annulment vs. divorce

The debate on legalizing divorce took a kick-start when news of Maltese referendum favoring divorce reached the Philippines a few days ago. This has prompted progressive groups to make a bolder call for the country to follow in Malta's steps and legalize divorce in a predominantly Catholic nation.

In House Bil 1799, which is proposed by the GABRIELA Partylist,  they argued in essence,  the philosophy behind the divorce bill in the following manner:   :

"Underpinning this proposal is a commitment to the policy of the State to protect and strengthen marriage and the family as basic social institutions, to value the dignity of every human person, to guarantee full respect for human rights, and to ensure the fundamental equality before the law of women and men .. Given realities, couples must have the option to avail of remedies that will pave the way for the attainment of their full human development and self- fulfillment and the protection of their human rights. Existing laws are not enough to guarantee and protect these rights. .. The sanctity of marriage is not based on the number of marriages existing but on the quality of marital relationships. When a marriage is no longer viable, divorce should be an option."

Under this bill, the grounds for filing divorce are , among others, a.

a.       a. when the petitioner has been separated de facto (in fact) from his or her spouse for at least five years at the time of the filing of the petition and reconciliation is highly improbable,

b.      b. when the petitioner has been legally separated from his or her spouse for at least two years at the time of the filing of the petition and reconciliation is highly improbable

c.       c. when the spouses suffer from irreconcilable differences that have caused the irreparable breakdown of the marriage

d.      d. when one or both spouses are psychologically incapacitated to comply with the essential marital obligations.

It must be understood however that divorce in the legal parlance, is the dissolution of marriage for whatever reason resulting in capacitating both parties to remarry.  Divorce legally recognizes that a marriage actually existed, but for whatever reason, one or both parties can no longer continue with the commitment.

On the other hand, for a marriage solemnized in the Philippines to be terminated is, however, not called divorce, it is called an annulment.  An annulment unlike a divorce has the effect of considering the marriage as “void ab initio”, a latin term to meaning the marriage NEVER existed at all.  The grounds for annulment are often pertaining to the absence of, or defect in, one of the essential or formal requisites of marriage. Although it has a different effect in how it considers the marriage (null and void) after annulment, it has however the same effect in terms of capacitating the parties to remarry. It should be noted that for a marriage to take place, there are essential requisites and formal requisites which must first be met.

The essential requisites of marriage are: 1) legal capacity of the contracting party, who must be male and female, and 2) consent freely given in the presence of the solemnizing officer (Article 2, Family Code [FC]).  The formal requisites of marriage are (1) authority of the solemnizing officer, (2) a valid marriage license (except in specific instances mentioned under Chapter 2 of the Family Code), and (3) a marriage ceremony which takes place with both of the contracting parties appearing before the solemnizing officer and declaring that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (Article 3, FC).

Although many loosely call all actions for terminating marriage in the Philippines as annulment, the truth is there are several actions that may be instituted to terminate the marriage.

Declaration of Nullity of Marriage

Grounds rendering a marriage “void ab initio” are:

1. those contracted by any party below 18 even with the consent of parents
   or guardians;
2. those solemnized by any person not legally authorized to perform marriage unless either or both parties believed in good faith that the solemnizing officer had the legal authority to do so;
3. those solemnized without a marriage license except those expresslyexempted by law to secure a marriage license;
4. those bigamous or polygamous marriages;
5. those contracted through mistake of one of the contracting parties as to the identity of the other;
6. incestuous marriages as defined in Article 37 of the FC; and
7. void marriages by reason of public policy (i.e. between step-parents and step-children, between adopting parent and adopted child).

An action for the declaration of the absolute nullity of marriage may be instituted at any time and shall not prescribe (Art. 39, FC).

It must be emphasized that although the marriage is void from the beginning, a party cannot unilaterally contract a subsequent marriage with the thought in mind that the previous marriage was invalid.  For example, A and B contracted a marriage with a fake marriage license.  Spouse B who knew that the marriage license was fake contracted a second marriage with C.  Is the marriage between Spouse B and C valid? No!  The marriage between A and B should have first been declared null and void by the Court before Spouse B and C can marry.

Annulment of Marriage

In an Action for Annulment of Marriage, the following marriages may be annulled:

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.

 Unlike in the first set of grounds above mentioned, an action for the annulment of marriage prescribes; in case of lack of consent, until the party filing for annulment reaches 21;  in case of insanity until the death of either party or the lucid interval of the insane spouse; in case of fraud, force, intimidation or undue influence, incapacity to consummate the marriage or knowledge of the sexually-transmissible disease, within five years from the occurrence of the fraud, force, intimidation or undue influence, incapacity to consummate the marriage or knowledge of the sexually-transmissible disease.

For couples desperate to find a way out of their troubled marriages, annulment is a trying and tedious legal process. Aside from being weighed down by the difficulty of proving the psychological incapacity of either spouse, they also have to incur many expenses: the cost of litigation, filing fees, and even the professional fees of psychologists and psychiatrists.

Bayan Muna proposed House Bill 3952, "An Act Recognizing Spousal Violence, Infidelity and Abandonment as Presumptive Psychological Incapacity Constituting a Ground for the Annulment of Marriage", hopes to make annulment more accessible even to poor couples and seeks to simplify the annulment process, offers couples an easier and less expensive way out.

Under HB 3952, infidelity, abandonment or spousal violence are presumed indications of psychological incapacity. In effect, psychological incapacity would be easier to prove, and the annulment process would take less time and money to complete. Under the measure, adding the presumption of psychological incapacity under Article 36 would reduce the length of the proceedings, and cut expenses like professional fees for psychiatrists or psychologists.