing of application in place where neither party resides; issuance of license without certificate of marriage counseling or attendince to seminar on family planning; lack of parental advise; or no witnesses to the marriage.

Q: Is there such thing as a secret marriage ? A: None. A secret marriage is a legally non-existent phrase that ordinarily applies to a civil marriage celebrated without the knowledge of the relatives or friends of the spouses.(Republic v. CA. and Castro, 236 SCRA 257).

FOREIGN MARRIAGES OF FILIPINO CITIZENS Q: Are foreign marriages of Filipinos valid? A: Yes, they are valid. Applying the rule of lex loci celebrationis, if a marriage is valid in the place of celebration, the marriage is valid, except under Arts. 35 (1), (4), and Art. 36, Art.37 and Art 38 of the Family Code. (Art. 26, first par., Family Code)

Q: How about a foreign divorce obtained by a Filipino, is it valid under Philippine laws? A: No, foreign divorces of Filipinos are void, being against our public policy. This is true even if they got married in a country where divorce is allowed based on the nationality principle which provides that Philippine laws affecting status follow them wherever they are. However, there are several cases wherein the divorce securedabroad by the alien-spouse, and even by former Filipinos, are recognized under Philippine laws.

Q: In case of a divorce secured by a foreigner- spouse or a former Filipino, can the Filipino spouse remarry? A: Yes, however, the foreign divorce is not automatically recognized in the Philippines. The foreign divorce decree must be recognized here in the Philippines by filing a petition for recognition of foreign judgment/divorce decree before the appropriate Philippine court. Consult your lawyer on how to go about this process which will usually entail a shorter period.

Q: What if a Filipino remarried after securing a divorce abroad, is the second marriage valid? A: No, under Philippine laws, the second marriage is null and void because the first marriage is still considered valid in the Philippines.

Q: Can I still file a petition for declaration of nullity or annulment of marriage if I am residing abroad ? May an overseas contract worker (OCW) or overseas foreign worker (OWF) file annulment case while he is working abroad? My friends annulment was started even if she was abroad, how was she able to do this? 3

A: Yes, under the present rule a non-resident Filipino is allowed to file a petition. Your lawyer will send you the documents which need to be consularized/notarized at the nearest Philippine embassy. Then you can just send these documents to your Philippine lawyer for filing here.

Q: If divorce is not allowed in the Philippines, does this mean that spouses have no more remedy to severe or end marital ties or to get out of a troubled marriage ? A: Philippine laws specifically the Family Code provides grounds to annul a marriage or declare it as null and void. The parties_remedies are filing of a petition of declaration of nullity or annulment of marriage.

ANNULMENT OF MARRIAGE AND DECLARATION OF NULLITY Q: Is annulment different from a declaration of nullity of marriage? A. Yes they are different, Annulment applies to voidable marriages (these are valid until annulled or set aside by final judgment). Declaration of Nullity applies to marriages that are void from the start. (This is popularly referred to as ANNULMENT also)

Q: If a marriage is void from the very beginning (void ab initio ), what must be filed in court? A: A Petition for Declaration of Nullity of Marriage. (As mentioned earlier, this action is also referred to by many as ANNULMENT). Q: What are the grounds for Declaration of Nullity of Marriage? A: a. Where there is an absence of an essential or formal requisite. (Art. 4, first par., Family Code) b. Those enumerated in Art. 35. 1. Minority (those contracted by any party below 18 years of age even with the consent of parents or guardians). 2. Lack of authority of solemnizing officer (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. Absence of marriage license (except those exempt from license requirement). 4. Bigamous or polygamous marriages (except in cases where there is declaration of presumptive death). 5. Mistake in identity (those contracted through mistake of one contracting party as to the identity of the other). 6. After securing a judgment of annulment or of absolute nullity of marriage, the parties, before entering into the subsequent marriage, failed to record with the appropriate registry the: (i) partition and distribute the properties of the first marriage; and (ii) delivery of the children_s presumptive legitime. a. Where one of the parties was psychologically incapacitated at the time of the celebration of the marriage.(Art. 36) 4

b. Incestuous marriages (Under Art. 37) c. Marriages void by reason of public policy (under Art. 38)

Q: What is the most common ground in petitions for declaration of nullity of marriages? A: Psychological Incapacity. Consult your lawyer on the steps and procedure in filing a petition for this incapacity. This is present when either or both parties was psychologically incapacitated to comply with the essential marital obligations of marriage, even if such incapacity becomes manifest only after its solemnization. Consult your lawyer on your behaviors as they may be considered as psychological incapacity. Lawyers work with psychiatrists/clinical psychologists in annulment cases.

