“Giving Legal Advice on cases of Annulment”

Submitted by: Michelle Joy M. Itable

As completion to my midterms exam in
Legal Counseling

Legal Counseling and Social Responsibility

Submitted to:
Atty.Erik C. Lazo

Arellano University School of Law

Midterms Exam Paper
I. Introduction
Marriage is a sacred union of two individuals who have vowed to be there for each other in
sickness or in health, till death do they part. Here in the Philippines where family ties are strong,
marriage between two individuals also mean marriage of two families. It is a social function,
that’s why the state also protects it to the point that there is no law allowing absolute divorce in
the county.
The Philippines is the only country in the world, aside from Vatican City where divorce is not
allowed In the Philippines, spouses have the duties to live together, observe mutual love,
respect and fidelity, and render mutual help and support and these are embodied under the
Family Code of the Philippines. What if these duties are no longer complied with? Divorce is
not an option in the Philippines, in the absence of a divorce law. One way of severing the
marital bond is to file for annulment.

There have been a rise of failed marriages in the Philippines in the last decade. For various
reasons, couples decide to end what they deemed “till death do us part” promise. The purpose of
this term paper is to discuss the annulment process in the Philippines to give advice to those
interested on resorting to it.

II. Discussion
The Family Code has enumerated three options for annulment of marriages:
1. Declaration of Nullity of Marriage
2. Annulment of Marriage,
Each one has different grounds and effects.

Petition for Declaration of Nullity of Marriage

The declaration of nullity of marriage applies to marriages that are null and void from the beginning
(void ab initio), due to the absence of at least one of the essential or formal requisites of
marriages
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;

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;

6. Those subsequent marriages that are void under Article 53;

7. Under Art. 36, psychological incapacity, which states that a marriage contracted by any party
who, at the time of the celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization. (As amended by Executive Order 227;

8. Incestuous Marriages under Article 37 of the Family Code, which include those between
ascendants and descendants of any degree; and between brothers and sisters, whether of the full
or half-blood;

9. Marriages which are void for reasons of public policy under Article 38, which include:

 Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil
degree;
 Between step-parents and step-children;
 Between parents-in-law and children-in-law;
 Between the adopting parent and the adopted child;
 Between the surviving spouse of the adopting parent and the adopted child;
 Between the surviving spouse of the adopted child and the adopter;
 Between an adopted child and a legitimate child of the adopter;
 Between adopted children of the same adopter; and
 Between parties where one, with the intention to marry the other, killed that other
person’s spouse, or his or her own spouse.

It is to be noted that children of the spouses will already be considered illegitimate even after
the annulment has been granted, because the marriage is considered void from the beginning

One of the most complicated ground in the annulment process is Psychological Incapacity for
its very wide meaning. In the recent cases, lawyers in the Philippines often cite instances to
support psychological incapacity such as drug addiction, homosexuality, habitual intoxication,
absence, failure to support and more.
Petition for Annulment of Marriage

Art. 45 of the Family Code provides that 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.

Where to File the case?

This is now the controlling procedure for dissolution of marriages is embodied in the New Rule
on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages
which  took effect on March 15, 2003.. The most important amendment to this Rule is that
Appeal by the Solicitor General of the Decisions from the Regional Trial Court is not
mandatory.

The procedures are as follows:

1. Petitioner files a Petition for Annulment of Marriage before the Office of the Executive Clerk
of  Court of the Regional Court
 
2. The Office of  Executive Clerk of Court schedules the raffling of the Petition for  assignment
of the case to the Family Court of the Regional Trial Court
3. The Clerk of Court of the Regional Trial Court assigned in the case issues Summons to the
respondent spouse
4. Respondent spouse files his/her Answer to the Petition
 
5. Referral of the case for case study to a social worker (optional)
6. The Court sets the case for Pre- Trial conference
 
7. Pre-Trial Conference
8. Referral to the Mediator (optional)
 9. Termination of Pre-Trial Conference and Pre-Trial Order
10 Trial Proper
11. Submission of Memoranda
12. Decision
13. Motion for Reconsideration
14. Appeal
15. Finality of the Decision
16. Issuance of the Decree of Annulment 

Cost of Annulment

The following are the estimated costs to annul a marriage amounting to almost Ph300,000 to
Ph600,000:

1. Attorney’s Fees
2. The Psychological Evaluation
3. Filing Fee
4. Cost of Publication
5. Cost of Annotation
6. Miscellaneous cost
How long does it take to annul a marriage?

There is no hard and fast rule for it depends on the handling of the case. On the average, it takes
two years or more to complete the process. This is one of the difficulties in annulment cases, the
amount of evidence to be presented and ascertained by the judge, along with the slow legal
system in the Philippines, makes annulment in the country very slow.

The following are the legal consequences of the declaration of nullity of marriage:

1. Property Relations. The absolute community of property or the conjugal partnership as

the case may be, shall be dissolved and liquidated.
2. Status of Children Born/Conceived before Declaration of Nullity. The children are
deemed illegitimate, except when the ground for the declaration of nullity is
psychological incapacity or a void subsequent marriage under Article 53 of the FC.
3. Custody of Children. During the pendency of the petition ), the custody of children will
be governed either by written agreement, or by court order, based on the best interest of
the child. The court will apply the following order of preference, both parents jointly: (a)
either parent (may consider the choice of child over 7 years, (b) unless such parent is
considered unfit), (c) surviving grandparent (if several, then choice of child over 7 years,
 unless grandparent chosen is unfit/disqualified), (d) eldest brother/sister over 21 unless
unfit/disqualified, or (e) any other person deemed suitable by the court.

After the decree, the court shall award custody to the innocent spouse, but no child under
7 years shall be separated from the mother unless there are compelling reasons.

4. Child Support. During the pending proceedings, child support will be governed by
either written agreement, or in the absence thereof, from properties of the ACP or CP.
After decree, either parent or both may be ordered by the court to given an amount
necessary for support in proportion to resources/means of giver and necessities of the
recipient.
5. Spousal Support. During the pending proceedings, spousal support will be governed by
either written agreement, or in the absence thereof, from properties of the ACP or CP,
considered as an advance to be deducted from the share of the spouse supported during
liquidation. There may be restitution of spousal support if after decree, the court finds that
the person providing support pendente lite is not liable therefor.

III. Conclusion
The Family, as an inviolable institution in a state deserves protection against separation. Maybe
this is the reason why the process of Annulment in the Philippines was designed to be long and
exhaustive – so that there could still be a chance for estranged married couples to rekindle their
marital relationship. However, if it is no longer healthy for the couple, their children or the state,
there is no reason to stop a spouse to be free from such turmoil.
V. Recommendation
As lawyers, we should be well knowledgeable with the laws and prevailing jurisprudence so
that as we give legal advice to our clients, we are able to give them the proper advice especially
in cases of annulment.
More importantly, as lawyers, our objective is to make sure that our client will be able to
exercise the rights mandated by the constitution and other laws. If in the future I will encounter
clients who would like to file an annulment case, I shall make sure that they will be served with
due process; they will know their rights and the proper exercise thereof.
Furthermore, I will explain the legal consequences of annulment if it be granted.
V. References:
https://ndvlaw.com/grounds-for-declaration-of-nullity-annulment-and-legal-separation/
https://deborjalaw.com/what-you-need-to-know-about-annulment-in-the-philippines/
http://www.gtalawphil.com/family_law3.htm
https://saklawph.com/annulment/
Aricles 35 and 45 of the Family Code