A.

Declaration of Nullity of Marriage, Generally

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. It is convenient to classify these
void ab initio marriages into five categories: (a) void marriages due to lack of requisites (Family Code [“FC”], Article
35); (b) void marriages due to psychological incapacity (FC, Article 36); (c) incestuous marriages (FC, Article 37); (d)
marriages against public policy (FC, Article 38); (e) bigamous marriages (FC, Article 41); and (e) void subsequent
marriage, when one of the spouses remarry without complying with the recordal requirement of the judgment of
annulment or absolute nullity of the previous marriage, etc. (FC, Article 52 and 53). The requisites for each of the
aforementioned grounds are more specifically described in the Family Code and in cases decided by the Supreme
Court.

The declaration of nullity of marriage is distinguished from the annulment of marriage, which considers the marriage
valid and existing until it is annulled. The grounds for annulment of marriage must have been existing at the time of
marriage, and include lack of parental consent (FC, Article 45[1]), insanity (FC, Article 45[2]), fraud (FC, Article 45[3]),
duress (FC, Article 45[4]), impotence (FC, Article 45[5]), and serious and incurable sexually transmissible disease (FC,
Article 45[6]).

The declaration of nullity of marriage is also different from legal separation, which is a legal remedy for couples
suffering from a problematic marriage. The grounds for legal separation may have arisen after the marriage, and may
be filed on the grounds provided under Article 55 of the FC). In legal separation, the couple is allowed to live apart
and separately own assets. However, legally separated couples are not permitted to remarry, since their marriage is
still considered valid and subsisting.

B. Effects of Declaration of Nullity of Marriage

Below are the legal consequences of the declaration of nullity of marriage:

1. Property Relations. The absolute community of property (“ACP”) or the conjugal partnership (“CP”), as the case
may be, shall be dissolved and liquidated.

In void ab initio marriages (except those under Article 40 of the FC), the property regime of unions without marriage
shall apply (c.f. FC, Articles 147 and 148). There are differences between unions where the parties are capacitated to
marry each other (Article 147 applies) and unions where the parties are not (Article 148 applies).

Under Article 147, there is a presumption that the contributions are equal. Property acquired by either exclusively
belongs to such property, subject to proof. Property acquired by both through their work/industry is co-owned. The
property relations between a man and a woman whose marriage was declared null and void on the ground of
psychological incapacity (FC, Article 36) is governed by this article. Note that, even if one of the spouses did not
contributed materially to the common fund, but the said party took care of the household, the other party and their
common children, these acts are considered the said party’s contribution to the common fund (Buenaventura v.
Buenaventura, G.R. Nos. 127358 & 127449, 31 March 2005).

Under Article 148, there is no presumption of joint acquisition. There is a presumption of equal sharing only when
there is evidence of joint acquisition but none as to the extent of actual contribution. Otherwise, property acquired
by either exclusively belongs to such property, and property acquired by both through their work/industry is owned
by them in common in proportion to respective contributions.

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 (pendente lite), 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. Pendente lite, 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. Pendente lite, 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.

C. Outline of Steps

Below is a general outline of the steps in the declaration of nullity of marriage. Please note that in some instances,
these steps may not be followed.

1. Preparation / Psychiatric Evaluation. The client goes to the lawyer and discusses his/her case. After conferring with
the lawyer and submission of all of the requirements, the lawyer will draft the petition for declaration of nullity of
marriage.

If the ground for the declaration of nullity of marriage is psychological incapacity, it is advisable to secure the services
of an expert witness (psychologist/psychiatrist) at this stage. The expert witness will later on testify on the
psychological incapacity of the petitioner and/or the respondent. It is also advisable that the executive summary of
the report of the expert witness form part of the petition.

2. Filing of Petition. The petition is filed before the Central Office of the Regional Trial Court. Cases involving marriage
and family matters will be raffled only to designated Family Courts. This will take about a week. After the raffle, the
petition will be forwarded to the selected court.

3. Summons. The court will issue summons one or two weeks after the case is raffled. The respondent has 15 days to
file his/her answer. In some instances, the lawyer of the respondent may ask an extension of 15 days to file his/her
answer or any pleading.

