How to File for a Declaration of Nullity of Marriage in the Philippines

Marriage is a special contract of permanent union between a man and a woman, founded on mutual love, commitment, and the intention to build a shared life together. It serves as a process to formalize two people’s bond and is meant to be a lasting and sacred union. However, there are instances when what seems to be a magical dream turns out to be someone else’s nightmare. 

In certain situations, a marriage may be deemed invalid from the very beginning due to various reasons. A declaration of nullity of marriage isn’t about ending a marriage but affirming that a true marital bond never existed despite the outward appearance of one. 

What is a Declaration of Nullity of Marriage?

In the Philippines, a Declaration of Absolute Nullity of Marriage is a judicial process that declares a marriage void ab initio (from the beginning), as if it is legally non-existent from the start.

Grounds for Nullity of Marriage (under the Family Code)

Under Articles 35 to 38 of the Family Code (E.O. 209), grounds for nullity include the absence of legal requisites (e.g., no marriage license), bigamy or polygamy, psychological incapacity, incest, and marriages contrary to public policy.

“Article 35. The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) 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) Those solemnized without license, except those covered the preceding Chapter;

(4) Those bigamous or polygamous marriages not failing under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53.

Article 36. 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. (As amended by Executive Order 227)

Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood. (81a)

Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;

(2) Between step-parents and step-children;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.”

Psychological Incapacity as a Common Ground

Psychological incapacity under Article 36 of the Family Code remains one of the most frequently invoked grounds for a declaration of nullity of marriage. In a groundbreaking jurisprudence in Tan-Andal vs. Andal, G.R. NO. 196359 (05-11-2021), the Supreme Court clarified that psychological incapacity is a legal—not strictly medical—concept. It refers to a durable or enduring personality structure that renders a spouse truly incapable of performing the essential obligations of marriage.

The Court further ruled that psychological incapacity may be established through the testimony of ordinary witnesses based on the spouse’s observed behavior before or during the marriage; expert testimony is no longer indispensable. However, the incapacity must be grave, rooted in a serious psychic cause, and have existed before or at the time of the marriage. It does not include mere personality differences, immaturity, or occasional emotional instability.

These developments do not relax the standards for declaring a marriage void. Rather, they clarify the legal meaning, evidentiary requirements, and proper application of Article 36 while preserving the constitutional and statutory protection accorded to the institution of marriage.

Who May File a Petition for Nullity of Marriage?

A petition for nullity of marriage may be filed by either the husband and the wife, pursuant to Section 2 of A.M. No. 02-11-10. In Clavecilla vs. Clavecilla and Republic, G.R. No. 228127 (03-06-2023), the Supreme Court reaffirmed the liberalizing effect of the Tan-Andal doctrine by holding that either spouse—including the psychologically incapacitated spouse—may file a petition for declaration of nullity. The Court ruled that the doctrine of unclean hands does not preclude such a spouse from seeking relief.

However, for bigamous marriage, the first legal spouse is a proper party to file the petition for nullity of the second marriage of his/her spouse. The second spouse (who entered the bigamous marriage in good faith) also has the standing to file for the nullity of the bigamous marriage.

General Requirements for Filing a Petition 

To file a petition for declaration of nullity of marriage, the petitioner must submit several documentary requirements. These generally include an authenticated copy of the marriage certificate, the PSA-issued birth certificate(s) of the child or children (if applicable), a barangay certificate and community tax certificate proving residence in the province or city where the petition is filed for at least six (6) months, and, where applicable, a copy of the marriage settlement or prenuptial agreement, any agreement on child custody or support, an inventory of properties, and a list of witnesses. Depending on the circumstances of the case, the court may also require other supporting documents. Additional requirements may likewise apply if one or both spouses are residing abroad.

How to File a Petition for Declaration of Nullity of Marriage

To file for declaration of nullity of marriage, you must follow this procedure:

1. Consult a Family Lawyer.

Seek legal advice from a lawyer to be guided all throughout the process. A lawyer can determine if nullity is the right remedy for your situation and identify the grounds for your case. A lawyer can also represent you in court and ensure that your rights are protected.

2. File a Petition.

Have the lawyer file the petition directly with the Family Court (a designated branch of the Regional Trial Court) having jurisdiction over the case, based on the residency requirements.

3. Wait for the Service of Summons.

Once the case has been filed, the court will issue summons. The respondent spouse has fifteen (15) days to an answer. In some cases, the respondent’s lawyer may request a fifteen (15) days extension to file his/her client’s answer or any pleading. 

4. Submit Notice to the OSG.

Within five (5) days of filing, copies of the petition must also be submitted to the Office of the Solicitor General (OSG) and the assigned public prosecutor.

