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HOW TO DISSOLVE A MARRIAGE IN THE PHILIPPINES

By. Atty. Nikko G. Lagmay

Filing actions for dissolution of marriages are common nowadays. But what are the grounds for marriages to be dissolved?

At the onset, it is important to understand that the State is mandated by the Philippine Constitution to protect marriage as an inviolable institution. Because of this Constitutional obligation, expect the courts to deny petitions for annulment or nullity, unless the grounds are clearly stated and established.

In the Philippines, you can only dissolve a marriage if the marriage is “VOID” or “VOIDABLE”. Both defective marriages have different grounds and different effects after the dissolution of the marriage. 

A. NULLITY OF VOID MARRIAGES

The first type is known as declaration of absolute nullity of marriage or void marriage. A void marriage by nature is one which is recognized by law as a marriage that never existed in the first place because of the absence of any of the essential or formal requisites of marriage enumerated by law.

The grounds for void marriages can be seen under the following provisions of the Family Code:

"Art. 35. The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without license, except those covered the preceding Chapter;

(4) Those bigamous or polygamous marriages not failing under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53."

"Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood." 

"Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;

(2) Between step-parents and step-children;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse."

B. NULLITY ON THE GROUND OF PSYCHOLOGICAL INCAPACITY

In case none of the grounds enumerated in Articles 35, 37, and 38 of the Family Code are present, Article 36 of the Family Code recognizes void marriages by reason of psychological incapacity. Although psychological incapacity has no fixed definition, it is generally described as such incapacity of any or both of the parties to comply with their marital obligations to the other or with one another. Like all other grounds for nullity of marriages, the psychological traits of one or both of the parties should already be existing prior to marriage.

Although not absolutely a prerequisite, parties usually include a report from a psychologist in the petition filed in court. The psychological report will further prove the existence of psychological incapacity of one or both parties to comply with their marital obligations with their spouse.

This ground appears to be the most common ground used by parties in court.

C. ANNULMENT OF VOIDABLE MARRIAGES

The second manner of dissolving a marriage is known as annulment of a voidable marriage. Unlike void marriages, voidable marriages are considered valid until they are annulled by the appropriate court.

Voidable marriages are considered flawed because of a defect in (not absence of) any of the essential (not formal) requisites of marriage. Said flaw/s must also be existing at the time of the solemnization of the marriage; otherwise the action to annul the marriage will not prosper. With the foregoing in mind, the following are the grounds for annulment of voidable marriages:

"Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable."

Number (3) of Article 45 mentions fraud. Fraud in relation to voidable marriages is defined under Article 46 of the Family Code, to wit:

"Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

 

No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage." 

These types of marriages may be cured or fixed either through subsequent voluntary consent by the offended party OR by prescription.

Currently, there is no divorce in the Philippines. But if a divorce is validly obtained abroad between a Filipino and a foreigner, said divorce may be recognized here in the Philippines after the necessary recognition of foreign judgment case is filed and granted by a Philippine court.

If you wish to dissolve an existing unsuccessful marriage, feel free to contact the author at ngl@lordlaw.ph or any of our lawyers.

Annulment and nullity of marriage lawyers, Greenhills.