4. Notice to the Office of the Solicitor General (OSG). The court will issue an order requiring the petitioner to submit
copies of the petition to the OSG and the prosecutor assigned. Note, however, that under pertinent rules, a copy of
the petition should be furnished to the OSG within 5 days from filing thereof.

5. Collusion Hearing. The judge will order the prosecutor assigned to the case to investigate whether collusion exists
between the parties and if the evidence submitted is not fabricated or suppressed. The prosecutor is usually given 20
days from receipt of the order to investigate the parties. The report of the investigation of the prosecutor should be
submitted 10 days after the 20-day period.
6. Preliminary Hearing/ Pre-Trial Order. The court will hold a preliminary hearing, which requires both parties to
attend. A pre-trial order will be issued. Usually the preliminary hearing is called about two to four months after the
filing of the petition.

7. Hearing. This is the time when the petitioner will present his/her evidence of psychological incapacity. The number
witnesses will depend on the case, but usually, two to three witnesses will be enough, if the case is not contested
(meaning, the respondent will not object). The witnesses will be the petitioner herself/himself, the expert witness
and one collaborating witness.

Below is the order of presentation of evidence:

a. Presentation of the petitioner herself/himself

• Direct examination of the petitioner by her counsel

• Cross-examination by the State

• Redirect examination by the petitioner’s counsel

• Re-cross-examination by the State.

b. Presentation of the psychologist or psychiatrist

• Direct examination of the petitioner by his/her counsel

• Cross-examination by the State

• Redirect examination by the petitioner’s counsel (if necessary)

• Re-cross-examination by the State (if necessary)

c. Formal Offer of Exhibits

d. Comments/Objections to the Formal Exhibits by the State Prosecutor

• The prosecutor is given an opportunity to comment or object to the offer exhibits. (10-15 days from receipt of the
Formal Offer of Exhibits)

8. OSG Certification. An order will be issued directing the OSG to issue a certification briefly stating its reasons for its
agreement or its objection to the petition within 30 days from the receipt of the said order. Likewise, the petitioner
will be directed to submit all exhibits and transcribed stenographic notes to the OSG within 7-15 days from receipt of
the order.

9. Decision. The Court will then issue an order that the case is submitted for resolution. The decision may be released
30-90 days after the said order is issued.

A declaration of nullity of marriage may be finished from 10 months or several years depending on various factors like
the complexity of the case (e.g. properties and custody, support are heavily contested), availability of the court,
witnesses and documentary evidence, and also the place where the petition will be filed.

D. Requirements and Costs

Below is a list of some of the requirements before filing a petition for declaration of nullity of marriage:
• NSO copy of marriage certificate of the spouses and birth certificates of the children (obtained within 6 months
from the filing of the petition)

• Barangay certificate and Community Tax Certificate evidencing residence over the last 6 months of the province or
city where the petition will be filed

• Psychiatric evaluation of the spouses (if the ground relied upon is psychological incapacity)

• Copy of marriage settlement or pre-nuptial agreement, if any

• Copy of agreement, if any, relating to custody, support, etc.

• Inventory of properties of the spouses and of the ACP or CP (Please see questionnaire or other document request
list of the counsel)

• List of witnesses (Please see questionnaire to be provided by the counsel)

• Other documentary or object evidence

The major cost components of having a marriage declared void ab initio include the following:

1. Filing Fee (Under PhP10,000.00, if no properties are involved; higher, if there are properties involved);

2. Legal Fees (Acceptance Fee, Pleading Fees, Appearance Fees); and

3. Psychological/Psychiatric Evaluation and Expert Witness Fees (varies, estimated PhP40,000 to PhP60,000.00).

Disclaimer: All of the information on this website is provided as general information, not as legal advice, nor as a
solicitation for legal services. The information is not provided in the course of an attorney-client relationship between
Atty. Salma F. Angkaya-Kuhutan and anyone who views it. Viewers should not rely on the information contained in
this website when making decisions regarding legal matters but should consult a qualified attorney for legal advice.
You should not act based solely on the information found on this website and are strongly advised to seek the legal
opinion of a lawyer.

You may contact the Attorney through the information provided on this website if you are interested in the legal
representation, counseling, and related legal services that we provide.

