October 6, 2012. Annulment Symposium. Center for Performing Arts, University of San Jose - Recoletos.

1. Atty. HARVE B. ABELLA, Esq.
THE LAW ON NULLITY OF MARRIAGE IN
THE PHILIPPINES

2. MARRIAGE
 Article XV. Sec. 2. 1987 Constitution
 Marriage, as an inviolable social institution, is
the foundation of the family and shall be
protected by the State.

3. MARRIAGE
 Article 1. Marriage is a special contract of
permanent union between a man and a woman
entered into in accordance with law for the
establishment of conjugal and family life. It is the
foundation of the family and an inviolable social
institution whose nature, consequences, and
incidents are governed by law and not subject to
stipulation, except that marriage settlements may
fix the property relations during the marriage
within the limits provided by this Code.
 (EO 209, as Amended)

4. DISSOLUTION OF MARRIAGE
HISTORICAL ANTECEDENTS

5. SPANISH PERIOD
 Siete Partidas
 Legal Separation / Relative divorce
 Divorce a mensa et thoro
 Grounds
 Adultery
 The desire of one of the spouses to take up holy
orders and the other spouses grants the same
 Conversion of one of the parties to heresy,
Mohammedanism or Judaism

6. AMERICAN PERIOD
 Act No. 2710 (1917)
 Divorce Law
 Granted absolute divorce (divorce a vinculo matrimonii)
 Grounds:
 Adultery on the part of the wife
 Concubinage on the part of the husband if committed
in any of the forms provided by the Penal Code
 Granted one year after the final judgment of the
court.

7. JAPANESE OCCUPATION
 EO 141
 Expanded the grounds for absolute divorce in
Act No. 2710 from two to 11

8. MUSLIM DIVORCE LAW 1949
 RA 394
 Granted absolute divorce to Muslims – effective only up to
June 1969.
 PD 793 extended the period beyond June 18, 1969
 Recognized Muslim divorce and was retroactively applied.
 1977 Code of Muslim Personal Laws of the Philippines
(PD 1083) became effective.
 It provided absolute divorce to muslims only after the
exhaustion of possible means of reconciliation between the
spouses

9. NEW CIVIL CODE (1950)
 RA 386 – repealed absolute divorce granted in Act
2710 and EO 141
 A proposed chapter on Absolute Divorce was
struck down during the deliberations due to the
fact that the House was flooded with letters and
telegrams from the Catholic population on its
perception that that provision liberalized divorce
 The proposal was in fact more strict than that
covered by Act No. 2710
 The Lower House prevailed and deleted the
proposal on account that it was an election year.

10. FAMILY CODE (1988)
 A new ground for the declaration of nullity of
marriage was added based on Psychological
Incapacity.
 Divorce is still not recognized, except perhaps a
divorce obtained abroad by the alien spouse of
a Filipino citizen and divorce among Muslims

11. FOUR WAYS TO LEAVE YOUR LOVER
I. DEATH

12. FOUR WAYS TO LEAVE YOUR LOVER
ii. DIVORCE

13. FOUR WAYS TO LEAVE YOUR LOVER
iii. DECLARATION OF NULLITY OF MARRIAGE

14. FOUR WAYS TO LEAVE YOUR LOVER
IV. ANNULMENT

15. TWO MOST POPULAR REMEDIES TO DISSOLVE
MARRIAGES
 ACTION FOR ANNULMENT (Voidable Marriages)
 Lack of parental consent (18 y.o. but below 21 y.o.)
 Consent obtained through fraud
 Consent obtained through force, intimidation or
undue influence
 Insanity or unsoundness of mind
 Impotence or physical inability to consummate the
marriage
 Affliction with a sexually transmitted disease.

