Annulment (Nullity of Marriage and Psychological Incapacity)

While Filipinos use the term ‘Annulment’ to refer to all cases where marriages are dissolved, the most common method is actually Nullity of Marriage based on Psychological Incapacity.

I’ll discuss the timeline, cost, and process for the most commonly used ground for Nullity of Marriage (Psychological Incapacity) to give you an understanding of court requirements.

The court process for Annulment can be a long, complicated, and costly process. But despite these, it is often necessary and advisable to go through the process due to its importance with regard to your property, children, and future relationships.

Contents

Chapter 1: Before you file

Is Nullity of Marriage the Right Option?

Explaining Nullity of Marriage

Grounds for Nullity of Marriage

Chapter 2: Starting the Process

          Step 1: Engage a lawyer

          Step 2: Interview with your lawyer and psychologist

Step 3: Preparing your Petition

Step 4: Waiting for the Court

Step 5: Pre-Trial

Step 6: Going Through Trial

Step 7: Receiving the Decision

Chapter 1: Before your File

Is Nullity of Marriage the Right Option?

Other than death, there are only 3 ways to legally dissolve a marriage in the Philippines:

While the first option is faster, cheaper, and simpler, it only applies when one of the partners was a foreign citizen at the time of the divorce. If not, it cannot be used.

The last two options are applicable when you qualify based on any of the grounds under the Family Code.

While most Filipinos confuse the two and call them both Annulment in everyday speech, they are actually two distinct types with different effects.

Nullity of Marriage

  • Is when the marriage is void from the start
  • Grounds are from Art 35, 36, 37, 38 and 53 of the Family Code. These include the well-known psychological incapacity, as well as marriages between those less than 18, marriages performed by someone without solemnizing authority, marriages without a license, incestuous marriages, etc.
  •  Children born of the marriage become illegitimate unless the ground used is Art 36 (Psychological Incapacity) or Art 53.

Annulment

  • Is when the marriage starts as valid but can be voided
  • Grounds are from Art 45 of the Family Code. These include marriages where one was over 18 and under 21 when the marriage was solemnized without the consent of a parent or guardian, where either party was of unsound mind, where the consent of either party was obtained by fraud, force, intimidation or undue influence, marriages where either party was physically incapable of consummating the marriage with the other, marriages where either party was afflicted with a sexually-transmissible disease
  •  Children born of the marriage are still legitimate

The applicable grounds and whether you have children are big factors in determining which type of case you can file and should be taken in consultation with your lawyer.

Explaining Annulment and Nullity of Marriage

Since the particular usage of annulment and nullity of marriage are peculiar to the Philippines, people often misunderstand them.

While similar to divorce in that you can remarry afterwards, they are based on different grounds, and are must be proven on those grounds in order to be granted.

For instance, adultery is not a ground of dissolving a marriage.

Living apart – even for many years – is also not a ground.

In any case, Annulment is a formal court process that requires your lawyer’s careful attention and for you to testify in court yourself.

There is no shortcut to this.

You should expect annulment to take at least 2 years. If contested, it can take up to 5 years.

Annulment also requires that you are financially prepared.

Big firms may charge a Php 500,000 or more over the course of the case. Smaller firms, rather less.

You’ll need to do a lot of pre-work to cut down on time and money,

Ideally you’d:

  • Agree on property division
  • Agree on child custody
  • Communicate honestly with your lawyer
  • Gather your documents

Grounds for Nullity of Marriage

Grounds for Nullity of Marriage are from Art 35, 36, 37, 38 and 53 of the Family Code.

The most commonly used is psychological incapacity or Art 36.

A summary of the other grounds are below. (The complete text of the Family Code should be at referred to for further clarification.)

Grounds:

  • If you or your spouse was under 18
  • Marriage was performed by solemnizing officer who didn’t have the official capacity to perform the service unless you one of you believed he did
  • Without a valid marriage license although exceptions exist
  • Bigamous marriages
  • If there was mistaken identity
  • Subsequent marriages under Art 53, which deal with recording the judgement of nullity and partition of property and legitime in the Civil Registry for a previous marriage.
  • Psychological incapacity
  • Marriages between ascendants and descendants, brothers and sisters even if illegitimate, and other incestuous situations such as if the child is adopted (Art 37 and 38)

These grounds are legal concepts and come with conditions and exceptions.

