In lieu of a divorce law, the Family Code of the Philippines gives married couples in the Philippines three options if they need or want to separate: an annulment, a legal separation, or seeking a declaration of the nullity of marriage.
How nullity of marriage differs from annulment and legal separation
Through a declaration of nullity, the marriage is declared by the court as null and void. In other words no formal union between partners ever existed. Grounds for seeking a declaration of nullity of marriage include:
- Intimidation or forced consent
- Psychological incapacity
- Solemnization of the marriage by a person not legally authorized to perform marriage rites
- Marriage between any or both parties below the age of 18
- Bigamous, polygamous, or incestuous unions
- Bigamous, polygamous, or incestuous unions
If any of these conditions apply, spouses can file a Petition for the Declaration of Absolute Nullity of Marriage.
Annulment considers the marriage valid until its nullification. A marriage can be annulled due to fraud, the discovery of a previously concealed incurable sexually transmitted disease, marriage without parental consent (for partners younger than 21 years), and psychological incapacity at the time of the marriage. Spouses who wish to separate this way must file a Petition for Annulment of Marriage.
Legal separation applies if a spouse is physically abusive, has drug or alcohol-related problems, or is sentenced to jail for more than five years. Another ground for legal separation is when one spouse leaves the other without a valid reason (as held by the court). Under the terms of a legal separation, the marital bond still exists. Neither spouse will be legally allowed to remarry.
Division of property
For couples who have their marriage declared null and void, the properties that they have acquired before and during their union will be dissolved and liquidated. Spouses who have not made any material contributions can still be involved in the common fund, provided that they contributed by taking care of the household and the family.
Rule on remarrying
Couples who legally nullify their marriage are allowed to remarry other partners.
Child custody and legitimacy after the declaration of nullity
Child custody may be requested through a provisional order by the spouse petitioning for nullity. However, children of the former couple will be considered illegitimate if the declaration of nullity is based on the grounds listed above. The lone exception applies if the marriage was voided based on psychological incapacity. The civil registrar will be required to amend the birth certificate of these children following the dissolution of the marriage.
Filing for the declaration of nullity of marriage
The Petition for the Declaration of Absolute Nullity of Marriage must be filed in the Regional Trial Court of the province or city where the petitioner has been living for at least the past six months. A designated Family Court will issue summons for the collusion, preliminary, and actual hearings.
The following documents are required to file a petition:
- NSO copy of marriage certificate
- Birth certificate of the children (if any)
- Barangay certificate, Community Tax Certificate, and sketch of the house location
- Inventory of property of the spouses
- List of witnesses
- Copy of marriage settlement (if any)
- Psychiatric evaluation (if the nullity of marriage will be based on psychological incapacity)
- Other documentary evidence
The petitioning spouse must also indicate the complete address of both parties, including the house number, street, subdivision, zone, barangay, town, city, and province.
For more legal advice or assistance on nullifying a marriage, call Duran & Duran-Schulze at (+632) 478 5826 or email info@duranschulze.com.