16. TWO MOST POPULAR REMEDIES TO DISSOLVE
MARRIAGES
 ACTION FOR THE DECLARATION OF NULLITY OF
MARRIAGES (Void Marriages)
 Underage (below 18 years of age even with parental
consent)
 No authority to solemnize the marriage
 Bigamy / polygamy
 No marriage license (with exceptions)
 Psychological incapacity
 Subsequent marriage after failing to record annulment
or declaration judgment of annulment or declaration of
nullity of marriage with the civil registry
 Incest
 Breach of public policy

17. WHICH REMEDY IS APPROPRIATE?
ANNULMENT
MAY RESULT
IN THE
SEVERANCE
OF MARITAL
TIES
DECLARATION
OF NULLITY

18. WHEN IS A MARRIAGE RIPE FOR DISSOLUTION?
 A painful choice must be made between clashing
alternatives:
 between the sanctity of the marital contract and the
need to provide for an escape where the relationship
becomes intolerable
 Between the marriage institution and the instability
which results from incompatibility
 Between the society’s concern for children and the
equally great injury which may be done to them in a
hostile parental environment
 Between financial concern for the wife and the
imposition of alimony to the husband

19.  The decision to seek annulment should be made
with utmost care and consideration of what the
future holds for you (and your children)
 A matrimonial contest often results in love turning
to hate. Vengeance becomes the order of the day.
 If one partner has become sexually enslaved by
the other, the urge to destroy the wanderer
becomes almost overwhelming.

20. WHAT TO EXPECT?
 Annulment cases are rich in entertainment and
thrills for a society that seemingly cannot get too
much of the peccadilloes of the haut monde
 The radical surgery of annulment pushes the
parties to enter a crapulous joint once the battle
over the children begins
 The lawyer is viewed by the opposing party as the
devil’s acolyte, a person out to grab his entire
fortune, wreck his life and take away his wife and
children.

21.  Anticipate the unexpected once the first bullet is
fired
 Prepare a substantial financial war chest to last up
to the end of the conflict.
 The government has as special interest in your
case. Both the prosecutor and a representative
from the Office of the Solicitor General will keep a
watchful eye over your demeanour and the
evidence you present in court.
 They are looking for any behaviour or hint that you and
your spouse have secretly agreed to engage in play
acting just to convince the judge that your marriage
ought to be annulled or declared void.

22.  You and your spouse may end up washing dirty
linen in open court because the law requires
that fault be found in either or both of you
before your marriage is dissolved.
 Prolonged court contest could take its toll on
your sanity and mental tranquility, if you are not
psychologically incapacitated going into the
contest, you may just as well end up being
psychologically incapacitated after (or even
before) the court releases its decision.

23. VOID AND VOIDABLE MARRIAGES
HOW DO THEY DIFFER?

24. VOID MARRIAGE
 It is one that is non-existent from the time of
performance
 Considered invalid from the time the parties tried to
enter it
 Cannot be ratified or convalidated by free
cohabitation or prescription
 The passage of time cannot validate a void marriage
 It may be attached directly or collaterally
 Bur for purposes of remarriage, there must be a
judicial declaration of absolute nullity of marriage.

25. VOIDABLE MARRIAGE
 It is invalid only if a court declares it is invalid
 Can be ratified or convalidated by free
cohabitation or prescription
 Can only be attacked directly
 Defective at the time off marriage
 If no person initiates an action in court to
invalidate a voidable marriage, it will always be
considered a valid marriage.

26. GROUNDS FOR VOIDABLE MARRIAGES

27. ABSENCE OF CONSENT FROM PARENTS OR
GUARDIANS
 Between 18 of age but below 21
 Failure to get the consent from either of these
individuals will make your marriage annullable.
 Remedy in order to validate:
 By freely living with the other party as husband and
wife upon reaching the age of 21, the cause for
annulment for the party whose parents did not give
their consent is removed automatically.

28.  To be classified as a valid cause for annulment,
the degree of force must be in the serious and
physical power (Art. 1335 Civil Code)
 The standard is high
 Intimidation to be an acceptable ground for
annulment must be one that compels one of the
parties to give his consent because of a
reasonable and well-grounded belief of an
imminent and grave evil upon the person or
property of the party, his spouse, descendants or
ascendants.

29. VITIATION OF CONSENT: USE OF FORCE,
INTIMIDATION OR UNDUE INFLUENCE IN
GETTING THE CONSENT OF A PARTY

30.  Undue Influence
 An amorphous term that begs for a precise legal
definition
 The influence must be sufficient to “subjugate”
the mind of another so as to deprive the party
of his freedom of choice and to “destroy” his
free will.

