ANNULMENT IN THE PHILIPPINES
THE TEN QUESTIONS ON ANNULMENT YOU WOULD LIKE TO ASK YOUR LAWYER BUT WERE AFRAID TO DO SO
Almost every website on Philippine Family Lawyers would have in one form or another a section on FAQ , or the ubiquitous Frequently Asked Questions. As a lawyer, I could relate very well to these FAQ’s because they are mostly what you will find in legal textbooks . But I have often wondered whether or not the ordinary layman, the contract worker aborad, or simply the one who is thinking about getting an annulment can understand all the legal goobledook. Normally, these FAQ’s are long winded and very technically worded, with quoted provisions and decisions of the Supreme Court. In our humble attempt at an FAQ, we have decided to narrow the questions to 10 and avoid the legalese. It is not our goal to present the best FAQ on Philippine Annulment, our only object is to be understood well.
1) What is an annulment?
Picture marraige as a contract, a binding agreement between two people, preferably and in most jurisdictions, between a man and a woman. Just like most So contracts, it could be valid, voidable, or void. It is valid if all its components are present, ie, consent, object, and consummation (or euphemistcially delivery as in a contract of sale). In a marriage, of course, consent is the “I do” in the bringing together of a man and a woman in matrimony, holy or otherwise. The object of course is the union of the parties which in the eyes of the law makes them “one”. Lastly, but no less importantly, is the consummation which in marriage is widely considered the physical (or sexual) union. Much debate though has been made on whether or not a marriage can exist without sex, at least at the beginning
Anyway, going back to our analogy, if there is any defect in the consent (the “I do’), the object (the joining together as man and wife), or the consummation (or delivery in more ways than one, pardon the pun), then the validity of the contract is put into question. In an annulment, the defect generally must come into play after the celebration of the marriage or in a stricter sense must have existed at the very time of, if it is not by itself the very cause of , the celebration of the marriage. Things like fraud, as in the case of the woman who conceals the fact that she is pregnant by a man other than her husband who agreed to the marriage on the assumption that he is the father of the child. The marriage is valid in the beginning but because of the fraud, it is valid until it is annulled. Normally, there are periods within which an annulment can be filed.
In a divorce, on the other hand, and this is the way the term is generally understood in most jurisdictions allowing for divorce, the defect is made manifest after the celebration of the marriage. Things like the infamous “irreconcillable differences” , “no fault divorce”, or “consensual divorce” are common terms. You do not necessarily have to have a specific reason to terminate the marriage, other than the agreement of the spouses.
Legal separation simply put is a separation physically and in most instances financially. It is a court recognition of the fact of separation of the spouses, thus not obliging any of them to support each other or to live together as husband and wife. I have heard this compared to the Catholic concept of purgatory because the marital union still exists and the parties cannot marry other people. Often this is not a realistic situation and is not commonly encountered in practice because while it attempts to preserve the union, which in all likelihood may have disintegrated by then, it puts a legal imprimatur (or signature if you will) to not being obliged to fulfill the very important marital obligations of cohabitation or consortium and support.
2) What are the grounds for an annulment?
Technically, there is a difference between a traditional annulment and a declaration of nullity of marriage under the Family Code. The basic distinction is that the grounds which give rise to annulment are subject to what is known as ratification by cohabitation, meaning that while the ground may have existed at the time of the marriage (such as lack of consent, incapacity, or fraud), by continuing to live together the invalidity is removed.Often, in the real world, these grounds become inoperative because most married couple, let us face it, cohabit after the marriage.
In a declaration of nullity, however, the marriage is invalid from the very start. A common situation is the bigamous marriage which is almost universally considered void from the very beginning. It is wrong from the start and nothing can be done in order to cure the defect in the contract. A common offshoot of a bigamous marriage is when one of the parties want to get married for a third time. The subquestion arises if it is still necessary to annul the bigamous marriage considering that it is already void to begin with. If we are to be guided by the decisions of the Supreme Court there may be a need to have even the bigamous marriage declared null and void because the parties cannot be allowed to presume the invalidity themselves or even to benefit by their own acts which led to the invalidity of the marriage.
Other examples are incapacity (marriage before the statutory age of consent which varies from one jurisdiction to the next), lack of consent as in a “gun shot wedding”, incestuous (generally between a descendatn and a direct ascendant) simualtions like a wedding between two men or two women (only when not allowed by the law of a particular state).
A common ground encountered in practice is “psychologicial incapacity” because, as we said, the other grounds for a traditional annulment would have become inoperative because of cohabitation and perhaps because it is a catch all ground that has resisted precise definition by the courts.
3) What is psychological incapacity?
It would seem that the term psychological incapacity is a relatively popular one among Filipinos, but widely misunderstood. The common and erroneous notion borders on insanity if not insanity itself, which often creates an aversion to seeking an annulment of the marriage. After all, who will admit to insanity or more specifically marrying the insane. Article 36 of the Family Code of the Philippines which for the first time since the Japanese Occupation allowed for a semblance of divorce in the Philippines via a declaration of the nullity of a marriage where one or both parties is psychologically incapacitated, did not actually define the term leaving the courts to develop a legal framework for it. It has been said that this provision of the law was really a compromise between the Philippine Catholic church (which for some reason opposes an absolute divorce law in the Philippines) and the group of legal luminaries which drafted the Family Code. True enough, jurisprudence has evolved a definition based initially and mainly on Canon Law, progressing towards a clinical form of incapacity, to its present state of non clinical incapacity. Perhaps, the term really escapes definitiion, as it should if it is to evolve legally, the only guidance being the failure to fulfill the essential obligations of the marriage. Conditions such as homosexuality, drug or substance abuse, physical, verbal, psychological, and economic abuse, among others, have been used to define the term.
