Atty. HARVE B. ABELLA, Esq.THE LAW ON NULLITY OF MARRIAGE INTHE PHILIPPINES
MARRIAGE Article XV. Sec. 2. 1987 Constitution Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
MARRIAGE Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (EO 209, as Amended)
SPANISH PERIOD Siete Partidas Legal Separation / Relative divorce Divorce a mensa et thoro Grounds Adultery The desire of one of the spouses to take up holy orders and the other spouses grants the same Conversion of one of the parties to heresy, Mohammedanism or Judaism
AMERICAN PERIOD Act No. 2710 (1917) Divorce Law Granted absolute divorce (divorce a vinculo matrimonii) Grounds: Adultery on the part of the wife Concubinage on the part of the husband if committed in any of the forms provided by the Penal Code Granted one year after the final judgment of the court.
JAPANESE OCCUPATION EO 141 Expanded the grounds for absolute divorce in Act No. 2710 from two to 11
MUSLIM DIVORCE LAW 1949 RA 394 Granted absolute divorce to Muslims – effective only up to June 1969. PD 793 extended the period beyond June 18, 1969 Recognized Muslim divorce and was retroactively applied. 1977 Code of Muslim Personal Laws of the Philippines (PD 1083) became effective. It provided absolute divorce to muslims only after the exhaustion of possible means of reconciliation between the spouses
NEW CIVIL CODE (1950) RA 386 – repealed absolute divorce granted in Act 2710 and EO 141 A proposed chapter on Absolute Divorce was struck down during the deliberations due to the fact that the House was flooded with letters and telegrams from the Catholic population on its perception that that provision liberalized divorce The proposal was in fact more strict than that covered by Act No. 2710 The Lower House prevailed and deleted the proposal on account that it was an election year.
FAMILY CODE (1988) A new ground for the declaration of nullity of marriage was added based on Psychological Incapacity. Divorce is still not recognized, except perhaps a divorce obtained abroad by the alien spouse of a Filipino citizen and divorce among Muslims
TWO MOST POPULAR REMEDIES TO DISSOLVEMARRIAGES ACTION FOR ANNULMENT (Voidable Marriages) Lack of parental consent (18 y.o. but below 21 y.o.) Consent obtained through fraud Consent obtained through force, intimidation or undue influence Insanity or unsoundness of mind Impotence or physical inability to consummate the marriage Affliction with a sexually transmitted disease.
TWO MOST POPULAR REMEDIES TO DISSOLVEMARRIAGES ACTION FOR THE DECLARATION OF NULLITY OF MARRIAGES (Void Marriages) Underage (below 18 years of age even with parental consent) No authority to solemnize the marriage Bigamy / polygamy No marriage license (with exceptions) Psychological incapacity Subsequent marriage after failing to record annulment or declaration judgment of annulment or declaration of nullity of marriage with the civil registry Incest Breach of public policy
WHICH REMEDY IS APPROPRIATE? ANNULMENT MAY RESULT IN THE SEVERANCE OF MARITAL TIES DECLARATION OF NULLITY
WHEN IS A MARRIAGE RIPE FOR DISSOLUTION? A painful choice must be made between clashing alternatives: between the sanctity of the marital contract and the need to provide for an escape where the relationship becomes intolerable Between the marriage institution and the instability which results from incompatibility Between the society’s concern for children and the equally great injury which may be done to them in a hostile parental environment Between financial concern for the wife and the imposition of alimony to the husband
The decision to seek annulment should be made with utmost care and consideration of what the future holds for you (and your children) A matrimonial contest often results in love turning to hate. Vengeance becomes the order of the day. If one partner has become sexually enslaved by the other, the urge to destroy the wanderer becomes almost overwhelming.
WHAT TO EXPECT? Annulment cases are rich in entertainment and thrills for a society that seemingly cannot get too much of the peccadilloes of the haut monde The radical surgery of annulment pushes the parties to enter a crapulous joint once the battle over the children begins The lawyer is viewed by the opposing party as the devil’s acolyte, a person out to grab his entire fortune, wreck his life and take away his wife and children.
Anticipate the unexpected once the first bullet is fired Prepare a substantial financial war chest to last up to the end of the conflict. The government has as special interest in your case. Both the prosecutor and a representative from the Office of the Solicitor General will keep a watchful eye over your demeanour and the evidence you present in court. They are looking for any behaviour or hint that you and your spouse have secretly agreed to engage in play acting just to convince the judge that your marriage ought to be annulled or declared void.