Grounds for annulment in the Philippines

Article 45 of the Family Code lists six grounds for annulment:

No parental consent if either party was between 18 and 21 years at the time of marriage

Psychological incapacity

Fraudulent consent, which includes non-disclosure of either party of a material fact before marriage, such as
pregnancy by another man or a sexually transmitted disease

Consent obtained by force, intimidation, or undue influence

Physical inability to consummate the marriage

Serious or incurable sexually transmitted disease

Another ground which is the most common reason cited in an annulment is the Psychological incapacity based on
Article 26 of the Family Code, which is broadly defined as the inability of one or both spouses to comply with basic
marital obligations. Accepted manifestations of psychological incapacity include the refusal of one spouse to live with
the other, an antisocial or narcissistic personality disorder, drug addiction, unabated alcohol consumption, and
others.
Republic of the Philippines

REGIONAL TRIAL COURT

National Capital Judicial Region

San Juan CityB

ranch ______

BENJO C. BERNARDO

,Petitioner,-Versus -Civil Case No. ___________ For: Declaration of Nullity of Marriage

GRETCHEN B. GENOVEZA-BERNARDO,

Respondent.X - - - - - - - - - - - - - - - - - - - - - - - - - X

PETITION

COMES NOW petitioner, by the undersigned counsel andunto this Honorable Court, most respectfully alleges:1.
Petitioner is of legal age, Filipino citizen and a resident of 143 Argonne St., San Juan City while respondent islikewise
of legal age, Filipino citizen and a resident of 91 Tripoli St. cor. London St. Project 8, Quezon City, whereshe may be
served with summons, orders and other legalprocesses of this Honorable Court;2.Petitioner and respondent are
husband and wife, havingbeen legally married on December 2, 2002 at Sto NinoParish Shrine, in Bago Bantay Quezon
City, a copy of theirmarriage certificate is hereto attached as Annex “A”;3.A child was born in wedlock, Bhenjiemien
Yakov G.Bernardo, aged 6 years old, a copy of his Certificate of Live Birth is hereto attached as Annex “B”;4.In
retrospect petitioner and respondent were childhoodfriends, growing up in the same neighborhood in Project 8and
were even schoolmates at St. Patrick School in highschool. Back then, petitioner had a girlfriend, Cristina,who was
respondent’s friend as well. After he and Cristinabroke up, he lived in with another girlfriend, whom hefound out was
married. Frustrated, he returned to hisparents’ home and met respondent again after a longwhile. This time, they
were already college graduates andwere both scouting for employment. But as it was difficultto get an office job
then, they decided to be businesspartners by putting up a small food cart business selling fish balls.

Page 02.5. Aside from being business partners, they were likewise attracted toeach other physically. although there
was no emotionalattachments to one another, they frequently indulged in sexualintimacies which resulted in
respondent’s pregnancy. Petitioner didnot want to marry respondent for he knew her to be a playgirl,having had a
long list of boyfriends. He however vowed to supporttheir child. 6.When petitioner’s parents, who were devout
catholics and followersof the conservative

mater dei,

came to know about respondent’spregnancy, they prevailed upon petitioner to marry respondent.Despite his
protestations, they were married in haste and in asimple church ceremony.7.Unprepared to face the rigors of married
life and with no visiblemeans of livelihood, the newly-weds lived with petitioner’s parents. Their first month of being
married was marred by frequent fightsand disagreements as they were not really in love with each otherand were
constantly at odds, no one giving in for the other. 8. A month after getting married or in January 2003, petitioner flew
toCalifornia to work as caregiver. He however sent money forrespondent’s medical needs as she was about to give
birth. Despitefinancial support coming from petitioner, respondent feltuncomfortable at her in-laws’ home. She left
and went back to herparents.9.Before his tourist visa expired, petitioner came back to thePhilippines and attempted
to reconcile with respondent especiallyafter seeing his baby. Respondent refused to live again withpetitioner. He was
resigned to just visiting his baby boy from time totime and giving financial support to their child.10. Time went by
with the parties living separately on their own. Itbecame convenient for both to live separately as they
wouldconstantly fight when they are together. Soon petitioner gotemployed with a construction job owned by his
relatives.Respondent too became gainfully employed. Distance andseparation drove both petitioner and respondent
to have theirrespective lovers.11.This arrangement went on until petitioner’s student visa wasapproved and he was
slated to leave for the States sometimeSeptember 2005. Before he left, he talked with respondent andthey both
agreed that they will both use the time away from eachother to think things over and determine if there is still a
chance for them to get back and live together as husband and wife whenpetitioner comes back from his studies
abroad.