4) How do I get started with the process of annulment?
The first step would be to get a lawyer, preferably a specialist in the field of annulment of marriage. Do your bit of research. Get online. Read up on lawyers, attorneys, solicitors (as they are known in the UK) , and law firms. Ask family and friends for recommendations. Don’t settle for suspicious quick fixes offered online or elsewhere. You will find a host of people (sadly I have heard that other legitimate lawyers are into it as well) who will promise you the moon and the stars, an annulment in 2 weeks without any hassle, no appearances, in some instances no lawyers or attorneys involved and guaranteed 100%. Remember the old adage that if it sounds too good to be true then it is probably a hoax. Remember too that lawyers if they are worth their salt are not allowed ethically to guarantee the outcome of cases.
The second step would be to write your marital history. This is a detailed narrative of your marriage from the time you met you spouse, a description of the start, middle portion, and end of your relationship, the event that precipitated your separation, with a focus on the personality of your spouse and what about him/her in your mind led to the break up of the relationship.
The third step would be the psychological evaluation process. This varies from one psychologist to the next. Your lawyer normally would recommend a psychologist/psychiatrist who will do the evaluation and be a witness in court. Even court personnel would have a recommnendation or two. The evaluation costs between 15,000 pesos to as high as 40,000 pesos. Some charge additional per diem for testifying in court and the rate would depend on the venue of the proceedings. Your spouse will be asked to join in, but in most instances they do not participate even in the evaluation process. The psychologist will then proceed to do the evaluation based on your tests and the interviews with you and other persons who knew you and your spouse and what happened to the marriage.
The fourth step would be the drafting then filing of the Petition itself. This is your lawyer’s job.
After the filing of the Petition, which you must sign, the case is raffled to a branch of the Regional Trial Court where it was filed. Your spouse will now be notified by sending him papers called summons requiring him to answer the petition within 15 days from receipt of the notice. If he is not in the country, notices can be served him through publication.
Collusion investigation normally follows , which is an informal process whereby the public prosecutor assigned to the court (or in some jurisdictions this is raffled as well) is asked to determine if the parties are conspiring to file a case.
After the collusion investigation, a report is prepared by the public prosecutor on the findings of his investigation.
If no collusion is found, the case proceeds to a pre-trial and your spouse will be notified again. If he does not appear, the court will proceed with the marking of the documents, the determination of the number of witnesses, and the schedule of the trial.
During the trial stage, witnesses will be called. Normally, the witnesses would be you, a corroborating witness (who knew you and your spouse and what happened to your marriage), and the psychologist who will testify on the evaluation made. The public prosecutor representing the government will be allowed to question the witnesses as well.
After the trial and the offer of the evidence, the case is then submitted for decision.
Note that the presence of the spouse is not necessary in the process. In most annulment proceedings, in fact, the other party to the marriage does not participate anymore. This speeds up the process somewhat because if he makes an appearance, then he will likewise be given the opportunity to present witnesses and evidence.
The uncontested annulment case takes from between 6 months to one year to complete depending on the calendar of the court, the availability of witnesses and other issues such as custody or property.
5) If I am abroad, can I still file and pursue an annulment?
Yes. Part of the psychological evaluation can be done by email and the interview can be done via VOIP, but most psychologists will ask to see the petitioner in person before releasing the evaluation. Also, after the drafting of the Petition, you may sign the petition in the presence of a Philippine consul authorized to take oaths nearest your place of residence. The authenticated documents are then sent back to the Philippines for filing in court. At a certain point in the proceedings described above, particularly during the trial stage, you will be required to testify and appear in court.
6) If I am already divorced and married in another country, do I still need to have my marriage annulled?
It depends. If you were still a Filipino citizen at the time you obtained the divorce then you will still be required under Philippine laws to obtain an annulment if you intend to marry again. If you have already changed citizenships, then you may not need an annulment anymore to get married again. However, a gray area exists when you are going to remarry another Filipino in the Philippines in which case you may need to have your divorce recognized in the Philippines first. Another gray area exists in the case of a dual citizen of the Philippines.
7) What happens to my children and our properties in case of an annulment?
Property relationships are terminated and the assets divided and/or liquidated by the court, unless the parties can come to an agreement regarding this with the approval of the court.
As far as custody is concerned, the general rule is joint custody by the husband and wife unless the children are below 7 years of age in which case presumptive custody is given to the mother with corresponding visitorial privileges for the father. The primary consideration however in custody issues is always the best interests of the child.
8) How much will an annulment cost me?
Ah, at last, the proverbial question. It depends of course on the lawyers that you choose, the venue of the case ( out of town cases usually entail more costs and expenses), the issues involved (property and custody issues), the psychologist selected to do the evaluation, among other considerations.
9) When I file the petition , am I guaranteed to get an annulment?
No, after all there are no guarantees in life. Lawyers as we said earlier are not allowed to guarantee the outcome of cases and you should beware of those (even lawyers) who will promise you that you will win because unless the process is tainted or questionable then there is no way for him to know the outcome. Again, beware of fixers and scams.
10) Assuming I obtain an annulment and I intend to marry again, what do I have to show as proof of the annulment?
Usually, most foreign embassies would require what is known as a Certiifcate of No Marriage (CENOMAR) from the National Statistics Office. After a decision is reached in an annulment case, copies are sent to the Office of the Solicitor General, the local civil registrars of the place where the court is sitting and where the marriage contract was registered, and of course to the parties themselves. After the lapse of 15 days the decision becomes final and a Certificate of Finality is issued by the court which rendered the decision. This certificate is annotated on the back portion of the marriage contract on file with the local civil registrar where it was originally recorded and finally endorsed to the NSO which then issues the CENOMAR.