You and your spouse may end up washing dirty linen in open court because the law requires that fault be found in either or both of you before your marriage is dissolved. Prolonged court contest could take its toll on your sanity and mental tranquility, if you are not psychologically incapacitated going into the contest, you may just as well end up being psychologically incapacitated after (or even before) the court releases its decision.
VOID AND VOIDABLE MARRIAGESHOW DO THEY DIFFER?
VOID MARRIAGE It is one that is non-existent from the time of performance Considered invalid from the time the parties tried to enter it Cannot be ratified or convalidated by free cohabitation or prescription The passage of time cannot validate a void marriage It may be attached directly or collaterally Bur for purposes of remarriage, there must be a judicial declaration of absolute nullity of marriage.
VOIDABLE MARRIAGE It is invalid only if a court declares it is invalid Can be ratified or convalidated by free cohabitation or prescription Can only be attacked directly Defective at the time off marriage If no person initiates an action in court to invalidate a voidable marriage, it will always be considered a valid marriage.
ABSENCE OF CONSENT FROM PARENTS ORGUARDIANS Between 18 of age but below 21 Failure to get the consent from either of these individuals will make your marriage annullable. Remedy in order to validate: By freely living with the other party as husband and wife upon reaching the age of 21, the cause for annulment for the party whose parents did not give their consent is removed automatically.
To be classified as a valid cause for annulment, the degree of force must be in the serious and physical power (Art. 1335 Civil Code) The standard is high Intimidation to be an acceptable ground for annulment must be one that compels one of the parties to give his consent because of a reasonable and well-grounded belief of an imminent and grave evil upon the person or property of the party, his spouse, descendants or ascendants.
VITIATION OF CONSENT: USE OF FORCE,INTIMIDATION OR UNDUE INFLUENCE INGETTING THE CONSENT OF A PARTY
Undue Influence An amorphous term that begs for a precise legal definition The influence must be sufficient to “subjugate” the mind of another so as to deprive the party of his freedom of choice and to “destroy” his free will.
To determine the existence of undue influence, factors such as family, religious and other close relationships between the parties are considered. The mental and financial position of the parties will be taken into account in finding if one party exerted undue influence over the other. (Coso vs Ferndandez Daza, 42 Phil. 596)
EMPLOYMENT OF FRAUD IN GETTING CONSENT There are only 4 types of fraud recognized as grounds for annulment and all four of them involve the concealment or failure to reveal a “material” fact: Non-disclosure of a conviction by final judgment of a crime involving moral turpitude Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband Concealment of a sexually-transmissible disease, regardless of its nature, existing at the time of the marriage Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism at the time of the marriage.
UNSOUNDNESS OF MIND “manifestation, in language or conduct, of disease or defect of the brain, or a more or less permanently diseased or disordered condition of the mentality, functional or organic, and characterized by perversion, inhibition, or disordered function of the sensory of the intellective faculties or by impaired or disordered volition.” (Act No. 2122, Sec. 9) To be a ground for annulment, one of the parties must have been incapable of understanding the nature and consequences of the marriage. Equivalent to incapacity of intelligent consenting or lack of understanding or realization of what is being done and to consent to it.
PHYSICAL INCAPABILITY OF CONSUMMATINGTHE MARRIAGE Impotence must exist at the time of the celebration of the marriage It is a continuing kind up to the time of the trial Incurable beyond medical relief Spouse was not aware of your impotence
AFFLICTION WITH A SEXUALLY TRANSMISSIBLEDISEASE Must be existing at the time of the marriage Serious Incurable
Some are luckier than othersWHO MAY FILE AN ANNULMENT ACTION
No parental consent The party or parent or guardian who did not give Use of force, intimidation consent or undue influence Employment of fraud Insanity Injured party The sane spouse who had no knowledge of his spouse’s insanity, or any relative, guardian or any person having legal charge of the insane spouse, or the insane person himself Impotence The injured party Affliction with a sexually The injured party transmissible disease
PRESCRIPTION FOR ANNULMENT CASES No parental consent Within 5 years after reaching the age of 21, if brought by the party whose parents did not give their consent; if brought by the parent or guardian of the said party, the action must be filed before the party reaches the age of 21 Within 5 years from the Use of force, intimidation time the force, intimidation or undue influence or undue influence stopped
PRESCRIPTION FOR ANNULMENT CASES Employment of fraud Within 5 years after the discovery of the deceit or fraud Insanity Anytime during the lifetime of either party. If the insane party brings the action, he must bring it during his lucid interval or after he regains sanity Impotence Within 5 years from the time the marriage was celebrated Affliction with a sexually Within 5 years from the time transmissible disease the marriage was celebrated
FREE COHABITATION. CURING THE DEFECT Annullable marriages may be “ratified” when the injured spouse decides to live with the other party as husband and wife in spite of his knowledge that there is a defect that may serve as a ground to annul the marriage. Ratification is a legal term that means that a party has affirmed and condoned the defect of the marriage or the act done by the other party.
