Throwing plates at each other? Plotting murder upon your spouse? Before you cast off for a new fish, understand that the lack of a divorce law in the Philippines demands that a formerly-married Filipino couple obtain a civil annulment to enter into a new contract of marriage.
In today’s article we spell out the generally-accepted framework of civil annulment so you can prepare for the process with your lawyer.
Framework for Civil Annulment
Step one would be to hire legal counsel. A lawyer’s retainer fee generally ranges from 100,000 pesos ($2250) to 120,000 pesos ($3000). In the Philippines, there are a few who might guarantee a fast annulment of marriage, for an even bigger sum. Avoid such Counsel. There is no such thing as a guaranteed annulment and these shysters prey upon your guillibility.
The time required for annulment rides on the commitment of the lawyer. An uncontested annulment case (where the partner will not show up at all in court) may take 6 months to FOUR years to finish determined by the calendar of the court. Other key factors are the access to witnesses and issues including guardianship or property. The total absence of one partner can also delay a case.
Take note: continuous communication and follow up are necessary for the case to go smoothly and on schedule.
The next measure scrutinizes and documents the full marriage history. The court demands a comprehensive story of the union from the time the two first met through the present. Additionally,the court will pay close attention to the character of the couples impacting the relationship.
The most frequent reasons for Conventional Annulment and Declaration of Nullity of Marriage are the following:
1. Minority (those contracted by any party below 18 years of age in spite of the permission of parents or guardians).
2. Dearth of authority of solemnizing officer (those solemnized by any individual not lawfully authorized to do weddings, unless such unions were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so).
3. Lack of marriage license (except in some specific situations).
4. Bigamous or polygamous marriages (except in instances where the other partner is stated as presumptively dead).
5. Mistaken identity (those contracted via the error of one contracting party regarding the individuality of the other).
6. After procuring a judgment of annulment or of complete nullity of marriage, the parties, before entering into the new union, neglected to record said final judgment with the correct registry the: (i) partition and distribution of the properties of the first union; And (ii) delivery of the children’s presumptive legitime.
7. Incestuous unions (between ascendants and descendants of any degree, between brothers and sisters, whether of the full or half blood).
8.Void by reason of public policy. Weddings between (i) collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (ii) stepparents and stepchildren; (iii) parents in law and children-in law; (iv) adopting parent and the adopted child; (v) living spouse of the adopting parent and the adopted child; (vi) living partner of the adopted child as well as the adopter; (vii) an adopted child and a legitimate child of the adopter; (viii) adopted kids of exactly the same adopter; and (ix) celebrations where one, together with the intent to wed the other, killed that other individual’s partner, or his or her very own partner.
9. Mental Incapacity. Psychological incapacity pertains to downright failure or inability to take cognizance of and to assume basic marital duties; not a mere refusal, neglect or problem, much less, ill will, on the part of the errant partner. Irreconcilable differences, conflicting styles, mental immaturity and irresponsibility, physical maltreatment, habitual alcoholism, sexual infidelity or perversion, and desertion, by themselves, also don’t justify a finding of mental incapacity.
Most Annulment attorneys in the Philippines default to psychological incapacity (Art 36 of the Family Code). The Supreme Court case of Molina teaches themost critical doctrines on Art. 36:
1. The plaintiff (the spouse who filed the petition in court) has burden of showing the nullity of the marriage. The Family Code prefers the validity of marriage and unity of the family, so any doubt is resolved in favor of the existence/continuation of the marriage.
2. The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological – not physical, although its manifestations and/or symptoms may be physical. Expert evidence may be given by qualified psychiatrists and clinical psychologists.
3. The incapacity must be proven to be existing at “the time of the celebration” of the marriage. The evidence must show that the illness was existing when the parties exchanged their “I do’s.” The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.
4. Such 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 absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job.
5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, “mild characteriological peculiarities, mood changes, occasional emotional outbursts” cannot be accepted as root causes.
6. The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.
7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.
8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition.
The 3rd step is the psychological evaluation procedure. This matters from one psychiatrist to another. The attorney advocates a psychiatrist who’ll undertake the assessment and serve as witness in court. The assessment may cost from 15,000 pesos to as high as 90,000 pesos. Some charge additional fees for testifying in court. (Typically, this fee is already contained in the annulment bundle quoted by the lawyer.) The partner will likely be requested to join in the assessment, but in the majority of cases they don’t participate in the assessment procedure.
The fourth measure consists of the drafting and subsequent filingof the request itself. Following the filing of the request, which should be signed by the requesting party (husband or wife), the case will land in a division of the Regional Trial Court. The opposing partner will then be notified by the sending documents, called summons, requiring the partner to answer the request in 15 days from receipt of the notice.
Collusion (both parties agreed to file an annulment) will block the procedure, an illegal act that must be determined by the public prosecutor . Collusion – mutually agreed-upon separation – would cause a judgment of dismissal of the annulment request.
Following the collusion investigation, a report is prepared by the public prosecutor on the findings of his investigation. If no collusion is discerned, the case proceeds to pretrial . In the event the partner will not appear, the court will proceed on the records, the determination of the presented witnesses. During the trial period, witnesses will be called. Generally, the witnesses would include the petitioning party, a corroborating witness (who understood the couple and what occurred during union), as well as the psychiatrist who’ll testify on the assessment made. The public prosecutor ensures that no falsehood contaminates the testimony..
Following the offer of evidence, the case is subsequently submitted for selection. (Waiting for judgment may take 90 days or more)
Note: the presence of the partner isn’t essential in the procedure. In many annulment proceeding one party to the wedding may not participate in any way. This speeds up the procedure somewhat because if the other party makes an appearance, then he’ll similarly be given the chance to present witnesses and evidence.