Take, for example, the requirement of the marriage license. Although in most cases, a marriage license is indispensable for a valid marriage, the law provides for certain exceptions.

One of them is that it is that no marriage license may be required when one of the parties is on the point of death.

For the exact wording of the law, please see this.

The Process

While the below process is somewhat similar for other void marriages, I focus only on Nullity of Marriage for Psychological Incapacity as it is the most frequently used ground. (And often also the only one applicable).

Step 1: Engage a lawyer

Unlike DIY administrative proceedings, you’ll need to engage a lawyer for annulment.

In cases where child custody and property division are problems, an advocate is essential.

He or she can approach the other side and negotiate on your behalf without emotion to help you reach an agreement.

This in itself goes a long way towards ensuring the case goes smoothly.

In addition, he can ensure that the forms and processes of the court are correctly followed to avoid future problems.

When choosing your lawyer, choose one that you communicate with well.

You will need to tell him everything so that he can prepare and foresee problems.

You will also need to be very clear as to what you want from the case. Set your goals.

What are your prepared to compromise on with regard to property? What can’t you compromise on?

Make sure you can meet the costs of the annulment itself and discuss fees to properly set expectations.

Step 2: Interview with your lawyer and psychologist

You’ll need to be interviewed by the lawyer and your psychologist thoroughly before the Petition is created.

The Petition will be created from based on the information gathered at this stage. The grounds for psychological incapacity will be based on your interview with your psychologist.

This is very important. Annulments have been denied when the psychologist hasn’t personally met with the petitioner.

As the petition is the basis for the rest of the evidence that you present, it is important to get this done prior to its creation.

Step 3: Preparing your Petition

After your interview with your psychologist and lawyer, you will need to approve the final draft of the Petition.

You must correct any inaccuracies to ensure your case doesn’t have an error that could jeopardize its success.

The Petition must state the complete facts constituting the basis for the case.

It must also state the names and ages of the common children of the spouses and specify the regime governing their property relations, as well as the properties involved.

The Petition may include an application for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other similar matters if there not already an adequate written agreement for this between the spouses.

The Petition must be signed by both the Petitioner and the lawyer, and it must be sworn to under oath by the Petitioner.

Step 4: Waiting for the Court

Your Petition will then be filed with your city’s Regional Trial Court and docketed at the branch designated as the Family Court.

The Court will take steps to formally serve summons. The summons and the Petition will be personally served on your spouse.

If your spouse cannot be located, the court summons will be published in a newspaper for two consecutive weeks and sent by mail or other means to his last known address. If he lives in another country, then the process adjusts slightly to accommodate this.

The Court will also request the Public Prosecutor to file an Investigative Report to ensure there is no collusion between spouses.

Step 5: Pre-Trial

After the above Court processes have been successfully hurdled, your case will go through pre-trial.

The lawyer will prepare the pre-trial brief to summarize all your claims and your evidence. Affidavits from your witnesses will also be prepared at this point.

During pre-trial, the calendar of court hearings will be scheduled.

Although mediation and the admission of facts to reduce to the scope of the trial are typically aspects of pre-trial in other kinds of cases, the scope of these is restricted in cases for annulment

Step 6: Going Through Trial

Trial is the longest stage.

During trial, your lawyer will be called to present your case according to the calendar of court hearings set during pre-trial.

Evidence will be presented and your witnesses will be questioned by the Court. You yourself will ideally be a witness, together with others who can testify to the facts of your marriage, as well as the psychologist who prepared the report.

This part takes multiple hearings and will also involve a number of written submissions to the court.

Step 7: Receiving the Decision

Assuming a favorable decision is received, can thereafter be submitted to the civil registrar so that your marital status can be amended. This dissolves the marital bond for good.

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