31.  To determine the existence of undue influence,
factors such as family, religious and other close
relationships between the parties are
considered. The mental and financial position
of the parties will be taken into account in
finding if one party exerted undue influence
over the other. (Coso vs Ferndandez Daza, 42
Phil. 596)

32. EMPLOYMENT OF FRAUD IN GETTING CONSENT
 There are only 4 types of fraud recognized as
grounds for annulment and all four of them involve
the concealment or failure to reveal a “material”
fact:
 Non-disclosure of a conviction by final judgment of a
crime involving moral turpitude
 Concealment by the wife of the fact that at the time of
the marriage, she was pregnant by a man other than
her husband
 Concealment of a sexually-transmissible disease,
regardless of its nature, existing at the time of the
marriage
 Concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism at the time of the
marriage.

33. UNSOUNDNESS OF MIND
 “manifestation, in language or conduct, of disease or defect
of the brain, or a more or less permanently diseased or
disordered condition of the mentality, functional or organic,
and characterized by perversion, inhibition, or disordered
function of the sensory of the intellective faculties or by
impaired or disordered volition.” (Act No. 2122, Sec. 9)
 To be a ground for annulment, one of the parties must have
been incapable of understanding the nature and
consequences of the marriage.
 Equivalent to incapacity of intelligent consenting or lack of
understanding or realization of what is being done and to
consent to it.

34. PHYSICAL INCAPABILITY OF CONSUMMATING
THE MARRIAGE
 Impotence must exist at the time of the
celebration of the marriage
 It is a continuing kind up to the time of the trial
 Incurable beyond medical relief
 Spouse was not aware of your impotence

35. AFFLICTION WITH A SEXUALLY TRANSMISSIBLE
DISEASE
 Must be existing at the time of the marriage
 Serious
 Incurable

36. Some are luckier than others
WHO MAY FILE AN ANNULMENT ACTION

37.  No parental consent  The party or parent or
guardian who did not give
 Use of force, intimidation consent
or undue influence
 Employment of fraud
 Insanity  Injured party
 The sane spouse who had
no knowledge of his
spouse’s insanity, or any
relative, guardian or any
person having legal charge
of the insane spouse, or
the insane person himself
 Impotence  The injured party
 Affliction with a sexually  The injured party
transmissible disease

38. PRESCRIPTION FOR ANNULMENT CASES
 No parental consent  Within 5 years after
reaching the age of 21, if
brought by the party whose
parents did not give their
consent; if brought by the
parent or guardian of the
said party, the action must
be filed before the party
reaches the age of 21
 Within 5 years from the
 Use of force, intimidation time the force, intimidation
or undue influence or undue influence
stopped

39. PRESCRIPTION FOR ANNULMENT CASES
 Employment of fraud  Within 5 years after the
discovery of the deceit or
fraud
 Insanity  Anytime during the lifetime of
either party. If the insane
party brings the action, he
must bring it during his lucid
interval or after he regains
sanity
 Impotence  Within 5 years from the time
the marriage was celebrated
 Affliction with a sexually  Within 5 years from the time
transmissible disease the marriage was celebrated

40. FREE COHABITATION. CURING THE DEFECT
 Annullable marriages may be “ratified” when
the injured spouse decides to live with the
other party as husband and wife in spite of his
knowledge that there is a defect that may serve
as a ground to annul the marriage.
 Ratification is a legal term that means that a
party has affirmed and condoned the defect of
the marriage or the act done by the other party.

41. INSTANCES WHEN FREE COHABITATION WILL
CURE A VOIDABLE MARRIAGE
 No parental consent
 Use of force, intimidation, or undue influence
 Employment of fraud
 insanity

42. INSTANCES WHEN FREE COHABITATION WILL
NOT CURE THE VOIDABLE MARRIAGE (BUT THE
ACTION MAY STILL PRESCRIBE)
 Impotence
 Affliction of a sexually-transmissible disease

43. Declaration of Nullity
VOID MARRIAGES

44.  A void marriage is one that has no legal effect and
is invalid because it has not complied with the
procedural (formal) or substantive (essential)
requirements of the law for valid marriages.
 A void marriage is always invalid and the only thing
that needs to be done in court is to ask for a
judicial declaration that the marriage is in fact
invalid for official record purposes

45. LIST OF ALL VOID MARRIAGES
 Marriages without a marriage license (with exceptions)
 Marriages without a marriage ceremony
 Marriages officiated by a person without any legal
authority to solemnize marriages (with exceptions)
 Marriages in which the contracting parties lack the legal
capacity to contract a marriage (below 18 years of age)
 Marriages between persons of the same sex
 Marriages that are incestuous and those that are
against public policy
 Marriages that are bigamous and polygamous
 Marriages that are contracted through mistake by one
party as to the identity of the other