The aforementioned framework provides a macro view of the entire process. For the detailed procedure of Annulment, read on.
Step by Step Breakdown of the Annulment or Nullity Proceedings:
Take note that a petition for “annulment” refers to voidable unions, which are valid until annulled by the court, while a request for “declaration of nullity” refers to unions that are considered null or inexistent from the very beginning.
1. Preparation and filing of the request. The request could be filed at the pleasure of the partner who filed it (called the “petitioner”), in the Family Court of the state or city where the petitioner or the other partner (called the “respondent”) lives for the prior six months before the exact date of filing, or in the case of a nonresident respondent, where he or she may be located in the Philippines. An Overseas Filipino Worker (OFW) may file the request even while abroad.Of critical note, upon filing of the Petition or anytime afterward, the court may issue provisional and protective orders.
2. Service of Summons. In simplest terms, this pertains to the giving notice to the respondent. Where the respondent is unable to be found at the specified address or can’t be determined by diligent inquiry, service of summons could be done by publication. This is a must since the court cannot validly carry on without service of summons.
3. Response. The respondent must reply within 15 days from service of summons (or within 30 days from publication in the event of service of summons by publication). Unlike in civil cases, the respondent in annulment proceedings cannot be decalred in default if no response is filed. The the public prosecutor shall be ordered to inquire whether collusion exists between the parties.
4. Investigation report of public prosecutor. The public prosecutor prepares a report on whether there’s collusion between the parties. In case the court is convinced that collusion exists, it shall dismiss the request; otherwise, the court shall establish the case for pre-trial conference.
5. Pre-trial conference. During the compulsory pre-trial conference, the court as well as the parties deal with specific issues, including stipulation of facts, with the aim of expediting the proceeding. The request might be disregarded in the event the petitioner does not appear during pretrial. At this point, the court could refer the problem to a mediator who’ll help the parties in reaching an agreement on matters not prohibited by law (no compromise allowed in civil standing of individuals, legality of union or of legal separation, reasons for legal separation, authority of courts, and future support and legitime). The court could additionally require a social worker to run a case study and submit a report at least 3 days before the pre-trial conference, or at any given phase of the case whenever needed.
6. Trial.The ground for annulment is established and opposed. The court may order the courtroom exclusion of all individuals, including members of the press, who would not have an immediate interest in the deliberation.
7. Judgment. After the trial proper, the court renders its verdict, which differs from the Decree of annulment. A determination allowing or dismissing the request, becomes final upon the expiration of 15 days from notice to the parties.
8. Appeal. The aggrieved party or the Solicitor General may appeal from the determination within 15 days from notice of refusal of the motion for reconsideration or new trial.
9. Liquidation partition and distribution, guardianship, support of common offspring and delivery of their presumptive legitimes. All these are done upon entry of the judgment granting the request.
10. Issuance of Decree of annulment. The court issues the Decree after: (i) enrollment of the entry of judgment granting the annulment in the Civil Registry where the wedding was observed and in the Civil Registry of the jurisdiction where the court is located; (ii) enrollment of the authorized partition and distribution of the properties of the partners in the appropriate Register of Deeds where the actual properties are found; and (iii) delivery of the offspring’s presumptive legitimes in cash, property, or sound securities.
11. Enrollment of the Decree. The Decree has to be filed in the Civil Registry where the union was filed, the Civil Registry of the place where the court is situated, and in the National Census and Statistics Office.
Some Updates to Annulment of Marriages in the Philippines
1. Church VS Court Annulment
According to Atty. Fred Amaos, Annulment, loosely referring to the processes of declaration of nullity or annulment itself, is complicated, time-consuming and expensive. This is the usual complaint we’ve heard from clients, both existing and prospective, on the only legal process allowed by Philippine law to end marriage for Christians.
The annulment process in the Philippines, the only predominantly Catholic country in Asia, is heavily influenced by the annulment process of the Catholic Church. The grounds for annulment, including psychological incapacity, are pattered after Church laws. It is, therefore, interesting to note the latest pronouncement of Vatican on the simplification of the process of obtaining marriage annulments. On 22 September 2014, the Vatican announced Pope Francis’ creation of an 11-member group of theologians and canon lawyers to “focus on the preparation of a proposal for the reform of the marriage annulment process, seeking to simplify and streamline the procedure, while safeguarding the principle of the indissoluble nature of marriage.”
The simplification of Church annulment will have a number of possible effects. Spouses who successfully secure a court annulment cannot automatically get married in church. A separate Church annulment must be secured. The simplification of Church rules on annulment, therefore, should be a welcome news for Catholics who wish to remarry again in church. On the other hand, this simplification of Church rules on annulment should also be carried over to the court annulment in terms of the simplification of rules.
2. Failure to have a child not a ground for annulment; however refusal to have sex is different.
If a spouse is not sexually satisfied with his/her partner, is this a ground for annulment?
First, check the grounds for annulment. If you’ve gone through the article you’ll discover that infertility is NOT a ground for annulment. Yes, impotence is a ground for annulment. Impotency is different from Infertility Impotence is being “physically incapable of consummating the marriage with the other.” Impotence relates to the sexual act. Infertility is being able to do the sexual act, yet not being able to conceive. Infertility is not a ground for annulment.
Sexual satisfaction (or the lack of it), on the other hand requires more study.. It is not in that list of grounds for annulment. However, the obstinate and unjustified refusal to engage in sexual congress may serve as basis for a finding of psychological incapacity, a separate ground to declare a marriage void from the very beginning. Can you imagine the engaging witness testimony during such procedure?