Q: What are some of the behavioral manifestations of psychological incapacity? A: Psychological incapacity may be made manifest by the following: 1. by the refusal of the wife to dwell with the husband after the marriage without fault on the part of the latter or to have sex with the husband or to have children; 2. when either party or both of them labor under an affliction that makes commom life as husband and wife impossible or unbearable such as compulsive gambling or unbearable jealousy on the part of one party or other psychological causes of like import and gravity; 3. sociopathic anomalies in husbands like sadism or infliction of physical violence on the wife, constitutional laziness or indolence, drug dependence or addiction, or some kind of psychosexual anomaly; 4. homosexuality or lesbianism; 5. satyriasis in men or nymphomania in women (execessive and promiscuous sex hunger) 6. extremely low intelligence; 7. immaturity, i.e. lack of an effective sense of rational judgment and responsibility (like refusal of the husband to support the family or excessive dependence on parents or peer approval) Consult your lawyer on your behaviors as they may be considered as psychological incapacity. Lawyers work with psychiatrists/clinical psychologists in annulment cases.

Q: Who can file petition for declaration of absolute nullity of marriage? A: Either of the spouses may file petition for declaration of absolute nullity of marriage; however, for action of annulment, only the injured party may file the petition.

Q: Who can file an action to declare marriage void based on psychological incapacity? A: Either party, even the psychologically incapacitated can file the action. Q: What are the grounds for Annulment of Voidable Marriages? 1. Lack of parental consent. If a party was 18 years or over, but below 21, and the marriage was solemnized without the consent of the parents/guardian, unless upon reaching 21, such party freely cohabited with the other and both lived together as husband and wife.

2. Insanity. Either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife. 3. Fraud. 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. Force, intimidation or undue influence. If the consent of either party was obtained by force, intimidation or undue influence, unless it having disappeared or ceased but such party freely cohabited with the other as husband and wife. 5. Impotency. Either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable. 6. Sexually Transmitted Disease. If, at the time of marriage, either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

Q: If one spouse is absent or has disappeared for two years, can the present spouse remarry? A: Yes, the absence of a spouse for 2 years when in the disappearance there is danger of death, the present spouse may file an action for declaration of presumptive death of the absent spouse, in which case the petitioner may again remarry. Please remember that there must be a court declaration of presumptive death before the present spouse can remarry.

Q: How long does an annulment of marriage process usually take? A: The timeframe of an annulment process depends on the circumstance of the case and on some factors, e.g., docket of the courts, opposition of the spouse, availability of the judge or the public prosecutor, etc. Annulment of marriage usually takes less than a year, or it can be longer if there arise other factors that will delay the proceedings. Consult your lawyer on how to avoid unnecessary delays in the proceedings.

Q: What is the cost of annulment proceedings? Parties are looking for fast and cheap and less expensive annulment, is this possible? A: Cost depends on the circumstances of each case. The usual acceptance fee for annulment starts at Php 150,000.00 but clients prefer the all-in package price which is a flat fee. Clients are better off knowing in advance how much they will pay and being informed of the total cost beforehand. They can also choose to pay the fee outright upon signing the engagement proposal or negotiate for an easy payment terms. Please email us to know about our all-in package rate, deferred payment option, and discount when paying upfront.

Q: When can one file a petition for declaration of absolute nullity of marriage? A: There is no hard and fast rule, you may discuss this with your lawyer. Even if you were just recently married, you can file this petition provided there is a valid ground.

Q: How will I know if my attorney is licensed to practice? A: A lawyer must be registered in the Roll of Attorneys of the Supreme Court and must be in good standing to be able to practice law. You may check the names of registered lawyers in Integrated Bar of the Philippines website.

Q: How can I verify if my lawyer really filed the petition in court? A: You may ask your lawyer for copy of the petition filed in court, check the stamp therein so you would know when it is filed and also the docket number and where it has been raffled.

Q: If the other spouse opposes the annulment, can one still file an annulment? A: Yes, it can still be filed, however, if your spouse would oppose, it might delay the proceedings.

Q: I have filed for annulment, but my husband threatens to kill me if I proceed. What should I do? A: You may go to court for protection order and/or file violations of provisions of Violence Against Women and Their Children (R.A. 9262).

Q: If the whereabouts of a spouse cannot be found or his address is not known, can an annulment still be filed? A: Yes, jurisdiction over the respondent is acquired though service of summons by publication. Q: Can one file an annulment if his/her spouse had a previous marriage? A: Yes, under article 35 of the Family Code based on a bigamous marriage.