46.  Marriages that are subsequently contracted
after the previous marriage has been annulled
or declared void and the annulment judgment,
partition, distribution of the properties of the
spouse and the delivery of the children’s
presumptive legitimes were not recorded in the
civil registry
 Marriages in which at least one of the parties is
psychologically incapacitated

47. TYPES OF VOID MARRIAGES

48. ABSENCE OF FORMAL REQUIREMENTS
 NO MARRIAGE LICENSE
 It is the marriage license which gives the solemnizing officer the
authority to solemnize a marriage (Aranes vs. Occiano, 380 SCRA
402)
 Exceptions
 Marriages celebrated in articulo mortis (at the point of death,
even if the “dying” or ailing party survives
 Marriages in remote places when the residence of either pary is
too far from the LCR and there are “no means of transportation”
to enable such party to personally appear before the civil registrar
 Marriages among Muslims or members of ethnic minorities as
long as these marriages are solemnized according to their
customs and practices
 Marriages in which the parties have lived together as husband
and wife for at least 5 years and without any legal impediment to
marry each other.

49.  NO MARRIAGE CEREMONY
 The law requires that a ceremony must be held to
formalize the marriage
 The substance of the ceremony is more important
than the form.
 What is required is that the contracting parties
must appear personally before the solemnizing
officer and declare that they take each other as
husband and wife in the presence of at least 2
witnesses.

50.  NO AUTHORITY TO SOLEMNIZE MARRIAGE
 The person who is officiating the marriage must
posses the legal authority to solemnize the
marriage.
 Exception
 If either you or your spouse believed in good faith that
the person solemnizing your marriage had the legal
authority to do so, your marriages is valid
Fraud cannot stand as a ground to nullify the marriage
because this is not one of the frauds listed under the
restrictive enumeration of Art. 46 of the Family Code.

51. ABSENCE OF ESSENTIAL REQUIREMENTS
 LACK OF LEGAL CAPACITY TO MARRY
 At least 18 years of age
 Old rules:
 The marrying age for men was 16, and for women,
14.
 If either party is below 18 years of age, the
marriage is VOID even if the parents gave their
consent.

52.  HOMOSEXUAL MARRIAGES
 The difference in gender is regarded as an
essential element in a marriage
 See Art. 1, Family Code

53.  INCESTUOUS MARRIAGES
 The horror of inbreeding is depicted by the
abnormal offspring from incestuous unions.
 Philippine law safeguards the health and welfare
of the population by prohibiting marriages
between “Close” relatives.
 2 types of marriages expressly labeled as
incestuous and therefore void for the beginning:
 Marriages between ascendants and descendants of
any degree
 Marriages between brothers and sisters whether full or
halfblood.

54.  VOID MARRIAGES FOR REASONS OF PUBLIC POLICY
 Between collateral blood relatives within the 4th civil degree
(first cousins) whether legitimate or illegitimate
 Between stepparents and stepchildren
 Parents-in-law and children-in-law
 Adopting parent and the adopted child
 Surviving spouse of the adopting parent and the adopted
child
 Surviving spouse of the adopted child and the adopter
 Adopted child and a legitimate child of the adopter
 Between adopted children of the same adopter
 Marriages between parties where one, with the intention to
marry the other, killed that other person’s spouse or his or
her own spouse.

55.  ILLEGAL MARRIAGES (Bigamy / Polygamy)
 Observance of the seriatim rule (one marriage
at a time)
 Exeption: Muslims
 MARRIAGES CONTRACTED THROUGH MISTAKE
OF IDENTITY
 Equivalent to absence of consent

56.  MARRIAGES THAT HAVE NOT COMPLIED WITH
RECORDING REQUIREMENTS
 The law makes the subsequent marriage “null and
void” if the recording requirements in the
appropriate civil registry and registry of property
are not met.
 IF you got married again with full knowledge of the
fact that there was a failure to comply with the
recording requirements of the law, you may face
criminal liability for bigamy.

57.  MARRIAGES IN WHICH AT LEAST ONE OF THE
PARTIES IS PSYCHOLOGICALLY INCAPACITATED
 Psychological incapacity is a term of art that
has been used and abused for over two
decades.