5. Undergo Collusion Investigation.

The assigned public prosecutor investigates if there is collusion between the spouses, or if evidence was fabricated or suppressed. The prosecutor has twenty (20) days to investigate and ten (10) days to submit a report. The OSG, through the public prosecutor, will intervene on behalf of the State to ensure no collusion exists.

6. Participate in Pre-Trial or Preliminary Hearing.  

Both spouses (or sometimes, just the legal counsels), must attend the preliminary hearing, and a pre-trial order will be issued. The hearing usually occurs two (2) to four (4) months after filing the petition.

7. Attend Trial Proper.

In a trial, the parties present evidence, including two (2) to three (3) witnesses, depending on the grounds of the nullity case.

6. Receive the Court Decision.

The court will issue an order that the case is submitted for resolution. The decision may be released thirty (30) to ninety (90) days after.

How Much Does It Cost?

A declaration of nullity of marriage in the Philippines generally costs between ₱300,000 and ₱500,000, although the total expense may exceed ₱1 million if the case is actively contested or involves complex issues such as child custody or the division of substantial marital property. The estimated cost is primarily driven by lawyer’s fees (i.e., acceptance, court appearance fees, etc.), psychological evaluations (for cases involving psychological incapacity), and other court filing fees.  

Costs also vary depending on the location, with law firms and courts in major cities typically charging higher fees than those in provincial areas.

Because these legal fees can be financially demanding, many family lawyers offer installment payment arrangements, allowing clients to pay an initial down payment followed by scheduled payments throughout the progress of the case.

How Long Does It Take to Process?

In the Philippines, declaration of nullity of marriage process may take one (1) to two (2) years or even longer depending on the complexity of your case, court’s schedule, availability of witnesses, documentary evidence, among other things. 

What Will Happen to the Children After the Declaration of Nullity of Marriage?

For marriages declared null and void under Article 35 (e.g., lack of essential requisites like age or license, bigamous, incestuous) or Article 37 of the Family Code, children conceived or born of such marriages are generally considered illegitimate.

However, children conceived or born before the judgment of annulment or absolute nullity of voidable marriages, or marriages void under Article 36 (psychological incapacity) of the Family Code, are considered legitimate (Article 54, Family Code).

The custody of children from a void marriage will be governed by written agreement between the parents or a court order, always prioritizing the best interest of the child. The following articles of the Family Code of the Philippines outline the exercise of parental authority, which the court considers for custody:

• Article 212: In case of absence or death of either parent, the parent present must continue exercising parental authority. The remarriage of the surviving parent should not affect the parental authority over the child/children, unless the court appoints another person to be their guardian.

• Article 213: In case of separation of the child’s parents, parental authority must be exercised by the parent designated by the Court. The Court should take into account all relevant considerations, especially the choice of the child over seven (7) years of age, unless the parent chosen is unfit. 

• Article 214: In case of death, absence or unsuitability of both parents, substitute parental authority should be exercised by the surviving grandparent. In case several survive, the one designated by the Court, taking into account the same consideration mentioned in the preceding article, should exercise the authority. 

Additionally, under Article 195 of the Family Code, both parents must provide child support for their legitimate or illegitimate child/children. The amount of financial support is based on the financial capacity of the parent and the essential needs of the child, pursuant to Article 201 of the same Code.

What Will Happen to Conjugal Properties After the Declaration of Nullity of Marriage?

The property regime for a marriage declared null and void depends on the specific ground for nullity:

• For marriages that are void ab initio because the parties are not capacitated to marry each other (e.g., bigamous marriages, incestuous marriages, or those void for public policy reasons under Article 35), the property relations are governed by Article 148 of the Family Code. Under this article, only properties acquired by both parties through their actual joint contribution of money, property, or industry should be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption should apply to joint deposits of money and evidence of credit.

• For marriages that are void due to psychological incapacity (Article 36 of the Family Code), where the parties are capacitated to marry each other, the property regime is governed by the rules on co-ownership under Article 147 of the Family Code (in relation to Article 43, paragraph 2). This means that wages and salaries earned by either spouse during the union are owned in equal shares, and property acquired by both through their work or industry shall be governed by the rules on co-ownership.

Can Spouses Remarry After the Declaration of Nullity of Marriage?

Yes, both parties are free to remarry once the decision declaring the marriage null and void becomes final and executory, and it has been registered in the Civil Registry. Since the marriage is considered to have never legally existed, there is no prior marriage to dissolve.

However, remarriage is only valid if there is a court order that declares the marriage as null and void, and this declaration has been properly recorded. Remarrying without court’s declaration and proper registration could result in subsequent marriage void and exposes the parties to bigamy charges.