INSTANCES WHEN FREE COHABITATION WILLCURE A VOIDABLE MARRIAGE No parental consent Use of force, intimidation, or undue influence Employment of fraud insanity
INSTANCES WHEN FREE COHABITATION WILLNOT CURE THE VOIDABLE MARRIAGE (BUT THEACTION MAY STILL PRESCRIBE) Impotence Affliction of a sexually-transmissible disease
A void marriage is one that has no legal effect and is invalid because it has not complied with the procedural (formal) or substantive (essential) requirements of the law for valid marriages. A void marriage is always invalid and the only thing that needs to be done in court is to ask for a judicial declaration that the marriage is in fact invalid for official record purposes
LIST OF ALL VOID MARRIAGES Marriages without a marriage license (with exceptions) Marriages without a marriage ceremony Marriages officiated by a person without any legal authority to solemnize marriages (with exceptions) Marriages in which the contracting parties lack the legal capacity to contract a marriage (below 18 years of age) Marriages between persons of the same sex Marriages that are incestuous and those that are against public policy Marriages that are bigamous and polygamous Marriages that are contracted through mistake by one party as to the identity of the other
Marriages that are subsequently contracted after the previous marriage has been annulled or declared void and the annulment judgment, partition, distribution of the properties of the spouse and the delivery of the children’s presumptive legitimes were not recorded in the civil registry Marriages in which at least one of the parties is psychologically incapacitated
ABSENCE OF FORMAL REQUIREMENTS NO MARRIAGE LICENSE It is the marriage license which gives the solemnizing officer the authority to solemnize a marriage (Aranes vs. Occiano, 380 SCRA 402) Exceptions Marriages celebrated in articulo mortis (at the point of death, even if the “dying” or ailing party survives Marriages in remote places when the residence of either pary is too far from the LCR and there are “no means of transportation” to enable such party to personally appear before the civil registrar Marriages among Muslims or members of ethnic minorities as long as these marriages are solemnized according to their customs and practices Marriages in which the parties have lived together as husband and wife for at least 5 years and without any legal impediment to marry each other.
NO MARRIAGE CEREMONY The law requires that a ceremony must be held to formalize the marriage The substance of the ceremony is more important than the form. What is required is that the contracting parties must appear personally before the solemnizing officer and declare that they take each other as husband and wife in the presence of at least 2 witnesses.
NO AUTHORITY TO SOLEMNIZE MARRIAGE The person who is officiating the marriage must posses the legal authority to solemnize the marriage. Exception If either you or your spouse believed in good faith that the person solemnizing your marriage had the legal authority to do so, your marriages is valid Fraud cannot stand as a ground to nullify the marriage because this is not one of the frauds listed under the restrictive enumeration of Art. 46 of the Family Code.
ABSENCE OF ESSENTIAL REQUIREMENTS LACK OF LEGAL CAPACITY TO MARRY At least 18 years of age Old rules: The marrying age for men was 16, and for women, 14. If either party is below 18 years of age, the marriage is VOID even if the parents gave their consent.
HOMOSEXUAL MARRIAGES The difference in gender is regarded as an essential element in a marriage See Art. 1, Family Code
INCESTUOUS MARRIAGES The horror of inbreeding is depicted by the abnormal offspring from incestuous unions. Philippine law safeguards the health and welfare of the population by prohibiting marriages between “Close” relatives. 2 types of marriages expressly labeled as incestuous and therefore void for the beginning: Marriages between ascendants and descendants of any degree Marriages between brothers and sisters whether full or halfblood.