Page 03.12. While abroad, he not only studied but worked as well,taking in odd jobs to support himself and his family.
In2006, it was respondent’s turn to go abroad to work in Taiwan. Petitioner and respondent used to
communicatethru text messaging and they both agreed to come home. 13.Petitioner came back in January 2008, not
long after,respondent came home too. They both decided to try andlive together again as a family. Unfortunately,
sinceboth of them distrust each other, they frequent argumentsand disagreements. Worse, petitioner found out
thatrespondent had a boyfriend in Taiwan, who had remainedin touch with her. And worst, respondent had not
severedher relationship with him, thus, the guy maintainedcommunications with her. This was the last straw
thatbroke the camel’s back, so to speak.14. To date, they have gone separate ways and there isno hope for
reconciliation.15.Petitioner, convinced of the futility of his efforts,decided that he deserves to start life anew with
feelings of hope for a brighter future since there is obviously no hopethat respondent can cope up with her
obligations as wife;16. Petitioner engaged a clinical psychologist whoconducted a psychological evaluation on the
ability of respondent to cope up with the essential obligations of marriage. After evaluation, respondent was found to
bepsychologically incapacitated to perform the essentialmarital obligations of marriage borne from her lack of
maturity, which affected her sense of rational judgmentand responsibility. These traits reveal her psychological

incapacity under Art. 36 of the New Family Code of thePhilippines and is more appropriately labeled “Anti-Socialand
Narcissistic personality disorder ;17.Petitioner is filing this petition to declare his marriage anullity. Respondent
showed no concern for her obligationtowards her family in violation of Art. 68 of the NewFamily Code which provides
that husband and wife areobliged to live together, observe mutual love, respect andfidelity and render mutual help
and support.. Petitioner isalso filing this case under Art. 36 of the same Code as therespondent manifested apparent
personality disorder andpsychological dysfunction, i.e. her lack of effective senseof rational judgment and
responsibility, otherwise peculiarto infants, by being psychologically immature and failingto perform her
responsibilities as wife;

Page 04.18.That said psychological defect or illness is grave,serious and incurable and existed prior to the
marriageand became manifest during its existence;19.That petitioner and respondent have not acquired anyreal
properties in the course of their marriage.PRAYERWHEREFORE, premises considered, it is most respectfullyprayed
that the marriage of the petitioner with the respondent bedeclared a nullity. It is likewise prayed that if and when
partiesare able to enter into an extrajudicial settlement as to custodyand joint parenting, the same be adopted by this
Court and in theabsence thereof, a fair and just settlement of their rights andobligations as parents be adjudicated by
this Honorable Court.We pray for such other reliefs, just and equitable under thepremises.San Juan. May 12, 2009

Atty. MARIA LOURDES PAREDES-GARCIA

Counsel for PetitionerWheels Executive SuitesWheels Bldg., E. Rodriguez Sr. Ave.,Quezon CityIBP No. 764814 dtd. 01-
07-09PasigCityPTR No. 5448574 /01/14/09/ RizalRoll No. 33476MCLE Compliance II – 0009328Dtd. March 27, 2008

VERIFICATIONI,

BANJO C. BERNARDO,

of legal age, under oath, states:01.That I am the petitioner in this case and that I have caused the preparation of the
same petition;02. That I attest to the truth of all the allegations in the same petition of my own personal
knowledge;Page 05.03.In compliance to the Supreme Court circular against forum shopping, I hereby certify that: a) I
have not commenced any other action or proceeding involving the same issues before the Supreme Court, or Court of
Appeals, or any other tribunal or agency; b) to the best of my knowledge, no such action or proceedings is pending in
the Supreme Court, Court of Appeals or any other tribunal or agency; c) If I should learned that similar action or
proceeding has been filed or is pending before such tribunals or bodies, I shall report that factwithin five (5) days
therefrom to the court of agency where the original pleading and sworn certification have been filed.

BENJO C. BERNARDO

Affiant

SUBSCRIBED and SWORN to before me this _____ day of May 2009,affiant exhibited to me his ______________ dated
________________ issued in _________________