58. Article 36
PSYCHOLOGICAL INCAPACITY

59.  EO 227 (July 17, 1987)
 Created Article 36, offering psychological incapacity
as a new ground for the declaration of nullity of
marriage
 Lawyers now use various forms of personality
disorder to show the existence of psychological
incapacity:
 Homosexuality, mental retardation, irresponsibility,
promiscuity, alcoholism, compulsive gambling,
infidelity, low intelligence, explosive temper, drug
use, excessive jealousy, criminal behaviour,
continuous and prolonged unwillingness to engage
in sexual intercourse, abandonment, immaturity,
etc etc etc

60.  Some experts say that taken as a whole, these
conditions may help from the bases for
psychological incapacity.
 INABILITY OR FAILURE TO UNDERSTAND AND TO
COMPLY WITH THE MARITAL DUTIES AND
OBLIGATIONS IMPOSED BY THE FAMILY CODE IS
THE GENERAL GROUND USED IN PSYCHOLOGICAL
INCAPACITY ISSUES.
 Art. 36 does not require that both spouses should
be psychologically incapacitated.

61. CANON 1095
 The essence of psychological incapacity as a
ground was derived from Canon 1095, par. 3, of
the New Code of Canon Law (1983) which
provides:
 Can. 1095 The following are incapable of contracting
marriage:
 1/ those who lack the sufficient use of reason;
 2/ those who suVer from a grave defect of discretion of
judgment concerning the essential matrimonial rights
and duties mutually to be handed over and accepted;
 3/ those who are not able to assume the essential
obligations of marriage for causes of a psychic nature.

62. PSYCHOLOGICAL INCAPACITY: UNDEFINED
 Undefined by Canon Law
 Undefined by Civil Law
 Some judges took the failure to define
psychological incapacity in the Family Code as
a blanket license to engage in judicial
legislation and to set up precedents in
uncharted waters of Philippine jurisprudence

63. DEFINING THE UNDEFINED
 The SC en banc made the first major attempt to
define psychological incapacity in Santos vs.
Santos (240 SCRA 20)
 “no less than a mental (not physical) incapacity that
causes a party to be truly incognitive of the basic
marital covenants that concomitantly must be assumed
and discharged by the parties to the marriage which, as
so expressed in Article 68 of the Family Code, include
their mutual obligations to live together, observe love,
respect and fidelity and render help and support.”

64.  This conservative judicial stance gave the
impression that the Court viewed psychological
incapacity as a very exceptional human condition
requiring the application of strict standards that
should be examined thoroughly by the trial courts
before marriage can be declared an absolute
nullity
 Judges, out of an overabundance of caution have
denied issuing any declarations of nullity of
marriage following the strict standards in Santos.

65. 10 RULES GOVERNING PSYCHOLOGICAL
INCAPACITY CASES
 These are the SC guidelines in the interpretation
and application of Article 36
 The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubts should be resolved
in favor of the existence and continuation of the
marriage and against dissolution and nullity;
 The root cause of the psychological incapacity must be
a.) medically and clinically identified b.)alleged in the
complaint c.) sufficiently proven by experts d.) clearly
explained in the decision

66.  The incapacity must be proven to be existing at the
time of the marriage. The evidence must show that
the illness was existing when the parties exchanged
their vows.
 The incapacity must also be shown to be medically
or clinically permanent or incurable. Such
incurability may be absolute or even relative only in
regard to the other spouse, not necessarily
absolute against everyone of the same sex.

67.  The illness must be grave enough to bring about the
disability of the party to assume the essential
obligations of marriage. Mild characteriological
peculiarities, mood changes, occasional emotional
outburst cannot be accepted as root causes. The illness
must be shown as downright incapacity or inability, not
refusal, neglect or difficulty, much less, ill will.
 The essential marital obligations must be embraced by
Art. 68-71 of the FC as regards the husband and wife
as well as Articles 220, 221 and 225 of the FC in
regard to parents and their children. The non-
compliance of these marital duties must be stated in
the petition, proven by evidence and included in the
decision;

68.  The interpretations of the National Appellate
Matrimonial Tribunal of the Catholic Church of the
Philippines, while not controlling, should be given
great weight by the courts;
 The trial court must order the prosecuting attorney
and the Solicitor General to appear as counsel for
the State (defensor vinculi)
 9 and 10, eliminated by AM No. 02-11-10-SC, #2
modified by Barcelona vs Barcelona