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Tuesday, October 31, 2017

10 Common Question About Annulment or Nullity of Marriage

Many people said love is sweeter the second time around. This is not only applicable to boyfriend/girlfriend relationship but also with people who are victims of broken marriages and want to start a new and make it right.  There are many couples nowadays who want to end their union legally but don't know where to start.   The following are a common question on annulment or nullity or marriage prepared by Atty. Anna Fiona Bojos and Atty. Magdelena Lepiten of Lepiten and Bojos Law Office, with an office address of 21 F Don Pedro Rodriguez Street, Cebu City with contact number (032) 410 6157. For further inquiries, please email them at mlepiten@gmail.com and fionahbojos@gmail.com.

Many people said love is sweeter the second time around. This is not only applicable to boyfriend/girlfriend relationship but also with people who are victims of broken marriages and want to start a new and make it right.

There are many couples nowadays who want to end their union legally but don't know where to start. 

The following are a common question on annulment or nullity or marriage prepared by Atty. Anna Fiona Bojos and Atty. Magdelena Lepiten of Lepiten and Bojos Law Office, with an office address of 21 F Don Pedro Rodriguez Street, Cebu City with contact number (032) 410 6157. For further inquiries, please email them at mlepiten@gmail.com and fionahbojos@gmail.com.


Read: 15 Steps and Procedure for OFWs to File Annulment in the Philippines
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Frequently asked questions (FAQ) on Annulment/Nullity

1. What is annulment or nullity of marriage on the ground of psychological incapacity?

What we usually call annulment refers to “nullity of marriage on the ground of psychological incapacity.” But leave it to the lawyer to differentiate between annulment and nullity of marriage.

Most petitions for nullity of marriage are based on the psychological incapacity of the other spouse. Once you get a final court decision declaring the marriage is void, you can remarry again, subject to the annotation of the decision in your marriage certificate.

The basis for this petition is Art. 36 of the Family Code 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.” The marriage is void or did not even legally exist in the first place.

Hence, for the purposes of remarriage, a void marriage must be declared and there must be a Judicial Declaration of Absolute Nullity of a prior subsisting marriage before contracting another. Otherwise, you commit bigamy.

For more on annulment, please go to question no. 10.


Read: The Difference Between Legal Separation and Annulment and What are the Grounds for Filing
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2. What is psychological incapacity?

This psychological incapacity is not necessarily insanity but it means that the other spouse has certain dysfunction, or psychological trait or makeup which prevents the person to comply the obligations of marriage.

Some signs of psychological incapacity include alcoholism, drug addiction, infidelity, domestic violence, gambling, habitual lying, abandonment, extreme selfishness, laziness, and others.

It is so encompassing and maybe, general that gives lawyers and litigants a leeway on how to prove the case. But there are already various Supreme Cases that will guide the practicing lawyer and litigants of whether their case will fall in this category.


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3. Can I file a petition for nullity of marriage even while I am abroad?

Yes, you can file a petition for nullity of marriage even while you are abroad. What is required is for you to have the verification of your petition and your affidavit notarized before the nearest Philippine Embassy or Consulate in the country where you are residing or working.

4.Can I file the petition for nullity of marriage without the signature/consent of the other spouse?

Yes, you do not need to get the consent or the signature of the other party. This is not divorce proceedings where parties can both sign and file for a no-contest divorce.

As a rule, parties are not allowed to come to an agreement about the filing of the petition. That is why the Office of the Solicitor General, through the prosecutor (fiscal), conducts an investigation for collusion, in order to determine whether or not the parties have colluded with each other in filing the petition or are involved in fabricating evidence.
5. What do I need to prepare?

Please prepare your funds for the filing of the petition, marriage certificate if available, the birth certificate of children (if any) and the titles or tax declarations of the property (if applicable.) Provide a brief background about your story so that the lawyer can prepare your petition.

6. What is the estimated cost and expense for filing this petition?

The total estimated cost for a case filed in Cebu City and that case is uncontested is around P150,000 to P200,000. The cost will vary depending on the circumstances of the case, delays, if there are properties, other factors like the court, etc.

7. How long does it take for the proceedings to be completed?

Based on the cases we have handled in Cebu City, if it is an uncontested case, meaning the other party will not oppose your petition for nullity of marriage, it will take an average of a year and a half for a case to be finished.

This is because of the caseload of the courts, the availability of the prosecutor, judge, and court personnel, as well as the availability of the petitioner and the psychologist, have to be considered.

The time frame may vary for other places like Manila or Davao.
8. How many times do I need to be personally present at the proceedings?

You will need to personally appear at least three times.

The first will be before the city or provincial prosecutor during the investigation for collusion between the parties.

The second will be during the pre-trial stage. If you are working abroad and have executed a special power of attorney in favor of your lawyer authorizing him/her to appear in your behalf for the pre-trial, then you may not attend the pre-trial stage. This is usually allowed if the petitioner is working abroad.

The third time is when you will be presented before the court to give your testimony about your marriage and your relations with your spouse.
9. Is it true that if the parties have been separated for 7 years or more, the marriage is automatically annulled?

No, that is not true. There is no automatic dissolution of the marriage, you will have to file a petition in court for the nullity of the marriage.

10. What is annulment?

Annulment is when the marriage is valid from the very beginning but can be annulled on various grounds. This is the term commonly used by Filipino layman but it is not commonly used by Filipino lawyers because it is more difficult to prove and in most cases, the circumstance of the married person does not fall in this category. Art. 45, of the Family Code, provides the grounds for Annulment of Marriage.

Declaration of Nullity, on the other hand, is for a marriage that is null and void due to the absence of one or more of the essential or formal requisites of marriage as stated in Art. 2 and 3 of the Family Code.

A Filipino can marry again once there is a final judgment from the court that declares the marriage as null and void from the very beginning. The case that will be filed is what we call “petition to declare the marriage as null and void” and commonly called as “petition for nullity of marriage”.

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