What everyone ought to know about Annulment and Divorce

There is a big difference between divorce and annulment.

Following are excerpts from an article on the Philippine Daily Inquirer by former Chief Justice Artemio V. Panganiban posted on  Philippine Daily Inquirer on 10 April 2011. It is a good read.

“This vast difference in attitude stems from the fact that the grounds for (1) annulling “voidable” marriages, and (2) declaring the nullity of a “void” marriage had existed before or at the time of the exchange of marital vows. Hence, no valid marriage existed from the very beginning. On the other hand, the cause for divorce arose after the exchange of “I do’s.” Thus, there was a valid marriage that the divorce decree dissolves.

For this reason, our courts are authorized to annul voidable marriages and/or to declare the nullity of void unions, whether among Filipinos or aliens. However, they have no power to issue divorce decrees, whether to Filipinos or to foreigners. Moreover, a divorce granted by a foreign court to Filipinos is not valid here.

Hence, a divorce obtained by a Filipino couple in Las Vegas, even though valid in Las Vegas, is not valid here. If one of the Filipino spouses should remarry again in this country, he or she would be guilty of bigamy. If the wife cohabits with another man in the Philippines without marrying that man, she could be prosecuted for adultery. If the husband cohabits openly with another woman without marrying her, he could be prosecuted for concubinage.

However, a divorce granted by a foreign court to foreigners, if valid according to the national law of the spouse concerned, shall be valid here. Furthermore, a divorce between a Filipino and a foreigner, obtained abroad by the alien spouse, shall also be valid here.

Here, “the Filipino spouse shall likewise have the capacity to remarry under Philippine law,” says Article 26 of our Family Code. The Supreme Court (Republic v. Orbecido, Oct. 5, 2005) explained that Article 26 aims “to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.” This law prevents a scenario where a Filipino is still considered legally married to an alien who is no longer deemed legally wedded to the Pinoy.

When foreign divorce benefits Filipinos. Article 26 is the exception to the general rule that bars Filipinos from enjoying the benefits of divorce decrees obtained abroad. Under this exception, the foreign husband could no longer insist on cohabiting with his Filipina wife. The divorce released the wife from her obligation to cohabit with him. Likewise, the Filipina wife could consider herself capacitated to remarry or to cohabit, without being guilty of bigamy or adultery.

In a recent decision (Corpuz v. Sto. Tomas, Aug. 10, 2010), the Supreme Court ruled that this right given to the Filipino spouse by Article 26 is not available to the foreign spouse. In this case, a Canadian (to be more accurate, a Filipino who was naturalized as a Canadian) who obtained a divorce in Canada from his Filipina wife has no right to ask a Philippine court to recognize the divorce decree so he could remarry another Filipina. Only the former Filipina wife may do so, that is, ask Philippine courts for this recognition.

A Philippine court cannot adjudge the marital status of the Canadian because the capacity to marry is determined by the national law of the person who wants to be married. Aliens who marry in the Philippines are required to present to the solemnizing officer a certificate of capacity to marry issued by their embassy or consulate.”

Hence Article 26 of the Family Code, which capacitates a Filipino citizen to remarry after having been divorced by an alien spouse, can only be invoked by Filipino citizens and not by non-Filipino citizens.

How to get an Annulment

This is free legal advice on how to get an annulment and information on the process of annulment.

Annulment may be filed for Declaration of Absolute Nullity of Void Marriages under grounds of psychological incapacity.

1)  Annulment may be done by filing a petition for annulment or declaration of absolute nullity of void marriage by either the husband or wife in the regional trial court (family court) of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing or, in the case of non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.

2) The petition for annulment shall contain the complete facts showing either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriages at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.  The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.

3) The petition for annulment shall also state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved. If there is no adequate provision in a written agreement between the parties, the petitioner, applying for annulment of marriage, may provisionally apply for spousal support, the custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action.

4) The petition for annulment must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by the petitioner. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country.

5) A copy of the petition for annulment shall be furnished to the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period.

6) After service to Office of the Solicitor General and the Office of the City or Provincial Prosecutor, the court will order service of summons to the respondent. However, where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, be done, with prior approval of the court, by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the court may order In addition, a copy of the summons shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient.

The summons to be published shall be contained in an order of the court with the following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of publication.

7) Thereafter, the court will order the respondent to file his answer to the petition for annulment. Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties.

8) Within one month from receipt of the said court order, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any. If the public prosecutor finds that collusion exists, he shall state the on the finding of collusion within ten days from receipt of a copy of a report The court shall set the report for hearing and If convinced that the parties are in collusion, it shall dismiss the petition for annulment. If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

9) The court may require a social worker to conduct a case study on the petition for annulment and submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary.

10) After receipt of the investigation report of the Public Prosecutor, or after the last pleading has been served and filed, the court will set the pre-trial. The following are the effect of failure of a party in a petition for annulment to appear at the pre-trial.

a) If the petitioner fails to appear personally, the case or petition for annulment shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner.

b) If the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days thereafter a report to the court stating whether his non-appearance is due to any collusion between the parties. If there Is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence.

11) During the pre-trial conference, the court:

(a) May refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law.

          
          The mediator shall render a report within one month from referral which, for good reasons, the court                      may extend for a period not exceeding one month.

(b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other makers as may aid in the prompt disposition of the petition.

12) Thereafter, the presiding judge shall personally conduct the trial of the case. During the trial, the grounds for declaration of absolute nullity or annulment of marriage must be proved.

The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals.

No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made
by any person other than a party or counsel of a party, except by order of the court.  

13) After trial, the court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.

14) Thereafter, the court shall render a decision on the petition for annulment. If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Article 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties.

The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation.

The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties the public prosecutor, or the Solicitor General. Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties.

The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and In the Civil Registry where the Family Court granting the petition for declaration of absolute nullity or annulment of marriage is located.

15) The court shall issue the Decree after:

(1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located;

(2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and

(3) The delivery of the children's presumptive legitimes in cash, property, or sound securities.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.

16) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree.

In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children.
   

Administrative Matter No.02-11-10-SC dated March 4, 2003

www.sc.gov.ph