Monday, July 16, 2018

So the Marriage Did Not Work? (Annulment and Declaration of Nullity)

A friend of mine said that the two most common subjects of concern to foreigners are 1) annulment and 2) immigration.  Since I had previously written about annulment in another site, I will try my best to summarize what I had written previously.

There are two things to take note in Philippine marriages: the essential requisites and the formal requisites.  The essential requisites are: 1) legal capacity of the parties and 2) consent freely given before a solemnizing officer.  The formal requisites are:  1) authority of the solemnizing officer, 2) a valid marriage license and 3) a marriage ceremony where both the contracting parties appear before a solemnizing officer and personally declare in the presence of at least two witnesses of legal age that they take each other as husband and wife.

Absence of any of the essential and formal requisites renders the marriage void ab initio (as if it had never happened).  But just like anything else that involves an actual contract, any of the parties cannot unilaterally declare that the marriage is void.  A Philippine court has to declare the marriage as void in order for the parties to remarry again.

At the outset, it must be emphasized that a marriage is either void or merely voidable. When it is void ab initio, a petition for the declaration of its absolute nullity is filed, and such action cannot prescribe (meaning it can be filed any time).  On the other hand in marriages that are merely voidable (a defect in the essential requisites), a petition for annulment may be filed. But if it is not filed on time any action to declare it void is barred by prescription.

Marriages Void Ab Initio (Imprescriptible)

1) When one of the parties is below 18;
2) Solemnizing Officer is not legally authorized to solemnize marriage;
3) Solemnized without a license (subject to exceptions);
4) Contracted through mistake of one party as to the identity of the other;
5) Bigamous and polygamous marriages; and
6) Marriages that are void for being incestuous or against public policy (usually between relatives either by blood or even affinity, including between the adopted and adoptive).

Marriages that are Voidable

1) When one of the parties is between 18 to 21 and did not get the consent of the parents before marriage (prescription within 5 years upon reaching 21 and at any time before reaching 21);
2) When one party is of unsound mind (at any time before the death of either party by the spouse having no knowledge of the insanity or a relative having legal charge of the insane spouse);
3) When consent of the party was obtained by fraud (within 5 years from the discovery of the fraud);
4) That the consent of either party is obtained by force, intimidation or undue influence (within 5 years after the FIU disappeared);
5) That either party was incapable of physically consummating the marriage; (within 5 years after the marriage); and
6) That either party has a sexually transmissible disease found to be serious and incurable (within 5 years after the marriage).

That is the gist of the basic grounds, but there is still the ever popular ground of "psychological incapacity."  Also, an absent spouse may be declared presumptively dead in certain circumstances.  Both will deserve a separate discussion.

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