VOID MARRIAGES FOR REASONS OF PUBLIC POLICY Between collateral blood relatives within the 4th civil degree (first cousins) whether legitimate or illegitimate Between stepparents and stepchildren Parents-in-law and children-in-law Adopting parent and the adopted child Surviving spouse of the adopting parent and the adopted child Surviving spouse of the adopted child and the adopter Adopted child and a legitimate child of the adopter Between adopted children of the same adopter Marriages between parties where one, with the intention to marry the other, killed that other person’s spouse or his or her own spouse.
ILLEGAL MARRIAGES (Bigamy / Polygamy) Observance of the seriatim rule (one marriage at a time) Exeption: Muslims MARRIAGES CONTRACTED THROUGH MISTAKE OF IDENTITY Equivalent to absence of consent
MARRIAGES THAT HAVE NOT COMPLIED WITH RECORDING REQUIREMENTS The law makes the subsequent marriage “null and void” if the recording requirements in the appropriate civil registry and registry of property are not met. IF you got married again with full knowledge of the fact that there was a failure to comply with the recording requirements of the law, you may face criminal liability for bigamy.
MARRIAGES IN WHICH AT LEAST ONE OF THE PARTIES IS PSYCHOLOGICALLY INCAPACITATED Psychological incapacity is a term of art that has been used and abused for over two decades.
EO 227 (July 17, 1987) Created Article 36, offering psychological incapacity as a new ground for the declaration of nullity of marriage Lawyers now use various forms of personality disorder to show the existence of psychological incapacity: Homosexuality, mental retardation, irresponsibility, promiscuity, alcoholism, compulsive gambling, infidelity, low intelligence, explosive temper, drug use, excessive jealousy, criminal behaviour, continuous and prolonged unwillingness to engage in sexual intercourse, abandonment, immaturity, etc etc etc
Some experts say that taken as a whole, these conditions may help from the bases for psychological incapacity. INABILITY OR FAILURE TO UNDERSTAND AND TO COMPLY WITH THE MARITAL DUTIES AND OBLIGATIONS IMPOSED BY THE FAMILY CODE IS THE GENERAL GROUND USED IN PSYCHOLOGICAL INCAPACITY ISSUES. Art. 36 does not require that both spouses should be psychologically incapacitated.
CANON 1095 The essence of psychological incapacity as a ground was derived from Canon 1095, par. 3, of the New Code of Canon Law (1983) which provides: Can. 1095 The following are incapable of contracting marriage: 1/ those who lack the sufficient use of reason; 2/ those who suVer from a grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted; 3/ those who are not able to assume the essential obligations of marriage for causes of a psychic nature.
PSYCHOLOGICAL INCAPACITY: UNDEFINED Undefined by Canon Law Undefined by Civil Law Some judges took the failure to define psychological incapacity in the Family Code as a blanket license to engage in judicial legislation and to set up precedents in uncharted waters of Philippine jurisprudence
DEFINING THE UNDEFINED The SC en banc made the first major attempt to define psychological incapacity in Santos vs. Santos (240 SCRA 20) “no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support.”
This conservative judicial stance gave the impression that the Court viewed psychological incapacity as a very exceptional human condition requiring the application of strict standards that should be examined thoroughly by the trial courts before marriage can be declared an absolute nullity Judges, out of an overabundance of caution have denied issuing any declarations of nullity of marriage following the strict standards in Santos.
10 RULES GOVERNING PSYCHOLOGICALINCAPACITY CASES These are the SC guidelines in the interpretation and application of Article 36 The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubts should be resolved in favor of the existence and continuation of the marriage and against dissolution and nullity; The root cause of the psychological incapacity must be a.) medically and clinically identified b.)alleged in the complaint c.) sufficiently proven by experts d.) clearly explained in the decision
The incapacity must be proven to be existing at the time of the marriage. The evidence must show that the illness was existing when the parties exchanged their vows. The incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolute against everyone of the same sex.
The illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Mild characteriological peculiarities, mood changes, occasional emotional outburst cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not refusal, neglect or difficulty, much less, ill will. The essential marital obligations must be embraced by Art. 68-71 of the FC as regards the husband and wife as well as Articles 220, 221 and 225 of the FC in regard to parents and their children. The non- compliance of these marital duties must be stated in the petition, proven by evidence and included in the decision;
The interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines, while not controlling, should be given great weight by the courts; The trial court must order the prosecuting attorney and the Solicitor General to appear as counsel for the State (defensor vinculi) 9 and 10, eliminated by AM No. 02-11-10-SC, #2 modified by Barcelona vs Barcelona